Is EEA Law Becoming Too Complex for the EFTA Surveillance Authority, the EFTA Court, and the EFTA States?

Over the past six months, two major infringement proceedings against Norway have collapsed before the EFTA Court: one concerning Norwegian financial institutions' obligation to notify the Financial Supervisory Authority before establishing or acquiring subsidiaries in other EEA states (Case E-13/23), and another regarding the Norwegian rules on publicly funded hospital treatment abroad (Case E-9/23).

Author: Professor Halvard Haukeland Fredriksen, University of Bergen / Centenol

The EFTA Surveillance Authority (ESA) had been working on both cases for years, yet the EFTA Court dismissed the actions – holding that the Authority had failed to meet the minimum procedural requirements needed to give Norway a proper opportunity to defend itself. Strikingly, the Norwegian government did not raise this objection in either case; rather, the Court raised the issues ex officio. Equally striking; this happened after the European Commission presented the Court with new perspectives and arguments.

At first glance, these defeats are rather embarrassing for ESA – especially given that the EFTA Court, in both rulings, offers little praise for the procedural groundwork done by ESA’s legal service. At the same time, some might argue that the EFTA Court set the bar quite high. The procedural assessments are lengthy and detailed, clearly consuming substantial judicial resources. Arguably, those resources might have been better spent on clarifying the state of EEA law – to the benefit of the financial institutions (E-13/23) and the patients interested in treatment abroad (E-9/23), as well as the national administrative bodies entrusted to apply the contested rules within the boundaries set by EEA law.

The aim of this blogpost, however, is not to examine the procedural or substantive issues in these two infringement cases, but to ask whether the outcomes might be interpreted to suggest that EEA law is becoming too complex for the small EFTA-pillar of the EEA. Both cases involved complex questions of EEA law and took new turns when the Commission – possessing a level of expertise far beyond that of ESA and Norwegian authorities – entered the fray. One is tempted to interpret the EFTA Court’s criticism of ESA’s handling of the cases as an expression of frustration that the proceedings failed to provide what the Court regarded as a sufficiently robust basis for it to rule on the merits.

As is well known to all EEA lawyers, the only 3 judges of EFTA Court do not enjoy anything approaching the resources of the CJEU, with its 27 judges, 11 Advocates General and numerous référendaires and other assistants. As a result of this, the EFTA Court is more dependent on the quality of the submissions made by the parties than is the CJEU.

This challenge is compounded by the fact that EU member states rarely take the trouble to take part in cases before the EFTA Court. In the infringement proceedings discussed here, the only participant beside the parties (ESA and Norway) was the Commission.

The EFTA Court’s position is further complicated by the risk of subsequent “overruling” by the CJEU if the same interpretative question later arises before the latter. The standard for persuasive reasoning is therefore effectively higher for the EFTA Court than for the CJEU – the latter enjoys the considerable advantage of simply being able to postulate the “correct” interpretation of EU law, which will then often be decisive in the EEA law context.

Of course, two cases are by no means enough to demonstrate that EEA law is becoming too complex for the EFTA pillar. But the question might be turned on its head: given the enormous disparities in staffing and resources, it would be surprising if ESA and the EFTA Court didn't struggle to match the expertise of the Commission, the CJEU, and the growing number of EU agencies.

The fact that the Norwegian administration struggles to stay afloat amid a “tsunami” of new EU legislation was most recently confirmed by the 2022-2024 EEA Review Committee (short English summary to be found here). The Committee acknowledged that the development is challenging for the EU member states too, but proceeded to highlight the additional complexity brought about by the EEA framework. These include delays in the EEA Joint Committee ("the backlog"), increasingly complex EEA-specific adaptations of EU legislation, institutional issues linked to the two-pillar structure when dealing with EU agencies and the integration of national authorities into EU networks, problems brough about by interconnections between EU legal acts incorporated into the EEA Agreement and EU legal acts non considered EEA-relevant, the lack of a consolidated versions of “EEA legal acts”, delays in translating EU acts into Norwegian, Norwegian authorities limited insight into the legislative history of EU legal acts that are to be implemented into Norwegian law, and the widening divergence between the EEA Agreement’s unchanged main body and today’s EU treaties ("the widening gap").

In short, EEA law is becoming significantly more complex than EU law itself—which many already regard as complex enough in itself.

For Norwegian politicians who place their trust in the EEA Agreement in a geopolitically challenging era, the first step is to acknowledge the need to strengthen both ESA and the EFTA Court. It may seem paradoxical to spend taxpayer money to empower supranational bodies that oversee Norwegian authorities. However, as emphasized by the EEA Review Committee, both ESA and the EFTA Court are essential to securing the rights of individuals and businesses under the EEA Agreement – and, by extension, to maintaining the EU’s trust in the functioning of the EEA system.

These EFTA institutions are also essential if Norwegian authorities’ much-debated (but often poorly understood) strive for “room for manoeuvre” in matters within the field of EEA law is to be squared with effective protection of the individual rights protected by the Agreement – thus ensuring the trust that the Agreement ultimately depends on.

Note: The author was a member of the 2022-2024 EEA Review Committee.

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How to cite

Fredriksen, Halvard Haukeland (2025): Is EEA Law Becoming Too Complex for the EFTA Surveillance Authority, the EFTA Court, and the EFTA States? Blog. EFTA-Studies.org.