Children in Lockdown

Medically (while more scientific studies are necessary), COVID-19 largely seems to have little impact on children. However, children have been deeply affected by the lockdowns implemented to protect everyone else’s vulnerability. There is one issue which has so far received scant attention in the Covid-19 English-language constitutional law analysis, namely that of the ramifications of domestic lockdowns for children’s constitutional protections. Using Norway as a case study, we identify a set of issues and propose how a critique could have been articulated.

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Loyalty vs. Sovereignty

The German Constitutional Court’s Weiss ruling has led to a major debate as to whether a national supreme court may disregard ECJ case law, asserting that the ECJ had acted ultra vires. Similar debates have existed for quite some time in the EFTA pillar of the EEA, consisting of Iceland, Liechtenstein and Norway. A relatively small but powerful group of lawyers in the Norwegian administration (led by the Government Attorney), orthodox dualist professors and judges loyal to the government has used Norway’s dominant position to attempt to redefine EEA law. One of the most effective strategies is the suppression of the notion of loyalty or good faith and its replacement by a strategy of creating “room for manoeuvre” (“RFM”) for Norway.

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For Norway it’s Official: The Rule of Law is No More in Poland

The so-called “muzzle law”, adopted by the Polish parliament on January 23, was the last straw. On Thursday 27 February, the board of the Norwegian Court Administration decided to withdraw from its planned cooperation with Poland under the justice programme of the EEA and Norway Grants, due to concerns over the Polish justice reforms.

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The Rule of Law in a European Economic Area with National “Room for Manoeuvre”

The former president of the EFTA Court, Carl Baudenbacher, lashes out at more or less the entire Norwegian legal community in his attempt to explain how Norway’s social security authorities (‘NAV’) have come to misinterpret Regulation 883/2004 on the coordination of social security systems for years, and how public prosecutors, defence lawyers, judges, academics and the EFTA Surveillance Authority all failed to reveal this. This reply challenges his narrative and attempts to explain how use of the “room for manoeuvre” that EU/EEA law leaves to the national legislator can very well be combined with loyal fulfilment of EEA law obligations in an EEA based on the rule of law.

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“Room for Manoeuvre” is the Real Reason for Norway’s EEA Scandal

Hans Petter Graver’s explanation of the reasons for the EEA scandal that is currently shaking Norway is not convincing. The total failure of politics, administration, and courts cannot be explained by alleged “conflicts of law” problems, an “extraordinary situation” allegedly created by Norway’s EEA accession, or by a “legal overload” which occurred 25 years ago when EU single market law had to be taken over. Every European country that has joined the EEA on the EFTA side or the EU had to overcome these challenges.

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The Impossibility of Upholding the Rule of Law When You Don’t Know the Rules of the Law

On October 28 2019, it became known that the Norwegian Labour and Welfare Administration has been systematically breaching the rule of law for years when it applied the EEA legislation incorrectly in cases of unemployment and sickness benefits and work assessment allowances. According to the Attorney General, at least 48 people have been wrongly convicted of social security fraud, 36 of whom have been sentenced to prison. Later investigations have revealed that the number is much higher. This blatant disregard of the rule of law illustrates what happens when political pressure meets legal professionals, judges and an administration who are blissfully ignorant when it comes to European law.

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Norway’s Heureka Moment?

Norwegian elections are usually quite boring. While the government changes between different parties, the party structure has been remarkably stable for more than 80 years. And for decades, constitutional lawyers have been denied juicy electoral scandals. The electoral system runs smoothly without major hiccups. Monday’s local election brought at last a glimmer of excitement for Norwegian constitutional lawyers. Not only did a newly-formed protest movement shake up the traditional party landscape. It also came to light that Norway’s public broadcaster attempted to manipulate students in the non-official school election.

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