“Room for Manoeuvre” is the Real Reason for Norway’s EEA Scandal
University of Oslo Professor Hans Petter Graver tries to explain the reasons for the EEA scandal that is currently shaking Norway. His considerations are 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.
Collective defensive attitude
It was not “[t]he extraordinary character of European law and its introduction into national law [that] destroyed the judgement of the actors of the legal institutions”. It was rather an almost irrational collective defensive attitude of scholars, politicians, bureaucrats, and judges against EEA law, which from the outset was perceived as foreign and threatening, that prevented the relevant actors from acquiring the necessary knowledge and skills.
From the first days of Norway’s EEA membership in the EFTA pillar, Norwegian jurists were eager to ask how the sovereignty of the country could be defended against EEA law and the institutions of the EFTA pillar, the EFTA Surveillance Authority, and the EFTA Court. There are countless publications on the unpopular principles of primacy and direct effect. When the EFTA Court in 1998 recognised EEA State liability (Case E-9/97 Sveinbjörnsdóttir, large parts of the Norwegian legal community almost lost their composure. The substantive EEA law, on the other hand, which guarantees rights to those who create wealth, citizens and economic operators, was hardly dealt with.
Not a legitimate strategy
Professor Graver writes, as if that had been an inevitable development: “With EEA law, a new principle came into Norwegian law and administration: the so-called room for manoeuvre. EU law gives the national authorities room for protecting public policy, public security or public health and other legitimate aims of overriding importance. In a political culture based on social solidarity and a recognition of the need for public regulation, it is important that political decisions can be based on legitimate national political processes and concerns. From one perspective, this is both natural and necessary. Where national solutions are desirable, the authorities should not renounce it on the basis of a misconception that they are not free. This concept of a ‘room for manoeuvre’ represents a challenge from a legal security perspective, however. Utilizing the room for manoeuvre can mean that the rights EEA rules give citizens, are restricted and challenged because it is politically desirable.”
I cannot follow these assertions. I am not aware that any other EEA State, neither in the EFTA nor in the EU pillar, has developed such a national strategy. “Room for manoeuvre” is the cause of all the evil. The NAV social security law scandal is just the tip of the iceberg. “Room for manoeuvre” has led Norway – with an interruption of 17 months – to claim the presidency of ESA for itself since 1994. Norwegian courts were asked by the State Attorney from the beginning to refrain from referring cases to the EFTA Court. If a reference was nevertheless made and the Norwegian State lost, the State Attorney invited Norwegian courts to decide in favour of the State anyway, often (albeit not always) with success. Professor Mads Andenæs has recently coined the expression that Norwegian courts are all too easily prepared to follow political signals. Disproportionate restrictions of fundamental freedoms and unjustifiable restrictions of competition could therefore be maintained. With one exception, ESA did not have the strength to take action against this (Carl Baudenbacher, Judicial Independence. Memoirs of a European Judge, Springer 2019, Chapters 15 and 22).
Early warnings
The “room for manoeuvre” dogma existed since the downsizing of the EFTA pillar to three States in 1995. It became Norway’s official EEA strategy after 2008. Critics from Norwegian academia objected that “room for manoeuvre” was incompatible with the principle that obligations flowing from international treaties had to be fulfilled in good faith (Mads Andenæs/Andreas Motzfeldt Kravik/Eirik Bjørge, Høyesterett og EMD: samspill, subsidiaritet og skjønnsmargin, Lov og rett, 2015, 261-278); alas, without success.
A systemic problem which needs systemic remedies
“Room for manoeuvre” has unfortunately become part of the Norwegian EEA-DNA. This goes so far that lawyers defend “room for manoeuvre” even though their clients, private operators, lose cases precisely because of this political concept.
The “room for manoeuvre” dogma has a lot in common with U.S. President Donald Trump’s chauvinistic rallying cry “America First”. This is not acceptable for a Western European State. Fundamentally, “room for manoeuvre” is a systemic problem which requires systemic remedies. The first short-term measure should be for the Norwegian Government to revoke the “room for manoeuvre” strategy. Norway, like any other of the current 31 EEA States, should apply European law in a way that is both fair and faithful.
There is furthermore much to suggest that the Norwegian Government’s “room for manoeuvre” strategy is incompatible with fundamental principles of EEA law:
(i) It is first and foremost irreconcilable with the principle of loyalty as laid down in Article 3 EEA. A government which instructs its administration to pursue national interests to the extreme in the application of international law explicitly or implicitly accepts that it may breach its international obligations. If I, as a football coach, continuously tell my players to play as hard as possible, to the limit of what is allowed, I cannot wash my hands in innocence if one severely injures an opponent.
(ii) “Room for manoeuvre” is also incompatible with proportionality. It is amazing that Hans Petter Graver mentions proportionality without drawing this consequence. “Room for manoeuvre” replaces the proportionality test with a mere “margin of appreciation” test. Instead of strictly examining the suitability and necessity of a restricting national measure, Norwegian courts are told by the State Attorney to limit themselves to a plausibility test. It is to be noted in this context that Norwegian judges traditionally have difficulty implementing the European law principle of proportionality. As Norway’s Judge on the European Court of Human Rights, Arnfinn Bårdsen has observed, there is “still some way to go […] to give full effect [to] that principle in the Norwegian Supreme Court”, not to mention the lower courts.
(iii) Since there is no “room for manoeuvre” dogma in the European Union and its Member States, the principle of reciprocity is also violated. From the perspective of reciprocity, EU citizens and economic operators must be granted similar rights in the EFTA pillar as EEA/EFTA operators enjoy in the EU pillar. Norwegian citizens and businesses have broad access to the Union courts whereas their counterparts in the EU are denied such access to the EFTA Court. The EFTA Court expressly highlighted this in its landmark judgments in Cases E-18/11 Irish Bank (Paragraph 58) and E-3/12 Jonsson (Paragraph 60).
(iv) “Room for manoeuvre” cannot be reconciled with the principle of homogeneity. As experience has shown, this dogma necessarily leads to inhomogeneous results.
Professor Graver mentions that the Government has set up a task-force with the mission to establish the facts and come up with explanations on how the dynamics of the NVA scandal developed. The problem with this committee is twofold: First, if its task is limited to investigating the NAV scandal, it will not even recognise the true reasons for the Norwegian EEA malaise. Second, the committee includes members who have until recently stood up for “room for manoueuvre”. Their unbiasedness is at least questionable.
Norway must loosen its grip on ESA. The authority has failed in the NAV scandal. It received a complaint in 2015 without taking any action. ESA can no longer limit itself to making submissions in proceedings before the EFTA Court. The authority must also ascertain whether the rulings of the EFTA Court are correctly implemented by the national courts and if necessary start infringement proceedings against the country concerned.
The Norwegian Government must give up its resistance against the establishment of a supranational body in the EFTA pillar along the lines of the Article 255 TFEU panel, which would examine candidates for the bench proposed by governments for their qualification and independence.
Finally, EEA law education must be made mandatory for prospective lawyers and judges. It is incumbent on Norwegian universities and the Bar to require that new entrants to the profession are properly educated and equipped to identify, consider, and argue points of EEA law before all courts. This is a long-term solution.
Together, these measures are the only way in which Norway’s systemic EEA problems of yesterday and today will no longer be the problems of tomorrow. And the only way to avoid that a situation like the NAV scandal, where the weakest of society have been systematically failed by every state body, repeats itself.
It seems like “room for manouvre” is an extended margin of apprecation or even a Norwegian right within the secure conferred competences of the EEA/intra vires to act contra legem supra nationally. I try – out of mere interest – to understand both views and the legal reasoning. I can recommend Hans-Peter Graver’s book: Judges against Justice – when the rule of law is under attack. But you almost certainly already know it. I was presented with a quote in a seminar at the University of Copenhagen, which was also in a book, which quote, allegedly, is from the Chief Justice of the Afghan Supreme Court: “If there was any problem in our procedure, you come to us”, he said. “But we do not have any soldiers. We have no force to use. There are so many cases where decisions are made but not enforced. In these cases there is nothing we can do”. Your view must be – presented very provocatively – that Norway with sole regard to EEA law is like e.g. Afghanistan. Of course, anarchy in the end leads to the destruction of a nation state.
Professor Baudenbacher comments on my post on the recent scandal in Norway on the Social Security benefits and the EEA. His post necessitates a few comments.
First, the reasons I give for the situation are twofold, and therefore more complex than Baudenbacher portrays them. According to Baudenbacher, my explanation is the extraordinary character of European law. My point is rather that the legal scandal we have seen is the result of an administration acting outside of its normal role, combined with a lack of sound judgement in the judiciary. The EEA is the background to both of these.
Because of high political pressure, the administration acted to press the boundaries of the legal protection awarded the citizens. Because og unfamiliarity with European law, the judiciary did not realise that they had to exercise control with the administration, and not base their review on the customary relationship of trust that normally characterises the relationship between the Norwegian legal institutions.
Second, the main point for Baudenbacher is to attack the Norwegian concept of “Room for manoeuvre”. When approaching the EEA it is essential to remember that it was conceived as a treaty under international law as an alternative for states that for various reasons did not want to enter as members into the supranational organisation of the at that time European Communities. In Norway, membership has been rejected by two referendums.
These facts do not influence the character of the legal obligations that follow from the EEA, but they do form an important background for the political situation. The EEA as an alternative model to membership is explained in the small book I wrote last year together with my colleague in political Science on the Norway model and Brexit, Fossum and Graver, Squaring the Circle on Brexit, Bristol University Press 2018.
In this light, the concept of the “Room for manoeuvre” should be seen as a political concept, not a legal concept. It is evident from observing the variety of arrangements of Member States of the EU on issues such as state ownership, regulation and market liberalism that EU law leaves plenty of scope for national policy and solutions. All law is not harmonised, all policies are not drawn up at the European level.
The “room for manoeuvre” concept is coined to ensure that policy issues are bases on political considerations, and not on misconceived assumptions on what is required by the EEA Agreement. The requirements of the EEA law must on their side be based on legal argument according to recognised principles of European law as established by the jurisprudence of the EUCJ, the EFTA Court and legal doctrine. In this regard it is important to remember that contrary to the status of the EUCJ in EU law, the EFTA Court has no monopoly to determine the law within the EEA.
Baudenbacher goes on to hypothesise and characterise the attitude of an undefined group of Norwegian scholars, politicians, bureaucrats, and judges. This part of his argument goes beyond what I feel called upon to comment as part of my explication of the argument set forward in my blog post.
Professor Graver’s comment confirms my finding that “room for manoeuvre” is a political concept. In a democratic constitutional state, however, it is inacceptable that obligations under an international treaty are be subject to a political reservation, regardless of how Norway understood the EEA Agreement when it entered into force.
There are reasons for the “unfamiliarity with European law” of both the administration and the judiciary, and they are homemade. Too much energy was put into defending Norwegian sovereignty. Substantive EEA law played far too small a role at the universities. In the autumn of 2015, I therefore gave a lecture at the University of Oslo with the title “Dealing with the EEA Agreement: Where’s the Beef?” in which I highlighted this issue (https://eftacourt.int/wp-content/uploads/2019/01/CB_Oslo_06102015_short_final.pdf) Neither in Iceland nor in Liechtenstein has the EEA Agreement been met with such bitter resistance.
Hans Petter Graver is speaking up after the whole world became aware of the grave misconduct of a Norwegian authority that has power over nearly a third of the State’s budget. That doesn’t require much courage. But where was he when the EFTA Court’s opinion in Case E-16/16 Fosen-Linjen was overturned in a true charade judicial process with the goal of securing “room for manoeuvre” for the Norwegian State in public procurement? (https://www.anbud365.no/internasjonalt/eu/fosen-and-nav-room-for-manoeuvre/) Where was he when the Gambian national Yankuba Jabbi who is married to a Norwegian woman was denied entry into Norway by a judgment of the Oslo City Court even though the EFTA Court had ruled that entry had to be granted (Case E-28/15)? Where was Mr. Graver when Norwegian courts up to the Supreme Court upon instruction by the State Attorney mutilated the principle of proportionality beyond recognition in order to create “room for manoeuvre” for the Norwegian State so that disproportionate restrictions of fundamental freedoms and unjustified restrictions of competition could be maintained? (Carl Baudenbacher/Theresa Haas, Proportionality as a Fundamental Principle of EEA Law, in: Baudenbacher, Ed., The Fundamental Principles of EEA Law, https://www.springerprofessional.de/proportionality-as-a-fundamental-principle-of-eea-law/15164266) The question list could easily be continued. All this is not about judges walking “on a thin line between guarding the rule of law and judicial overreach”, as Professor Graver claims. This is simply unlawful
Professor Graver blames me for hypothesising and characterising “the attitude of an undefined group of Norwegian scholars, politicians, bureaucrats, and judges” thereby suggesting that I had led an unqualified all-round strike. I can easily become more concrete. As far as the judges are concerned, it is sufficient to reiterate that the Supreme Court of Norway failed to make a single reference to the EFTA Court between 2002 and 2015 over 50 cases. This amounts to a systematic undermining of the EFTA Court which is incompatible with the duty of loyalty enshrined in Article 3 of the EEA Agreement, not to mention the violation of citizen’s and economic operators’ rights. Hegel’s assertion that quantity changes lead to quality changes applies here. With regard to the bureaucrats, it is sufficient to again highlight that the State Attorney has urged Norwegian courts from the outset to refrain from referring politically sensitive cases to the EFTA Court. It is, thus, no coincidence throughout all the years no judge has made a reference to the EFTA Court concerning the interpretation of social security Regulations 1408/71 and 883/2004. The judges followed the political signals and did what they were constantly told: to keep sensitive cases involving EEA law in the country. And if Norway lost a case before the EFTA Court, the State Attorney tried all sorts of tricks to persuade the Norwegian courts that they should nevertheless decide in favour of the State, often with success. I have described all this in detail in my judicial memoir (https://www.springer.com/gp/book/9783030023072). The slightest responsibility probably falls on politicians. They were one-sidedly, even incorrectly advised by the State Attorney. This brings me to the scholars, where a look at the thick Norwegian EEA commentary from 2018, which Professor Graver co-edited, suffices. In my judicial memoir I wrote: “First, the list of contributors contains none of the leading practising members of the Norwegian bar or in-house counsel. Second – and even more importantly – politically sensitive matters such as homogeneity, reciprocity and judicial conflict have been assigned to three commentators who are known EEA and EFTA Court sceptics or even foes: Professors Finn Arnesen and Halvard Haukeland Fredriksen and Pål Wennerås, a prominent lawyer from the Attorney General’s (sc. a synonym for State Attorney) Office. There is a tension, or even a rift, within the book between these three authors who adhere to the orthodox school of national sovereignty and are reluctant to see the EEA, in particular the Agreement’s institutional elements, in a positive light, and other authors who discuss legal issues pertaining to the Agreement with a more down-to-earth attitude.” (Page 337.) If further proof was needed that the sections commented by Arnesen, Fredriksen and Wenneras are politically driven, it was delivered at the book presentation in Oslo. According to a report in the lawyer magazine (Advokatbladet) of 16 February 2018, Mr. Fredriksen said that the book was intended “for the Norwegian (sic!) academic community and for Norwegian (sic!) practitioners” and stated “that Carl Baudenbacher – President of the EFTA Court – had largely dominated the debate about the EEA”. (“Boken er ment for det norske fagmiljøet og for norske praktikere, selv om den er skrevet på engelsk, fortalte han, og mente at Carl Baudenbacher – EFTA-domstolens president – i for stor grad har fått dominere debatten om EØS.”) The intertitle of the report read “too much Baudenbacher” (“for mye Baudenbacher”). (https://www.advokatbladet.no/boker-efta-domstolen-eos/nytt-storverk-om-eos-avtalen/112836). Even if I appreciate the honour associated with this, I have to say that this modus operandi fails to meet academic standards.
All in all, I repeat that there is only one way out of this imbroglio for Norway: “Room for manoeuvre” has to be discontinued.