Report from EFTA Court by scholar Aloysius Atkinson
Aloysius Atkinson reflects on his rewarding experience in Luxembourg as the 2025 recipient of the EFTA Court Scholarship.
Does a country with no airports need to license an airline? Was it lawful for a supranational competition authority to raid suburban pharmacies? Must an incinerator burning household waste to generate energy pay for its emissions?
These are just a few of the legal conundrums which faced the EFTA Court during my placement. The Court plays the equivalent role for the EFTA States within the European Economic Area (EEA) as the European Court of Justice and General Court play for the EU Member States. The EEA allows these EFTA States to participate fully in the EU’s single market, with the four freedoms (free movement of goods, services, capital and workers), which requires implementing many of the same regulations and directives, albeit sometimes adapted. At the same time, the EEA EFTA States are outside the scope of the EU treaties, so the fundamental institutional context is provided by the EEA Agreement, rather than the EU treaties and the Charter of Fundamental Rights.
I was thoroughly integrated into the cabinet of Judge Bernd Hammermann, the judge nominated in respect of Liechtenstein, and had the opportunity to work on the types of case which come before the Court: infringement proceedings brought against EFTA States for failing to comply with their EEA obligations; actions challenging the EFTA Surveillance Authority (EFTA’s counterpart to the European Commission); and requests from national courts to give advisory opinions interpreting EEA regulations and directives.
My tasks mainly involved helping Judge Hammermann and his cabinet prepare for hearings and assisting with drafting judgments. The parties and interveners, which typically include the EFTA States, EU Member States, the EFTA Surveillance Authority and the European Commission, provide extensive written submissions. Much of my time was spent reading and summarising the submissions and researching substantive and procedural points for possible questions to the parties. After the hearing, the focus shifts to drafting the judgment. As in the EU courts, there is a single judgment of the Court, with no concurring or dissenting opinions. One judge, appointed in advance as judge-rapporteur, drafts the initial judgment, which forms the basis upon which a majority or unanimity is achieved for each point.
The privilege of assisting in the drafting of two judgments was the undoubted highlight of my time at the Court. The cases gave a great insight into the practical operation of the single market, with one involving financial regulation and the other environmental protection – waste incineration, to be precise. The environment and financial services have been prominent in the Court’s caseload, as the recent E-18/24 Friends of the Earth Norway and E-18/24 Greenpeace cases and the famous judgment in E-16/11 Icesave show.
Working on judgments provided a fascinating insight into ‘how the sausage is made’. The draft must reflect the judges’ deliberations and respond to salient points raised by the parties. The Court, like the EU courts, applies literal, systematic and teleological methods of interpretation, so one of the most interesting aspects of drafting is to see how the context and objectives of EEA law shape the outcomes of specific cases and thereby the development of the law.
Alongside assisting with the resolution of cases, I was involved with representing the Court externally. A particular highlight was the visit of a group from the Inn, including a moot, for which I was among the judges and which Dame Eleanor Sharpston DCMG KC, formerly Advocate General at the ECJ, attended. Judge Hammermann also hosted the EU Legal Summer School; their visit, which included a reception, was a very pleasant opportunity to meet early career lawyers from across Europe.
The Court is situated across the street from its ‘big sister’, the Court of Justice of the European Union. I enjoyed attending hearings at both the ECJ and the General Court, the latter including seeing Robert Spano, former president of the European Court of Human Rights, representing Amazon against the European Commission. The chance to hear, at the Court and at the CJEU, advocates from across Europe (including, still, several English barristers) was particularly interesting. A real highlight of the placement was getting to know stagiaires and assistants légaux at the CJEU – and to attend the CJEU’s end-of-year party, though this was rather bittersweet, given that they were celebrating 30 years of Austria, Finland and Sweden leaving EFTA to join the EU!
Even beyond the legal sphere, Luxembourg was a fascinating place to spend time. I was never bored at weekends, or on the many bank holidays. There was plenty happening in the city itself, including the Fête de la Musique and the revels for the Grand Duke’s official birthday. The rest of the Grand Duchy is also interesting to visit, from the ‘little Switzerland’ of the Mullerthal to the museum commemorating the devastating Battle of the Bulge of winter 1944-45. Luxembourg is also just 50 minutes by train from Metz in France and from Trier in Germany, which, appropriately for a capital of the Roman Empire, is full of classical ruins, as well as Karl Marx’s birthplace. But by far the most unique experience of my nearly three months in the Grand Duchy was the procession dansante at Echternach, to the tomb of St Willibrord, an early medieval English missionary. Each year, thousands of pilgrims, from Luxembourg, Germany, the Netherlands and farther afield, dance/hop/jump through the streets in Willibrord’s honour.
I am so grateful to Judge Hammermann and his cabinet – Michael-James Clifton (of this Inn), Dr Ekkehard Roidis-Schnorrenberg and Kerstin Schwiesow – for their generosity in hosting me and to the Inn for the EFTA Court Scholarship.
Finally, if you’re interested in the answers to the three questions at the start, please see E-1/25 Valair, Joined Cases E-31/24 and E-32/24 Toska and SKEL and E-2/25 Sarpsborg Avfallsenergi.
Tips to prospective EFTA Court scholars
1. If you’re interested in EEA/EU law, apply.
As I hope the examples at the top show, this is a great opportunity to work across the range of EEA law, from core single market principles to competition law. Conversely, if you’re interested in international criminal law or the European Convention on Human Rights, other scholarships would be more appropriate.
2. If you find other national legal systems interesting, apply.
This is an opportunity to work with lawyers and on cases deriving from legal systems very different to English and Welsh common law. If you think you might enjoy trying to work out whether Liechtenstein Ersitzung approximates to adverse possession, this is the opportunity for you.
3. Be prepared to work hard.
‘The more you put in, the more you get out’ may be a cliché, but it’s very much true of the placement at the Court. There’s a lot to learn about both EEA law and the way the Court and its EU counterparts operate.
4. Understand how the EEA Agreement works.
While much of the substantive law is the same as in the EU, the EEA’s scope and institutional context differ markedly from those of the EU. It will save a lot of time when in Luxembourg – and, for that matter, help at interview – to grasp in advance how it works. Reading recent judgments would also be a good idea.