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44 Fordham Int'l L.J. 307 (2020-2021)
Mind the (Homogeneity) Gap: Independence of Referring Bodies Requesting Advisory Opinions from the EFTA Court

handle is hein.journals/frdint44 and id is 317 raw text is: ARTICLE MIND THE (HOMOGENEITY) GAP: INDEPENDENCE OF REFERRING BODIES REQUESTING ADVISORY OPINIONS FROM THE EFTA COURT Graham Butler* ABSTRACT How independent must referring bodies be in a European Free Trade Association (EFTA ) state applying the European Economic Area (EEA ) Agreement, for the purposes of requesting an advisory opinion from the EFTA Court? To answer the question, one must pay attention to not only the case law of the EFTA Court; but also the case law of the Court of Justice of the European Union (CJEU) in a comparative perspective. This is because EEA law rests on the fundamental principle of homogeneity with European Union (EU) law. To date, the EFTA Court and the CJEU have diverged on their understanding of the independence of referring bodies, particularly tribunals, with the CJEU placing greater weight on the criterion of independence, whereas the EFTA Court cares far less about this factor. This Article unequivocally sides with the CJEU, and argues that the case law of the EFTA Court is deficient, and in need of rectification. Consequently, to close the homogeneity gap that has opened up between EU law and EEA law, this Article argues that the EFTA Court will have to bring its own case law into line with the CJEU, to ensure that judicial dialogue in the EEA * Associate Professor of Law, Aarhus University (Aarhus Universitet), Denmark. Joint Ph.D. in law from the University of Copenhagen (K0benhavns Universitet), Denmark; and the University of Iceland (Hdskoli islands), Reykjavik, Iceland. The Author wishes to thank firstly, Stian Oby Johansen, Associate Professor of Law, and Tarjei Bekkedal, Professor of Law and Vice-Dean of the Faculty of Law, University of Oslo (Universitetet i Oslo), Norway, for their comments at the Centre for European Law seminar in Oslo in June, 2020; secondly, two anonymous reviewers who provided comments on an earlier version of the article; and thirdly, the Board of Editors of the Fordham International Law Journal for their assistance. All views are those of the Author alone. 307

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