The EEA Agreement and Norway's other agreements with the EU - Meld. St. 5 (2012-2013) Report to the Storting (White Paper)
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Meld. St. 5 (2012–2013) Report to the Storting (White Paper)
The EEA Agreement and
Norway’s other agreements
with the EU
Translation from the Norwegian. For information only.
Contents
1 Introduction ................................. 5 2.5.2 Norway’s participation in crisis
1.1 Purpose and scope ........................ 5 management and military
1.2 Norway’s cooperation with capacity building ........................... 33
the EU ............................................. 6 2.5.3 Dialogue and cooperation ............ 33
1.3 The content of the White Paper .. 8 2.6 Summary of actions the
Government intends to take ......... 34
2 Norway’s options within
the framework of its 3 Key priorities in Norway’s
agreements with the EU ........... 9 European policy ......................... 36
2.1 Introduction .................................... 9 3.1 Norwegian companies and value
2.2 Early involvement in creation in the internal market .... 36
the development of policy 3.2 Key policy areas ............................. 37
and legislation ............................... 9 3.2.1 Labour relations and social
2.3 Management of welfare ............................................ 37
the EEA Agreement ...................... 11 3.2.2 Energy ............................................. 40
2.3.1 Assessment of EEA relevance ..... 12 3.2.3 The environment, climate
2.3.2 Possible adaptations when change and food safety .................. 42
incorporating new legal acts into 3.2.4 Cooperation on research
the EEA Agreement ...................... 16 and education ................................. 44
2.3.3 Bodies with powers to make 3.2.5 Rural and regional policy .............. 46
decisions that are binding 3.2.6 Market access for Norwegian
on authorities, companies or seafood ........................................... 48
individuals ....................................... 17 3.3 The Nordic countries and
2.3.4 The options available when Europe ............................................ 48
implementing EEA legislation 3.4 Summary of actions the
in Norway ...................................... 19 Government intends to take .......... 49
2.3.5 The surveillance and court
system: Norway’s approach .......... 22 4 Key instruments of Norway’s
2.3.6 Article 102 procedures .................. 24 European policy .......................... 51
2.4 Management of agreements 4.1 Information and knowledge ......... 51
in the area of justice and 4.2 Transparency and inclusion ......... 53
home affairs ................................... 25 4.3 EU/EEA expertise in the public
2.4.1 The Schengen cooperation .......... 26 administration ................................ 53
2.4.2 Development of cooperation 4.4 Close coordination of
in other justice and home EU/EEA-related work in
affairs areas .................................... 28 the public administration .............. 54
2.5 Cooperation on foreign and 4.5 Mutual responsibility for
security policy ................................ 30 managing the EEA Agreement .... 55
2.5.1 Opportunities for Norwegian 4.6 Summary of actions the
involvement .................................... 30 Government intends to take .......... 56
The EEA Agreement and Norway’s other
agreements with the EU
Meld. St. 5 (2012–2013) Report to the Storting (White Paper)
Recommendations of the Ministry of Foreign Affairs of 12 October 2012,
approved by the Council of State on the same day.
(Government Stoltenberg II)
1 Introduction
1.1 Purpose and scope and interests of the parties to the Agreement in
the ongoing EEA cooperation. The expression
The Norwegian Government’s European policy is “mutual responsibility” is used to mean that both
based on the Agreement on the European Eco- parties should follow up the Agreement in a cor-
nomic Area (the EEA Agreement) and Norway’s rect and responsible way that secures the quality
other agreements with the EU. The EEA Agree- and efficiency of the cooperation.
ment links Norway to the EU’s internal market Generally speaking, Norway benefits from the
and forms the foundation of Norway’s European development of common rules and standards for
policy. This White Paper will therefore not discuss the European market. In cases where the develop-
other forms of association with the EU. ment of legislation is not compatible with Norwe-
As set out in the Government’s policy plat- gian interests, the Government will use the oppor-
form, the Government will pursue an active Euro- tunities and available options provided by the
pean policy and will work proactively to safeguard Agreement to safeguard Norway’s interests.
Norwegian interests vis-à-vis the EU. In this White Paper, the expression “available
It is important for Norway that the EEA coop- options” is used to describe the opportunities the
eration is effective, flexible and that it ensures Government has to influence how Norwegian
mutual responsibility. Here, the word “effective” is companies and Norwegian citizens are affected by
used to mean that the EEA Agreement should the EEA Agreement and other aspects of Nor-
ensure equal treatment and predictability for Nor- way’s cooperation with the EU. The expression is
wegian actors, as well as the greatest possible therefore used to describe both the opportunities
degree of Norwegian participation in EU pro- the Norwegian authorities have to influence the
cesses. The word “flexible” is used to mean that content of EU legislation, and how, and to what
due account should be taken of the varying needs extent, the legislation should be implemented at6 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
the national level. An awareness of the available was with a view to ensuring that Norway would be
options that exist at any given time is essential for able to participate in the internal market that was
the sound management of Norway’s agreements being developed in the European Community
with the EU. (EC). In the view of the Storting, safeguarding
The main purpose of this White Paper is to Norwegian companies’ equal access to the West-
promote the sound management of Norway’s ern European market was important for the Nor-
agreements with the EU. It is crucial to ensure the wegian economy and value creation. The EEA
proper follow-up of the agreements, including the Agreement established a dynamic and homoge-
best possible use of the options available to Nor- nous economic area that ensured this.
way. This is essential not least in the light of the There are close links between Norway and the
far-reaching changes the EU has undergone in EU countries due to historical and cultural ties,
recent years, for example enlargements to include geographical proximity, common values and a
a number of new member states, treaty reforms, shared commitment to the rule of law and human
new modes of governance, and most recently rights. Norway has therefore also chosen to
changes as a result of the financial crisis in develop its cooperation and agreements with the
Europe. EU in areas outside the framework of the EEA
In its European policy, the Government will Agreement. This applies to judicial and police
focus its main efforts on areas of particular impor- cooperation, questions relating to asylum and
tance to Norway. In following up Norway’s agree- immigration policy, and foreign policy and secu-
ments with the EU, the Government will promote rity policy issues. To a great extent, Norway has
openness and awareness-raising, and will give pri- taken the initiative to develop and strengthen its
ority to enhancing knowledge and ensuring sound cooperation with the EU in these areas. Succes-
management. sive Norwegian governments have been guided
At the beginning of 2010, the Government by a common recognition of the need for transna-
appointed a broad-based expert committee, the tional cooperation in order to address transna-
EEA Review Committee, to review Norway’s tional problems, and have sought to further
experience of the EEA Agreement and its other develop Norway’s cooperation with the EU in
agreements with the EU. The aim was to obtain these areas, with broad support in the Storting.
the best possible body of knowledge on Norway’s The EEA Agreement has been in force for
agreements and cooperation arrangements with almost 19 years, and this period has mostly been
the EU. The committee, chaired by Professor one of stability and economic growth for Norway.
Fredrik Sejersted, presented its report on 17 Janu- The Agreement has remained an effective frame-
ary 2012 (Official Norwegian Report NOU 2012: 2 work for economic relations between the coun-
Outside and Inside: Norway’s agreements with the tries in the EEA, at a time when there have been
European Union). The report is far-reaching and substantial changes in the EU cooperation, partic-
thorough. It contributes to the establishment of a ularly the enlargements to include 12 new mem-
sound body of knowledge as a basis for further ber states and changes to the founding treaties.
developing Norway’s European policy. The Europe is now dealing with the repercussions
report’s main conclusions, final remarks and sum- of the crisis that hit the global economy in 2008.
maries of consultative comments are reproduced Most European countries have felt the economic
in the Appendix of this White Paper (in the Nor- effects of the crisis, many have also been affected
wegian version only). Other organisations and socially and politically. So far Norway has been
actors have also helped to foster a broad debate spared the worst of the crisis in Europe. However,
by providing their own analyses of Norway’s links developments in the EU and in the countries in
to the EU and possible alternatives to today’s form the EEA have important implications for Norwe-
of association. These analyses are also discussed gian interests. It has therefore been natural for
in the Appendix. Norway to help reduce the effects of the current
crises in European countries, for example by
increasing its contribution to IMF funding sche-
1.2 Norway’s cooperation with the EU mes and by offering bilateral loans to neighbou-
ring countries. The funding Norway provides
Norway and the EEA Agreement under the EEA and Norway Grants and the contri-
When, in 1992, the required three-quarters major- bution it makes as a long-term and reliable sup-
ity of members of the Storting (Norwegian parlia- plier of energy also have a positive impact on
ment) agreed to enter into the EEA Agreement, it developments in Europe.2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 7
The EEA Agreement and Norway’s other agreements with the EU
Figure 1.1 Map of the EU/EEA
At a time when the EU and many of the EU vis-à-vis the EU. At the same time, Nordic policy
countries are experiencing their worst crisis for has become an increasingly important element of
many years, the internal market has proved to be European policy for Norway and the other Nordic
a robust framework for trade and economic rela- countries. Nordic cooperation has thus become an
tions between the countries in the EEA. The cur- integral part of the European cooperation.
rent problems facing the EU and EU countries Cooperation between the Nordic countries on
have not led to the destabilisation or break-up of foreign and security policy has also been consider-
the internal market. ably strengthened, within the framework of the
countries’ respective memberships of the EU and
NATO. Cooperation on defence policy has
The EEA, the EU and the Nordic countries entered a dynamic phase, as illustrated by the
The EEA Agreement links the Nordic countries establishment of the Nordic Battle Group and the
together in a common internal market. Within Nordic declaration of solidarity, in which the coun-
this framework, integration between the Nordic tries state their willingness to assist one another
countries has been consolidated and further in the event of natural or man-made disasters,
developed in important areas such as the reduc- cyber attacks or terrorist attacks.
tion and removal of border barriers, labour mobil- Security policy and foreign policy cooperation
ity, welfare and employment, the environment, between the Nordic countries is part of a new
and foreign and security policy. trend towards closer regional cooperation in
Today Nordic cooperation provides an impor- Europe. The EU and key EU countries are show-
tant framework for coordinating Nordic efforts ing increasing interest in the High North. Both in8 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
the EU and NATO there is a growing interest in tion of the Government’s European policy, as set
regional cooperation that includes both member out in the Government’s policy platform and
states and non-member states. In the Nordic coun- Report No. 23 (2005–2006) to the Storting on the
tries and in northern Europe this is illustrated not implementation of European policy. Chapter 5 dis-
least by the fact that all the Nordic countries and cusses the Government’s assessments of Nor-
the EU meet in the key, sub-regional cooperation way’s opportunities and available options in the
forums: the Barents Euro-Arctic Council, the management of its agreements with the EU in the
Council of Baltic Sea States, the Arctic Council areas of the EEA, justice and home affairs and for-
and the Northern Dimension. Due to its history eign and security policy, respectively. Chapter 6
and broad set of common values, the Nordic coop- covers the Government’s assessment of certain
eration is particularly well placed to play a role in policy areas that will be given particular attention
further developing regional cooperation of this in Norway’s cooperation with the EU in the time
kind within a broader European framework. ahead, both broad cross-cutting areas and more
specific ones. Chapter 7 discusses how EU and
EEA expertise can be enhanced in the public
1.3 The content of the White Paper administration and in society as a whole, as well as
ways of involving relevant stakeholders more
Chapter 2 provides a review of developments in closely in the development of European policy.
the EU in recent years. Chapter 3 deals with Nor- Chapter 8 contains conclusions and final remarks.
way’s cooperation with the EU, including the EEA The English version of the White Paper only
cooperation, the Schengen Agreement/other includes chapter 1, chapter 5 (here chapter 2),
agreements in the area of justice and home affairs, chapter 6 (here chapter 3) and chapter 7 (here
and foreign and security policy. Chapter 4 is con- chapter 4).
cerned with goals, principles and the implementa-2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 9
The EEA Agreement and Norway’s other agreements with the EU
2 Norway’s options within the framework
of its agreements with the EU
2.1 Introduction Norway participates more closely in the devel-
opment of EU policy and legislation under the
The Government will pursue an active European Schengen cooperation. The associated countries
policy and will focus on safeguarding Norwegian are involved in Council discussions through the
interests vis-à-vis the EU and EU member states. Mixed Committee. Norway needs to provide input
The Government’s European policy is based on as early as possible in the process in this area too,
the Agreement on the European Economic Area so that its views can be taken into account before
(the EEA Agreement) and Norway’s other agree- the framework for the decision-making process
ments with the EU. has been established.
The Government intends to make use of the It is important to ensure early involvement in
options that are available within the established legislative processes so that we can carry out a
framework in its management of the agreements. preliminary assessment of EEA relevance when
This involves both making use of the opportuni- the EU is preparing new legislation. Moreover, by
ties Norway has to influence the development of being actively involved at an early stage we can
EEA legislation and Schengen rules, and utilising develop insight that will help us to clarify and
the options that are available as EEA legislation is make use of the options that are available as we
implemented in Norwegian law. Knowledge and implement and apply the legislation in Norway.
awareness of the options that are available at any In some respects the development of EU policy
given time is essential for the sound management and legislation has changed considerably over the
of Norway’s agreements with the EU. past ten years. Previously, legislation tended to deal
This chapter discusses how we can make use with specific areas, and was based to a large extent
of these opportunities in the management of the on Commission proposals. Now there has been a
agreements on the EEA and in the fields of justice move towards broad cross-sectoral policies and leg-
and home affairs and foreign and security policy. islation, developed on the basis of extensive discus-
This is particularly important in the light of the sions in the Council and the European Parliament.
far-reaching changes the EU has undergone in One example is the EU climate and energy pack-
recent years. age, which was adopted in 2009. Another important
feature is the development of broad framework leg-
islation that establishes goals and general princi-
2.2 Early involvement in the ples and leaves the further development and
development of policy and administration of the legislation to committees or
legislation other bodies under the Commission. This type of
system is being used in a number of areas. A third
Within the framework of Norway’s agreements key feature is that the decision-making process is
with the EU, Norway has greatest opportunity to now much quicker. In the past, new legislation usu-
participate in the development of EU policy and ally required two rounds of discussions in the Euro-
legislation at an early stage of the legislative pro- pean Parliament and the Council, but now one
cess, i.e. during the preparation of Commission round of discussions is sufficient in most cases.
proposals and during preliminary discussions in All in all, it has become more difficult to
the Council of the EU (the Council) and the Euro- ensure that Norwegian interests are safeguarded
pean Parliament. There is less opportunity for when new legislation is being developed in the
Norway to have an influence towards the end of EU. It is therefore crucial for Norway to establish
the legislative process in the EU, particularly as its national positions at an early stage in the legis-
regards EEA legislation. lative process and to follow all stages of the pro-10 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
Box 2.1 Consumer Rights Directive
In 2008 the Commission put forward a proposal issued. Following extensive discussions the
for a new consumer rights directive. This was Council agreed on a general approach in Janu-
intended to replace four directives that set mini- ary 2011, and the Consumer Rights Directive
mum standards for the protection of consumers was formally adopted in October 2011 following
with a new common directive, with a view to trilogue negotiations between the Council, the
achieving full harmonisation of EU consumer European Parliament and the Commission. In
law. The original proposal would have weakened Norway’s view, the Consumer Rights Directive
consumer protection in Norway in several ways. as adopted is significantly better than the origi-
The Norwegian Government established its nal proposal. Experience shows that that a
position at an early stage, and had clear aims: to broad-based national process at an early stage
achieve a directive setting out minimum stan- involving relevant stakeholders, combined with
dards, and to ensure that overall consumer pro- clear standpoints, is crucial if Norway is to exert
tection in Norway was not weakened. Policy an influence on a legislative process. This was
guidelines for Norway’s efforts vis-à-vis the EU the rationale behind Norway’s targeted effort.
were issued. Norway was working actively on Norwegian analyses and views developed at an
this matter even before the Commission put for- early stage of the process served as a basis for
ward its proposal. A coordination group was set contacts with stakeholders in the EU who had
up in the public administration, and maintained not yet established clear positions. It was also
close contact with consumer and business crucial to coordinate efforts and share informa-
organisations. Documents supporting Norway’s tion at national level in order to keep ourselves
arguments were drawn up. The EEA EFTA informed about progress within the EU. It was
states also presented their views on the pro- particularly important to submit specific sugges-
posed directive in the form of an EEA EFTA tions and not just general comments to the Euro-
Comment. The senior political staff of the rele- pean Parliament. During a trilogue, there can be
vant ministries played an active part in the pro- opportunities to put forward concrete proposals
cess vis-à-vis the EU. They also held meetings that can help in reaching a compromise. At the
with their Nordic colleagues. A Norwegian con- administrative level, we established contacts
sumer rights expert was seconded to the unit of with the support staff of relevant members of
the Commission that was dealing with the pro- the European Parliament and the secretariat of
posed legislation. the parliamentary committee. We found that our
The European Parliament presented a draft long-term involvement and participation in the
report on the proposed consumer rights direc- process enhanced Norway’s credibility and our
tive in summer 2010 containing extensive access to relevant actors in the EU system.
amendments to the Commission’s proposal. Some points in the final directive were changed
Norway held a consultation process at this in line with Norway’s views and proposals.
stage, and a new EEA EFTA Comment was
cess closely from the preparatory or decision- ensure that legislation is implemented correctly in
shaping phase to the adoption of legislation. This Norwegian law.
may be followed by the development of common The Norwegian public administration is gene-
rules for implementing the legislation (comitology rally well informed about legislation that is being
procedures) and amendments to the legislation. developed in the EU. In addition, it is important
The capacity of the Norwegian authorities to par- that the Norwegian authorities are in a position to
ticipate actively in such processes is limited, and make rapid assessments of the consequences for
for this reason focus will be on major legislative Norway of any proposed legislation and are able
and policy developments. However, it is also nec- to communicate their positions clearly in dialogue
essary to follow up less crucial developments, for with representatives of EU institutions and EU
example technical regulations, closely enough to member countries. This requires firm commit-
ensure that we have the necessary information, ment and active involvement at the political level
can assess any proposed amendments and can in the relevant ministries.2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 11
The EEA Agreement and Norway’s other agreements with the EU
Box 2.2 The CCS Directive
Directive 2009/31/EC on the geological storage gian experts were also actively involved in the
of carbon dioxide (the CCS Directive) was for- preparation of the Special Report on Carbon
mally adopted by the EU in April 2009 and is Dioxide Capture and Storage by the Intergov-
part of the EU climate and energy package. It ernmental Panel on Climate Change (IPCC),
establishes a legal framework for environmen- which was published in 2005. These processes
tally safe geological storage of CO2, including provided a starting point for drawing up the EU
requirements for exploration and storage per- directive, which incorporates a number of the
mits, the composition of the CO2 stream, moni- same principles. Norway continued to play an
toring and reporting. The directive is largely active role when discussions started in the EU
based on rules that had been established in 2007 in 2006, and was at an early stage invited to take
under multilateral agreements on the marine part in the working group set up by the EU
environment by which Norway is bound (the Commission to draw up the legislation. In addi-
OSPAR Convention, which applies to the North- tion to representatives of the Climate and Pollu-
East Atlantic, and the global London Protocol). tion Agency, Norwegian experts from institu-
Norway played a leading role in discussions on tions such as SINTEF and DNV were involved.
CCS in OSPAR and other international forums Bellona also played an important advocacy role
from 2002 onwards. Norway’s input was based in the process. In cooperation with EU member
on experience of CO2 storage on the Sleipner states such as the UK and the Netherlands, and
field in the North Sea since 1996. The Norwe- key members of the European Parliament, the
gian authorities, including the Climate and Pol- alliance of which Norway was a part succeeded
lution Agency, prepared expert input, led work- in gaining the necessary majority for integrating
ing groups, and put forward proposals, often in CCS into the EU’s climate policy, and thus for
cooperation with the UK, the Netherlands and the CCS Directive.
France. The Norwegian authorities and Norwe-
It is also important to involve stakeholders in when they are to be incorporated into the EEA
civil society and the business sector in Norway in Agreement. The European Parliament and the
formulating Norwegian positions, so that Norwe- Council are showing an increasing tendency to
gian interests can be more clearly identified. This make amendments to the Commission proposals
will enhance Norway’s efforts in this area. for directives and regulations. Therefore it is
Sharing experience and results in specific important for Norway to focus not only on the
areas at the appropriate time enables Norway as a Commission’s work but also on the subsequent
non-member state to have its voice heard when processes in the Parliament and Council.
new policies and legislation are being developed. Chapter 7 discusses ways in which knowledge
Norway’s targeted, long-term lobbying efforts vis- of the EU/EEA in the public administration and in
à-vis EU institutions have enhanced its credibility society as a whole can be strengthened, and how
and provide a solid basis for Norway to have an the level of stakeholder involvement can be incre-
influence. ased.
Norway should seek to play an active role in EU
legislative processes in all areas that have signifi-
cance for Norway. In many cases Norway’s input 2.3 Management of the EEA
will be of interest to the EU. As a rule it will be eas- Agreement
ier to gain acceptance for Norway’s views if these
are also perceived as useful and relevant to other As described above, Norway and the other EEA
countries. It is important that Norway seeks to be EFTA states have the opportunity to participate in
involved as early as possible in EU processes, parti- the development of EU legislation during the pre-
cularly in matters of importance to Norway. It is paratory stage. However, for the EFTA states the
usually more effective to seek to persuade EU more formal procedures do not begin until after
bodies to adjust proposed EU legislation before it is the EU has adopted a legal act in an area within the
adopted than to negotiate adaptations to legal acts scope of the EEA Agreement. These procedures12 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
can be divided into a number of different phases:
determining whether the act is EEA relevant,
Box 2.3 Security of energy supply
establishing whether adaptations are needed to
incorporate an act into the EEA Agreement, the Proposition No. 100 (1991–92) to the Storting
decision-making process and national implementa- on consent to ratification of the EEA Agree-
tion. The Government will work actively to ensure ment made it clear that the EEA Agreement
sound management of the EEA Agreement in all was not to encompass the development of a
these phases and to participate as effectively as common energy policy. The EC’s directives on
possible during the preparatory stage of the devel- oil stocks, which were designed to address the
opment of EU policy and legislation. effects of a supply crisis during peacetime,
were specifically discussed during the negotia-
tions, and it was agreed that they were not to
2.3.1 Assessment of EEA relevance be part of the EEA Agreement. In accordance
With the development of the EU cooperation in with this, the position of the EEA EFTA States
recent years, the limits for what is covered by the has been that the EEA Agreement does not
EEA Agreement have become less clear than they cover security of energy supply. In the light of
were in the past. This is discussed in more detail this, Norway did not consider Council Direc-
in Chapter 2. EU legislation in areas within the tive 2004/67/EC on security of natural gas
scope of the EEA Agreement is dynamic. It is con- supply or Council Directive 2006/67/EC on
stantly being developed to take account of chang- the maintenance of minimum stocks of crude
ing needs, framework conditions and policy objec- oil and/or petroleum products to be EEA rele-
tives. EEA legislation must be developed corre- vant. However, if the substance of an act is
spondingly in order to ensure the homogeneity of considered to affect the functioning of the
legislation throughout the EEA, as set out in Arti- internal market, a different decision may be
cle 102 of the EEA Agreement. reached. For example, Directive 2005/89/EC
The EEA Joint Committee is responsible for on the security of electricity supply was incor-
assessing whether new EU acts governing areas porated into the EEA Agreement because of
within the scope of the EEA Agreement should be its clear impact on the internal market.
incorporated into the Agreement. This is a two-
stage process. The first stage is to clarify whether
the legislation is EEA relevant, i.e. whether it falls
within the substantive and geographical scope of that the aim of the Agreement is to create a
the EEA Agreement, as defined in the main homogeneous European Economic Area. In
Agreement and its protocols and annexes. EEA order to achieve this goal, the cooperation is to
relevance is assessed on the basis of objective and entail the free movement of goods, persons, ser-
legal criteria. However, the criteria set out in the vices and capital, the setting up of a system
Agreement are not precise, and assessments are ensuring that competition is not distorted and
therefore to a certain extent discretionary. If an that competition rules are equally respected, and
act is found to be EEA relevant, the next step is to closer cooperation in other fields, such as
clarify whether it can be incorporated into the research and development, the environment,
EEA Agreement as it is or whether it requires education and social policy. Assessment of the
adaptations. A decision concerning this is taken EEA relevance of legal acts requires specific con-
on the basis of expert input and political and insti- sideration of which areas fall partly or wholly
tutional considerations. outside the scope of the EEA Agreement.
If an act is only partly EEA relevant, those In assessing whether legal acts fall within
parts that are not EEA relevant are removed the substantive scope of the EEA Agreement,
through an adaptation text in the Joint Committee the term EEA relevance may be used in more
Decision. Thus, only those parts of the act that are than one sense. In the narrowest sense, legal
EEA relevant will be incorporated into the EEA acts are EEA relevant if their substance means
Agreement. that they must be incorporated into the EEA
Agreement. This applies to legislation relating
to one of the four freedoms or in fields relevant
The substantive scope of the EEA Agreement to the implementation of the four freedoms,
The substantive scope of the EEA Agreement which must also be included to ensure that com-
can be inferred from its Article 1, which states petition can take place on near equal terms. The2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 13
The EEA Agreement and Norway’s other agreements with the EU
areas to which this applies are specified in Parts It may also be relevant to consider the legal basis
II–V of the EEA Agreement. These acts can be of the act. This may give an indication of its pur-
said to affect the functioning of the internal pose, as well as in certain cases its impact on the
market by establishing rules of significance for internal market. This applies for example in cases
free movement and competition across national where acts are adopted under Article 114 of the
borders. If such acts are not incorporated into Treaty on the Functioning of the European Union
the Agreement, the procedure set out in Article on the internal market.
102 may be applied, and the relevant part of the
Agreement may be suspended. This procedure
is described in more detail in Chapter 5.3.6. The geographical scope of the EEA Agreement
In its broadest sense the term EEA rele- The geographical scope of the EEA Agreement is
vance also encompasses activities (programmes set out in Article 126. The EEA Agreement applies
and projects) in areas outside the four freed- to the territory of the Kingdom of Norway, but not
oms, in the fields set out in Part VI, Article 78, to Svalbard. Norway’s position is that the term ter-
of the EEA Agreement. These fields are descri- ritory is to be understood in accordance with
bed in more detail in Chapter 3.1.1. Under the established practice in international law. This
Agreement, the parties have undertaken to means that the EEA Agreement applies to Norwe-
strengthen and broaden cooperation in these gian land territory, internal waters and territorial
fields. This extends beyond the cooperation waters, but not to the exclusive economic zone,
necessar y to ensure the proper functioning of the continental shelf or the high seas. However,
the internal market. In these cases, legal acts the geographical scope of the EEA Agreement is
are only incorporated into the EEA Agreement not considered to be a legal obstacle if Norway,
if the EEA EFTA states identify a common inter- after an assessment of a particular matter, decides
est in aligning themselves with EU cooperation to assume specific EEA obligations outside its ter-
in a specific field. A decision not to incorporate ritory.
legal acts in these fields into the EEA Agree- If there is a strong thematic or economic link
ment will not trigger application of an Article between parts of a specific activity that take place
102 procedure. within Norway’s territory and parts that take
An assessment of whether a legal act falls wit- place outside Norway’s territory, Norway may in
hin the substantive scope of the EEA Agreement certain situations choose to incorporate legal acts
is based on an overall consideration of the provisi- whose scope encompasses the exclusive eco-
ons and intentions of the Agreement, particularly nomic zone or the continental shelf into the EEA
including the following factors: Agreement. In such cases Norway has made it a
– Whether the legal act deals with one or more of condition that expanding the geographical appli-
the fields specified in the main Agreement and cability of certain acts does not change the princi-
its protocols and annexes. ple on which interpretation of the geographical
– Whether it sets out rules of importance for the scope of the EEA Agreement is based. In other
free movement of goods, persons, services and cases Norway can take a decision at national level
capital and free competition across national to also apply rules outside its territory that an
borders, and whether it imposes obligations on EEA act has established within its territory.
market actors that will have economic conse-
quences.
– The purpose of the act, i.e. whether it applies to Differences between cooperation outside the four
fields that are relevant for the functioning of freedoms and legislation relating to the four freedoms
the internal market, or whether its purpose is EU legislation relating to the four freedoms is reg-
cooperation beyond this. ulated by the Parts II–V of the EEA Agreement,
– Whether the act amends, follows up or supple- and is incorporated into one of its annexes. Coop-
ments legislation that has already been incor- eration in areas outside the four freedoms does
porated into the EEA Agreement, and whether not in principle entail a legal obligation to cooper-
related legislation has been incorporated into ate within the framework of the EEA Agreement,
the EEA Agreement. and is regulated by Part VI of the EEA Agree-
– The conditions set by the Storting for Nor- ment. Legal acts in these areas are normally incor-
way’s adoption of the EEA Agreement in 1993, porated into Protocol 31 to the Agreement on
as described in Proposition No. 100 (1991–92) cooperation in specific fields outside the four free-
to the Storting. doms. If a legal act is incorporated into Protocol14 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
Box 2.4 Marine Strategy Framework Directive
In 2008, the EU adopted the Marine Strategy an important source of inspiration in developing
Framework Directive (2008/56/EC), which the Directive. In practice, Norway fulfils the
requires Member States to draw up marine Directive’s requirements on the development
strategies (management plans) to achieve good and implementation of marine strategies. The
environmental status in their marine areas. The geographical scope of the EEA Agreement
overall criteria for assessing good environmen- extends to the territorial limit, cf. Article 126 of
tal status are determined by the EU, and these the EEA Agreement. On the other hand, the
criteria are adapted and further refined through scope of the Directive includes all marine
work done under the regional marine conven- waters, extending to the outer limits of national
tions and at national level. The strategies are to jurisdiction, and thus including the exclusive
include an assessment of the state of the envi- economic zone and the continental shelf. Its geo-
ronment and a description of environmental tar- graphical scope therefore extends beyond that
gets, monitoring programmes and measures to of the EEA Agreement. In 2011 the Government
achieve or maintain good environmental status. decided that the Marine Strategy Framework
The Directive does not regulate other activities Directive was not to be incorporated into the
that may be affected by measures of this kind, EEA Agreement on the grounds that it applies
such as fisheries, maritime transport and petro- largely to areas outside the geographical scope
leum activities. Over the past few years Norway of the EEA Agreement. A decision was also
has developed the basis for an integrated marine taken to further strengthen the already close
environmental policy based on the ecosystem cooperation with the EU on management of the
approach. This approach is also enshrined in the marine environment.
Directive, and the Norwegian model has been
31, this creates the same type of legal obligation Horizontal adaptations: Protocol 1 to the EEA
as incorporation into an annex, in that Norway is Agreement, which deals with horizontal adapta-
then obliged under international law to comply tions, including the distribution in the EFTA pillar
with the provisions of the act. Article 7 of the EEA of tasks that are carried out by the Commission in
Agreement, which deals with states’ obligation to the EU pillar, applies only to acts listed in the
make acts part of their internal legal order, also annexes to the EEA Agreement and not to Proto-
applies to acts that are incorporated into Protocol col 31. If this needs to be regulated, it must be
31. There are, however, several differences agreed on separately.
between incorporation of an act into an annex and Surveillance and settlement of disputes: It fol-
incorporation into Protocol 31, the most important lows from Article 79 (3) that Part VII of the EEA
of which are: Agreement (Institutional Provisions) only applies
Precedence: When an act is incorporated into to Protocol 31 when specifically provided for. This
an annex it can normally be assumed that later means that in principle, the EFTA Surveillance
legislation relating to the same field will also be Authority and the EFTA Court have no role in this
incorporated into the Agreement. This must be cooperation. Nor are the dispute settlement rules
the basic assumption even though there is a for- (including the Article 102 procedure) applicable.
mal requirement for a new, independent assess- Any disputes have to be dealt with through con-
ment of any new acts relating to the same field, sultations between the Contracting Parties in
including amendments, before a decision is accordance with the intentions of the Agreement.
made on their EEA relevance. The incorpora- If, for example, it is considered appropriate that an
tion of an act into Protocol 31 does not set the act incorporated into Protocol 31 is covered by the
same precedent, as in these cases there is in surveillance procedure, this must be specifically
principle no legal obligation to cooperate within agreed.
the framework of the EEA Agreement. The par- The Government considers it important that
ties therefore have more freedom to assess legal acts relevant to the implementation of the
whether they wish to develop the cooperation four freedoms are incorporated into an annex,
further. while acts regulating cooperation outside the four2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 15
The EEA Agreement and Norway’s other agreements with the EU
freedoms should be incorporated into Protocol 31.
This is in line with the intentions of the EEA
Box 2.5 On Article 194 of the
Agreement, helps to clarify the basis for coopera-
Treaty on the functioning of the
tion in each individual case and in general ensures
European Union
that management of the cooperation is as orderly
and predictable as possible. With the adoption of the Lisbon Treaty, Article
194 of the Treaty on the functioning of the
European Union now provides the legal
Difficulties in assessing EEA relevance authority for the development of an integrated
In most cases it is a straightforward matter to European energy policy, as well as for develop-
determine whether or not an act is EEA relevant, ing European legislation in the energy sector.
but in some cases it can be more complex. The Article 194 provides for the EU to adopt
EU is adopting an increasing number of legal acts energy legislation to ensure the functioning of
that fall partly within and partly outside the scope the energy market, ensure security of energy
of the EEA Agreement. This is in part due to the supply in the Union, promote energy effi-
increasingly cross-sectoral nature of the EU coop- ciency and energy saving and the develop-
eration, in part due to the abolition of the pillar ment of new and renewable forms of energy,
structure and in part due to changes that have and promote the interconnection of energy
been made to EU treaties over time. The original networks. This has given the EU broader pow-
parallel between EU treaty provisions and the ers in the following areas:
EEA Agreement is gradually being erased. This 1. Security of energy supply in general (previ-
makes it a more complex matter to establish EEA ously only in the event of serious problems
relevance. It can also be difficult to assess the relating to security of energy supply)
degree to which an act affects the internal market, 2. Infrastructure (previously only guidelines
and the parties may disagree on this. for infrastructure, as a general rule)
New legal acts are incorporated into the EEA 3. Energy efficiency in general (previously
Agreement by consensus. The EEA Agreement only in the context of the environment)
contains no provisions for dispute settlement in
the event of disagreement on the question of EEA Since Article 194 provides for the adoption of
relevance. The parties will therefore be obliged to legislation serving so many different pur-
find a political solution. If the EU is of the view that poses, it may be difficult to assess the EEA rel-
the legislation concerned should be incorporated evance of legal acts. It is likely that legal acts
into the EEA Agreement, the outcome may be that will be adopted that are intended to serve sev-
it initiates an Article 102 procedure, and the affec- eral purposes, of which one may be outside
ted part of the legislation may be suspended. the scope of the EEA Agreement (such as
Assessing EEA relevance requires technical security of energy supply), while others may
and legal expertise, and must be carried out come within it (such as ensuring the function-
within the framework of the basic premises and ing of the energy market). There are also
principles of the EEA Agreement. However, likely to be legal acts in which not all the provi-
there is also some room for discretion. The par- sions can be regarded as EEA relevant.
ties’ priorities and objectives for the EEA cooper-
ation can to some extent determine which factors
are given most weight when assessing EEA rele-
vance. decided to incorporate the original legal act into
Each new legal act is independently assessed an annex rather than Protocol 31.
before a final decision is made on EEA relevance. In practice, it is important to ensure that there
Usually, however, if one legal act is incorporated is a reasonable degree of consistency and coher-
into an annex to the EEA Agreement, it will be nat- ence in what is incorporated into the EEA Agree-
ural to incorporate subsequent legal acts in the ment and what is not. This is necessary to ensure
same area into the Agreement as well, irrespec- effective cooperation and a degree of predictabil-
tive of whether they are revisions of the original ity for relevant stakeholders.
legislation, related legislation or supplementary In order to avoid confusion, it should be made
legislation. Nevertheless, in Norway’s view, there clear when legislation and cooperation in areas
is no obligation to incorporate subsequent legisla- outside the four freedoms are incorporated into
tion outside the four freedoms, even if it was the EEA Agreement that this is not something16 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
that the parties are under a legal obligation to do. adjustments, transitional arrangements or deroga-
Clarity about the basis for cooperation in each tions. Adaptations of this kind may be particularly
case has become even more important as the pro- appropriate if only parts of the legislation are EEA
cedures for the development of EU legislation relevant, if it contains institutional solutions that
have become more complex, so that the distinc- need to be adapted to the two-pillar structure of
tion between EEA-relevant elements of the legisla- the EEA Agreement, or if special circumstances in
tion and elements that fall outside the scope of the Norway make them necessary. In some instances
EEA Agreement is sometimes less clear. When adaptations may also be appropriate if the legisla-
assessing whether or not a legal act should be tion involves a change in Norwegian policy that is
incorporated into the EEA Agreement, and if so considered to be problematic.
how, the Government will also seek to avoid set- The EU’s increasingly cross-sectoral
ting unwanted precedents. The fact that it may be approach to developing legislation, the abolition
difficult to foresee how legislation will be further of the pillar structure within the EU and new reg-
developed in a given area should be taken into ulatory methods may mean that it becomes more
account when making an assessment of this kind. relevant to negotiate adaptations in the form of
The Government’s position is that Norway’s substantive delimitations and institutional adjust-
obligations under the EEA Agreement only apply ments when incorporating legislation into the
on Norwegian territory. If, in special cases, it is EEA Agreement.
appropriate to extend the geographical applicabil- In certain cases, there may be a need to make
ity of legislation to the exclusive economic zone or a joint or unilateral declaration when incorpora-
the continental shelf, the Government’s premise ting legislation into the EEA Agreement, to clarify
is that this does not change the fundamental prin- or delimit the parties’ understanding of the legis-
ciple that the geographical scope of the EEA lation in question. A joint declaration expresses
Agreement is limited to Norway’s territory. the parties’ common understanding of the legisla-
The Government will seek to ensure a prelimi- tion, while a unilateral declaration only gives Nor-
nary assessment of EEA relevance at the earliest way’s interpretation.
possible stage when the EU is considering new Few transitional arrangements and deroga-
legislative proposals. This is crucial if Norway’s tions have been agreed for the legal acts that have
assessments and views are to be put forward been incorporated into the EEA Agreement. This
effectively. is partly because the EEA EFTA states have con-
sidered it to be in their interests to have common
rules wherever possible, and they have therefore
2.3.2 Possible adaptations when sought to limit the use of different rules at
incorporating new legal acts into the national level. It is also because the EU follows a
EEA Agreement restrictive line as regards transitional arrange-
The main principle underlying the EEA Agree- ments and derogations, because its aim is to
ment is that legislation should be implemented achieve the greatest possible degree of homoge-
and applied in the same way throughout the EEA. neity throughout the EEA. The question of sub-
This is essential to ensure the homogeneity of leg- stantive adaptations to legal acts that are incorpo-
islation, equal conditions of competition and pre- rated into the EEA Agreement should also be
dictability for companies and citizens alike. As a seen in the context of the options available to Nor-
general rule, adaptations in the form of deroga- way when implementing EEA legislation at
tions and transition periods of any length are national level. Even if Norway does not gain
incompatible with this principle. However, if spe- acceptance for an adaptation when incorporating
cial circumstances so require, it will be natural to an act into the EEA Agreement, it may in a num-
seek adaptations to legislation when incorporating ber of cases nevertheless be possible to imple-
it into the EEA Agreement. ment the legislation in a way that also safeguards
Almost all new EU legislation is incorporated Norwegian interests.
into the EEA Agreement unchanged. This being
said, the Agreement does allow for the parties to
agree on substantive adaptations. In such cases, 2.3.3 Bodies with powers to make decisions
the general objective of ensuring the homogeneity that are binding on authorities,
of legislation will be part of the political assess- companies or individuals
ment. Adaptations may concern delimitation of To an increasing extent, the EU is adopting legis-
substantive or geographical scope, institutional lation that gives agencies and supervisory bodies2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 17
The EEA Agreement and Norway’s other agreements with the EU
make decisions that are binding on authorities,
companies or individuals in the EU, the EEA
Box 2.6 Derogations from EU
EFTA states must decide whether and how corre-
legislation
sponding powers are to be exercised in the EFTA
When the EEA Agreement was concluded, pillar. This may be done by giving the EFTA Sur-
Norway was granted some adaptations and veillance Authority corresponding powers, by
derogations, for example with regard to the deciding that corresponding decisions are to be
Television Without Frontiers Directive, the made by the EEA Joint Committee, or by assign-
Community Co-Insurance Directive and legis- ing the powers to national authorities in the
lation on pesticides. Moreover, transitional respective EEA EFTA states. It is generally only in
arrangements were agreed in the chemicals the field of competition that the EEA Agreement
field so that Norway could maintain a high explicitly gives the EFTA Surveillance Authority
level of protection. Norway’s technical input the authority to make decisions that have a direct
during the development of EU chemicals leg- effect on companies. However, the EEA Agree-
islation helped to bring the level of protection ment and the Storting’s basis for accepting the
provided under EU legislation closer to that Agreement in 1993 cannot be said to rule out a
provided under Norwegian legislation, so that limited transfer of powers in other areas, provid-
there was no longer any need for derogations. ing that Norway agrees to this in each case. The
Norway has also obtained some derogations EEA Agreement also provides for departures
since the EEA Agreement was concluded. One from the two-pillar structure through special adap-
of these concerns Directive 2004/54/EC on tations. This means that in special cases, it may be
tunnel safety, and permits Norway to make decided to grant EU agencies or supervisory bod-
use of other safety facilities than emergency ies powers to make decisions that are binding on
exits. According to Official Norwegian Report EEA EFTA states, or that have a direct effect on
2012:2, Outside and Inside, by June 2011 Nor- legal entities in the EEA EFTA states.
way had obtained derogations from a total of When it is proposed to transfer powers to a
55 legal acts, Iceland from 349 and Liechten- body either in the EU pillar or the EFTA pillar, the
stein from 1056 legal acts. The majority of applicability of the rules on the conclusion of trea-
these derogations are in the areas of goods ties set out in the Norwegian Constitution must be
and transport. The main reason for the large clarified. The basic premise of the Constitution is
differences between the EEA EFTA countries that the authority with which it is concerned is, as
is that a number of legal acts are not relevant a general rule, to be exercised by the Norwegian
to Iceland and Liechtenstein for geographical branches of government. Therefore, any transfer
or other reasons. Liechtenstein’s bilateral of legislative, executive or judicial authority that
agreements with Switzerland are another rea- has direct legal effect in Norway is in principle
son for the differences. incompatible with the Constitution and must
therefore be effected in accordance with the rules
on amendments to the Constitution set out in Arti-
cle 112. Alternatively, in some cases, powers may
powers to make decisions that are binding on be transferred with the consent of the Storting
authorities, undertakings or individuals in mem- under Article 93 of the Constitution, which
ber states. This raises questions of a legal and requires a three-fourths majority and applies to
political nature, including in relation to the EEA the transfer of powers to an international organisa-
Agreement’s two-pillar structure and the Norwe- tion to which Norway belongs or will belong.
gian Constitution. According to established constitutional prac-
The concept “two-pillar structure” refers to the tice, an agreement involving a transfer of powers
fact that the EEA cooperation is organised in two that is considered not to encroach too far on con-
separate pillars: the EFTA pillar and the EU pillar stitutional powers may be entered into in the same
(for more on this see Chapter 3.1.3). This is way as an ordinary treaty, cf. Article 26 of the Con-
reflected in Part VII of the EEA Agreement, on stitution. Article 26 does not itself give any guid-
institutional provisions. The principle is that it ance on how to assess when this is the case. An
should be an EEA EFTA body that exercises assessment of what can be accepted must be
authority vis-à-vis an EEA EFTA state. based on the specific provision of the Constitution
In cases where the European Commission, EU granting the powers that would be affected in
agencies or supervisory bodies have the power to each case (Article 3, 49, 75, 88, 90, etc).18 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013
The EEA Agreement and Norway’s other agreements with the EU
Box 2.7 Common rules for civil aviation and the power of
the EFTA Surveillance Authority to impose fines
Before Regulation (EC) No 216/2008 on com- thermore, it does not appear to be politically
mon rules in the field of civil aviation was incor- controversial to put further sanctions at the
porated into the EEA Agreement, its relation- disposal of the European Aviation Safety
ship to the Norwegian Constitution was consid- Agency in addition to its already existing
ered. The Regulation authorises the European power to withdraw certificates. This would
Aviation Safety Agency to request the Commis- make it possible to respond in a more bal-
sion to impose fines and periodic penalty pay- anced and proportionate way to breaches of
ments on national companies for breaches of the rules, and would be beneficial for the
provisions of EASA rules or individual certifi- Agency’s work on aviation safety. On this
cates. Because of the two-pillar structure of the basis, we are inclined to conclude that, all in
EEA Agreement, an adaptation text was needed all, the transfer of powers set out in Article 25
giving the EFTA Surveillance Authority the of Regulation (EC) No 216/2008 is not too
same powers as regards companies in the EEA much of an encroachment on constitutional
EFTA states. The adaptation text also had to be powers, so that the Regulation can be incor-
assessed against the constitutional requirement porated into the EEA Agreement, provided
for the Storting to give its consent to transfer of that the Storting gives its consent in accor-
these powers to the Agency. dance with Article 26, second paragraph, of
The Legislation Department of the Ministry the Constitution. As mentioned initially, how-
of Justice considered the matter and concluded ever, the Storting’s views on the constitu-
as follows in a statement issued on 18 January tional assessment will be of importance in
2010: cases of doubt.”
“...In principle, transferring the power to The Regulation was incorporated into the EEA
impose sanctions directly on Norwegian Agreement on the basis of the Ministry’s state-
undertakings [to a body outside Norway] ment. Constitutional requirements were indi-
must be regarded as a considerable cated, meaning that the consent of the Storting
encroachment on Norway’s administrative is required before the Regulation can enter into
authority. On the other hand, the transfer of force in the EEA EFTA states. A declaration
powers in this case has limited substantive from the EFTA states was also appended to the
scope, in that it will only have an impact on Joint Committee’s decision, stating that giving
undertakings that already have or later the EFTA Surveillance Authority the authority
obtain certificates issued by the European to impose fines in the area of aviation safety is
Aviation Safety Agency. Currently, this only without prejudice to solutions in similar cases in
affects four Norwegian undertakings. Fur- the future.
Practice, primarily as expressed in the Stort- interests that would be affected is also taken in to
ing’s deliberations on previous cases, will provide account.
guidance on where the line should be drawn. So far, solutions have been found that have
According to this, relevant factors in an assess- made it possible to incorporate rules of this type
ment include the type of powers to be transferred into the EEA Agreement in most cases. However,
and the scope of the transfer, including whether or the increased competences being given to new
not the transfer of powers would apply to a spe- EU agencies and supervisory bodies are creating
cific and well-defined area. It is also of importance challenges as regards the two-pillar structure of
whether the transfer of powers would be based on the EEA Agreement. In certain cases, it has been
reciprocity and equal participation. In practice, decided to depart from the general two-pillar prin-
importance has also been attached to the degree ciple, either because it is not always possible to
to which the Norwegian authorities would be able adapt the EU cooperation to the traditional two-pil-
to mitigate any undesirable effects of the transfer lar structure, or because it, for resource or other
of powers. The nature of the social or political considerations, has not been considered appropri-You can also read
