To refer or not to refer – Norwegian courts’ engagement with the EFTA Court 2019-2023

The numbers

Explaining the change of tack

Further room for improvement

Figure 1: Requests for an Advisory Opinion from the EFTA Court, 2019-2023

Figure 2: Requests for an Advisory Opinion from the EFTA Court, 2009-2013

Figure 3: Requests for a Preliminary Ruling from the CJEU, 2019-2023

efta-studies.org
- Mar 12

In the now 30-year-long history of the EFTA Court, its relationship to the national courts of the EFTA Member States of the European Economic Area has been a recurring topic. An easily identifiable parameter to assess this relationship is the number of requests made by the national courts to the EFTA Court to clarify questions of EEA law, as provided for by Article 34 of the Court and Surveillance Agreement (SCA). In the first 20 years of the EEA, the number of requests made by Norwegian courts was disturbingly low; seldom more than two each year and some years only one or even zero. In the last decade, however, the numbers have improved significantly. Whilst the numbers are clear, the reasons behind the improvement are open to debate.

Author: Halvard Haukeland Fredriksen, University of Bergen

At the time of the EFTA Court’s 20th anniversary in 2014, it was more than ten years since the last referral of a case from the Supreme Court of Norway. At the Court’s celebratory conference to mark the 20th anniversary, much attention was devoted to the question “to refer or not to refer”, including a panel with the Chief Justices of the three EFTA States.

Ten years later, the Norwegian Supreme Court alone has sent eleven cases to the EFTA Court – a much higher number than for example that of the referrals from the Supreme Court of Denmark to the Court of Justice of the EU (CJEU) in the same period. Importantly, other Norwegian courts and tribunals have followed the Supreme Court’s lead, resulting in the following numbers for the last five years:

If compared to the last five years before then 20th anniversary, the improvement is remarkable – from less than two cases to almost five cases per year:

The number of Norwegian referrals to the EFTA Court the last five years also bear comparison with those of the Danish courts and, if the size of the population is considered, Swedish referrals to the CJEU, especially if one takes into account that there is a lot more EU law than EEA law:

It is difficult to identify the reasons behind this positive development, but the list might include (i) the attention given to the lack of Norwegian referrals around the time of the EFTA Court’s 20th anniversary in 2014; (ii) the 2012 Norwegian EEA Review, which pointed out that the EFTA Court ought to be supplied with more cases; (iii) the appointment of a former EFTA Court judge to the Norwegian Supreme Court; (iv) the EFTA Court’s welcoming approach towards referrals from administrative dispute resolution bodies (e.g. E-5/16 Vigeland and E-8/19 Scanteam); (v) the increasing knowledge of EEA law in the Norwegian legal community, that has come with greater specialization and vi) the increasing impact of EEA law in more and more fields of national law that comes with the widening and deepening of the internal market.

However, the record number of referrals in 2020 (eight) can only be explained by the of so-called NAV scandal that shook the Norwegian legal community when revealed in the Autumn of 2019. For reasons that are yet to be fully understood, the Norwegian Labour and Welfare Administration (“NAV”) considered EEA-based exportability of sickness benefits, work assessment allowances and attendance allowances to be limited to cases where the recipient transferred his/her residence to another EEA State, thus excluding all other stays abroad. The recipients of the said benefits were met with hefty reimbursement claims in cases where the authorities revealed that they had stayed in other EEA states whilst receiving benefits. More than 40 cases resulted in criminal convictions for social security fraud, including 36 cases of imprisonment.

In an intriguing twist, the Supreme Court itself was implicated in the NAV scandal as it had passed final judgment in one of the cases. When this case was reopened by the Criminal Cases Review Commission, the Supreme Court swiftly decided to send the EFTA Court a long and detailed request for an advisory opinion on all relevant aspects of EEA law (E-8/20). This was far from the only effect of the NAV scandal on the docket of the EFTA Court, however. The scandal led to much soul searching in the Norwegian legal community and heightened awareness of questions related to free movement within the EEA for recipients of various social security benefits, which again led to several new cases before the EFTA Court. One of those, on the exportability of unemployment benefits, was the first request ever made by the Social Security Tribunal (E-13/20). It has been followed by three more requests from that Tribunal (E-2/22, E-3/23 and E-15/23), thus demonstrating that once a tribunal has become aware of the relevance of EEA law to its decision making, and discovered the benefits of leaving hard questions of EEA law to the EFTA Court, it might turn into a habit.

The impact of a single incident such as the NAV scandal on the judicial statistics of the small EFTA-pillar of the EEA also helps to explain the less fortunate decrease in the number of Icelandic referrals to the EFTA Court over the last decade. Nine referrals in the last five years is not much, but the decrease compared to 2009-2013 (fifteen) must be seen in light of the unprecedented high number of requests made by Icelandic courts in the wake of the 2008 financial crisis. Compared instead to the only twelve Icelandic requests made in the fifteen years from 1994 to 2008, nine referrals in the last five years might even be considered a modest improvement.

Liechtenstein

Although the increase in the number of requests from Norwegian courts is very positive, it does not guarantee that all or even most “hard” questions of EEA law brought before Norwegian courts are referred to the EFTA Court. Of course, an increase from less than two cases to almost five cases per year does suggests that a bigger share of cases giving rise to new questions of EEA law is sent to the EFTA Court, but at least part of the increase could be due to the steady growth of the number of EU legal acts incorporated into the EEA Agreement and/or heightened awareness of EEA law after the NAV scandal. In any event, an average of five cases is not much compared to, e.g., the number for cases before the Supreme Court every year where questions of EEA law play a central role. Unfortunately, research into this matter is difficult, as it is difficult to find all cases where a Norwegian court has considered whether to make use of Article 34 SCA, be it at the request of one of the parties or on its own initiative. The Norwegian Lovdata database contains most judgments from the six Norwegian appellate courts and a growing selection of judgments from the courts of first instance, but few of the decisions where requests from a party to send a case to the EFTA Court are approved or rejected. Sometimes such decisions are referred to in the final judgment in the case, but this is not done in a systematic manner. Thus, a systematic search in Lovdata to check whether an increasing number of requests for referrals to be made to the EFTA Court are followed up by Norwegian courts, is not possible. One is therefore left to speculate based on the occasional cases that are brought to the attention of the legal community, typically by the party whose request for a referral to be made was turned down by a court. One such recent case is the third and presumably last round of the Dartride saga, where Oslo City Court refused to ask the EFTA Court whether the principle of State liability for breach of EEA law extends to judicial wrongs, even though the city court itself considered the questions difficult. However, individual examples of cases that clearly ought to have been referred, such as this one, do not allow for general conclusions to be drawn.

Be that as it may, the number of referrals from the national courts should ideally be higher than the current annual average of around ten. This is particularly so because the number for substantive infringement cases brought by ESA has been considerably reduced in recent years, apparently as a result of ESA trying to mimic the “more political approach” of the European Commission. A recent example is the decision to close a case against Norway for placing certain limitations on subcontracting in public procurement, which ESA emphasised was taken based on policy grounds. With only three states left in the EFTA-pillar of the EEA, and an increasing number of EEA specific questions caused by developments in EU law over the last couple of years, national courts in the EFTA states have a shared responsibility to make sure that the EFTA Court gets the cases it needs to keep up with the CJEU.

In this regard, it can only be considered unfortunate that the average time it takes the EFTA Court to answer the questions put to it, appears to be on the rise. The oldest case still pending before the EFTA Court is an Icelandic case where the request for an advisory opinion was received in November 2022, more than 15 months ago (E-13/22). Part of the explanation for the lengthy procedure is presumably the fact that it has been joined with a similar case that was referred a few months later (E-1/23), but that case has now been pending for a full year, too. If the EFTA Court is to attract even more referrals in the years to come, the time the national court has to wait for an Advisory Opinion needs to come back down to around 8-10 months.

Author

Professor Dr. Dr. Halvard Haukeland Fredriksen, University of Bergen

How to cite

Fredriksen, Halvard Haukeland (2024): To refer or not to refer – Norwegian courts’ engagement with the EFTA Court 2019-2023. Blog. EFTA-Studies.org.