Opinion of the Court of 10 April 1992. - Opinion pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty. - Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area. - Opinion 1/92.



European Court reports 1992 Page I-02821

Swedish special edition Page I-00041

Finnish special edition Page I-00071



Summary



Keywords

1. International agreements - Agreement creating the European Economic Area - Joint Committee - Competence to review the case-law of the Court of Justice of the European Communities and of the Court of the European Free Trade Association and to preserve the uniform interpretation of the agreement - Permissibility - Condition - Obligation, set out in a form binding the Contracting Parties, to respect the case-law of the Court of Justice

2. International agreements - Agreement creating the European Economic Area - Joint Committee - Jurisdiction to settle any dispute relating to the interpretation and application of the agreement - Permissibility - Condition - Obligation, laid down in a form binding on the Contracting Parties, to respect the case-law of the Court of Justice

3. International agreements - Agreement creating the European Economic Area - Jurisdiction of the Court of Justice to interpret the provisions of the agreement - Permissibility

4. International agreements - Agreement creating the European Economic Area - Arbitration system - Permissibility

5. International agreements - Agreement creating the European Economic Area - Possibility for the courts in countries of the European Free Trade Association to ask the Court to interpret the Agreement - Permissibility in view of the binding effect of answers given by the Court

6. International agreements - Agreements concluded by the Community - Jurisdiction of the Community - Competition - Agreement on the sharing of the respective competences of the Contracting Parties in the field of competition - Permissibility

(EEC Treaty, Art. 85 et seq.)

Summary

1. In order to achieve the most uniform interpretation possible of the provisions of the Agreement creating the European Economic Area and those of Community law whose substance is incorporated in the agreement, Article 105 of the agreement empowers the Joint Committee, composed of representatives of the Contracting Parties, to keep under constant review the development of the case-law of the Court of Justice of the European Communities and of the Court of the European Free Trade Association and to act so as to preserve the homogeneous interpretation of the agreement. If power enabled the Joint Committee to disregard the binding nature of decisions of the Court of Justice within the Community legal order, the vesting of such a power in the Joint Committee would adversely affect the autonomy of the Community legal order, respect for which must be assured by the Court pursuant to Article 164 of the EEC Treaty, and would be incompatible with that Treaty.

However, according to the "procès-verbal agréé ad article 105", decisions taken by the Joint Committee under that article are not to affect the case-law of the Court of Justice.

Consequently, the power which Article 105 of the Agreement creating the European Economic Area confers on the Joint Committee for the purposes of preserving the homogeneous interpretation of the agreement is compatible with the EEC Treaty only if that principle, which is an essential safeguard indispensable for the autonomy of the Community legal order, is laid down in a form binding on the Contracting Parties.

2. Under Article 111 of the Agreement creating the European Economic Area, the Joint Committee is empowered to settle any dispute brought before it by the Community or a State of the European Free Trade Association on the interpretation or application of the agreement, including, pursuant to Article 105(3), disputes relating to a difference in case-law which the Committee has been unable to settle under the procedure laid down in Article 105.

Since the attribution of such a power raises the problem as to whether the Joint Committee may disregard the binding nature of decisions of the Court of Justice within the Community legal order, it is to be noted that Article 105(3) establishes a link between the procedure provided for in that article and that provided for in Article 111 of the agreement, and that, because of that link, those two provisions must be interpreted systematically and consistently. Such an interpretation necessarily implies that the principle set out in the "procès-verbal agréé ad article 105", according to which decisions taken by the Joint Committee pursuant to that provision are not to affect the case-law of the Court of Justice, will also apply where the Joint Committee tries to settle a dispute in accordance with Article 111 by finding a solution acceptable to the Contracting Parties. That interpretation is moreover the only interpretation that is consistent with the jurisdiction to interpret the relevant rules conferred on the Court of Justice by Article 111(3) where the dispute relates to the interpretation of provisions of the agreement that are substantively identical to the corresponding rules of Community law.

It follows that the powers which Article 111 of the Agreement creating the European Economic Area confers on the Joint Committee do not call in question the binding nature of the case-law of the Court of Justice or the autonomy of the Community legal order, since it has been established that the principle set out in the "procès-verbal agréé ad article 105" binds the Contracting Parties.

3. Article 111(3) of the Agreement creating the European Economic Area confers on the Court of Justice, in the event of disputes relating to the interpretation of provisions of the agreement that are substantively identical to the corresponding rules of Community law, jurisdiction to interpret the relevant rules.

Although the powers conferred on the Court of Justice by the EEC Treaty may be modified pursuant only to the procedure provided for in Article 236 of the Treaty, an international agreement concluded by the Community may confer new powers on the Court, such as the power to interpret the provisions of such agreement, provided that in so doing it does not change the nature of the function of the Court as conceived in the EEC Treaty, namely that of a court whose decisions are binding.

It is true that the aim of requesting a ruling from the Court of Justice pursuant to Article 111(3) of the agreement is not to entrust the Court with the settlement of the dispute, which continues to be the responsibility of the Joint Committee. Nevertheless, the interpretation to be given by the Court of Justice is binding, as is clear from the very wording of the agreement.

It follows that, if the Court is called upon to give a ruling pursuant to Article 111(3) of the Agreement creating the European Economic Area, the Contracting Parties and the Joint Committee alike will be bound by the Court's interpretation of the rules at issue. Consequently, the jurisdiction conferred on the Court by that provision for the purposes of interpreting the provisions of the agreement at the request of the Contracting Parties is compatible with the EEC Treaty.

4. The settlement of disputes by arbitration, provided for in Article 111(4) of the Agreement creating the European Economic Area, is not liable adversely to affect the autonomy of the Community legal order, since under the very terms of that provision no question of interpretation of provisions of the agreement which are identical to provisions of Community law may be dealt with by such arbitration procedures.

5. Under Article 107 of the Agreement creating the European Economic Area, States belonging to the European Free Trade Association may authorize their courts to request the Court of Justice to decide on the interpretation of a provision of the agreement. In view of the fact that the wording of that provision ensures that the answers which the Court of Justice may be called upon to give will be binding, that mechanism respects the operation of the Court of Justice and satisfies the requirements of the sound functioning of the procedure for requests for preliminary rulings and is therefore compatible with Community law.

6. The Community's authority to enter into international agreements arises not only from an express attribution by the EEC Treaty, but also from other provisions of the Treaty and measures taken pursuant to those provisions by the Community institutions. Consequently, the Community is empowered, under the competition rules in the EEC Treaty and measures implementing those rules, to conclude international agreements in this field. That power necessarily implies that the Community may accept rules made by virtue of an agreement as to the sharing of the respective competences of the Contracting Parties in the field of competition, provided that those rules do not change the nature of the powers of the Community and of its institutions as conceived in the EEC Treaty