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UK could get outsized power if it joins EFTA Court after Brexit - Court head
November 29, 2017 / 6:12 PM / in 17 days

UK could get outsized power if it joins EFTA Court after Brexit - Court head

LONDON (Reuters) - The head of the EFTA Court has made a fresh attempt to convince Britain to join after Brexit, saying London could be allowed two judges rather than the one given to existing members Norway, Lichtenstein and Iceland.

Founded in 1994, the European Free Trade Association Court oversees access and membership to the single market for non-EU members Iceland, Liechtenstein and Norway within the framework of EU rulings and European law.

It means the three countries are not tied to the European Court of Justice (ECJ), an institution that those who supported Britain’s vote last year to leave the European Union argued impedes national sovereignty.

The key snag for London, is that while the EFTA system of enforcing rules is considered less rigorous than the ECJ‘s, because the two institutions “follow” each others’ rulings, the ECJ would effectively still have influence in UK law.

Carl Baudenbacher, who has headed the EFTA court for over 20 years, met the British government last week and thinks that while his proposal would not be Britain’s first choice solution, it would be practical.

“Britain could go for two judges (in the EFTA court)” Baudenbacher told Reuters. “I do not see any drawbacks”.

Three options are available, he said: Britain could become a full-fledged EFTA member; it could “dock” to the court and adopt some of its principles on a long-term basis; or it could dock for a shorter period, during the post-Brexit transition.

Britain’s Brexit minister David Davis has previously said the UK government had considered becoming a full EFTA member but ruled it out as “the worst of all outcomes”.

Officials have not commented on the “docking” options, which were only sketched out in secret Swiss and EU negotiation papers. Switzerland is a member of EFTA but not the Court.

“The question is what is the alternative (for the UK),” Baudenbacher said. “Anything else would take years,” adding all parties would need to be “open-minded”.

Baudenbacher’s office said he was giving his personal views rather than representing the court itself during his trip to London.

Norway has already expressed doubts about Britain’s re-joining EFTA itself, which it helped to found in 1960 but later left. Iceland and Liechtenstein have made some positive noises and top EU officials have also flagged it as option, however.

Among the advantages put forward by Baudenbacher, is that national supreme courts are not under written obligation to refer European law cases to the EFTA Court and decisions by it are “strictly advisory” rather than mandatory.

However, despite the proposals from Baudenbacher, the current feeling among Brexit watchers is that London is instead sizing up a trade deal along the lines of one the EU agreed last year with Canada.

Chief EU negotiator Michel Barnier has long cited the Canadian example, and since EU leaders agreed last month to ready negotiations on the future relationship with the UK, the 27 states have looked closely at the Canadian trade deal as a model, given British demands, EU diplomats say.

(This version of the story has been corrected throughout to clarify EFTA Court president giving personal view)

Reporting by Marc Jones; Editing by Alison Williams

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