The EFTA Court discusses its own legitimacy

By Stian Øby Johansen, PhD Candidate, Scandinavian Institute of Maritime Law, University of Oslo

July 26, 2016, the EFTA Court released a preliminary judgment in Yankuba Jabbi v. Norway [2016]. The case concerned the free movement for persons under European Economic Area (EEA) law, specifically the derived rights of third-country nationals to free movement.

The subject-matter of the case may be of less interest to PluriCourts, however, in paragraph 71 the court discusses its own legitimacy. There the EFTA Court writes (emphasis added):

"Without independence in its adjudication no court could claim legitimacy. Every court must exercise its jurisdiction based upon the relevant legal sources. An essential legal source for the Court is the case law of the ECJ and the General Court. That case law must nevertheless be read in its context. Normally, this does not pose particular problems because the context is the same. However, when it comes to the legal sources in this case, the ECJ has partly ruled out the application of the Directive and instead applied the concept of Union citizenship in evolution of the free movement of persons in the EU."

It is understandable that the EFTA Court felt the need to emphasize the importance of basing its judgments on relevant legal sources, given the difficult legal questions that arose*. Moreover, this is only a couple of sentences, and "legitimacy" is mentioned only once.

Still, I cannot remember having seen a reference to the concept of legitimacy comparable to this from the EFTA Court in any other decision of an international court or tribunal. But perhaps the readers of this blog know of more examples? If so, please add a comment or send a tweet in my direction (@StianOby).

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*For those interested in an overview of the details of the Jabbi case, and the legal issues concerning the free movement of persons in the EEA, I recommend this great blog post written by Karin Fløistad - my colleague and author of a just-submitted PhD thesis on the EEA agreement in a revised EU constitutional framework for welfare services.

Published Sep. 1, 2016 10:45 AM - Last modified Sep. 1, 2016 11:13 AM
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