Prof. Dr. Carl Baudenbacher

PROF. DR. IUR. DR. RER. POL. H.C. CARL BAUDENBACHER

Married to Dr. rer. pol. Doris Baudenbacher-Tandler, Publisher
Daughter: Attorney-at-Law Dr. iur. Laura Melusine Baudenbacher

I have always considered myself as a life entrepreneur.
As a consequence, I have always been wearing more than one hat.
Being a Judge of the EFTA Court
The EFTA Court has jurisdiction with regard to the three EFTA States Iceland, Liechtenstein and Norway which are Contracting Parties to the European Economic Area (EEA) Agreement. The EEA Agreement aims at extending the EU single market to these EFTA States with the exception of certain common policies. The agreement which was concluded in 1992 and entered into force on 1 January 1994 is built on a two pillar model. The EU pillar consists of 28 Member States and the EFTA pillar of three. With regard to surveillance, the EFTA Surveillance Authority (ESA) plays a role vis-à-vis the three EEA/EFTA States which is comparable to that of the European Commission vis-à-vis the EU States. The jurisdiction of the EFTA Court essentially corresponds to the jurisdiction of the Court of Justice of the European Union. The Court is mainly competent to deal with infringement actions brought by the EFTA Surveillance Authority against an EFTA State and actions for nullity concerning decisions taken by the EFTA Surveillance Authority in competition law and State aid law matters as well as for rendering preliminary rulings on the interpretation of EEA law by courts in EFTA States.

EEA law originates from EU law. The participating EFTA States have a co-determination right in the creation of new EEA relevant EU law and they may opt out of the adoption of new EEA relevant EU law into the EFTA pillar. Opting could, however, lead to compensatory measures by the EU.

Since the law is essentially identical in substance in both EEA pillars, the EEA Agreement contains provisions which aim at guaranteeing a uniform (“homogeneous”) interpretation of its rules. Four aspects must be emphasized in this respect: (1) The EFTA Court is bound to follow relevant case law of the ECJ from the time before the signature of the EEA Agreement (2 May 1992). (2) The EFTA Court shall take into due account relevant case law of the ECJ from the time after the signature. (3) In reality, the EFTA Court is in the majority of its cases faced with fresh legal questions. The ECJ and its Advocates General, the General Court and Supreme and Appellate Courts of certain EU countries often refer to the EFTA Court in such cases. Such reference may occur explicitly or implicitly. (4) Judging is no exact science and homogeneity cannot be understood as a snapshot in time; it is a process-oriented long term concept. In practice, the one-sided written homogeneity rules have largely been superseded by a “unique judicial dialogue” (ECJ Advocate General Verica Trstenjak).

The EFTA Court consists of three regular judges and six ad hoc judges. There is no nationality requirement for the judges. As a Swiss citizen, I was appointed as an EFTA Court judge on 6 September 1995 by common accord of the governments of the EEA/EFTA States upon nomination by the government of the Principality of Liechtenstein. I was reappointed in 2001, 2007 and 2013. In 2003 I was elected President of the Court by my fellow judges, and in 2006, 2009, 2012, and 2015 I was re-elected.

The most important cases decided by the Court since I have been a judge concern EFTA States' liability for legislative, administrative and judicial wrongdoing, the recognition of EEA fundamental rights and of other general principles of EEA law, modalities of the infringement procedure and the preliminary reference procedure, State monopolies for alcoholic beverages, tobacco and gambling, the Norwegian advertising ban for alcoholic beverages and the display ban for tobacco products, the Norwegian reversion system for waterfalls, transfrontier television, the succession of contracts under the transfer of undertaking rules, the recognition of the precautionary principle in food law, the taxation of dividends, the relationship between competition law and collective agreements, the compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks, the relevance of the ECHR in competition law cases, access to documents of the EFTA Surveillance Authority for private parties seeking damages, the security of costs, the limits of the application of national CFC rules, the interpretation of the EU Citizenship Directive in an EEA law context and the relationship between copyright law and trade mark law. The EFTA Court also dealt with a number of complex cases concerning the legal consequences of the downfall of the Icelandic banks in 2008. On 28 January 2013, the Court dismissed the action brought by the EFTA Surveillance Authority in the Icesave case.

I have participated in roughly 260 cases stemming from the whole range of EEA law, the fundamental freedoms (goods, persons, services, self-employed and companies, capital and payment), competition law and State aid law and harmonized economic law (in particular intellectual property law, insurance law, banking law, capital market law, financial market law, conflict of law, internet law, individual and collective labour law, social security law, transparency law, and the law of general terms of contract). I acted as the Reporting Judge inter alia in E-5/16 Vigeland, E-3/16 Ski Taxi, E-29/15 Sorpa, E-14/15 Holship Norge AS v Norsk Transportarbeiderforbund; E-4/15 Icelandic Financial Services Association v ESA, E-27/13 Gunnarsson, E-25/13 Engilbertsson, E-15/12 Wahl, E-16/11 Icesave, E-14/11 DB Schenker, E-15/10 Posten Norge, E-9/11 Regulated Markets I, E-18/11 Irish Bank, E-14/10 Konkurrenten, E-1/10 Periscopus, E-1/06 Gaming Machines and E-3/06 Ladbrokes, E-4/04 Pedicel, E-1/04 Fokus Bank, E-2/03 Ásgeirsson, E-3/02 Paranova v Merck, E-3/00 Kelloggs, E-1/99 Finanger, E-1/98 Astra Norge, E-3/97 Opel Norge, E-2/97 Maglite.
Positions and Chairmanships

President of the EFTA Court
Director of the Competence Center for European and International Law at the University of St Gallen HSG
Chairman of the St Gallen International Competition Law Forum ICF
Chairman of the St Gallen International Dispute Resolution Conference IDRC
Co-Chairman of the Grigory Tunkin Readings at Moscow State ("Lomonosov") University
Member of the Judicial Selection Committee of the Principality of Liechtenstein appointed by H.S.H. Hereditary Prince Alois of Liechtenstein
Member of the Austrian Government's Independent Commission of Inquiry for the Transparent Investigation of the Events Surrounding the Hypo Group Alpe‐Adria (2014); the Commission's Report as well as a summary in German and in English may be downloaded at www.untersuchungskommission.at.
Chairman of the Board of Editors of the European Law Reporter (ELR), Luxemburg, radical brain S.A. 1998- . ISSN: 1028-9690

Fields of Expertise

Dispute Resolution (Adjudication and Arbitration)
European and Swiss Antitrust Law
Swiss and European Unfair Competition Law
Swiss, European and International Intellectual Property Law
EU and EEA Law
Law and Politics of Globalization
Swiss Contract Law
Swiss Company Law

Consulting

Government of the Principality of Liechtenstein (EEA negotiations)
Government of the Canton of St Gallen (European Law and Policy)
Government of Israel (Unfair Competition and Trademark Law)
Government of the Russian Federation (Antitrust Law)
National Council of the Swiss Confederation (Intellectual Property Law)
State Council of the Swiss Confederation (Antitrust Law)
UNCTAD (Antitrust and State aid law)
Swiss State Secretariat for Economic Affairs (Antitrust Law)
Federal Council of the Swiss Confederation (European Law and Policy)
Individual Members of the Federal Council of the Swiss Confederation (European Law and Policy, Antitrust Law)
OECD (Antitrust Law)
Government of the Republic of Chile (Project of a new constitution)
Court of Justice of the Andean Community (Tribunal de Justicia de la Comunidad Andina)

Professional Activities

Research Associate and Head Assistant at the Universities of Berne and of Zurich (1973-1977)
Legal Secretary at Bulach District Court, Switzerland (1982-1984)
Acting Professor at several German universities (i.a. Free University of Berlin, University of Tübingen) (1984-1986)
Professor of Civil, Commercial, Labour and Economic Law at the University of Kaiserlautern (1987)
Chair of Civil, Commercial and Economic Law at the University of St Gallen HSG, succession of Federal Councillor Arnold Koller (1987-2013)
Visiting Professor at the University of Geneva (1989-1990)
Permanent Visiting Professor for European and international law at the University of Texas School of Law (1993-2005)
Offered the Chair of Private, Commercial and Economic Law at Ruhr University Bochum (1994)
Member of the Supreme Court of the Principality of Liechtenstein (1994)
Foundation of the University of St Gallen’s Program ‘Executive Master of European and International Business Law’ which is present in Europe, China, Japan and the U.S. (1995)
Judge of the EFTA Court (since 1995)
President of the EFTA Court (since 2003)
Visiting Professor at the University of Iceland (2009-2011)
Guest lectures at universities in Europe, the U.S., Asia, Russia and Latin America, inter alia Bonn, Bucerius, Cologne, Cambridge, Cardiff, Edinburgh, Glasgow, Oxford, Vienna, Harvard, Princeton, Fudan, King's College London, Moscow State (Lomonosov), Waseda, Tokyo, Kyoto, Jagiellonian University of Kraków, Universidad Andina Simón Bolívar, Universidad Nacional Autónoma de México (UNAM), Pontificia Universidad Católica del Perú (PUCP).
Eason Weinmann Endowed Lecture at the University of Tulane Law School 1997.

Education

University of Berne School of Law and Economics
Doctor juris University of Berne School of Law and Economics (1978, Supervisor: Prof. Dr. Dr. h.c. Walter R. Schluep); notable alumnus (https://www.google.com/search?q=Berne+uni+notable+alumni&ie=utf-8&oe=utf-8)
Scholar at the Max Planck Institute for Intellectual Property Law in Munich (1979-1981, Supervisor: Prof. Dr. Dr. h.c. mult. Gerhard Schricker)
Private Lecturer at the University of Zurich (1982, Supervisors of Habilitation Thesis: Prof. Dr. Dr. h.c. Walter R. Schluep, Prof. Dr. Arthur Meier-Hayoz)