From autonomy to full deference in the relationship between the EFTA Court and the ECJ: The case of the international exhaustion of the rights conferred by a trademark

Differently from other international tribunals set up in the context of regional economic integrations, the existing relationship between the EFTA Court and the ECJ, having been “institutionalized” at a primary level by the EEA Agreement itself, is naturally apt to give rise to a structural, natural and original interdependence between the two phenomena of mirror jurisdiction and mirror legislation. The relevance of the ECJ case law for the EFTA case law is not limited to the references to the former court case law, which can be found in all the advisory opinions and in all the judgments given up to now by the latter. It also and above all reveals itself in the constant adoption both of the reasoning made by the ECJ and of the constitutional principles of EU law. By putting on the same level its jurisprudence and that of the ECJ, the EFTA Court attributes to both of them the same efficacy in terms of judicial precedent. This does not mean that the EFTA Court has restricted itself to passively adopt the ECJ case law. EFTA judges have had a relevant influence on the ECJ in the course of the years. In doing so the EFTA Court has built up a strong judicial dialogue with the ECJ, according to the EEA principle that the interpretation and application of EEA law and EU law must be carried out “in full deference to the independence of courts”. In some other cases the EFTA Court has even developed reasonings which seem to underline a detachment of the former from the criteria and principles adopted by the ECJ. In this context, the L’Oréal case represents the first and until now only case in which the EFTA Court had to decide on a question which had already been the subject of an explicit conflict with the ECJ. The issue at stake is the admissibility of the principle of international exhaustion of the rights conferred by a trademark, that consequently functions as appropriate sedes materiae for the purpose of clarifying the degree of autonomy characterizing the EFTA Court vis-à-vis the ECJ and its case law. This working paper aims at explaining why and to what extent the choice made and the reasoning developed by the EFTA Court to abandon its previous case law in favour of the ECJ case law in the L’Oréal case seems to be more inspired by political considerations than by a purely legal reasoning. The analysis will then show the reasons why L’Oréal goes beyond the issue of the international exhaustion of the rights conferred by a trade mark and concerns structural and institutional questions pertaining to the legal and economic aims of the EEA law and the EU system. It will be finally underlined in what sense the EEA Agreement must be interpreted and construed as meaning that the uniformity and consistency in the case law of the two courts have to be always and in any case prioritized, notwithstanding the different aims and the lower degree of integration of the EEA system in comparison with the EU legal that seemed to constitute, until L’Oréal, the only exception to the objective of legal homogeneity acknowledged by the EEA Agreement.