Information Note on the Court’s case-law 234

November 2019

Konkurrenten.no AS v. Norway (dec.) - 47341/15

Decision 5.11.2019 [Section II]

Article 1

Responsibility of States

State’s responsibility for alleged denial of access to court by the Court of Justice of the EFTA States: inadmissible

Article 6

Administrative proceedings

Article 6-1

Access to court

Locus standi denied to applicant by the Court of Justice of the EFTA States: inadmissible

Facts – Norway is a member of the European Free Trade Association (EFTA) and of the European Economic Area (EEA). The applicant, a company operating in the express bus market, lodged a series of complaints before t he EFTA Surveillance Authority (ESA) about an allegedly illegal State aid to the benefit of one of its competitors. Upon the ESA’s refusal to investigate the matter, the applicant brought the case directly before the EFTA Court. However, the EFTA Court dis missed its application as inadmissible on the ground that the applicant lacked locus standi , considering that its market position had not been substantially affected by the aid in question. This outcome was in accordance with the observations that the Norw egian State had submitted in those proceedings, as allowed by the relevant rules.

Law – Article 6 § 1: Since the EFTA was not party to the Convention, the application seemed a priori to be incompatible ratione personae with the provisions contained therein. However, the applicant had 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 proceed ings before the EFTA Court. Both were rejected as follows.

(a) As to the role of the respondent State in the proceedings in issue – T he Court did not find that the respondent State in the applicant’s case had been 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.

Fi rstly, there were no links between any domestic proceedings and those before the EFTA Court (contrast Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), 13645/05, 20 January 2009, Information Note 115 ). Secondly, the respondent State had 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, had availed itself of submitting observations in a case pending before the EFTA Court could not as such engage its respo nsibility under the Convention.

That was 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. If the EFTA Court were ultimately to decide the case more or less along the same line s as had been argued in those submissions, that could not in itself trigger the responsibility of the State concerned under the Convention; indeed, the EFTA Court was a judicial body, deciding cases on a legal basis, independently and impartially.

(b) As to whether the matters complained of had been the result of a structural shortcoming in the EFTA Court regime

(i) Methodology – In Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC] (45036/98, 30 June 2005, Information Note 76 ), the Court had mainly held that: (i) if an organisation to which a Contracting State had transferred jurisdiction was considered to protect fundamental rights in a manner which could be considered at least “equivalent” to that for which the Convention provided, the presumption would be that a State had not departed from the requirements of the Convention when it did no more than implement legal obligations flowing from its membership of the organisation; (ii ) the presumption could be rebutted if the protection of Convention rights was manifestly deficient in the case at hand.

However, the basis for that presumption was in principle lacking when it came to the implementation of EEA law at domestic level withi n the framework of the EEA Agreement, due to the specificities of the governing treaties, compared with those of the European Union; indeed: (i) in contrast to EU law, there was within the framework of the EEA Agreement itself no direct effect and no supre macy; (ii) although the EFTA Court had expressed the view that the provisions of the EEA Agreement were “to be interpreted in the light of fundamental rights” in order to enhance coherence between EEA law and EU law, the EEA Agreement did not include the E U Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention.

That said, the issue in this case was not whether Norway could be held responsible under the Convention for implementing EEA law, but rather whether it was responsible for the alleged denial of access to a court by the EFTA Court when it had dismissed the applicant’s case. However, this responsibility would only come into play if, and to the extent that, the alleged violati on could be attributed to a structural shortcoming in the procedural guarantees afforded under the organisational and procedural regime of the EFTA Court. The test in that connection was whether the procedural regime was manifestly deficient when compared with the Convention requirements (see Gasparini v. Italy and Belgium (dec.), 10750/03, 12 May 2009, Information Note 119 ).

(ii) Application in the instant case – Against the following background, no appearance of any manifest deficiencies in the protection of the applicant’s Convention rights could be discerned.

– Presumption : Given that the EFTA Court had been set up to operate as a judicial body similar to the Court of Justice of the European Union (CJEU), and that the essential procedural principles governing the operation of the EFTA Court had been inspired by those of the CJEU, the only starting-point could be that there were no such manifest deficiencies. This was indeed confirmed by specific pr ovisions in the EEA and ESA/Court Agreements, the EFTA Court’s Rules of Procedure and its case-law as the parties and the ESA had presented it. In particular, the EFTA Court was a body of independent and impartial judges which delivered reasoned decisions based on proceedings that were public and adversarial.

– Absence of rebuttal : The applicant had not rebutted the strong presumption stemming from the above. Firstly, the applicant had been fully involved in the EFTA Court proceedings and had had every opp ortunity to plead the admissibility of its application and to present that court with evidence to prove that it met the criteria for legal standing. Secondly, the EFTA Court had given detailed reasons as to why the applicant did not have legal standing in accordance with the applicable rules.

Conclusion: inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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