Judgment — ECLI:EU:C:1999:307
Date: 1999-06-15
Language of the case: Swedish
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Social Policy
Concepts: Employment protection and protection of employees in the event of the insolvency of their employer;Definition of acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary 
I — Introduction I - 3553 
II — Facts and procedure I - 3554 
III — The questions referred I - 3555 
IV — The relevant provisions I - 3556 
V — Admissibility of the first and second questions I - 3557 
A — The jurisdiction of the Court to reply to the questions I-3558 
(a) The rule in Dzodzi I - 3559 
(b)The rule in Dzodzi and this case I-3562 
B — The EEA Agreement as a possible legal basis for the Court's jurisdiction to 
examine the questions in this case I - 3567 
VI — Merits of the first two questions I-3568 
A — Preliminary observations I-3568 
B — The interpretation criteria followed in previous judgments I-3570 
C — The EEA Agreement and Community law; a comparative approach I-3571 
VII — The third question I - 3574 
VIII — Conclusion I-3578 
I — Introduction 
1. In this case, the Court of Justice has been 
asked to give a preliminary ruling on three 
questions referred by the Stockholms Tings­
rätten (District Court), Sweden. Those 
questions raise three important issues: 
firstly, the scope of the Court's jurisdiction; 
secondly, the obligations which the EEA 
Agreement 1 imposes on EFTA States; and 
thirdly, the temporal application of the 
rules of Community law. 
* Original language: Greek. 
1 — Agreement on the European Economic Area (OJ 1994 L 1, 
p. 1). 
I - 3553 
OPINION OF MR COSMAS — CASE C-321/97 
II — Facts and procedure 
2. Ulla-Brith Andersson and Susanne 
Wåkerås Andersson ('the applicants') were 
employees of the company Aktiebolaget 
Kinna Installationsbyrå ('the company'), 
which became insolvent on 17 November 
1994, that is to say prior to Sweden's 
accession to the Community. The receiver 
rejected their claim for payment of wages 
covered by the wages guarantee on the 
ground that they were close relatives 
(spouse and mother) of the sole owner of 
the company's share capital, and that they 
were therefore not entitled to any compen­
sation under the national legislation in 
force at the time. They brought an action 
for damages against the Swedish State 
claiming that the latter was under an 
obligation to compensate them for the 
damage they had suffered as a result of its 
failure to fulfil its obligation to implement 
Council Directive 80/987/EEC of 20 Octo­
ber 1980 on the approximation of the laws 
of the Member States relating to the 
protection of employees in the event of 
the insolvency of their employer 2 ('the 
directive'), which is covered by the EEA 
Agreement. In particular, they relied on the 
general principles of Community law laid 
down by the Court of Justice in its judg­
ment in Joined Cases C-6/90 and C-9/90, 3 
which, according to the applicants, have 
become part of the EEA Agreement by 
virtue of Article 6 thereof. They maintain, 
therefore, that that agreement gives them 
the same right to compensation for failure 
to transpose the wage protection directive 
as they would have enjoyed if Sweden had 
been a member of the European Union at 
the time of their employer's insolvency. 
3. Under Swedish law, decisions on the 
payment of wages covered by the guarantee 
rest with the receiver. According to Arti­
cle 7 of the Lönegarantilag (Wage Protec­
tion Law), payment of claims for wages or 
other remuneration is permitted where 
there is a preferential right under Article 12 
of the Förmånsrättslag (Preferential Rights 
Law). That article, in the version in force at 
the time of the insolvency, provided that an 
employee who, less than six months before 
the petition in bankruptcy, owned, alone or 
jointly with a close relative, at least one 
fifth of the company, had no preferential 
right. The same also applied where the 
shares were owned by a close relative of the 
employee. 
4. It should be noted that the EEA Agree­
ment provides for derogations from certain 
provisions of Directive 80/987, in particu­
lar for Sweden. An employee, or the 
survivors of an employee, who on his own 
or together with his close relatives was the 
owner of an essential part of the employer's 
undertaking or business and had a con­
siderable influence on its activities, is 
excluded from the scope of the directive. 
2 — OJ 1989 L 283, p. 23. 
3 —Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR 
I-5357. 
I - 3554 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
However, as the referring court observes, if 
the Swedish rules on wage guarantees had 
been adapted to comply with the relevant 
Community directive, including the dero­
gations from that directive provided for in 
the case of Sweden, the applicants would 
have been entitled to receive compensation 
for their unpaid wages. They did not 
belong to the category of employees exclu­
ded from the scope of the directive, since 
they did not own, either on their own or 
together with a close relative, an essential 
part of the employer's undertaking, and 
they did not have a considerable influence 
on its activities. The fact that one of their 
close relatives was the owner of an essential 
part of the undertaking did not preclude 
them de jure from receiving compensation 
under the directive, not even taking into 
account the derogations therefrom granted 
to Sweden. There is therefore no doubt that 
the receiver's refusal to pay the wages 
under the guarantee is not consistent with 
the rules of the directive as incorporated 
into the EEA Agreement. What, then, is the 
consequence of this finding? Can the appli­
cants claim compensation from the Swedish 
State on the basis of its failure to comply 
with the provisions of the EEA Agreement ? 
5. The Swedish State contends that the 
action is unfounded on the ground that 
prior to Sweden's accession to the Euro­
pean Union it was under no obligation to 
ensure that national law complied with 
those provisions of Community law in­
fringement of which creates a right to 
compensation enforceable before a Swedish 
court. 
ΙII — The questions referred 
6. The national court has referred the 
following questions to the Court of Justice 
for a preliminary ruling: 
'1 . Is Article 6 of the EEA Agreement to be 
interpreted as meaning that the legal 
principles laid down by the Court of 
Justice in, inter alia, Joined Cases 
C-6/90 and C-9/90 Francovich are part 
of EEA law, so that a State can be liable 
in damages towards an individual for 
not properly implementing Council 
Directive 80/987/EEC of 20 October 
1980, on the approximation of the 
laws of the Member States relating to 
the protection of employees in the 
event of the insolvency of their 
employer, during the period in which 
the State was only party to the EEA 
Agreement and had not acceded to the 
European Union? 
2. If the answer to Question 1 is in the 
affirmative, is Article 6 of the EEA 
Agreement to be interpreted as mean­
ing that Directive 80/987/EEC as well 
as the legal principles which the Court 
of Justice laid down in, inter alia, 
I - 3555 
OPINION OF MR COSMAS — CASE C-321/97 
Joined Cases C-6/90 and C-9/90 Fran-
covich prevail over domestic law if the 
State has not implemented the afore­
mentioned directive in the proper way ? 
3. If the answer to Question 1 is in the 
negative, does a State's accession to the 
European Union mean that Directive 
80/987/EEC as well as the legal princi­
ples which the Court of Justice laid 
down in Francovich prevail over 
domestic law even in regard to circum­
stances occurring during a period in 
which the State was only party to the 
EEA Agreement but before its acces­
sion to the European Union if the State 
has not implemented the aforemen­
tioned directive in the proper way?' 
IV — The relevant provisions 
7. Article 6 of the EEA Agreement pro­
vides: 
'Without prejudice to future developments 
of case-law, the provisions of this Agree­
ment, in so far as they are identical in 
substance to corresponding rules of the 
Treaty establishing the European Economic 
Community and the Treaty establishing the 
European Coal and Steel Community and 
to acts adopted in application of these two 
Treaties, shall, in their implementation and 
application, be interpreted in conformity 
with the relevant rulings of the Court of 
Justice of the European Communities given 
prior to the date of signature of this 
Agreement.' 
8. Article 7 of the EEA Agreement pro­
vides: 
'Acts referred to or contained in the 
Annexes to this Agreement or in decisions 
of the EEA Joint Committee shall be 
binding upon the Contracting Parties and 
be, or be made, part of their internal legal 
order as follows: 
(a) ... 
(b) an act corresponding to an EEC direc­
tive shall leave to the authorities of the 
Contracting Parties the choice of form 
and method of implementation.' 
9. Protocol 34 to the EEA Agreement on 
the possibility for courts and tribunals of 
EFTA States to request the Court of Justice 
of the European Communities to decide on 
I - 3556 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
the interpretation of EEA rules correspond­
ing to Community rules provides: 
'Article 1 
When a question of interpretation of provi­
sions of the Agreement, which are identical 
in substance to the provisions of the 
Treaties establishing the European Com­
munities, as amended or supplemented, or 
of acts adopted in pursuance thereof, arises 
in a case pending before a court or tribunal 
of an EFTA State, the court or tribunal 
may, if it considers this necessary, ask the 
Court of Justice of the European Commu­
nities to decide on such a question. 
Article 2 
An EFTA State which intends to make use 
of this Protocol shall notify the Depositary 
and the Court of Justice of the European 
Communities to what extent and according 
to what modalities the Protocol will apply 
to its courts and tribunals.' 
10. Protocol 35 of the EEA Agreement on 
the implementation of EEA rules states: 
'Sole Article 
For cases of possible conflicts between 
implemented EEA rules and other statutory 
provisions, the EFTA States undertake to 
introduce, if necessary, a statutory provi­
sion to the effect that EEA rules prevail in 
these cases.' 
11. Pursuant to point 24 of Annex XVIII 
to the EEA Agreement, Directive 80/987 is 
binding on the EFTA States. For the 
purposes of the EEA Agreement, the provi­
sions of the directive were specifically 
adapted for Sweden in such a way as to 
exclude from the scope of that directive 'an 
employee, or the survivors of an employee, 
who on his own or together with his close 
relatives was the owner of an essential part 
of the employer's undertaking or business 
and had a considerable influence on its 
activities'. 
V — Admissibility of the first and second 
questions 
12. The agents for the Swedish Govern­
ment, in their capacity as defendant in the 
main action and intervener in these pro­
ceedings, the Norwegian and Icelandic 
Governments and the Commission argued 
that the Court of Justice does not have 
I - 3557 
OPINION OF MR COSMAS — CASE C-321/97 
jurisdiction to examine the first and second 
questions. It must be noted first that those 
questions do not directly seek an interpre­
tation of the content of Directive 80/987 or 
clarification of the rule in Francovich, but 
rather to ascertain the consequences for an 
EFTA State, as Sweden was, of failure to 
comply with its obligations under the EEA 
Agreement. Can the Court of Justice exam­
ine such an issue specifically under Arti­
cle 177 of the EC Treaty? 
A — The jurisdiction of the Court to reply 
to the questions 
13. It is in principle conceivable for a 
provision of an international agreement, 
such as Article 6 of the EEA Agreement, to 
be examined under Article 177 of the 
Treaty if the ultimate aim of the reference 
by the national court is to obtain an 
interpretation of Community law in the 
context of the Community legal order. In 
that case, the text of international law 
forms an integral part of the Community 
legal order.4 
14. The questions in the present case do not 
fall into that category. They relate only to 
the particular framework of legal relation­
ships created outside the Community legal 
order by an international agreement, 
namely the EEA Agreement, which, at the 
time of the facts in the main proceedings, 
did not constitute a Community rule, in 
particular for Sweden. The difference is 
slight, but significant. The issue here is not 
the application of the regulatory provisions 
and general principles of Community law 
referred to by the national court within the 
context of the Community legal order, but 
rather their application, if at all, within the 
context of a different legal structure created 
by the EEA Agreement, and, in any event, 
within the legal system of a State which was 
not a member of the Union at the material 
time.5 
15. It should be noted that the Court of 
Justice, in its Opinion 1/91,6 concerning 
the original draft of the EEA Agreement, 
identified the differences between Commu­
nity law and that agreement as lying in the 
specific nature of the Community legal 
order, 'the objectives of which go beyond 
that of the agreement'. 7 It follows from 
that Opinion, which I shall analyse in 
greater detail later, that Member States of 
4 — Case 181/73 [1974] ECR 449. 
5 — This observation may be of major importance. Up to now, 
where the Court of Justice has examined international 
agreements between the Community and non-member 
countries in the context of a reply to questions referred 
for a preliminary ruling because they were regarded as 
forming an integral part of the Community legal order, it 
has done so in cases relating to the application of those 
agreements by Member States within the Community. In 
other words, the main action possessed the essential 
Community dimension required in order for a question 
referred for a preliminary ruling to be regarded as relating to 
a Community rule. See Case 17/81 Pabst & Richarz KG 
[1982] ECR 1331 (compatibility of import duty on the 
importation of spirits into Germany with the Association 
Agreement between the EEC and Greece); Case 270/80 
Polydor [1982] ECR 329 (compatibility of a restriction on 
imports of gramophone records into the United Kingdom 
with the Association Agreement between the EEC and 
Portugal); Case 104/81 Kupferberg [1982] ECR 3641 
(compatibility of the customs treatment of a product 
imported into Germany with the Association Agreement 
between the EEC and Portugal); and Case C-163/90 Legros 
[1992] ECR I-4625 (compatibility of customs treatment of 
motor vehicles imported into France with the Association 
Agreement between the EEC and Sweden). 
6 — Opinion 1/91 [1991] ECR I-6084. 
7 — Paragraph 16 of the Opinion cited in footnote 6, above. 
I - 3558 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
EFTA do not automatically subscribe to the 
Community legal order simply because they 
belong to the EEA. 
(a) The rule in Dzodzi 
16. However, the above findings are not in 
themselves sufficient to form the basis of a 
refusal by the Court of Justice to answer 
the first two questions under Article 177 of 
the Treaty. The Court is willing, in some 
cases, to examine the substance of ques­
tions which, although relating to the inter­
pretation of a Community rule, are sub­
mitted in the context of disputes which do 
not fall within the scope of Community 
law. I consider it essential to set out below 
the basic elements of that case-law. What 
the relevant decisions of the Court have in 
common is that they relate to situations 
governed by purely national provisions8 
which refer to, or reproduce the content of, 
Community law. Such provisions reflect the 
desire of the national legislature to afford 
to individuals falling within their scope the 
same treatment as that guaranteed by the 
Community legal order. 
17. More specifically, Thomasdünger9 and 
Gmurzynska10 concerned the interpreta­
tion of provisions of the Common Customs 
Tariff to which the applicable national 
legislation expressly referred or whose 
content it reproduced. 
In Dzodzi,11 the national court had sought 
the Court's assistance in a dispute in which 
it had been asked to apply rules in Belgian 
law requiring the spouse of a Belgian 
national to be treated in the same way as 
if her husband had been a national of 
another Member State of the Community. 
The question was, therefore, whether a 
national of Togo who was the widow of a 
Belgian national would be entitled to reside 
in Belgium if her husband had been a 
national of another Member State. 
In Kleinwort Benson,12 an English court 
requested the interpretation of a provision 
of the Brussels Convention with a view to 
applying a national law modelled on that 
Convention which laid down that, in 
determining the meaning or effect of any 
of its provisions, 'regard shall be had to any 
relevant principles laid down by the Eur­
opean Court in connection with Title II of 
the 1968 (Brussels) Convention and to any 
relevant decision of that Court as to the 
meaning or effect of any provision of that 
Title'. 
8 — See, however Hermès, cited in point 21 below. 
9 — Case 166/84 Thomasdünger [1985] ECR 3001. 
10 — Case C-231/89 Gmurzynska-Bscher (19901 ECR 1-4003. 
11 —Joined Cases C-297/88 and C-179/89 Dzodzi [1990] ECR 
I-3763. 
12 — Case C-346/93 Kleinwort Benson [1995] ECR 1-615. 
I - 3559 
OPINION OF MR COSMAS — CASE C-321/97 
In Fournier, 13 the Court interpreted the 
expression 'territory in which a vehicle is 
normally based', which was used in a 
Community directive the application of 
which was not at issue in the main pro­
ceedings but some of whose provisions 
were reproduced verbatim in a private 
agreement between central insurance 
bureaux. It was that agreement which the 
national court was asked to interpret and 
apply. 
Finally, in Leur-Bloem 14 and Giloy, 15 the 
Court was asked to give a preliminary 
ruling on the interpretation of directives 
concerning taxation and customs matters 
which, while not directly at issue in the 
main proceedings, were referred to by the 
applicable national legislation. 
18. With the exception of Kleinwort Ben­
son, the Court agreed to examine the 
questions referred for a preliminary ruling 
in all those cases. Indeed, it is notable that 
it did so despite the views to the contrary 
expressed by the Advocates General. 
In Thomasdünger, Advocate General Man­
cini concluded that the Court had no 
jurisdiction to reply to the questions sub­
mitted, on the ground that it would thereby 
be indirectly required to appraise internal 
rules. 
In Dzodzi and Gmurzynska, Advocate 
General Darmon based his negative posi­
tion on the risk that the Court's task would 
be reduced to delivering non-binding 
opinions in a context in which the national 
court would still be free to disregard them. 
In Kleinwort Benson, Advocate General 
Tesauro proposed that the rule in Dzodzi 
should be abandoned for good on the 
ground that, notwithstanding previous 
case-law, a broad interpretation of Arti­
cle 177 of the Treaty (a) did not appear to 
be conducive to the required uniform 
interpretation of Community law — which 
is the primary purpose of the preliminary 
ruling procedure -, (b) jeopardised the 
binding nature of the Court's decisions, 
and (c) was open to direct criticism as 
regards its usefulness for the national court. 
He states, characteristically, that the rule in 
Dzodzi 'in terms of general legal theory... 
flies in the face of the logic of the pre­
liminary-ruling procedure, actually result­
ing — let us admit it — in a misuse of 
procedure'.16 
Advocate General Jacobs, in his Opinions 
in Leur-Bloem and Giloy, concurred with 
13 — Case C-73/89 Fournier [1992] ECR I-5621. 
14 — Case C-28/95 Leur-Bloem [1997] ECR I-4161. 
15 — Case C-130/95 Giloy [1997] ECR I-4291. 16 — Point 27 of the Opinion. 
I - 3560 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
the objections raised in the past by previous 
Advocates General. First of all he questions 
how the purpose of ensuring that Commu­
nity law is uniformly applied in all the 
Member States is served in cases where the 
Court rules in disputes in which a Com­
munity rule is borrowed by a Member State 
and transposed to a non-Community con­
text. 17 In such circumstances, 'the threat to 
the proper application of Community law 
in the State concerned would at most be 
only indirect and temporary'. 18 On the 
other hand, he states that, when the Court 
is asked to interpret a Community rule 
outside its proper context, 'the Court runs 
the risk not only of failing to consider all 
relevant issues but also of being misled by 
extraneous factors' . 19 Moreover, even 
assuming that the Court is able to provide 
a proper interpretation of Community law 
in a dispute arising in a non-Community 
context, 'there is no certainty that the 
Court's ruling will be relevant to the 
dispute concerned'. 20 Finally, having iden­
tified other theoretical and practical diffi­
culties associated with the extensive appli­
cation of Article 177, he concludes 'that 
the Court should only rule in cases in which 
it is aware of the factual and legislative 
context of the dispute and that context is 
one contemplated by the Community rule', 
because that approach 'is the only one 
which is consistent with legal principles 
and with the purpose of Article 177'. 21 
19. At first sight, the scepticism of the 
Advocates General in their Opinions does 
not seem to have had any impact on the 
Court. I think, however, that a closer 
analysis of the aforementioned judgments 
shows that, while the rule in Dzodzi has 
not been abandoned, its scope has been 
reduced, or, in any event, stricter conditions 
have gradually been imposed on its appli­
cation. The intervention of the Community 
judicature, by way of a ruling on interpre­
tation, in areas which it would be wrong to 
regard as being of direct interest to the 
Community legal order, has been permitted 
in cases where the national legislature, in 
order to avoid undesirable disparities and 
to strengthen the uniform application of 
rules of law, has expressly, directly and 
unconditionally extended provisions taken 
straight from Community law to situations 
of a purely domestic nature, thereby requir­
ing the national court to follow the Court's 
interpretation. Where, however, the refer­
ence to the Community rule by the national 
legislature is not quite so comprehensive 
and urgent, and does not result in an 
absolute obligation on the part of the 
national court to interpret the applicable 
national provision in the way in which the 
Court will indirectly indicate, the Court of 
Justice cannot have jurisdiction. 
20. In short, the Court's jurisdiction is 
defined in principle by the two corner­
stones of the preliminary-ruling procedure : 
the principle of cooperation between the 
national court and the Court of Justice and 
the principle of the correct and uniform 
application of Community law. However, 
in some cases, its jurisdiction seems to 
extend beyond those limits and enter an 
area which is not clearly defined by the 
texts of primary Community law in pursuit 
17 — Point 47 of the Opinion. 
18 — Point 49 of the Opinion. 
19 — Point 52 of the Opinion. 
20 — Point 56 of the Opinion. 
21 — Point 75 of the Opinion. 
I - 3561 
OPINION OF MR COSMAS — CASE C-321/97 
of a different priority, the harmonisation of 
law in general. 
21. The latter observation is clearly borne 
out by the Court's recent judgment in 
Hermès,22 which concerned the interpreta­
tion of the international agreement on 
trade-related aspects of intellectual prop­
erty rights signed by the Community in the 
context of the Agreement establishing the 
World Trade Organisation. The Court 
considered that it had jurisdiction to inter­
pret provisions of that agreement, despite 
the fact that the case did not concern their 
application to a dispute relating to Com­
munity law, on the ground that 'where a 
provision can apply both to situations 
falling within the scope of national law 
and to situations falling within the scope of 
Community law, it is clearly in the Com­
munity interest that, in order to forestall 
future differences of interpretation, that 
provision should be interpreted uniformly, 
whatever the circumstances in which it is to 
apply'.23 
(b) The rule in Dzodzi and this case 
22. It is not my task here to give a full 
assessment of, and a positive or negative 
verdict on, the rule in Dzodzi. 
It should be noted, however, that the 
broadening of the Court's role within the 
context of the preliminary-ruling proce­
dure, as advocated in Dzodzi, is not a 
panacea for the protection and promotion 
of Community law. 
In my opinion it would be unwise to rely 
systematically on that rule and thereby to 
turn the Court, albeit for the sake of 
harmonising the rules of law or ensuring 
equal treatment, into a forum for determin­
ing whether extra-Community provisions 
are compatible with Community law. The 
search for such uniformity might be detri­
mental to Community law, particularly if, 
for the sake of harmonisation, we were to 
cease to have due regard for the specific 
and unique nature of the Community legal 
system. This case is a prime example of that 
risk. 
23. In any event, it is not necessary to seek 
revision of the rule in Dzodzi in order to 
substantiate my view that the Court should 
not examine the questions referred. I 
believe that they do not fall within the 
scope of that rule. Moreover, they do not 
relate directly to Directive 80/987 or to the 
rule in Francovich, but raise the issue of the 
interpretation of Article 6 of the EEA 
Agreement in conjunction with Directive 
80/987 and the judgment in Francovich 
with a view to determining how to apply 
those rules of Community case-law and 
written law outside the Community legal 
order. 
22 — Case C-53/96 Hermès [1998] ECR I-3603. 
23 — Paragraph 32. 
I - 3562 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
24. (i) My first objection to the idea that it 
is appropriate for the Court to answer the 
questions referred relates to the usefulness 
of the reply that has been requested. The 
Court has consistently held that the pur­
pose of the procedure under Article 177 of 
the Treaty is to provide a reply which the 
referring court can use in order to give 
judgment in the main proceedings. More­
over, the Court would refuse, even in the 
context of the rule in Dzodzi, to examine 
questions submitted to it, 'if it were appar­
ent... that the provision of Community law 
referred to the Court for interpretation was 
manifestly incapable of applying'.24 I 
believe that that exception is applicable in 
the present case, in so far as the questions 
referred attempt to transpose constituent 
parts of the Community legal order into the 
law of a State which has not acceded to that 
order. 
However, there are two reasons why the 
above arguments, though sound, do not 
satisfy me from a methodological point of 
view: firstly, responsibility for determining 
whether a question referred for a prelimin­
ary ruling is useful lies ultimately with the 
national court; and secondly, the view that 
the Community provisions and the case-
law relied on by the Swedish court in the 
present case are 'manifestly' inapplicable to 
the main action is based on an approach 
whereby the issues of substance are exam­
ined at the same time as the admissibility of 
the questions referred. In other words, in 
order to determine the extent to which the 
rule in Francovich is 'manifestly' inapplic­
able to the circumstances described by the 
national court, it is essential to examine the 
substance of the case. Raising such issues at 
the stage of considering the admissibility of 
the questions, in so far as it presupposes 
that they have already been held to be well-
founded, is not justified, even for practical 
reasons. 
25. (ii) There is a second objection to the 
admissibility of the questions referred 
which in my opinion is far more serious. 
The questions referred in the present case 
differ in one significant respect from those 
which were examined by the Court in 
Dzodzi. In this instance, the national court 
is not interested in the interpretation of a 
Community rule which it will itself apply to 
a dispute which has arisen outside the 
Community legal order, in accordance with 
the recommendations and limits laid down 
by the non-Community rule applicable in 
that dispute. The national court is asking 
directly in what way, to what extent and 
how strictly it should apply Community 
rules outside the Community legal order. 
That, however, does not fall within the 
Court's jurisdiction. As the judgment in 
Dzodzi expressly states, 'the jurisdiction of 
the Court is confined to considering provi­
sions of Community law only. In its reply to 
the national court, the Court of Justice 
cannot take account of the general scheme 
of the provisions of domestic law which, 
while referring to Community law, define 
the extent of that reference. Consideration 
of the limits which the national legislature 
may have placed on the application of 
Community law to purely internal situa­
tions, to which it is applicable only through 
the operation of the national legislation, is 
a matter for domestic law and hence falls 24 — Dzodzi, cited in footnote 11 above, paragraph 40. 
I - 3563 
OPINION OF MR COSMAS — CASE C-321/97 
within the exclusive jurisdiction of the 
courts of the Member State'.25 
26. Transposition of the abovementioned 
case-law to this case leads to the following 
conclusions. The first two questions are not 
concerned with the interpretation of Direc­
tive 80/987 or with clarification of the rule 
in Francovich. They seek to ascertain the 
extent to which the rule in Francovich can 
be applied to the main proceedings on the 
basis of the interpretation and application 
of Article 6 of the EEA Agreement. That 
article, like the agreement as a whole, is 
two-sided, having both a Community and a 
non-Community dimension. In the context 
of the questions referred in this case, it does 
not have a Community character, but is a 
rule of an international agreement which 
has been incorporated into Sweden's inter­
nal legal system in its capacity as an EFTA 
State, and not as a member of the Union, in 
accordance with the rules of national law 
and public international law. The referring 
court alone has jurisdiction, taking into 
account the general scheme of the provi­
sions of Swedish law and public interna­
tional law, to determine the extent and the 
degree to which Article 6 of the EEA 
Agreement -still in its capacity as a non-
Community rule — encompasses Commu­
nity law (and in particular the provisions of 
Directive 80/987 and the rule in Francov­
ich). The Court of Justice cannot intervene 
in this matter, even by means of the rule in 
Dzodzi. 
27. The above reasoning might be refuted 
on the ground that it underestimates the 
need for a uniform interpretation of Arti­
cle 6 of the EEA Agreement, particularly 
since the whole purpose of that article is to 
ensure the uniform interpretation of Com­
munity rules. In fact, the aforementioned 
judgments in Leur-Bloem and Hermes 
clearly state that, 'where a provision can 
apply both to situations falling within the 
scope of national law and to situations 
falling within the scope of Community 
law', in other words where it has a dual 
nature, as Article 6 of the EEA Agreement 
has, 'it is clearly in the Community interest 
that, in order to forestall future differences 
in interpretation, that provision should be 
interpreted uniformly, whatever the cir­
cumstances in which it is to apply'.26 At 
first sight, therefore, the above approach, 
on the basis of which the reply to the first 
two questions referred for a preliminary 
ruling falls outside the jurisdiction of the 
Court of Justice, to the extent that it also 
falls outside the Community legal order 
and is inseparably linked to the general 
scheme of the law of the EFTA States and 
of public international law, seems irrecon­
cilable with the philosophy on which the 
Court drew in Leur-Bloem and Hermes. In 
those cases, the need for a uniform inter­
pretation provided a sufficient basis for the 
Court's jurisdiction to interpret a rule with 
a dual nature (Community and non-Com­
munity), despite the inevitable differences 
in the application of the rule interpreted. 
25 — Dzodzi, cited in footnote 11 above, paragraph 42. 
26 — Hermes, cited in footnote 22 above, paragraph 32, and 
Leur-Bloem, cited in footnote 14 above, paragraph 34. 
I - 3564 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
28. In my opinion, however, the positions 
adopted by the Court of Justice in the 
abovementioned judgments are not incom­
patible with the approach I propose in the 
present case. It should be pointed out, first 
of all, that the objective of achieving uni­
form interpretation is not absolute. The 
Community judicature fully understands 
the limits of any attempt at harmonisation 
through interpretation, and for that reason 
refuses to examine the manner and limits of 
applying the rules which it is asked to 
interpret in an area outside the Community 
legal order. Moreover, it is necessary to 
emphasise the exceptional nature of this 
case: the first two questions referred are 
not concerned solely with the interpretation 
of a provision having both a Community 
and a non-Community character, that is to 
say, Article 6 of the EEA Agreement; they 
also directly ask how that provision is to be 
applied and what the consequences are of 
its application in a legal order outside the 
Community legal order. That confusion 
between interpretation and application is 
a sufficient basis on which to find that the 
Court does not have jurisdiction. 
In other words, the Court has indeed 
agreed in marginal cases to interpret provi­
sions which may be applied differently 
outside, as compared with inside, the 
Community legal order; it cannot, how­
ever, perform its interpretative task under 
Article 177 of the Treaty in cases where the 
question raised effectively seeks a definition 
of how to apply one or more Community 
rules in an area outside the scope of 
Community law. That is why, in particular 
in the context of these proceedings, Arti­
cle 6 of the EEA Agreement must not be 
interpreted for the purposes pursued by the 
first two questions referred. 
29. (iii) A feature of the above reasoning is 
that while it precludes an examination of 
the first two questions in this case, it does 
not preclude the Court, in future, from 
applying the rule in Dzodzi for the purpose 
of clarifying a provision of the EEA Agree­
ment by way of a ruling on interpretation, 
even if that provision is to be applied 
outside the Community legal order, provi­
ded, of course, that the interpretation and 
the application of the provision in question 
are not interwoven as they are in this case. 
Alternatively, if the Court considers it is 
legally more correct to take more radical 
steps to preclude the examination of ques­
tions referred for a preliminary ruling by a 
court of a Member State which is a former 
EFTA State and a signatory of the EEA 
Agreement with a view to the interpreta­
tion of the latter agreement, the following 
arguments may also be put forward. 
30. First of all, the rule in Dzodzi largely 
concerns cases where the question of inter­
pretation arises in the context of the 
internal law of a Member State. In such 
cases, there is a particular need for the 
uniform interpretation of a provision which 
is capable of being applied within the 
framework of Community law and within 
the internal legal order of a Member State. 
More specifically, the rule in question seeks 
to address the undesirable situation in a 
Member State of individuals being treated 
differently in law according to whether or 
I - 3565 
OPINION OF MR COSMAS — CASE C-321/97 
not their circumstances fall within the 
scope of Community law, despite the fact 
that the rules of law applicable in either 
case are similar, if not identical. The idea of 
harmonisation of legislation — which of 
course includes its interpretation — is an 
important concern of the Treaty and a 
fundamental means of furthering European 
integration. However, that idea is not 
generally and indefinitely applicable but is 
confined specifically to the interface 
between the national law of the Member 
States and Community law. The need for 
uniform interpretation is not as great when 
the purpose of the harmonisation is the 
equal treatment of individuals not within 
the 'framework' of the Community (which 
'framework' includes individuals who are 
governed by both Community law and the 
national law of the Member States) but 
outside it. 
Accordingly, to come back to the case at 
issue, however important the need for a 
uniform interpretation of the Community 
rules which make up 'EEA law' may be in 
the light of the EEA Agreement and in 
particular Article 6 thereof, it is not as 
great as the need for the uniform interpre­
tation of rules which are to be applied 
within the Member States of the Commu­
nity. I therefore consider that the rule in 
Dzodzi has no place here and should not be 
applied in circumstances such as those in 
this case, or at least that it cannot justify an 
expansion of the Court's role within the 
context of the preliminary-ruling procedure 
as it has done previously in cases involving 
the application of provisions of Commu­
nity interest within the law of the Member 
States. 
31 . Secondly, it has already been stated that 
it is conceivable for provisions of Commu­
nity law which are not directly relevant to a 
decision in the main proceedings to be 
interpreted by way of a preliminary ruling 
where an extra-Community rule refers to 
them expressly, directly and uncondition­
ally, provided that the purpose of the 
interpretation is the uniform regulation of 
certain legal situations and that the court 
which has referred the question is under an 
obligation to follow the interpretation 
given by the Court of Justice. Those two 
conditions are cumulative. In the present 
case, even if it is accepted, after examining 
the merits of the questions referred, that the 
first condition has been met, it is not 
certain that the second condition has been 
met. More specifically, there is no provision 
in Swedish law or in the EEA Agreement 
itself27 that supports the conclusion that a 
reply by the Court of Justice to the 
questions concerned outside the context of 
the Community legal order would be 
binding on the referring court .2 8 Likewise, 
the fact that Article 6 of the EEA Agree­
ment refers to compliance with the rulings 
of the Court of Justice — at least those 
delivered up to the entry into force of the 
agreement — clearly does not amount to 
the imposition of such an obligation on the 
referring court in relation to the reply that 
the Court of Justice has been asked to give 
to the first two questions. 
32. It may therefore be concluded from the 
analysis so far that the points of law raised 
by the first two questions are not ones 
27 — In this connection, see point 33 et seq. below. 
28 — At the time of Sweden's accession to the European Union, 
it undertook to comply with the judgments of the Court of 
Justice in the context of the Community legal order but not 
outside it. 
I - 3566 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
which may be brought before the Court of 
Justice under Article 177 of the Treaty. 
B — The EEA Agreement as a possible 
legal basis for the Court's jurisdiction to 
examine the questions in this case 
33. Irrespective of the foregoing, the jur­
isdiction of the Court of Justice cannot be 
founded on the EEA Agreement either. As 
the Commission rightly points out, it must 
be concluded, after an overall assessment of 
the content and the structure of the agree­
ment in question, that the Court of Justice 
of the European Communities should not 
be regarded as having jurisdiction in cir­
cumstances such as those of this case. More 
specifically, the interpretation of Article 6 
of the EEA Agreement, which is relevant to 
the reply to be given to the first two 
questions, appears to lie within the exclu­
sive jurisdiction of the EFTA Court, at least 
in so far as that interpretation relates to the 
application of the Agreement by an EFTA 
State. Article 34 of the Agreement conclu­
ded between the EFTA States establishing 
an EFTA Surveillance Authority and Court 
provides that the latter has jurisdiction to 
give advisory opinions on the interpretation 
of the EEA Agreement, that is to say, to 
determine to what extent that agreement 
has been correctly transposed into the 
national legal orders of the EFTA States. 
34. However, under Article 107 of the EEA 
Agreement and Protocol 34 thereto, the 
national courts or tribunals of EFTA States 
may ask the Court of Justice of the 
European Communities to assist them in 
interpreting those rules of the EEA Agree­
ment that are identical to Community 
provisions,29 provided that two conditions 
are met, one relating to substance and the 
other to form. First, the jurisdiction of the 
Court of Justice of the European Commu­
nities is limited to those provisions of the 
EEA Agreement 'which are identical in 
substance to the provisions of the Treaties 
establishing the European Communities, as 
amended or supplemented, or of acts 
adopted in pursuance thereof'. Secondly, 
an EFTA State which intends to avail itself 
of that possibility is required to notify the 
Court of Justice of the European Commu­
nities regarding 'to what extent and accord­
ing to what modalities the Protocol will 
apply to its courts and tribunals'. Regard­
less of the extent to which the first condi­
tion is met, the fact remains that the formal 
condition of notification has not been 
fulfilled. Sweden has never availed itself 
of the possibility provided for in Protocol 
34 of recognising the jurisdiction of the 
Court of Justice of the European Commu­
nities to reply to the first and second 
questions referred for a preliminary ruling. 
35. The question then arises as to how 
questions of interpretation regarding the 
EEA Agreement are resolved where an 
EFTA State such as Sweden accedes to the 
European Union. That problem was dealt 
29 — The establishment of a specific legal basis to make it 
possible for the national courts of EFTA States to refer 
cases to the Court of Justice means, a contrario, tht that 
possibility does not flow directly from Article 177 of the 
EC Treaty. Moreover, Article 177 refers only to 'a court or 
tribunal of a Member State', in other words a category into 
which the courts of the EFTA States cannot fall. 
I - 3567 
OPINION OF MR COSMAS — CASE C-321/97 
with by means of a special agreement 
signed in Brussels on 28 September 1994 
concerning transitional measures during 
the period following the accession of cer­
tain EFTA States to the European Commu­
nity. Under that agreement, the EFTA 
Court continues to have jurisdiction to give 
preliminary rulings on questions relating to 
cases pending before the courts of EFTA 
States where the facts underlying the dis­
pute in question predate that State's acces­
sion to the European Union. That extension 
of the EFTA Court's jurisdiction was inten­
ded to last only for a limited period of time, 
which had already elapsed at the time when 
the questions in this case were referred to 
the Court for a preliminary ruling. How­
ever, the fact that the EFTA Court appears, 
at least on the basis of the provisions of the 
Agreement of 28 September 1994, to have 
no jurisdiction ratione temporis to examine 
the questions referred to the Court of 
Justice cannot be construed as an argument 
in favour of recognising the latter court as 
having jurisdiction to do so. In any event, 
the Court of Justice lacks jurisdiction 
ratione materiae. 30 Furthermore, even if 
Sweden so wished, it could not at this late 
stage avail itself of Protocol 34 in order to 
give the Court of Justice jurisdiction to 
interpret the rules of the EEA Agreement, 
for the simple reason that it is no longer a 
member of EFTA. 31 
36. In the light of the foregoing, it is my 
opinion that the Court of Justice does not 
have jurisdiction to reply to the first two 
questions referred for a preliminary ruling. 
VI — Merits of the first two questions 
37. As an entirely secondary submission, I 
shall set out my observations regarding the 
merits of these questions. To begin with, it 
is necessary to define the legal issue. The 
question is whether the Court's findings in 
Francovich as regards the civil liability of a 
State in the event of the incorrect transpo­
sition of a Community directive into 
national law have also become part of 
ΈΕΑ law' by virtue of Article 6 of the EEA 
Agreement, and whether they take prece­
dence over the national law of an EFTA 
State which has signed the EEA Agreement. 
A — Preliminary observations 
38. First of all, it must be pointed out that 
an answer in the affirmative to the above-
mentioned questions is not necessarily 
without a legal basis. Article 6 of the EEA 
Agreement expressly lays down that the 
provisions of that agreement, in so far as 
they are 'identical in substance' to corre­
sponding Community rules of primary or 
secondary Community legislation, 'shall, in 
their implementation and application, be 
interpreted in conformity with the relevant 
rulings of the Court of Justice of the 
30 — Nor could it be argued tht its lack of jurisdiction on these 
two grounds is a form of denial of justice. There is, in any 
event, a court which does have jurisdiction and that is the 
national court. Since the Court of Justice and the EFTA 
Court have no jurisdiction, the national court alone has 
jurisdiction to dispose of the issues of law raised in the first 
two questions. 
31 — It is not insignificant that the Act of Accession required 
Sweden to withdraw from EFTA as soon as it joined the 
European Union. 
I - 3568 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
European Communities given prior to the 
date of signature of this Agreement'. Nor 
can there be any doubt that the provisions 
on wage guarantees in Directive 80/987 are 
identical to those contained in Annex X-
VIII to the EEA Agreement. Moreover, that 
annex refers directly to Directive 80/987. 
There is also the fact that the rule in 
Francovich, which was established in the 
Court's judgment in Joined Cases C-6/90 
and C-9/90, 32 predated the signature of the 
EEA Agreement, exactly as required by 
Article 6 thereof. Finally, the judgment in 
Francovich related to the incorrect trans­
position of Directive 80/987 into the inter­
nal law of a Member State, a situation 
similar, in law and in fact, to the issue 
which has been raised in the main proceed­
ings pending before the referring court. 33 
39. In those circumstances (and provided, 
of course, that the Court of Justice can 
resolve the issue of lack of jurisdiction), it 
will be necessary to seek the more correct 
interpretation of Article 6 of the EEA 
Agreement. An extensive interpretation, to 
the effect that the fundamental elements of 
the Community legal order — as embodied 
in the principles of the primacy and the 
direct applicability of Community law, as 
well as in the concept of the acquis 
communautaire and, for the purposes of 
this particular case, the rule in Francovich -
— apply to the legal relationships created 
by the EEA Agreement, by virtue of Arti­
cle 6 thereof, appears to be supported by 
the following arguments. 
40. First of all, the view could be taken 34 
that Article 6 of the EEA Agreement, and 
indeed the provisions of Directive 80/987, 
in so far as they are referred to in the 
relevant annexes to that agreement, form 
an integral part of the Community legal 
order in so far as they are part of a text of 
international law which the Community 
has signed with non-member countries. 35 
Accordingly, the constituent parts of that 
legal order, in other words its primacy, its 
direct effect and, more generally, the case-
law of the Court of Justice which forms 
part of what is known as the 'acquis 
communautaire', may have a place in a 
body of rules such as the EEA Agreement, 
in particular where this seems to be made 
possible by a specific provision of the 
international agreement in question (Arti­
cle 6 of the EEA Agreement). 
41. The above approach is borne out by the 
observation that a fundamental objective of 
Article 6, but also a major concern of the 
Contracting Parties, as is apparent from 
many of the provisions of the EEA agree­
ment, is to maintain the uniform applica­
tion of Community rules incorporated into 
that agreement. Consequently, in order to 
ensure that a particular rule of law of 
Community origin -in the present case the 
rule concerning the protection of employees 
in the event of the insolvency of their 
employer — is always interpreted and 
applied in the same way, the Court of 
32 — See footnote 3 above. 
33 — In any event, the latter factor is irrelevant. The question 
whether the rule in Francovich should be followed in cases 
involving the incorrect transposition of a provision of 'EEA 
law' which is identical to a provision of a Community 
directive could also have been raised in connection with 
any directive mentioned in the annexes to the EEA 
Agreement. 
34 — Still assuming, of course, that the view I put forward 
earlier, namely that, on the basis of the factual and legal 
circumstances of the dispute in the main proceedings, the 
EEA Agreement, which forms the subject-matter or the 
proceedings before the referring court, does not constitute 
a Community rule or an element of the Community legal 
system, is unacceptable. 
35 — See Haegeman, cited in footnote 4 above. 
I - 3569 
OPINION OF MR COSMAS — CASE C-321/97 
Justice, in its capacity as guarantor of the 
uniform interpretation of Community 
rules, must choose the solution involving 
the least divergence in interpretation, irre­
spective of the scope of that rule, particu­
larly since, in order to ensure such unifor­
mity, it has been willing to go to great 
lengths as regards the admissibility of 
questions referred for a preliminary rul­
ing. 3 6 Clearly, the most attractive solution, 
from the point of view of uniform inter­
pretation, is that which states that the 
acquis communautaire, at least as it is to 
be inferred from the case-law developed up 
to the signature of the EEA Agreement, 
constitutes an integral part of that agree­
ment and must therefore be taken into 
consideration when its individual rules are 
interpreted and applied. 
42. However, such general observations are 
not sufficient to form a basis for answering 
the first two questions. Apart from the 
apparent connection or compatibility 
between the relevant provisions of the 
EEA and certain elements of the Commu­
nity legal order, it is essential also to 
examine the content of that agreement in 
accordance with the criteria laid down by 
the Court of Justice for the interpretation of 
international treaties. 
Β — The interpretation criteria followed in 
previous judgments 
43. Regard must be had in this connection 
to the position adopted by the Court of 
Justice when asked to examine provisions 
of an international agreement concluded by 
the Community with non-member coun­
tries. It can be seen that, while in some 
cases the Court of Justice considers that the 
interpretation of a Community provision 
must be extended to an identical or similar 
provision of an international agreement, 3 7 
in other cases it considers that such an 
extension is neither possible nor appropri­
ate. 3 8 It follows from those judgments that 
the question whether the interpretation of a 
Community provision can be extended to a 
provision couched in equivalent, similar or 
even identical terms in an agreement which 
the Community has concluded with a non-
member country depends in particular on 
the objective pursued by each of those 
provisions within the context in which it 
occurs. It is therefore particularly impor­
tant to compare the objectives and the 
more general context of the international 
agreement on the one hand and the Treaty 
on the other. 
44. The Court adopted the same position in 
Opinion 1/91, which relates specifically to 
the EEA Agreement and which I shall now 
consider. That Opinion, moreover, refers to 
Article 31 of the Vienna Convention of 
23 May 1969 on the Law of Treaties, 
which states that a treaty must be inter­
preted 'in accordance with the ordinary 
meaning to be given to its terms in their 
context and in the light of its object and 
purpose'.3 9 
36 — See the analysis in point 16 et seq. above. 
37 — See Pabst & Ricbarz KG and Legros, cited in footnote 5 
above. 
38 — See Polydor and Kpuferberg, cited in footnote 5 above. 
39 — See Case C-312/91 Metalsa [1993] ECR I-3751. 
I - 3570 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
45. On the basis of the above, it can be 
concluded that, in order to determine the 
content and the legal effects of the provi­
sions of Article 6 of the EEA Agreement 
and of Directive 80/987 — where the latter 
is applied exclusively within the context of 
the EEA Agreement — an overall assess­
ment of that Agreement is required. From 
that assessment, and a comparison of the 
EEA Agreement with Community law and 
with the Community legal order in general, 
it will be possible to identify the criteria for 
interpreting Article 6 of the EEA and 
determining the legal consequences for an 
EFTA State of its failure to comply with the 
provisions of Directive 80/987, an integral 
part of the EEA Agreement. 
C — The EEA Agreement and Community 
law; a comparative approach 
46. The French Government and the plain­
tiffs in the main proceedings, in their 
written and oral observations, maintain 
that the EEA Agreement creates such a 
close relationship between the EFTA States 
which signed it and the European Commu­
nity that those States are effectively assimi­
lated into the Community legal order. 
Accordingly, the EEA Agreement cannot 
be regarded as an ordinary text of interna­
tional law; rather, it has an autonomous 
status and a content which is just as special 
as the status of the contracting EFTA States 
vis-à-vis the Community and their relation­
ship with it. Article 6 of the EEA Agree­
ment, they submit, expressly and wholly 
unconditionally incorporates the whole of 
the case-law of the Court of Justice up to 
the signature of the agreement into the legal 
structure that might be called ΈΕΑ law'. 
That law seems to extend the scope of the 
Community rules to States which are not 
members of the Community, and with it the 
content which those rules have in the 
Community legal order. They also rely on 
Article 7 of the EEA Agreement, concern­
ing the obligation to transpose certain 
Community directives into the internal 
law of EFTA States. From that provision 
they infer the existence of an obligation on 
the part of those States to incorporate the 
acquis communautaire into their internal 
legal systems in a full and effective manner. 
That obligation, they contend, is limited in 
scope to the particular fields to which the 
EEA Agreement relates; it is not, however, 
limited as regards its force, inasmuch as it 
includes all the case-law of the Court of 
Justice in relation to those fields. Finally, 
they conclude that the principles of pri­
macy and direct effect laid down in Com­
munity law also extend to the EEA Agree­
ment by virtue of the specific objective of 
that agreement and the characteristics of 
the legal mechanism for convergence with 
Community law which it introduces. 
47. I think it is more appropriate to adopt 
the completely opposite approach, as, 
indeed, the Court appears to have done in 
the abovementioned Opinion 1/91. 4 0 In 
that Opinion, the Court considered it 
necessary, before replying to the specific 
questions which had been put to it, to 
compare the objectives and entire content 
of the EEA Agreement with the objectives 
and content of Community law. It found 
that the EEA Agreement 'is concerned with 
the application of rules on free trade and 
competition in economic and commercial 
40 — Cited in footnote 6 above. 
I - 3571 
OPINION OF MR COSMAS — CASE C-321/97 
relations between the Contracting Parties', 
whereas 'in contrast, as far as the Commu­
nity is concerned, the rules on free trade 
and competition.... have developed and 
form part of the Community legal order, 
the objectives of which go beyond that of 
the agreement'. 41 There is therefore a gap, 
from a teleological point of view, between 
the EEA Agreement and the Community 
Treaty: while freedom of movement and 
undistorted competition are aims in them­
selves in the EEA Agreement, for the 
Community they are merely the means of 
achieving more remote objectives, such as 
the establishment of an internal market, the 
creation of an economic and monetary 
union and the substantive progress of 
European Union. 
48. However, the general context into 
which the objective of the EEA Agreement 
fits is also different from the context in 
which the Community objectives are pur­
sued. In Opinion 1/91 the Court of Justice 
states that 'the EEA is to be established on 
the basis of an international treaty which, 
essentially, merely creates rights and obli­
gations as between the Contracting Parties 
and provides for no transfer of sovereign 
rights to the inter-governmental institutions 
which it sets up. In contrast, the EEC 
Treaty, albeit concluded in the form of an 
international agreement, none the less con­
stitutes the constitutional charter of a 
Community based on the rule of law. As 
the Court of Justice has consistently held, 
the Community treaties established a new 
legal order for the benefit of which the 
States have limited their sovereign rights, in 
ever wider fields, and the subjects of which 
comprise not only Member States but also 
their nationals.... The essential characteris­
tics of the Community legal order are in 
particular its primacy over the law of the 
Member States and the direct effect of a 
whole series of provisions which are applic­
able to their nationals and to the Member 
States themselves'.42 
49. It follows, therefore, that the notion 
that the EEA and the Community legal 
order largely coincide, as argued by the 
French Government and implied by the 
plaintiffs in the main proceedings, is mis­
placed, in so far as it is contradicted by 
fundamental differences between the two 
legal systems, that of the EEA Agreement 
on the one hand and that of the Commu­
nity on the other. Moreover, the aforemen­
tioned citation from Opinion 1/91 supports 
the a contrario conclusion that the essential 
characteristics of the Community legal 
order, that is to say its primacy and direct 
effect, are exclusive to the Community and 
do not extend to the legal structure created 
by the EEA Agreement. Accordingly, the 
rule in Francovich, which is inextricably 
linked to the fundamental principles set out 
above, cannot be transposed to the field of 
the EEA Agreement either, despite what is 
laid down in Article 6 of that Agreement. 
50. In my opinion, the abovementioned 
findings in Opinion 1/91 — which, it 
41 — Opinion 1/91, cited in footnote 6 above, paragraphs 15 
and 16. 42 — Idem, paragraphs 20 and 21. 
I - 3572 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
should be noted, were not overturned in 
Opinion 1/92 43 — are sufficient to support 
an answer in the negative to the first and 
second questions.44 For the sake of com­
pleteness, however, the following may be 
observed. 
51. The EEA Agreement contains provi­
sions which impose certain obligations on 
the EFTA States concerning compliance 
with the rules of Community origin which 
have been incorporated into it. However, 
those provisions are not binding on the 
Contracting Parties in as forceful or as full 
a manner as the corresponding provisions 
of primary Community law are binding on 
the Member States of the Community. A 
typical example is Article 7 of the EEA 
Agreement, which occupies the same posi­
tion in that agreement as Article 189 in the 
EC Treaty. However, unlike Article 189 of 
the EC Treaty, Article 7 of the EEA Agree­
ment does not provide that the regulations 
contained in its annexes are to be 'directly 
applicable' in the EFTA States. The princi­
ple of the direct application of certain rules 
of law within the internal legal order, which 
is one of the foundations of Community 
law, does not therefore seem to be present 
in the legal system of the EEA Agreement. 
52. Furthermore, in order to avoid any 
conflict between the rules of the EEA and 
other legislative acts, Protocol 35 of the 
EEA Agreement provides that the EFTA 
States 'undertake to introduce, if necessary, 
a statutory provision to the effect that EEA 
rules prevail in these cases'. This therefore 
means, a contrario, that the primacy of 
EEA rules is not automatic in the internal 
legal systems of the EFTA States, but is for 
those States an obligation arising from an 
international agreement the implementa­
tion of which may require the adoption of 
specific internal measures. 
53. In other words, the EEA Agreement 
appears to be a text of international law 
43 — Opinion 1/92 [19921 ECR I-2825 concerning the draft 
EEA Agreement, as amended, following the first Opinion 
of the Court. 
44 — At this point, I think it would be useful to look at the 
position adopted by the Court of First Instance in its 
judgment in Case T-l 15/94 Opel Austria [1997] ECR II-39 
to the effect that when the Court of Justice, in Opinion 
1/91, 'held that the divergences existing between the aims 
and context of the Agreement, on the one hand, and the 
aims and context of Community law on the other, stood in 
the way of the achievement of the objective of homo­
geneity in the interpretation and application of the law in 
the EEA, it was considering the judicial system contem­
plated by the EEA Agreement for the purposes of 
ascertaining whether that system might jeopardise the 
autonomy of the Community legal order...' (paragraph 
109). If that sentence means that the Court's findings in 
Opinion 1/91 are restricted exclusively to the special 
context of the judicial mechanism provided for in the draft 
EEA Agreement, then I am bound to express my objections 
to it. I believe that the reasoning followed by the Court of 
Justice in Opinion 1/91 concerning the substantive differ­
ences between the legal structure of the EEA and that of 
the Community is generally applicable. 
Moreover, the Court of First Instance states, in the same 
case, that 'the EEA Agreement involves a high degree of 
integration, with objectives which exceed those of a mere 
free-trade agreement', and that 'the EEA Agreement also 
aims to extend to the EEA future Community law in the 
fields covered by the Agreement as it is created, develops or 
changes...' (paragraph 107). 
I believe that this interpretation is quite correct, but it does 
not mean that Community rules must always be applied in 
full and in the same way in the area of 'EEA law'. The 
uniformity of rules and interpretation sought by the EEA 
Agreement is limited by the differences between the 
Community legal order and the EEA Agreement. In any 
event, the aforementioned judgment of the Court of First 
Instance has to be seen in the light of the specific legal 
context of that case. The Court of First Instance had been 
asked whether Article 10 of the EEA Agreement was 
essentially the same as Articles 12, 13, 16 and 17 of the EC 
Treaty, which prohibit customs duties on imports and 
exports and any charges having equivalent effect. In that 
context, the Court of First Instance rightly took the view 
that the aim of the uniformity of rules and interpretation 
could be achieved in full and that, on the basis of Article 6 
of the EEA Agreement, Article 10 of that Agreement was 
to be interpreted in accordance with the relevant case-law 
of the Court of Justice relating to Articles 12, 13, 16 and 
17 of the EC Treaty, as it stood at the time of the signature 
of the EEA Agreement. 
I - 3573 
OPINION OF MR COSMAS — CASE C-321/97 
which creates rights and obligations 
between the Contracting Parties in that 
area (international law) on the basis of a 
'dualist' legal logic. It does not, therefore, 
have the essential supranational dimension 
which is a feature of the Community legal 
system. There is therefore no assimilation 
of ΈΕΑ law' into internal law, nor even any 
interaction between the two, as there is in 
the Community system. The EEA Agree­
ment does not lead to a surrender of 
sovereign rights by the Contracting States, 
nor to an abandonment of the 'dualist' 
approach to law prevalent in those States, 
which is in accordance with the standard 
reference works on international law. 
54. In brief, the failure of an EFTA State, 
such as Sweden in the present case, to 
comply with a rule of the EEA Agreement 
may give rise to the international contrac­
tual liability of that State under the rules of 
public international law, but it cannot 
entitle individuals who are affected by that 
infringement to claim compensation from 
the State whose extra-contractual liability 
they are seeking to establish under the case-
law which the Court of Justice of the 
European Communities developed specifi­
cally for the Community legal order in its 
judgment in Joined Cases C-6/90 and 
C-9/90. 45 
VII — The third question 
55. The third question does not raise issues 
of admissibility, inasmuch as it clearly falls 
within the ambit of Community law. It 
seeks to determine the temporal application 
of Community rules. In particular, it raises 
the question of the extent to which Direc­
tive 80/987 and the general principles of 
law laid down by the Court of Justice in 
Francovich also apply to events arising at a 
time when the State concerned had not yet 
acceded to the European Union. 
56. As stated in Article 166 of the Act 
concerning the conditions of accession of 
the Republic of Austria, the Republic of 
Finland and the Kingdom of Sweden,46 the 
Community directives are binding on those 
States from the date of their accession to 
the European Union, provided, of course, 
that no other time-limit has been set for 
their transposition into national law. In any 
case, the Act of Accession does not give 
retroactive force to the directives or to 
other Community rules. 
57. I think it necessary in this regard to 
clarify certain points regarding the tem­
poral effects of a rule. 4 7 First of all, there 
must be no confusion between the retro-
45 — See Francovich, cited in footnote 3 above. 
46 — OJ 1994 C 241, p. 21. 
47 — See in this regard C. Yannakopoulos, La notion de droits 
acquis en droit administratif français, Paris, LGDJ (Coll. 
Bibliothèque de droit public, Vol. 188), 1997, in the 
extracts indicated below. 
I - 3574 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
active effect and the immediate effect of the 
rule. In order to distinguish between them, 
regard must be had to the temporal aspects 
of the situations governed by the rule.48 
Retroactive effect consists in the applica­
tion of the rule to situations which were 
permanently fixed before that rule came 
into force. 49 Immediate effect, which, in 
principle, works likewise according to the 
principle tempus regit actum, consists in 
applying the rule to situations which are 
continuing. 50 This means that the temporal 
scope of a rule also includes the future 
effects of ongoing situations which were 
created but were not permanently fixed 
before the rule entered into force. 
58. Secondly, it is very important, in each 
case, to identify the point in time when a 
legal situation becomes permanently fixed, 
because that is the criterion for choosing 
the rule of law applicable. It is quite useful 
here to examine the temporal aspects of 
legal situations and in particular to draw a 
distinction between temporary situations 
and ongoing situations. 51 In the first case, 
the situation arises and becomes fixed at 
the same time, which makes it easier to 
determine the rule applicable. In the second 
case, there is a certain interval between the 
point at which the situation arises and the 
point at which it becomes fixed. In that 
interval, amendments may have been made 
to positive law, and this may lead to an 
incorrect choice of legal basis. In any event, 
what matters, as I stated earlier, is to 
identify the rule in force at the time when 
the legal situation becomes fixed. 
59. Those criteria have also been applied 
by the Court in its case-law and I have 
selected the following four judgments as 
examples. 
60. In Suffritti, 52 the plaintiffs in the main 
proceedings were former employees who 
had resigned because of non-payment of 
their wages by Italian companies which 
subsequently became insolvent. Although 
those events had taken place before the 
expiry of the period laid down by Directive 
80/987 for its transposition into national 
law by the Member States, the plaintiffs 
relied on that directive in order to obtain 
compensation from a national social wel­
fare institution. Having found that 'the 
period prescribed for the transposition of 
Directive 80/987 expired only on 23 Octo­
ber 1983, and that both the declarations of 
insolvency and the termination of the 
employment relationships at issue in the 
main proceedings occurred before the said 
period had expired', the Court of Justice 
ruled that 'in those circumstances the 
employees cannot rely on the provisions 
of the directive in order to set aside the 
application of certain provisions of the 
national Law'. 53 
48 — Idem, paragraph 348 et seq. 
49 — Idem, paragraph 354 et seq. and paragraph 765 et seq. 
50 — Idem, paragraphs 356 and 865 et seq. 
51 — Idem, paragraph 635 et seq. 
52 — Joined Cases C-140/91, C-141/91, C-278/91 and C-279/91 
Suffritti and Others [1992] ECR I-6337. 
53 — Suffritti, cited in footnote 52 above. 
I - 3575 
OPINION OF MR COSMAS — CASE C-321/97 
Likewise, in Vaneetveld, 54 the plaintiff in 
the main proceedings had been involved in 
a traffic accident on 2 May 1988 and relied 
on Directive 84/5/EEC 5 5 in order to claim 
compensation for the injury suffered. After 
pointing out that 'a directive can be relied 
on by individuals before national courts 
only after the expiry of the time-limit laid 
down for its transposition into national 
law', 56 the Court of Justice ruled that the 
Member States were obliged to apply the 
relevant provisions of the directive 'only in 
respect of insurance cover for accidents 
occur r ing on or after 31 December 
1988', 57 the date of expiry of the time-
limit for transposition of Directive 84/5. 
Saldanha and MTS 58 concerned a rule of 
Austrian civil procedure requiring nationals 
of other Member States not resident in 
Austria to lodge a security for costs {cautio 
iudicatum solvi) when bringing legal pro­
ceedings. Relying on the direct effect of 
Article 6 of the Treaty, the Court of Justice 
held that that provision was 'binding on the 
Republic of Austria from the date of its 
accession, with the result that it applies to 
the future effects of situations arising prior 
to that new Member State's accession to the 
Community. From the date of accession, 
therefore, nationals of another Member 
State can no longer be made subject to a 
procedural rule which discriminates on 
grounds of nationality, provided that such 
a rule comes within the scope ratione 
materiae of the EC Treaty'. 59 It should be 
noted that the Court made this statement 
despite the fact that, according to the facts 
of the main proceedings, the person who 
had been affected by the Austrian proce­
dural law had instituted the legal proceed­
ings in question before the accession of the 
Republic of Austria to the European Com­
munities and had already been required to 
pay the compulsory security. 
Recently, in Kuusijärvi, 60 the question 
referred for a preliminary ruling was whe­
ther Regulation No 1408/71 6 1 applies to a 
person who, on the entry into force of that 
regulation in Sweden, was residing in that 
State as an unemployed person, having 
previously been in employment there dur­
ing a period when Sweden was not a 
member of the European Union. The Court 
of Justice ruled that 'the fact that such an 
individual was already unemployed on the 
date on which Regulation N o 1408/71 
entered into force in the Member State in 
question and was receiving unemployment 
benefits on the basis of his employment 
there before that date is not such as to bring 
him outside the personal scope of the 
regulation'. 6 2 For that purpose, the Court 
relied on Article 94 of the regulation, 
which provides expressly that a right arises 
under that regulation even in relation to a 
contingency which materialised prior to the 
date of entry into force of that regulation in 
the territory of the Member State in 
question, and that all insurance periods as 
well as all periods of employment or 
54 — Case C-316/93 Vaneetveld [1994] ECR I-763. 
55 — Council Directive 84/5/EEC of 30 December 1983 on the 
approximation of the laws of the Member States relating 
to insurance against civil liability in respect of the use of 
motor vehicles (OJ 1984 L 8, p. 17). 
56 — Paragraph 16. 
57 — Paragraph 18. 
58 — Case C-122/96 Saldanha and MTS [1997] I-5325. 
59 — Paragraph 14. 
60 — Case C-275/96 Kuusijärvi [1998] ECR 1-3419. 
61 — Regulation (EEC) No 1408/71 of the Council of 14 June 
1971. 
62 — Paragraph 23. 
I - 3576 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
residence completed under the legislation 
of a Member State before the date of entry 
into force of the regulation in the territory 
of that State are to be taken into considera­
tion for the determination of the rights 
under the regulation. 
61. One might mistakenly think that the 
Court of Justice is quite happy for Com­
munity law to be applied to new Member 
States in respect of events which took place 
before their accession to the Community. 
That view would clearly be wrong. The 
four judgments referred to above follow 
precisely the same logic: in principle, the 
Community rule applies ex nunc, and 
regard must be had, in each particular 
case, to whether or not the legal situation 
to which the main action relates was fixed 
at the time when the Community rule 
entered into force. 
In Suffritti, the legal situation to which the 
Community rule related, namely the insol­
vency of the employer, was permanently 
fixed at the time when the insolvency 
occurred, that is to say before the expiry 
of the time-limit for the transposition of the 
directive concerned. 
In Vaneetveld, the legal situations covered 
by the directive in question were road 
accidents. It was therefore rightly held that 
the relevant time for the purposes of 
selecting the applicable rule was the time 
when the road accident took place. Both 
those cases actually concerned temporary 
legal situations which did not pose any 
difficulty as regards determining the time 
when they had become fixed. 
In Saldanha and MTS, on the other hand, 
neither the bringing of the legal proceed­
ings, nor even the decision by the court 
requiring the provision of a security, cre­
ated a fixed legal situation in economic 
terms. Pursuit of the legal remedy available 
in national law created a situation which 
continued throughout the proceedings, and 
did not become fixed until those proceed­
ings were concluded. The Court was there­
fore right to rule in favour of the party 
contesting the security required, even 
though it had been required at a time prior 
to Austria's accession to the Community. 
The Court's answer would of course have 
had to be different if the main proceedings 
had ended and the referring court's decision 
had become final before Austria's accession 
to the Community. 
Finally, as far as the judgment in Kuusijärvi 
is concerned, the position adopted by the 
Court, which is, moreover, based on the 
express intention of the author of Regula­
tion No 1408/71, is entirely justified. The 
legal situation which arises from an indivi­
dual's affiliation to a social security 
scheme, employment or residence, with 
respect to the entitlement to social security 
benefits which it creates, is permanently 
fixed upon fulfilment of the conditions for 
confirming that entitlement, or, if appro­
priate, upon presentation of the relevant 
application by the person concerned. Con­
sequently, the fact that the entitlement 
claimed by the applicant under Regulation 
No 1408/71, in an action which she 
brought after the entry into force of that 
regulation in Sweden, related to periods of 
I - 3577 
OPINION OF MR COSMAS — CASE C-321/97 
residence or employment which had been 
completed before Sweden's accession to the 
Community did not make that regulation 
inapplicable in her case; nor would it be 
correct to regard the reply given by the 
Court of Justice in that case as giving 
retroactive effect to, or recognising as 
retroactive, the provisions of Regulation 
No 1408/71. 
62. I shall now apply that case-law to the 
factual and legal elements of the main 
action pending before the referring court. I 
believe that the proper approach can con­
fidently be defined if regard is had to the 
fact that the objective of Directive 80/987 is 
to guarantee payment of employees' wage 
claims existing at the time when the 
employer's insolvency occurs. The factor 
determining whether the directive is applic­
able, exactly as in Suffritti, is when the 
insolvency occurred. In the present case, 
the legal situation was created, and became 
permanent and fixed no later than the time 
when the employer became insolvent, on 
17 November 1994, in other words before 
Sweden's accession to the Community. At 
that time, however, Directive 80/987 was 
not applicable, at least not under Commu­
nity law, inasmuch as it did not become 
effective in Sweden (again, under Commu­
nity law) until after 1 January 1995, the 
date on which Sweden acceded to the 
Community. I therefore consider that the 
third question must also be answered in the 
negative. 
VIII — Conclusion 
63. In view of the foregoing, I propose that the Court's answers to the questions 
referred should be as follows: 
(1) The Court has no jurisdiction to reply to the first two questions. 
I - 3578 
ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE 
(2) Circumstances which are permanently fixed prior to the accession of a State 
to the European Union do not, in principle, fall within the scope of the rules 
of Community law. In particular, Council Directive 80/987/EEC on the 
approximation of the laws of the Member States relating to the protection of 
employees in the event of the insolvency of their employer does not apply to 
circumstances which became fixed prior to Sweden's accession to the 
European Union. Accordingly, the legal consequences arising from the 
incorrect transposition of that directive into national law do not apply to 
circumstances which were already fixed prior to Sweden's accession to the 
European Union. 
I - 3579