On 25 January 2024, the EFTA Court delivered its judgment in Case E-2/23, A Ltd v Finanzmarktaufsicht, referred to its by the Board of Appeal of the Financial Market Authority of Liechtenstein (Beschwerdekommission der Finanzmarktaufsicht).
The was about the interpretation of the Solvency II Directive (Directive 2009/138) and the EIOPA Regulation (Regulation 1094/2010), but what was most interesting about this case was what the EFTA Court stated about the legal value of legal acts related to this secondary law that has not been included within the EEA Agreement.
Article 16(1) of the EIOPA Regulation states that EIOPA shall issue guidelines and recommendations addressed to competent authorities or financial institutions, on the basis that it will contribute to consistent, efficient and effective supervisory practices within the EEA. Article 16(3) of that Regulation goes on to states that such recipients of guidelines ‘shall make every effort to comply with those guidelines and recommendations.
Under EEA law, on the EFTA pillar side, it is the EFTA Surveillance Authority (ESA) which takes decisions addressed to those in the EFTA-EEA states, adding another layer or intermediary between EIOPA and the bodies it is addressing, as compared to those in EU Member States.
In the case at hand, the EFTA Court stated that ‘Joint Guidelines’ were not a legal act incorporated into the EEA Agreement, and thus, not binding on the parties within the meaning of Article 7 EEA. Therefore, EIOPA’s actions in this regard do no produce binding legal effects. Nevertheless, the EFTA Court were keen to temper this conclusion of EEA law by noting that, it is for the national courts and tribunals of EFTA-EEA states,
‘to take such guidelines into consideration in order to resolve the disputes submitted to them, in particular when those guidelines are intended to supplement binding provisions of EEA law’
para. 72
On a side note, it has been argued elsewhere that the EFTA Court should not be accepting requests for an advisory opinion from non-judicial tribunals like the one in the case at hand. Nonetheless, the EFTA Court continues to do so, putting it on a collision course, in terms of its own jurisprudence, to that of the CJEU.
The judgment of the EFTA Court in Case E-2/23, A Ltd v Finanzmarktaufsicht can be read here.