SECOND SECTION

DECISION

Application no. 47341/15 KONKURRENTEN.NO AS against Norway

The European Court of Human Rights (Second Section), sitting on 5 November 2019 as a Chamber composed of:

Robert Spano, President, Marko Bošnjak, Valeriu Griţco, Egidijus Kūris, Ivana Jelić, Arnfinn Bårdsen, Saadet Yüksel, judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 September 2015,

Having deliberated, decides as follows:

THE FACTS

1 . The case originated in an application (no. 47341/15) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian company, Konkurrenten.no AS (“the applicant”), on 18 September 2015.

2 . The applicant was represented by Mr J. Midthjell, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mr M. Emberland of the Attorney General ’ s Office (Civil Matters), assisted by R. Nordeide and M. Schei, Attorneys.

3 . The applicant alleged that the respondent State was responsible for it having been refused “access to a court” and a sufficiently reasoned decision under Article 6 of the Convention when the Court of Justice of the European Free Trade Association States (the EFTA Court) dismissed its application to have two decisions taken by the EFTA Surveillance Authority (ESA) annulled.

4 . On 28 August 2018 notice of the application was given to the Government .

5 . The President of the Chamber granted leave to the ESA to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.

A. The circumstances of the case

6 . The facts of the case may be summarised as follows.

1. European Economic Area

7 . The respondent State is a member of the European Free Trade Association (EFTA) and party to the 1992 Agreement on the European Economic Area (the EEA Agreement), entered into by three of the EFTA Member States (Iceland, Liechtenstein and Norway (the EEA EFTA States)), the European Union (EU) and the EU Member States.

8 . The EEA Agreement extends the EU internal market to the EEA EFTA States by creating rules applicable to them equivalent to those applicable to the EU Member States under the EU Treaties and acts adopted in application of those treaties. Accordingly, the substantive rules in the EEA Agreement, within the areas covered by that agreement, essentially mirror the corresponding rules today found in the Treaty on the Functioning of the European Union (TFEU). They include the rules on State aid provided for in Articles 107 et seq. of the TFEU, the equivalents of which are found in Articles 61 et seq. of t he EEA Agreement (see paragraph 27 below).

9 . As to the supervision and enforcement of the EEA Agreement in respect of the EEA EFTA States, the ESA and the EFTA Court were, pursuant to Article 108 of the EEA Agreement (see paragraph 27 below), established in accordance with a separate agreement between the EEA EFTA States (the ESA/Court Agreement – see paragraph 28 below). The EFTA Court deals with direct actions from EEA EFTA States, the ESA and individuals, as well as requests for advisory opinions submitted by the national courts of the EEA EFTA States. Supervision and enforcement of the EEA Agreement in respect of the EU and its Member States remain with the EU institutions, notably the European Commission and the Court of Justice of the European Union (CJEU), in matters concerning State aid.

2. State aid proceedings in which the applicant was involved

10 . The applicant is a company operating in the express bus market in Norway.

11 . Sporveien Oslo AS (Sporveien) was a company owned and controlled by the Oslo municipality. Sporveien had three subsidiaries, including Unibuss AS, which had its own subsidiary, Unibuss Ekspress AS, which, through another subsidiary, Lavprisekspressen.no AS, ran an express bus service on the same route as the applicant.

12 . On 11 August 2006 the applicant complained to the ESA that Sporveien had been receiving State aid, in breach of the EEA Agreement. The ESA closed that case on 21 June 2010, stating as follows:

“...in view of the termination of the incompatible existing State aid on 30 March 2008, [the ESA] considers that no further measures are required in this case.”

13 . On 2 September 2010 the applicant brought the decision of 21 June 2010 before the EFTA Court, which on 22 August 2011 annulled it (EFTA Court Case E-14/10 Konkurrenten.no AS v ESA ( Konkurrenten I ) [2011] EFTA Ct. Rep. 255).

14 . On 8 September 2011 the applicant filed further complaints with the ESA.

15 . On 8 February 2012 the applicant served a pre-litigation notice on the ESA, as it had not followed up the judgment of 22 August 2011 (see paragraph 13 above) by initiating an investigation into the alleged granting of State aid to Sporveien.

16 . On 28 March 2012 the ESA opened a formal investigation into the possible granting of State aid to Sporveien (then Oslo Sporveier and Sporveisbussene).

17 . On 19 December 2012 the ESA issued a decision concerning the applicant ’ s complaints lodged in 2006 (see paragraph 12 above) (Dec. No. 519/12/COL). It concluded that some of the measures did not constitute State aid, and that the remainder constituted existing aid (aid which had existed prior to the entry into force of the EEA Agreement) which had been terminated. The investigation was therefore closed.

18 . On 8 May 2013 the ESA issued a decision concerning the applicant ’ s complaints lodged in 2011 (see paragraph 14 above) (Dec. No. 181/13/COL). It found that some of the measures did not constitute State aid, and that the remainder had been grants on the basis of an existing aid system. No formal investigation was therefore opened.

19 . On 16 August 2013 the applicant applied to the EFTA Court under the second paragraph of Article 36 of the ESA/Court Agreement for annulment of the two above decisions (see paragraphs 17-18 above).

20 . Pursuant to Article 20 of Protocol 5 to the ESA/Court Agreement, the Registrar of the EFTA Court notified the Governments of the EFTA States, the European Union and the European Commission of the case instituted by the applicant against the ESA. On 29 July 2014 the Norwegian Government submitted written observations to the EFTA Court in accordance with that provision (see paragraph 27 below). The European Commission submitted its own comments the following day, whereas Sporveien applied for and was granted leave to intervene in the proceedings to support the ESA pursuant to Article 36 of Protocol 5 to the ESA/Court Agreement (ibid.).

21 . On 28 January 2015 the EFTA Court held a hearing. In addition to representatives for the parties – the applicant and the ESA – and Sporveien, representatives for the respondent State and the European Commission attended and presented arguments during the hearing.

22 . On 20 March 2015 the court dismissed the application of 16 August 2013 as inadmissible (EFTA Court case E-19/13 Konkurrenten.no AS v ESA (Konkurrenten II) [2015] EFTA Ct. Rep. 52) .

23 . Following lengthy discussions concerning the applicant ’ s position in respect of the two contested decisions and the legal interest required for a company to be granted standing in cases and decisions of the type at issue – most notably that the applicant ’ s market position had been sufficiently substantially affected by the aid in question – the EFTA Court concluded that the applicant did not have legal standing in respect of either decision.

B. Relevant international material

24 . The Agreement on the European Economic Area, signed in Oporto on 2 May 1992, contains the following relevant provisions:

Article 61

“1. Save as otherwise provided in this Agreement, any aid granted by EC Member States, EFTA States or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Contracting Parties, be incompatible with the functioning of this Agreement.

2 . The following shall be compatible with the functioning of this Agreement: ...”

Article 62

1 . All existing systems of State aid in the territory of the Contracting Parties, as well as any plans to grant or alter State aid, shall be subject to constant review as to their compatibility with Article 61. This review shall be carried out:

...

(b) as regards the EFTA States, by the EFTA Surveillance Authority according to the rules set out in an agreement between the EFTA States establishing the EFTA Surveillance Authority which is entrusted with the powers and functions laid down in Protocol 26. ...”

Article 108

“1. The EFTA States shall establish an independent surveillance authority (EFTA Surveillance Authority) as well as procedures similar to those existing in the Community including procedures for ensuring the fulfilment of obligations under this Agreement and for control of the legality of acts of the EFTA Surveillance Authority regarding competition.

2 . The EFTA States shall establish a court of justice (EFTA Court).

The EFTA Court shall, in accordance with a separate agreement between the EFTA States, with regard to the application of this Agreement be competent, in particular, for:

(a) actions concerning the surveillance procedure regarding the EFTA States;

(b) appeals concerning decisions in the field of competition taken by the EFTA Surveillance Authority;

(c) the settlement of disputes between two or more EFTA States.”

25 . The Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (the ESA/Court Agreement), signed in Oporto on 2 May 1992, contains the following relevant provisions:

Article 3

“... 2. In the interpretation and application of the EEA Agreement and this Agreement, the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by the relevant rulings by the Court of Justice of the European Communities given after the date of signature of the EEA Agreement and which concern the interpretation of that Agreement or of such rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community in so far as they are identical in substance to the provisions of the EEA Agreement or to the provisions of Protocols 1 to 4 and the provisions of the acts corresponding to those listed in Annexes I and II to the present Agreement.”

Article 27

“A court of justice of the EFTA States, hereinafter referred to as the EFTA Court, is hereby established. It shall function in accordance with the provisions of this Agreement and of the EEA Agreement.”

Article 36

“The EFTA Court shall have jurisdiction in actions brought by an EFTA State against a decision of the EFTA Surveillance Authority on grounds of lack of competence, infringement of an essential procedural requirement, or infringement of this Agreement, of the EEA Agreement or of any rule of law relating to their application, or misuse of powers.

Any natural or legal person may, under the same conditions, institute proceedings before the EFTA Court against a decision of the EFTA Surveillance Authority addressed to that person or against a decision addressed to another person, if it is of direct and individual concern to the former.

The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

If the action is well founded the decision of the EFTA Surveillance Authority shall be declared void.”

26 . Protocol 3 to the ESA/Court Agreement on the functions and powers of the EFTA Surveillance Authority in the field of State aid contains the following provision:

Article 1

“The EFTA Surveillance Authority shall, in cooperation with the EFTA States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the EEA Agreement.

If, after giving notice to the parties concerned to submit their comments, the EFTA Surveillance Authority finds that aid granted by an EFTA State or through EFTA State resources is not compatible with the functioning of the EEA Agreement having regard to Article 61 of the EEA Agreement, or that such aid is being misused, it shall decide that the EFTA State concerned shall abolish or alter such aid within a period of time to be determined by the Authority.

If the EFTA State concerned does not comply with this decision within the prescribed time, the EFTA Surveillance Authority or any other interested EFTA State may, in derogation from Articles 31 and 32 of this Agreement, refer the matter to the EFTA Court directly. ...”

27 . Protocol 5 to the ESA/Court Agreement on the Statute of the EFTA Court contains the following relevant provisions:

Article 20

“The Registrar shall notify the Governments of the EFTA States, the EFTA Surveillance Authority, the Union and the European Commission of any case pending before the Court. Within two months of this notification, the EFTA States, the EFTA Surveillance Authority, the Union and the European Commission shall be entitled to submit statements of case or written observations to the Court.”

Article 32

“Judgments shall state the reasons on which they are based. They shall contain the names of the Judges who took part in the deliberations.”

28 . The EFTA Court ’ s Rules of Procedure, last amended in 2012, contain the following relevant provision:

Article 87

“1. A party applying to the Court for a decision on a preliminary objection or other preliminary plea not going to the substance of the case shall make the application by a separate document.

The application must state the pleas of fact and law relied on and the form of order sought by the applicant; any supporting documents must be annexed to it.

2 . As soon as the application has been lodged, the President shall prescribe a period within which the opposite party may lodge a document containing a statement of the form of order sought by that party and its pleas in law.

3. Unless the Court decides otherwise, the remainder of the proceedings shall be oral.

4. The Court shall decide on the application or reserve its decision for the final judgment.

If the Court refuses the application or reserves its decision, the President shall prescribe new time-limits for the further steps in the proceedings.”

COMPLAINT

29 . The applicant complained that the EFTA Court ’ s dismissal of 20 March 2015 of its complaints against the decisions taken by the ESA on 19 December 2012 and 8 May 2013 respectively had violated its right of “access to a court” and right to a fair trial. It relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

30 . The Government contested that argument.

THE LAW

A. The parties ’ and third-party submissions

31 . The applicant maintained that there had been a breach of Article 6 of the Convention because the EFTA Court had denied it “access to a court” without adequate reasons, and that the European Court of Human Rights had to hold Norway liable. It submitted that Norway ’ s responsibility under the Convention was engaged because Norway had been a party to the proceedings before the ESA, and when the applicant had wished to challenge the ESA ’ s decision, it could under Norwegian legislation and the ESA/Court Agreement only do so by turning to the EFTA Court. Before that court, the Norwegian State had in turn availed itself of its right to submit written comments and attended the hearing, where it had argued that the applicant ’ s case was inadmissible. Norway had therefore intervened in the proceedings before the EFTA Court in a manner that required that liability be attributed to it. In that connection, the applicant submitted that Norway was responsible for the proceedings in question because it had been party to the ESA/Court Agreement and had thereby created a system that did not sufficiently protect the fundamental rights of individuals. Norway was also the primary beneficiary of that agreement, in so far as that agreement and the Norwegian implementing legislation meant that an applicant had no other ways to seek compensation when the EFTA Court dismissed an application before it. The EFTA Court ’ s dismissal of the applicant ’ s case thus meant that Norway was protected from any compensation claims.

32 . Furthermore, the applicant argued that there had been no other legal avenues in the respondent State ’ s legal system through which its Convention grievances could have been appropriately addressed. The applicant had submitted its Convention arguments to the EFTA Court, the proceedings before which had to be considered the only remedy it could exhaust.

33 . The Government submitted that the application effectively targeted the EFTA Court and that the complaint was therefore incompatible ratione personae with the provisions of the Convention. In any event, the EEA and ESA/Court Agreements offered a protection of fundamental rights equivalent to that under the Convention and in so far as the complaint could be considered compatible ratione personae with the Convention, it was therefore manifestly ill-founded. The Government also argued that the applicant ’ s complaint did not relate to any “civil rights” in the sense that that term was used in Article 6 of the Convention. In any event, the proceedings at issue had not entailed a violation of that provision either in respect of “access to a court” or the reasons provided by the EFTA Court in its inadmissibility decision.

34 . Moreover, the Government maintained that the applicant could have instituted proceedings before the domestic courts for a declaratory judgment to the effect that the applicant ’ s Convention rights had been breached. Compensation could also possibly have been claimed through that avenue.

35 . The ESA maintained that the respondent State could not be held responsible for having intervened in the proceedings before the EFTA Court in a manner that had led to a denial of access to justice. Moreover, it held that in the EEA legal order there was a system offering a protection of human rights equivalent to that under the Convention and that there had not been any manifest deficiencies in the protection of the applicant ’ s rights because of the standing rules applied by the EFTA Court in the instant case.

B. The Court ’ s assessment

36 . The applicant has requested the Court to hold that the respondent State has violated Article 6 of the Convention in connection with proceedings before an international tribunal, namely the EFTA Court. Since the EFTA is not party to the Convention, the Court agrees with the Government that the application seems a priori to be incompatible ratione personae with the provisions contained therein (see, for example, Boivin v. 34 Member States of the Council of Europe (dec.), no. 73250/01, 9 January 2008; Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008; see also Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 and 25 others, 16 October 2007).

37 . However, the applicant has provided two different arguments as to why the respondent State ’ s responsibility under the Convention pursuant to Article 1 might nonetheless have been engaged in the context of the proceedings before the EFTA Court. Firstly, it has argued that the respondent State was actively engaged in the specific proceedings at issue. Secondly, it has argued that the respondent State, when the ESA and the EFTA Court were established, created and transferred jurisdiction to an international organisation which did not in general offer a protection of fundamental rights equivalent to that under the Convention, and that the protection had in particular been manifestly deficient in the case of the applicant.

38 . As to the applicant ’ s first argument, the Court notes that according to its case-law, an application directed against a Contracting State which has transferred jurisdiction to an international organisation, and which concerns proceedings for a preliminary ruling by a court of that organisation, may be compatible ratione personae with the provisions of the Convention where those proceedings have been initiated by a court of that State (see Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), no. 13645/05, 20 January 2009).

39 . As to the applicant ’ s second argument, the Court has held in cases such as Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi v. Ireland ([GC], no. 45036/98, §§ 152-153, ECHR 2005 ‑ VI) that the Convention does not prohibit Contracting Parties from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity, but that they retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention. As a consequence, Contracting States would engage their responsibility under the Convention should they transfer some of their sovereign powers to an international organisation whose internal litigation mechanisms are manifestly deficient when compared with the Convention requirements (see Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009).

40 . Turning to the facts of the instant case and, firstly, the respondent State ’ s role in the proceedings at issue, the Court observes that those proceedings related to decisions by the ESA and were initiated with an application lodged directly by the applicant with the EFTA Court; it was not a matter of a domestic court turning to it for a preliminary advisory opinion (see paragraph 13-22 above). Before the EFTA Court the State in question acted within the limits of Protocol 5 to the ESA/Court Agreement, which allows all governments of the EEA EFTA States, following notification by the EFTA Court ’ s Registrar, to submit written observations in any case pending before that court (see paragraph 27 above). Moreover, it made, as allowed by the EFTA Court ’ s Rules of Procedure, oral submissions during the hearing before the EFTA Court.

41 . The Court accordingly notes that there were no links between any domestic proceedings and those before the EFTA Court. Moreover, the respondent State had no influence on those proceedings apart from what may or may not have followed from the persuasiveness of its arguments as they appeared from the written and oral submissions to the EFTA Court. In the Court ’ s view, the fact that an EEA EFTA State, in accordance with the relevant procedural rules, avails itself of submitting observations in a case pending before the EFTA Court cannot as such engage its responsibility under the Convention. That is the case irrespective of the State ’ s position on the issue to be decided by the EFTA Court or of the quality of its submissions. Should the EFTA Court ultimately decide the case more or less along the same lines as argued in those submissions, that cannot in itself trigger the responsibility of the State concerned under the Convention. The EFTA Court is a judicial body, deciding cases on a legal basis, independently and impartially. On those grounds, the Court does not find that the respondent State in the applicant ’ s case was involved in the EFTA Court proceedings in such a manner as to justify attributing responsibility for compliance of those proceedings with Article 6 of the Convention to it.

43 . On this point the Court emphasises that the basis for the presumption established by Bosphorus is in principle lacking when it comes to the implementation of EEA law at domestic level within the framework of the EEA Agreement, due to the specificities of the governing treaties, compared to those of the European Union. For the purpose of the present analysis, two distinct features need to be specifically highlighted. Firstly, and in contrast to EU law, there is within the framework of the EEA Agreement itself no direct effect and no supremacy (contrast Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi , cited above, § 164) . Secondly, and although the EFTA Court has expressed the view that the provisions of the EEA Agreement “are to be interpreted in the light of fundamental rights” in order to enhance coherency between EEA law and EU law (see, inter alia , the EFTA Court ’ s judgment in its case E-28/15 Yankuba Jabbi [2016] para. 81), the EEA Agreement does not include the EU Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention.

44 . That said, the Court observes that the issue in this case is not whether Norway can be held responsible under the Convention for implementing EEA law, but rather whether it is responsible for the alleged denial of access to a court by the EFTA Court when it dismissed the applicant ’ s case. As already explained (see paragraph 39 above), this responsibility will in any event only come into play if, and to the extent that, the alleged violation can be attributed to a structural shortcoming in the procedural guarantees afforded under the organisational and procedural regime of the EFTA Court, the test being whether the procedural regime is manifestly deficient when compared with the Convention requirements.

45 . Taking into account the fact that the EFTA Court was set up to operate as a judicial body similar to the CJEU, and that the essential procedural principles governing the operation of the EFTA Court were inspired by those of the CJEU, the only starting point can be that there are no such manifest deficiencies. This is indeed confirmed by specific provisions in the EEA and ESA/Court Agreements, the EFTA Court ’ s Rules of Procedure and its case-law as the parties and the ESA have presented it. In this connection, the Court notes in particular that the EFTA Court is a body of independent and impartial judges who deliver reasoned decisions based on proceedings that are public and adversarial.

47 . Furthermore, as to the reasons provided by the EFTA Court for its inadmissibility conclusions, the Court reiterates that Article 6 of the Convention requires courts to adequately state the reasons on which their decisions are based. Without requiring a detailed answer to every argument put forward by a complainant, this obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, for example, mutatis mutandis , Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018). In the instant case, the EFTA Court gave detailed reasons as to why the applicant did not have legal standing in accordance with the applicable rules.

49 . That being the case, the Court does not find it necessary to examine the Government ’ s objection that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention, or to reach a conclusion in respect of their assertion that the application is incompatible with the provisions of the Convention under Article 35 § 3. Nor does it need to examine whether the applicant ’ s case before the EFTA Court concerned its “civil rights and obligations” within the meaning of Article 6. The applicant ’ s complaint to the Court is in any event manifestly ill-founded within the meaning of Article 35 § 3 and the application must therefore be declared inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 November 2019 .

Hasan Bakırcı Robert Spano Deputy Registrar President