Arguing a case for the Grand Chamber of the Norwegian Supreme Court

Thomas, why was this case so important?

The case concerned the EEA-agreement, which of course is of fundamental importance for the Norwegian society. More specifically the topic was the extent of free movement of persons – to what degree is Norway integrated in the common market of the European Union? 

In cases concerning EEA-law the Norwegian Government tend to argue that the courts should avoid interpreting the EEA-agreement extensively. In line with this, the Government's quite controversial policy is to actively "explore the room for maneuverability" (no: "utfordre handlingsrommet"), with the view to uphold Norwegian state sovereignty as far as possible. 

Contrary to this, private citizens and companies would argue that the purpose of the EEA agreement is to mirror the common market of the European Union and expand it to the EFTA-countries. Thus, the EEA agreement should as far as possible be interpreted in a manner ensuring an effective and homogenous common market.  

In other words, a core issue was the tension between an effective and homogenous common market and Norwegian state sovereignty. 

Another core issue was the division of power between the Norwegian Supreme Court and the EFTA-court. 

As the EEA-agreeement is more than 20-years old, having been adopted in 1992, one would think that this tension would be nothing new for the Supreme Court of Norway?

That's correct. However, several aspects of this particular case made it especially controversial. 

In a series of previous advisory opinions, in quite similar cases, the EFTA-court had ruled against the Norwegian Government. However, due to peculiarities in each of those cases, all the cases were discontinued before the Supreme Court got the opportunity to decide the cases. 

As the EFTA-court decisions were perceived as very controversial the methodological questions on the interpretation of the EEA-agreement continued to form part of the national and academic legal debate for years, mentioned in all relevant textbooks. 

Why were the decisions of the EFTA-court controversial? 

Both government agents and part of the scholars strongly argued that EFTA-court went too far in interpreting the EEA-agreement, allegedly making up a legal basis for free movement rights that did not exist in the agreement. It's not acceptable to "invent" new rights that don't exist in the EEA agreement in order to achieve the same rules as in the European Union, even if this serves the common market. This would be in breach of the state sovereignty, it was argued. 

The particular legal backdrop was this:

• The European Union has developed to a point where all citizens are now granted a general European citizenship. One aspect of this European citizenship is a general right to free movement within the European Union, stated in the Lisbon Treaty (TEUF) Article 21. However, neither Norway nor any of the EFTA-countries has adopted any such rules granting a common citizenship. 
   
• Admittedly, the EFTA-countries have adopted the directive on the European Citizenship. This directive concerns the right to leave your home country and enter another country to stay there. But the directive does not mention any right to return to your home country and to bring your family along, which was the core question of the actual case. On the contrary, the European Court of Justice has several times declared that the directive does not serve as the basis for a right to return. Even if this right exists in the European Union, the basis for the right to return is the Lisbon Treaty Article 21 only, which is not part of the EEA agreement. 
   

However, in the very same case as deliberated by the Supreme Court Grand Chamber, the EFTA-Court once again restated its opinion on the matter (M.H. vs Norway): The citizen directive should be interpreted in its specific EEA-context, also considering the general purpose to create an effective and homogenous common market. Therefore, within the EEA area, the directive did in fact serve as a legal basis for the right to return to the home country with the family. 

Is the Norwegian Supreme Court obliged to adhere to decisions of the EFTA-court? Or could the Norwegian Supreme Court simply decide the EFTA-court was wrong?

This was part of the reason why the Supreme Court Grand Chamber was summoned. It's already established in legal precedence that the Supreme Court is not obliged to adhere to the advisory opinions of the EFTA-court, but strong reasons for not doing so must be established. But what are sufficiently strong reasons? This is a matter of principle that, if necessary, should be elaborated by the Grand Chamber. 

What was the outcome of the case?

We won unanimously, 11-0. 

Please elaborate?

Due to very thorough work on the complex legal aspects of the case, we managed to show the Supreme Court that the aspect of the right of free movement in question was not dependent on the Lisbon Treaty. Rather, it had been an integral part of the EEA agreement since the very beginning in 1992. Thus, the Government's claim that EFTA-court had been overly extensive was proven wrong. 

What are the key takeaways from arguing the case?

Even if some case seems very complicated, don't give in – you may very well find a line of argument that makes the puzzle come clear. Also, when arguing complex matters, being pedagogical and structured is key. 

In this case it was also necessary to make some quite bold decisions about the structure of the pleadings in order to explain the case in a simple and logical way for the Supreme Court. However, if explained to the court why a certain approach is necessary, you will often be allowed to continue your line of argument as long as it seems to make sense. In the end it was quite nice to be able to recognize the same approach in the final judgement of the Supreme Court. 

And what are the key legal takeaways concerning Norway and the EEA-agreement?

EEA-law is complex and may often be open for interpretation. The purpose of the EEA agreement, as stated both in Article 1 and in the preamble, is to mirror the European common market. This purpose transcends the purpose of Article 6, which only concerns identical interpretation of identical rules. However, rules may differ in the EU- and the EEA-area.  The Supreme Court acknowledged that it may then be necessary to interpret the EEA-agreement in the special context of the EEA-agreement –potentially with heavy emphasis on the purpose of the agreement to ensure a common and homogeneous market, especially when it comes to free movement and other core rights.