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.

Continue Reading →

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.

Continue Reading →

“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.

Continue Reading →

BrEXIT AND BreUK-UP

How to balance the aim of the UK to leave the European Union with the complex independence and border issues this would cause in Scotland and Northern Ireland? One possible scenario could be for Scotland to broker a five-year EFTA-EEA “naughty step” membership for the United Kingdom, at the end of which Scotland could itself become an independent EFTA-EEA member state and thus be well positioned to re-enter the European Union.

Continue Reading →