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Britain might be able to use EFTA court after Brexit, court head says

Britain might be able to use the European Free Trade Area’s court once it leaves the European Union and the jurisdiction of the European Court of Justice, the head of the EFTA court said on Thursday.

Carl Baudenbacher, president of the Luxembourg-based EFTA Court, said he had not discussed the idea with the British government during a trip to London, but in theory it could work.

Three options were 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.


British Brexit minister David Davis said earlier this month the government had considered becoming a full EFTA member but ruled it out as “the worst of all outcomes”. He has not commented on linking to EFTA’s court, and the government had no immediate comment on Baudenbacher’s remarks.

It was unclear whether the current members of the EFTA court – Iceland, Liechtenstein and Norway – would welcome an expansion that brought in one of Europe’s largest economies. Norway has expressed doubts about Britain’s re-joining EFTA itself, which it helped to found in 1960 but later left.

“It all depends whether people are willing or not, (but) much more difficult problems have been resolved,” Baudenbacher told reporters at London’s Chatham House think tank.

Founded in 1994, the EFTA court deals mainly with the rules of the European Economic Area and their implementation. It has no jurisdiction in the 28-member EU.

The EFTA system of enforcing rules is considered less rigorous than the ECJ’s, which has been criticised by British policymakers and some of the British media for being too intrusive.

However, the European Commission, the EU’s executive arm, says Britain should remain under the jurisdiction of the ECJ for resolving any disputes during the transition after March 2019.

Baudenbacher has raised the possibility of Britain’s using the EFTA court before. And he said the idea of docking with the EFTA court has also been floated in the past, when Switzerland and the EU were working out their relationship. Switzerland is a member of EFTA but not the EFTA court.


“It is mentioned in Swiss government reports,” he said. “It is mentioned in a secret paper which I am not supposed to have seen, which was drafted by the Swiss chief negotiator and the EU chief negotiator in May 2013.

“That is all which is known about docking. The Swiss government did not want this – they went for a different construction.”