2 Norway’s options within the framework of its agreements with the EU

2.1 Introduction

The Government will pursue an active European policy and will focus on safeguarding Norwegian interests vis-à-vis the EU and EU member states. The Government’s European policy is based on the Agreement on the European Economic Area (the EEA Agreement) and Norway’s other agreements with the EU.

The Government intends to make use of the options that are available within the established framework in its management of the agreements. This involves both making use of the opportunities Norway has to influence the development of EEA legislation and Schengen rules, and utilising the options that are available as EEA legislation is implemented in Norwegian law. Knowledge and awareness of the options that are available at any given time is essential for the sound management of Norway’s agreements with the EU.

This chapter discusses how we can make use of these opportunities in the management of the agreements on the EEA and in the fields of justice and home affairs and foreign and security policy. This is particularly important in the light of the far-reaching changes the EU has undergone in recent years.

2.2 Early involvement in the development of policy and legislation

Within the framework of Norway’s agreements with the EU, Norway has greatest opportunity to participate in the development of EU policy and legislation at an early stage of the legislative process, i.e. during the preparation of Commission proposals and during preliminary discussions in the Council of the EU (the Council) and the European Parliament. There is less opportunity for Norway to have an influence towards the end of the legislative process in the EU, particularly as regards EEA legislation.

Norway participates more closely in the development of EU policy and legislation under the Schengen cooperation. The associated countries are involved in Council discussions through the Mixed Committee. Norway needs to provide input as early as possible in the process in this area too, so that its views can be taken into account before the framework for the decision-making process has been established.

It is important to ensure early involvement in legislative processes so that we can carry out a preliminary assessment of EEA relevance when the EU is preparing new legislation. Moreover, by being actively involved at an early stage we can develop insight that will help us to clarify and make use of the options that are available as we implement and apply the legislation in Norway.

In some respects the development of EU policy and legislation has changed considerably over the past ten years. Previously, legislation tended to deal with specific areas, and was based to a large extent on Commission proposals. Now there has been a move towards broad cross-sectoral policies and legislation, developed on the basis of extensive discussions in the Council and the European Parliament. One example is the EU climate and energy package, which was adopted in 2009. Another important feature is the development of broad framework legislation that establishes goals and general principles and leaves the further development and administration of the legislation to committees or other bodies under the Commission. This type of system is being used in a number of areas. A third key feature is that the decision-making process is now much quicker. In the past, new legislation usually required two rounds of discussions in the European Parliament and the Council, but now one round of discussions is sufficient in most cases.

All in all, it has become more difficult to ensure that Norwegian interests are safeguarded when new legislation is being developed in the EU. It is therefore crucial for Norway to establish its national positions at an early stage in the legislative process and to follow all stages of the process closely from the preparatory or decision-shaping phase to the adoption of legislation. This may be followed by the development of common rules for implementing the legislation (comitology procedures) and amendments to the legislation. The capacity of the Norwegian authorities to participate actively in such processes is limited, and for this reason focus will be on major legislative and policy developments. However, it is also necessary to follow up less crucial developments, for example technical regulations, closely enough to ensure that we have the necessary information, can assess any proposed amendments and can ensure that legislation is implemented correctly in Norwegian law.

The Norwegian public administration is generally well informed about legislation that is being developed in the EU. In addition, it is important that the Norwegian authorities are in a position to make rapid assessments of the consequences for Norway of any proposed legislation and are able to communicate their positions clearly in dialogue with representatives of EU institutions and EU member countries. This requires firm commitment and active involvement at the political level in the relevant ministries.

It is also important to involve stakeholders in civil society and the business sector in Norway in formulating Norwegian positions, so that Norwegian interests can be more clearly identified. This will enhance Norway’s efforts in this area.

Sharing experience and results in specific areas at the appropriate time enables Norway as a non-member state to have its voice heard when new policies and legislation are being developed. Norway’s targeted, long-term lobbying efforts vis-à-vis EU institutions have enhanced its credibility and provide a solid basis for Norway to have an influence.

Norway should seek to play an active role in EU legislative processes in all areas that have significance for Norway. In many cases Norway’s input will be of interest to the EU. As a rule it will be easier to gain acceptance for Norway’s views if these are also perceived as useful and relevant to other countries. It is important that Norway seeks to be involved as early as possible in EU processes, particularly in matters of importance to Norway. It is usually more effective to seek to persuade EU bodies to adjust proposed EU legislation before it is adopted than to negotiate adaptations to legal acts when they are to be incorporated into the EEA Agreement. The European Parliament and the Council are showing an increasing tendency to make amendments to the Commission proposals for directives and regulations. Therefore it is important for Norway to focus not only on the Commission’s work but also on the subsequent processes in the Parliament and Council.

Chapter 7 discusses ways in which knowledge of the EU/EEA in the public administration and in society as a whole can be strengthened, and how the level of stakeholder involvement can be increased.

2.3 Management of the EEA Agreement

As described above, Norway and the other EEA EFTA states have the opportunity to participate in the development of EU legislation during the preparatory stage. However, for the EFTA states the more formal procedures do not begin until after the EU has adopted a legal act in an area within the scope of the EEA Agreement. These procedures can be divided into a number of different phases: determining whether the act is EEA relevant, establishing whether adaptations are needed to incorporate an act into the EEA Agreement, the decision-making process and national implementation. The Government will work actively to ensure sound management of the EEA Agreement in all these phases and to participate as effectively as possible during the preparatory stage of the development of EU policy and legislation.

2.3.1 Assessment of EEA relevance

With the development of the EU cooperation in recent years, the limits for what is covered by the EEA Agreement have become less clear than they were in the past. This is discussed in more detail in Chapter 2. EU legislation in areas within the scope of the EEA Agreement is dynamic. It is constantly being developed to take account of changing needs, framework conditions and policy objectives. EEA legislation must be developed correspondingly in order to ensure the homogeneity of legislation throughout the EEA, as set out in Article 102 of the EEA Agreement.

The EEA Joint Committee is responsible for assessing whether new EU acts governing areas within the scope of the EEA Agreement should be 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 the EEA Agreement, as defined in the main Agreement and its protocols and annexes. EEA relevance is assessed on the basis of objective and legal criteria. However, the criteria set out in the Agreement are not precise, and assessments are therefore to a certain extent discretionary. If an act is found to be EEA relevant, the next step is to clarify whether it can be incorporated into the EEA Agreement as it is or whether it requires adaptations. A decision concerning this is taken on the basis of expert input and political and institutional considerations.

If an act is only partly EEA relevant, those parts that are not EEA relevant are removed through an adaptation text in the Joint Committee Decision. Thus, only those parts of the act that are EEA relevant will be incorporated into the EEA Agreement.

The substantive scope of the EEA Agreement

The substantive scope of the EEA Agreement can be inferred from its Article 1, which states that the aim of the Agreement is to create a homogeneous European Economic Area. In order to achieve this goal, the cooperation is to entail the free movement of goods, persons, services and capital, the setting up of a system ensuring that competition is not distorted and that competition rules are equally respected, and closer cooperation in other fields, such as research and development, the environment, education and social policy. Assessment of the EEA relevance of legal acts requires specific consideration of which areas fall partly or wholly outside the scope of the EEA Agreement.

In assessing whether legal acts fall within the substantive scope of the EEA Agreement, the term EEA relevance may be used in more than one sense. In the narrowest sense, legal acts are EEA relevant if their substance means that they must be incorporated into the EEA Agreement. This applies to legislation relating to one of the four freedoms or in fields relevant to the implementation of the four freedoms, which must also be included to ensure that competition can take place on near equal terms. The areas to which this applies are specified in Parts II–V of the EEA Agreement. These acts can be said to affect the functioning of the internal market by establishing rules of significance for free movement and competition across national borders. If such acts are not incorporated into the Agreement, the procedure set out in Article 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.

In its broadest sense the term EEA relevance also encompasses activities (programmes and projects) in areas outside the four freedoms, in the fields set out in Part VI, Article 78, of the EEA Agreement. These fields are described in more detail in Chapter 3.1.1. Under the Agreement, the parties have undertaken to strengthen and broaden cooperation in these fields. This extends beyond the cooperation necessary to ensure the proper functioning of the internal market. In these cases, legal acts are only incorporated into the EEA Agreement if the EEA EFTA states identify a common interest in aligning themselves with EU cooperation in a specific field. A decision not to incorporate legal acts in these fields into the EEA Agreement will not trigger application of an Article 102 procedure.

An assessment of whether a legal act falls within the substantive scope of the EEA Agreement is based on an overall consideration of the provisions and intentions of the Agreement, particularly including the following factors:

• Whether the legal act deals with one or more of the fields specified in the main Agreement and its protocols and annexes.

• Whether it sets out rules of importance for the free movement of goods, persons, services and capital and free competition across national borders, and whether it imposes obligations on market actors that will have economic consequences.

• The purpose of the act, i.e. whether it applies to fields that are relevant for the functioning of the internal market, or whether its purpose is cooperation beyond this.

• Whether the act amends, follows up or supplements legislation that has already been incorporated into the EEA Agreement, and whether related legislation has been incorporated into the EEA Agreement.

• The conditions set by the Storting for Norway’s adoption of the EEA Agreement in 1993, as described in Proposition No. 100 (1991–92) to the Storting.

It may also be relevant to consider the legal basis of the act. This may give an indication of its purpose, as well as in certain cases its impact on the internal market. This applies for example in cases where acts are adopted under Article 114 of the Treaty on the Functioning of the European Union on the internal market.

The geographical scope of the EEA Agreement

The geographical scope of the EEA Agreement is set out in Article 126. The EEA Agreement applies to the territory of the Kingdom of Norway, but not to Svalbard. Norway’s position is that the term territory is to be understood in accordance with established practice in international law. This means that the EEA Agreement applies to Norwegian land territory, internal waters and territorial waters, but not to the exclusive economic zone, the continental shelf or the high seas. However, the geographical scope of the EEA Agreement is not considered to be a legal obstacle if Norway, after an assessment of a particular matter, decides to assume specific EEA obligations outside its territory.

If there is a strong thematic or economic link between parts of a specific activity that take place within Norway’s territory and parts that take place outside Norway’s territory, Norway may in certain situations choose to incorporate legal acts whose scope encompasses the exclusive economic zone or the continental shelf into the EEA Agreement. In such cases Norway has made it a condition that expanding the geographical applicability of certain acts does not change the principle on which interpretation of the geographical scope of the EEA Agreement is based. In other cases Norway can take a decision at national level to also apply rules outside its territory that an EEA act has established within its territory.

Differences between cooperation outside the four freedoms and legislation relating to the four freedoms

EU legislation relating to the four freedoms is regulated by the Parts II–V of the EEA Agreement, and is incorporated into one of its annexes. Cooperation in areas outside the four freedoms does not in principle entail a legal obligation to cooperate within the framework of the EEA Agreement, and is regulated by Part VI of the EEA Agreement. Legal acts in these areas are normally incorporated into Protocol 31 to the Agreement on cooperation in specific fields outside the four freedoms. If a legal act is incorporated into Protocol 31, this creates the same type of legal obligation as incorporation into an annex, in that Norway is then obliged under international law to comply with the provisions of the act. Article 7 of the EEA Agreement, which deals with states’ obligation to make acts part of their internal legal order, also applies to acts that are incorporated into Protocol 31. There are, however, several differences between incorporation of an act into an annex and incorporation into Protocol 31, the most important of which are:

Precedence: When an act is incorporated into an annex it can normally be assumed that later legislation relating to the same field will also be incorporated into the Agreement. This must be the basic assumption even though there is a formal requirement for a new, independent assessment of any new acts relating to the same field, including amendments, before a decision is made on their EEA relevance. The incorporation of an act into Protocol 31 does not set the same precedent, as in these cases there is in principle no legal obligation to cooperate within the framework of the EEA Agreement. The parties therefore have more freedom to assess whether they wish to develop the cooperation further.

Horizontal adaptations: Protocol 1 to the EEA Agreement, which deals with horizontal adaptations, including the distribution in the EFTA pillar of tasks that are carried out by the Commission in the EU pillar, applies only to acts listed in the annexes to the EEA Agreement and not to Protocol 31. If this needs to be regulated, it must be agreed on separately.

Surveillance and settlement of disputes: It follows from Article 79 (3) that Part VII of the EEA Agreement (Institutional Provisions) only applies to Protocol 31 when specifically provided for. This means that in principle, the EFTA Surveillance Authority and the EFTA Court have no role in this cooperation. Nor are the dispute settlement rules (including the Article 102 procedure) applicable. Any disputes have to be dealt with through consultations between the Contracting Parties in accordance with the intentions of the Agreement. If, for example, it is considered appropriate that an act incorporated into Protocol 31 is covered by the surveillance procedure, this must be specifically agreed.

The Government considers it important that legal acts relevant to the implementation of the four freedoms are incorporated into an annex, while acts regulating cooperation outside the four freedoms should be incorporated into Protocol 31. This is in line with the intentions of the EEA Agreement, helps to clarify the basis for cooperation in each individual case and in general ensures that management of the cooperation is as orderly and predictable as possible.

Difficulties in assessing EEA relevance

In most cases it is a straightforward matter to determine whether or not an act is EEA relevant, but in some cases it can be more complex. The EU is adopting an increasing number of legal acts that fall partly within and partly outside the scope of the EEA Agreement. This is in part due to the increasingly cross-sectoral nature of the EU cooperation, in part due to the abolition of the pillar structure and in part due to changes that have been made to EU treaties over time. The original parallel between EU treaty provisions and the EEA Agreement is gradually being erased. This makes it a more complex matter to establish EEA relevance. It can also be difficult to assess the degree to which an act affects the internal market, and the parties may disagree on this.

New legal acts are incorporated into the EEA Agreement by consensus. The EEA Agreement contains no provisions for dispute settlement in the event of disagreement on the question of EEA relevance. The parties will therefore be obliged to find a political solution. If the EU is of the view that the legislation concerned should be incorporated into the EEA Agreement, the outcome may be that it initiates an Article 102 procedure, and the affected part of the legislation may be suspended.

Assessing EEA relevance requires technical and legal expertise, and must be carried out within the framework of the basic premises and principles of the EEA Agreement. However, there is also some room for discretion. The parties’ priorities and objectives for the EEA cooperation can to some extent determine which factors are given most weight when assessing EEA relevance.

Each new legal act is independently assessed before a final decision is made on EEA relevance. Usually, however, if one legal act is incorporated into an annex to the EEA Agreement, it will be natural to incorporate subsequent legal acts in the same area into the Agreement as well, irrespective of whether they are revisions of the original legislation, related legislation or supplementary legislation. Nevertheless, in Norway’s view, there is no obligation to incorporate subsequent legislation outside the four freedoms, even if it was decided to incorporate the original legal act into an annex rather than Protocol 31.

In practice, it is important to ensure that there is a reasonable degree of consistency and coherence in what is incorporated into the EEA Agreement and what is not. This is necessary to ensure effective cooperation and a degree of predictability for relevant stakeholders.

In order to avoid confusion, it should be made clear when legislation and cooperation in areas outside the four freedoms are incorporated into the EEA Agreement that this is not something that the parties are under a legal obligation to do. Clarity about the basis for cooperation in each case has become even more important as the procedures for the development of EU legislation have become more complex, so that the distinction between EEA-relevant elements of the legislation and elements that fall outside the scope of the EEA Agreement is sometimes less clear. When assessing whether or not a legal act should be incorporated into the EEA Agreement, and if so how, the Government will also seek to avoid setting unwanted precedents. The fact that it may be difficult to foresee how legislation will be further developed in a given area should be taken into account when making an assessment of this kind.

The Government’s position is that Norway’s obligations under the EEA Agreement only apply on Norwegian territory. If, in special cases, it is appropriate to extend the geographical applicability of legislation to the exclusive economic zone or the continental shelf, the Government’s premise is that this does not change the fundamental principle that the geographical scope of the EEA Agreement is limited to Norway’s territory.

The Government will seek to ensure a preliminary assessment of EEA relevance at the earliest possible stage when the EU is considering new legislative proposals. This is crucial if Norway’s assessments and views are to be put forward effectively.

2.3.2 Possible adaptations when incorporating new legal acts into the EEA Agreement

The main principle underlying the EEA Agreement is that legislation should be implemented and applied in the same way throughout the EEA. This is essential to ensure the homogeneity of legislation, equal conditions of competition and predictability for companies and citizens alike. As a general rule, adaptations in the form of derogations and transition periods of any length are incompatible with this principle. However, if special circumstances so require, it will be natural to seek adaptations to legislation when incorporating it into the EEA Agreement.

Almost all new EU legislation is incorporated into the EEA Agreement unchanged. This being said, the Agreement does allow for the parties to agree on substantive adaptations. In such cases, the general objective of ensuring the homogeneity of legislation will be part of the political assessment. Adaptations may concern delimitation of substantive or geographical scope, institutional adjustments, transitional arrangements or derogations. Adaptations of this kind may be particularly appropriate if only parts of the legislation are EEA relevant, if it contains institutional solutions that need to be adapted to the two-pillar structure of the EEA Agreement, or if special circumstances in Norway make them necessary. In some instances adaptations may also be appropriate if the legislation involves a change in Norwegian policy that is considered to be problematic.

The EU’s increasingly cross-sectoral approach to developing legislation, the abolition of the pillar structure within the EU and new regulatory methods may mean that it becomes more relevant to negotiate adaptations in the form of substantive delimitations and institutional adjustments when incorporating legislation into the EEA Agreement.

In certain cases, there may be a need to make a joint or unilateral declaration when incorporating legislation into the EEA Agreement, to clarify or delimit the parties’ understanding of the legislation in question. A joint declaration expresses the parties’ common understanding of the legislation, while a unilateral declaration only gives Norway’s interpretation.

Few transitional arrangements and derogations have been agreed for the legal acts that have been incorporated into the EEA Agreement. This is partly because the EEA EFTA states have considered it to be in their interests to have common rules wherever possible, and they have therefore sought to limit the use of different rules at national level. It is also because the EU follows a restrictive line as regards transitional arrangements and derogations, because its aim is to achieve the greatest possible degree of homogeneity throughout the EEA. The question of substantive adaptations to legal acts that are incorporated into the EEA Agreement should also be seen in the context of the options available to Norway when implementing EEA legislation at national level. Even if Norway does not gain acceptance for an adaptation when incorporating an act into the EEA Agreement, it may in a number of cases nevertheless be possible to implement the legislation in a way that also safeguards Norwegian interests.

2.3.3 Bodies with powers to make decisions that are binding on authorities, companies or individuals

To an increasing extent, the EU is adopting legislation that gives agencies and supervisory bodies powers to make decisions that are binding on authorities, undertakings or individuals in member states. This raises questions of a legal and political nature, including in relation to the EEA Agreement’s two-pillar structure and the Norwegian Constitution.

The concept “two-pillar structure” refers to the fact that the EEA cooperation is organised in two separate pillars: the EFTA pillar and the EU pillar (for more on this see Chapter 3.1.3). This is reflected in Part VII of the EEA Agreement, on institutional provisions. The principle is that it should be an EEA EFTA body that exercises authority vis-à-vis an EEA EFTA state.

In cases where the European Commission, EU agencies or supervisory bodies have the power to make decisions that are binding on authorities, companies or individuals in the EU, the EEA EFTA states must decide whether and how corresponding powers are to be exercised in the EFTA pillar. This may be done by giving the EFTA Surveillance Authority corresponding powers, by deciding that corresponding decisions are to be made by the EEA Joint Committee, or by assigning the powers to national authorities in the respective EEA EFTA states. It is generally only in the field of competition that the EEA Agreement explicitly gives the EFTA Surveillance Authority the authority to make decisions that have a direct effect on companies. However, the EEA Agreement and the Storting’s basis for accepting the Agreement in 1993 cannot be said to rule out a limited transfer of powers in other areas, providing that Norway agrees to this in each case. The EEA Agreement also provides for departures from the two-pillar structure through special adaptations. This means that in special cases, it may be decided to grant EU agencies or supervisory bodies powers to make decisions that are binding on EEA EFTA states, or that have a direct effect on legal entities in the EEA EFTA states.

When it is proposed to transfer powers to a body either in the EU pillar or the EFTA pillar, the applicability of the rules on the conclusion of treaties set out in the Norwegian Constitution must be clarified. The basic premise of the Constitution is that the authority with which it is concerned is, as a general rule, to be exercised by the Norwegian branches of government. Therefore, any transfer of legislative, executive or judicial authority that has direct legal effect in Norway is in principle incompatible with the Constitution and must therefore be effected in accordance with the rules on amendments to the Constitution set out in Article 112. Alternatively, in some cases, powers may be transferred with the consent of the Storting under Article 93 of the Constitution, which requires a three-fourths majority and applies to the transfer of powers to an international organisation to which Norway belongs or will belong.

According to established constitutional practice, an agreement involving a transfer of powers that is considered not to encroach too far on constitutional powers may be entered into in the same way as an ordinary treaty, cf. Article 26 of the Constitution. Article 26 does not itself give any guidance on how to assess when this is the case. An assessment of what can be accepted must be based on the specific provision of the Constitution granting the powers that would be affected in each case (Article 3, 49, 75, 88, 90, etc).

Practice, primarily as expressed in the Storting’s deliberations on previous cases, will provide guidance on where the line should be drawn. According to this, relevant factors in an assessment include the type of powers to be transferred and the scope of the transfer, including whether or not the transfer of powers would apply to a specific and well-defined area. It is also of importance whether the transfer of powers would be based on reciprocity and equal participation. In practice, importance has also been attached to the degree to which the Norwegian authorities would be able to mitigate any undesirable effects of the transfer of powers. The nature of the social or political interests that would be affected is also taken in to account.

So far, solutions have been found that have made it possible to incorporate rules of this type into the EEA Agreement in most cases. However, the increased competences being given to new EU agencies and supervisory bodies are creating challenges as regards the two-pillar structure of the EEA Agreement. In certain cases, it has been decided to depart from the general two-pillar principle, either because it is not always possible to adapt the EU cooperation to the traditional two-pillar structure, or because it, for resource or other considerations, has not been considered appropriate to give the EFTA Surveillance Authority the same powers as the European Commission.

It is important for Norway to have the opportunity to participate in the shaping of legislation that takes place in EU agencies and supervisory bodies. Developments in the EU and new forms of cooperation mean that in a growing number of cases the EFTA states may have to accept new solutions as a condition for being able to participate. However, the EU member states must acknowledge that the EEA EFTA countries participate in the internal market on other institutional and legal terms than they do, and that this places constraints on the solutions that can be chosen.

In the Government’s view, balanced and well-functioning cooperation requires a pragmatic approach from all parties to the agreement. Practical solutions should be sought that will in the best possible way take account of the institutional structure of the EEA Agreement, the desire for legislative homogeneity and national interests. The Government will consider the consequences of the growing number of EU agencies and supervisory bodies for Norwegian participation, processes and policy formation, and which approach will best safeguard Norway’s interests in interactions with these bodies.

2.3.4 The options available when implementing EEA legislation in Norway

It follows from Article 3 of the EEA Agreement that Norwegian law must be in accordance with EEA obligations. Article 3 states that the parties must take all appropriate measures to ensure that they fulfil their obligations under the Agreement, and abstain from any measures that could jeopardise the attainment of its objectives. This is known as the general principle of loyalty in the EEA. The principle applies to the implementation of legal acts that are incorporated into the EEA Agreement, and also to Norwegian legislation in areas that are within the scope of the EEA Agreement, but not regulated by specific acts. Norwegian legislation must be in line with the general provisions in the main part of the EEA Agreement, such as the provisions on the free movement of goods, persons and services across national borders, unless EEA law provides for derogations.

On this basis, the Norwegian authorities can use various options to enable them to implement legislation in a way that takes different considerations into account. As far as directives are concerned, the authorities can as a general rule decide on the best approach to implementation in Norwegian law. Thus, Norwegian values and political and economic considerations can be taken into account within the framework of the directive. This will vary depending on how the provisions of the directive are formulated. If a directive is very clear and concise and leaves little room for interpretation or discretion, it will be difficult to depart from the wording of the directive to any great extent. In cases where the directive merely gives a more general description of the rules that are to be implemented in national law, or explicitly sets out that states may depart from the provisions of the directive in one way or another, the authorities will have considerably more leeway when implementing the directive at the national level. In such cases, the authorities should implement the directive in a way that is in accordance with established Norwegian legislative practice, as this will make it simpler for those affected by the legislation to understand and interpret it. Furthermore, in areas such as the environment, where minimum directives are often used, it is possible to set more stringent national requirements, so that the authorities can choose from a wider range of options.

As a rule, the greatest range of options is available in areas that are not regulated by specific acts. In these cases, it is the general provisions in the main part of the EEA Agreement that apply. Much of the public regulation of Norwegian society has a bearing on the four freedoms (free movement of goods, services, persons and capital), and EEA law provides some flexibility here. Restrictions on the exercise of one of the four freedoms can be justified on the grounds of public interest if the public interest cannot be safeguarded as effectively using less restrictive measures (the principle of proportionality).

The narrowest range of options is available when an area is governed by a regulation that has been incorporated into the EEA Agreement. Under Article 7 of the EEA Agreement, a regulation must be made part of Norway’s internal legal order. This is interpreted as meaning that regulations must be implemented in national law verbatim, normally as an act or regulation stating that the regulation concerned (in EEA-adapted form) is to apply as Norwegian law.

The number of new EU regulations has increased in recent years. Key examples in this context are the EU’s comprehensive legislation on chemicals (the REACH regulation) and food security, both of which have been incorporated into the EEA Agreement. Recently, there has also been a trend towards the use of regulations in the area of financial markets. Following the financial crisis of 2008–09, the EU has made increasing use of regulations to ensure as much legal homogeneity in this area as possible. Previously, legal acts in the area of financial markets were generally directives, often minimum directives, which gave member states various options for implementation in national law. These developments show how important it is for Norway to make use of opportunities to exert influence at an early stage in the development of EU legislation.

It will often be possible to realise Norway’s policies and objectives through various types of regulatory measures, some of which will be more readily compatible with EEA law than others. Both central and local authorities should be aware of this. There are a number of factors that affect the options available, including how national regulatory measures are designed, their purpose, and the grounds given for using them.

National regulatory measures that do not discriminate on the basis of nationality or origin can under EEA law be justified on many more grounds of public interest than measures that are directly discriminatory. Such public interests include environmental concerns, consumer interests, considerations of regional policy and social policy, as well as public order, public security and public health. It is important to make it clear which grounds are used to justify such regulatory measures, both in preparatory documents and elsewhere. Usually this means that the public interests that are to be safeguarded must be clearly stated. It must also be shown that the proposed arrangement will be suitable for this purpose, and that these public interests cannot be safeguarded as effectively by other means that would limit trade within the EEA to a lesser extent.

Much of EEA legislation is technical in nature. In these cases, it will be purely technical and scientific considerations that determine how the legislation is to be implemented in Norway. In areas where Norway has important interests, the Government will make use of the options available to safeguard them.

In order to identify the options available under EEA law, the public administration must have a high level of expertise in the EEA legal system, EEA legislation and the case law of the EU Court of Justice and the EFTA Court. The Government will therefore give priority to further developing this expertise in the public administration, and to ensuring that good routines are established for using the options available actively and appropriately.

Before EU legal acts are incorporated into the EEA Agreement, they must be translated into Norwegian. Unofficial translations are sufficient at the time of incorporation, but these must later be thoroughly revised before they are made official. High-quality translations are needed to ensure correct implementation at the national level. This is important for the Norwegian authorities, Norwegian companies and other stakeholders who have to comply with the legislation in question. The steady increase in the amount of legislation being incorporated into the EEA Agreement has led to a significant increase in translation work. The Government will ensure that priority is given to this work.

2.3.5 The surveillance and court system: Norway’s approach

EU law is dynamic, and the European Court of Justice plays an active role in its development through its case law. To ensure the homogeneity of legislation, EEA law should as a general rule be developed correspondingly. When the EFTA Court and the European Court of Justice make statements concerning the interpretation of EEA legislation they influence the development of EEA law. In the same way, decisions taken by the EFTA Surveillance Authority may have implications for how EEA legislation is applied in practice. Thus, the decisions of the courts and the Authority may affect the development of Norwegian law in areas that fall within the scope of the EEA Agreement.

Provision has been made for the EEA EFTA states to influence such decisions and thereby the development of EEA law. Norway can have an influence in two types of cases in particular. Firstly, it can defend its position in cases where it is claimed that Norway has not complied with EEA law in a certain area (infringement cases, see Figure 5.1). Secondly, Norway has an opportunity to exert an influence in cases where the EFTA Court and the European Court of Justice make statements on how EEA law is to be interpreted, either in the form of preliminary rulings/advisory opinions or when the EFTA Court deals with infringement cases against other states. In both cases, Norway can make submissions detailing Norway’s interpretation of EEA law.

Previously, the EEA EFTA states and the EFTA Surveillance Authority were also able to intervene in cases relating to EEA law between EU member states and EU institutions before the European Court of Justice, for example if the Commission initiated infringement proceedings against an EU state. Since 2010, the European Court of Justice has followed a different practice, and the EEA EFTA states have no longer had the same opportunity to intervene. Norway considers it important that the EEA EFTA states have this opportunity, and the EEA EFTA states and the Authority have raised the issue with the EU, both in the EEA Joint Committee and in the EEA Council. The Government will continue to work actively to gain acceptance for its view on this matter.

In December 2011, the EFTA Court proposed to the EEA EFTA states a number of amendments to the Surveillance and Court Agreement relating to the composition of the EFTA Court and its formation. The proposals aimed to further reinforce the professional competence and standing of the Court and thus to enhance its legitimacy.

The proposed amendments contained three elements: the possibility of calling ad hoc judges to the bench for an Extended Court in important cases, the establishment of an Evaluation Panel for candidate judges, and the creation of the post of Advocate General at the EFTA Court.

Thus far, the Government has not seen a need to make amendments to the institutional setup of the EFTA Court. The proposals of the Court are currently under review by the three EEA EFTA States.

Infringement cases

Under the EEA Agreement, it is the task of the EFTA Surveillance Authority to ensure that the participating EFTA states respect their obligations under the Agreement. The Authority can do this on its own initiative or on the basis of complaints from private parties.

There have been disagreements between the EFTA Surveillance Authority and Norway on the interpretation of the EEA Agreement in a number of individual cases. In some of these the Authority’s position has been upheld, while in others Norway’s views have won acceptance. Experience shows that close dialogue with the Authority is important if Norway is to gain acceptance for its position. This should be initiated before any formal case is brought, to ensure that Norway is aware of the Authority’s assessments at an early stage. In order to safeguard Norwegian interests, it is also important that the Authority receives all relevant information as early as possible and that Norway’s point of view is supported by sound, consistent arguments. It is crucial that there is close coordination between the relevant ministries in processes relating to the EFTA Surveillance Authority. The involvement of the Ministry of Foreign Affairs, other relevant ministries and the Office of the Attorney-General is determined in each case in accordance with specific guidelines. Procedures have also been established for submitting matters relating to the EFTA Surveillance Authority to the Government.

The Government attaches importance to ensuring the best possible coordination between the relevant ministries and the Office of the Attorney-General. This will ensure that we have as much information as possible about a case at an early stage and can put forward a coherent argument.

In cases where it is not possible to reach agreement with the EFTA Surveillance Authority, the Government may decide to bring the case before the EFTA Court.

Advisory opinions from the EFTA Court and preliminary rulings by the European Court of Justice

A national court may ask the European Court of Justice or the EFTA Court to give its interpretation on a point of EU or EEA law by referring to them for a preliminary ruling or requesting an advisory opinion respectively. The European Court of Justice and the EFTA Court only give an opinion on questions of EU/EEA law. It is the national court that takes the final decision in a case.

Norway is entitled to make submissions relating to all requests to the EFTA Court for an advisory opinion and to all questions referred to the European Court of Justice for a preliminary ruling that fall within the scope of the EEA Agreement.

It is established procedure that the Ministry of Foreign Affairs submits all such matters that may have EEA relevance to the ministries concerned. The ministry responsible assesses whether Norway should make use of its right to make a submission to try to ensure that the law is interpreted in a way that accords as closely as possible with Norwegian interests. The Office of the Attorney-General and the Ministry of Foreign Affairs act as the legal representatives for the state in these cases.

The court proceedings are mainly written, and considerable effort goes into this part of the process. A short oral hearing is usually held after the written submissions have been received. If this is done, parties other than those who made written submissions also have an opportunity to make oral submissions. In cases where it is initially concluded that there is no need for a written submission from Norway, but where it subsequently becomes clear that written submissions by other parties include information or assertions that Norway should comment on, a possible solution may be to request an oral hearing and to make a statement there.

In cases where other EEA states have similar arrangements to Norway or have a similar understanding of the legal act in question, the possibility of establishing contact and where appropriate also coordinating arguments is considered.

In Norway’s experience, submissions made by Norway to the European Court of Justice are considered on an equal footing with submissions made by member states. It is the quality of the submission and the strength of the arguments that determine whether the views put forward gain acceptance. It is difficult to gauge the extent to which a submission has influenced the Court in its final decision, particularly when several states have put forward similar arguments. There are, however, several examples where it is apparent that the Court has based its decision directly on arguments put forward by Norway, including in cases where Norway’s views have differed from those of other actors.

The same applies to the EFTA Court. Fewer states tend to make submissions to the EFTA Court than to the European Court of Justice. This means that there is an even greater need for Norway to comment on cases and try to ensure that the best possible decisions are made from Norway’s point of view.

In the Government’s view, Norway should make active use of opportunities to make submissions relating to requests for advisory opinions and references for preliminary rulings in order to set out Norway’s interpretation and understanding of the legislation in cases of importance for Norway. Norway should as a general rule make submissions relating to requests for advisory opinions from the EFTA Court. Norway should also make submissions relating to questions referred to the European Court of Justice for a preliminary ruling if they are particularly relevant for the interpretation of the EEA Agreement in areas of importance to Norway.

2.3.6 Article 102 procedures

In the event of disagreement between the parties to the EEA Agreement on whether new EU legislation is to be incorporated into the Agreement, the procedures set out in Article 102 may be applied: these describe what happens if a party decides not to incorporate legislation, including the possibility of provisional suspension of the affected part of the Agreement. The provisions of Article 102 stipulate that the parties are to make every effort to reach agreement. It is the party that wants a legal act to be incorporated into the EEA Agreement that decides whether and when an Article 102 procedure is to be initiated. Such a decision is not conditional on the other party having expressed a formal reservation about the incorporation of the new legislation; it may also be based on the fact that one party is of the opinion that a disproportionately long time is being taken to incorporate the act into the EEA Agreement.

Since the EEA Agreement entered into force the procedures set out in Article 102 have been activated twice. The first time was in 2002, and concerned Liechtenstein and the EU Second Money Laundering Directive. The second time was in 2007, and concerned Iceland/Liechtenstein and legislation for the free movement of persons. In both cases the EU considered that it was taking too long to incorporate the legislation into the EEA Agreement. Following further dialogue, the parties reached agreement and the acts were incorporated into the EEA Agreement.

Norway has stated that it does not intend to incorporate the Third Postal Directive, but the EU has so far not initiated an Article 102 procedure.

Once an Article 102 procedure has been initiated the EEA Joint Committee has six months to try to find a solution. The parties have a duty to make every effort to reach agreement. The EEA Joint Committee must examine all possibilities to maintain the good functioning of the EEA Agreement. If the parties fail to reach agreement, and if the EEA Joint Committee has not taken a decision to the contrary, the affected part of the EEA Agreement will be provisionally suspended. However, a suspension may not take effect if the Parties agree that it is not necessary. In practice, it is up to the EU to decide whether a reservation by an EFTA state should result in parts of the EEA Agreement being provisionally suspended or not.

According to Article 102 (5), it is “the affected part” of the Annex to the EEA Agreement into which the act should have been incorporated that is to be provisionally suspended. In Norway’s view, this means that only the part of the relevant Annex that is directly affected can be suspended. This view is based on a joint reading of Article 102 (2) and (5). The EEA Agreement does not provide a more detailed definition of what is meant by the directly affected part of the Annex. If there is disagreement between the parties on which acts are affected, a political solution must be sought. In practice it is difficult to make a general assessment of the possible extent of a suspension. This must be considered in the light of each specific situation.

As described above, experience of the application of Article 102 is limited. According to the wording of the provision, once the procedure has been initiated and the deadline of six months has expired without the parties having reached agreement, suspension will take effect without a prior decision by the EEA Joint Committee. However, when the EEA Agreement was signed, the parties agreed (in the Agreed Minutes Ad Article 102(5) EEA in the Final Act to the EEA Agreement) that if a provisional suspension does take effect, its scope and entry into force should be adequately published. In other words, there must be some kind of confirmation of the suspension that ensures that the legal situation is sufficiently predictable for those affected by the suspension.

The purpose of Article 102 is to ensure that the EEA Agreement functions as intended, and its procedural rules are formulated with this in mind. Even if agreement on the incorporation of a legal act into the EEA Agreement is not reached, and parts of the Agreement may be temporarily suspended, the EEA Joint Committee will pursue its efforts to agree on a mutually acceptable solution in order for the suspension to be terminated as soon as possible.

Any decision not to incorporate legislation into the EEA Agreement must be based on an assessment that takes into consideration both Norway's interests in the matter in question and the risk and potential consequences of a possible negative response on the part of the EU. Generally speaking, Norway benefits from the development of common rules and standards for the European market. Experience has shown that relevant legal acts have been accepted by Norway. Nevertheless, the possibility of entering a reservation is an integral part of the EEA Agreement. It is a necessary mechanism for those cases where there are important strategic interests that warrant its use. The Government will consider entering a reservation in cases where particularly important Norwegian interests may be jeopardised by legal acts that are proposed for incorporation into the EEA Agreement.

2.4 Management of agreements in the area of justice and home affairs

Justice and home affairs has become an increasingly important area of cooperation for the EU, primarily within the EU itself, where ensuring the freedom and security of EU citizens is an important goal. Transnational crime in its many forms makes effective international police cooperation essential. International cooperation is also required to meet the challenges Europe is facing in terms of refugee flows and illegal immigration. The common external border and the internal free-travel area mean that all participating states must implement and apply the common rules in an effective and responsible manner. Policy instruments in the area of justice and home affairs are also an important component of the EU’s external policy.

Norway participates in important aspects of EU cooperation in this area. As a Schengen member state, we are dependent on the effective implementation of legislation and measures relating to control of the common external border across the entire Schengen area.

Other parts of the EU cooperation in this area also affect us in varying degrees. For this reason it has been Norwegian policy to seek broad participation in EU cooperation in the field of justice and home affairs and to work actively to ensure that this cooperation functions well.

The most important aspect of Norway’s participation in EU cooperation in the area of justice and home affairs is its participation in the Schengen cooperation, with all its practical implications. As a Schengen member state, Norway is entitled to take part in Council discussions on legal acts and measures at all levels, at expert, senior official and ministerial level. The Government intends to continue to build on the Schengen cooperation.

In addition, Norway has entered into several specific association agreements through which it participates in other parts of EU cooperation in the area of justice and home affairs. These agreements cover areas such as cooperation with Europol, the European Police College (CEPOL) and the European Union's Judicial Cooperation Unit (Eurojust), mutual assistance in criminal matters, access to other countries’ criminal records (under the Prüm Convention), adoption of the European arrest warrant, and participation in EU agencies. Norway also participates in EU cooperation on combating terrorism through the Counter-Terrorism Group (CTG). In addition, Norway participates in cooperation under the Dublin Regulation, which establishes the criteria and mechanisms for determining the member state responsible for examining an asylum application.

The Norwegian authorities have found that there are good opportunities for cooperation and dialogue with the EU in the field of justice and home affairs in areas where Norway has experience and expertise. This also applies to areas such as asylum and refugees, where we have not entered into separate association agreements with the EU. Norway is a valuable partner for the EU when it comes to developing asylum systems in a number of EU member states and third countries.

2.4.1 The Schengen cooperation

Norway’s agreement with the EU on participation in the Schengen cooperation entitles us to take part in Council discussions on new legislation. Norway and the other non-EU Schengen states (Iceland, Liechtenstein and Switzerland) participate in the EU’s negotiations through the Mixed Committee. This has implications for the way Schengen matters are dealt with at the national level, not least the need to develop Norway’s positions and ensure that these have the necessary political backing at all levels throughout the legislative process from initial discussions up to a final decision by the EU.

Schengen relevance

When the Commission draws up draft legislation in the area of justice and home affairs, it must consider whether the proposed legislation is Schengen-relevant or not. This will determine whether the legislation in question is to be discussed in the Mixed Committee and could be binding for Norway.

Under the Schengen association agreement, its procedures are to be followed when any legislation that changes or builds on the existing Schengen acquis is being drafted. In most cases it is clear whether a proposed legal act falls within or outside this definition. However, in some cases this may be more difficult to determine, for example if some parts of an act build on the existing Schengen acquis while other parts do not.

The issue of Schengen relevance has given rise to disagreement primarily in cases where Norway has sought to associate itself with cooperation areas that in the view of the Commission or some of the member states fall outside the scope of the Schengen Agreement. The solution has generally been for Norway to enter into separate agreements with the EU in the areas concerned.

If a legal act is deemed to be Schengen-relevant and the procedures set out in the Schengen association agreement are followed, Norway will be notified when the act is finally adopted by the EU. Norway must then consider whether the act in question should be accepted and implemented in Norwegian law. The issue of Schengen relevance must therefore be clarified before discussions in the Council working group begin, so that Norway has the opportunity to participate and influence the content of the legal acts by which it will later be bound.

Some legal acts are in a grey zone between the Schengen Agreement and the EEA Agreement. Others might fall within the scope of both agreements. In such cases, Norway and the EU must agree on what form of association Norway should have with the legislation in question. So far in these cases, solutions have been found that have taken Norwegian considerations into account. This issue is also relevant for other countries. Switzerland is not a party to the EEA Agreement, and the UK and Ireland do not participate in the Schengen cooperation.

Horizontal legislation

Assessing Schengen relevance has become more difficult in step with institutional developments in the EU. Justice and home affairs is no longer defined as a separate pillar of the EU cooperation. With the entry into force of the Treaty of Lisbon, the EU adopted a standard decision-making system that generally applies to all types of legal acts, including those in the area of justice and home affairs. The system enables the adoption of horizontal legislation that applies to several different policy areas. Some of these areas may be Schengen-relevant, while others are not. Other legal acts may contain certain provisions that seen in isolation are Schengen-relevant, while the rest of the act is not. It may be difficult to apply the definition of Schengen relevance set out in the Schengen association agreement to these types of acts.

Experience to date has shown that in some cases the EU has applied a somewhat narrower definition of Schengen relevance than the definition used by Norway. The abolition of the pillar structure could lead to an increase in the number of disagreements regarding Schengen relevance. Effective cooperation on border controls requires the participation of all the parties concerned, and cooperation with the EU in this area is in general characterised by a will to find solutions within the framework of our association agreement. The Government will seek to maintain close contact with the Commission to ensure that the interests of the non-EU Schengen states are taken into consideration when new laws are being drafted.

The importance of the Mixed Committee

Norway takes part in Council discussions on Schengen-relevant legislation through the Mixed Committee. Norway and the other non-EU Schengen states do not have the right to vote at any stage of the decision-making process and do not participate in the formal adoption of legislation. In practice, however, experience has shown that this is less important than the opportunities we have to influence other countries by putting forward effective, coherent arguments.

The most important stage for influencing the development of Schengen legislation is early in the Council’s decision-making process, i.e. in working groups and committees under the Council, immediately after the Commission has put forward a proposal for a legal act. Schengen member states, including Norway, participate at this stage by providing expert input in the fields concerned. The extent to which the efforts of each of the countries have an impact at this stage depends largely on the quality of the expertise provided and the arguments used. Norway has the same opportunities to promote its views as the EU member states.

Norwegian politicians and representatives of the Norwegian public administration take part directly in discussions on Schengen-related matters at all levels under the Council, on an equal footing with EU member states. This means that Norway’s Schengen-related work requires a different approach from that needed under our other agreements with the EU. Norway has to develop its positions on an ongoing basis before relevant legal acts are discussed in the Mixed Committee. This means that Norway’s views need to be regularly reviewed and endorsed at the political level, which helps to ensure the involvement of the senior political staff in the relevant ministries.

Because of these differences in how Norway is involved in the different processes, it can be difficult to draw parallels between Norway’s efforts to exert an influence in the Schengen cooperation and its efforts to do so under the EEA Agreement. Experience has shown, however, that active involvement at the political level at an early stage is essential if Norway is to gain acceptance for its points of view.

The Government will continue to give priority to making use of the options available under the Schengen cooperation by developing national positions that can be put forward at an early stage of the decision-making process in Brussels.

Implementation in Norway

Once new Schengen legislation has been adopted, Norway’s options for implementation will depend among other things on whether the act is a directive, a regulation or a decision. Particularly if an act establishes common minimum standards, there may be a number of options.

As regards Schengen legislation, it is essential for Norway to put forward its national positions at an early stage of the Mixed Committee’s discussions. There is no opportunity at a later stage to seek adaptations, either in terms of content or timing of implementation. If Norway needs to seek adaptations of any kind this must be done during discussions in the Council’s working groups and committees. Thus it is essential for Norway to have clear national positions that have the necessary political backing.

Evaluation mechanism and the courts within the Schengen cooperation

There are normally no checks on persons at the internal borders of the Schengen area. This makes it essential for all the Schengen countries to implement and enforce the Schengen rules effectively. The Schengen Agreement was originally an intergovernmental agreement, and it is still the Schengen member states that have the main responsibility for regular evaluation of the implementation of the Schengen acquis. Application of the Schengen acquis in Norway, Iceland, Liechtenstein and Switzerland is evaluated in the same way.

In addition, the Commission has competence to monitor EU countries to ensure that they apply the Schengen area rules correctly, and the jurisdiction of the European Court of Justice has now been extended to include Schengen cases and the rest of the area of justice and home affairs.

Norway’s association agreement with Schengen is an agreement between Norway and the EU. The EFTA bodies do not play a role in the Schengen cooperation. This means that neither the EFTA Surveillance Authority nor the EFTA Court has competence to make decisions on legal issues relating to Norway’s implementation of the Schengen Agreement. In the event of a dispute about the application of the acquis, the dispute settlement arrangements set out in the agreement must be initiated.

However, Norway is entitled to make submissions to the European Court of Justice in cases referred by national courts in the EU member states that relate to the interpretation of the Schengen acquis. This does not apply to cases between the Commission and EU member states. This means, for example, that Norway cannot make submissions in cases brought against the Commission concerning the definition of the term Schengen relevance.

So far Norway has not made use of its right to make submissions in Schengen cases. The Government will do so, if appropriate, both in cases dealing with matters of principle and those where the ruling could have a direct impact on Norway’s implementation of the acquis.

Interparliamentary cooperation

The joint declaration on parliamentary consultation contained in the Final Act to the Schengen association agreement paves the way for interparliamentary cooperation between Norway and the European Parliament on Schengen-related matters. Experience of interparliamentary cooperation under the EEA Agreement has shown that this is a useful channel into the European Parliament’s work on EEA matters. The Government assumes that this would also be the case under the Schengen cooperation. So far none of the parties have taken the necessary steps to establish such consultations. It is up to the Storting to consider whether cooperation with the European Parliament should also encompass Schengen-related matters.

2.4.2 Development of cooperation in other justice and home affairs areas

The Government has a stated aim of pursuing an active European policy in the field of justice and home affairs, including areas that fall outside the framework of the Schengen cooperation, as set out in the White Paper on Norwegian refugee and immigration policy in a European perspective (Meld. St. 9 (2009-2010), which discusses challenges and cooperation relating to illegal immigration. Closer cooperation in police and criminal law matters will be useful for preventing and combating crime. In addition, enhanced judicial cooperation in civil matters will contribute to the implementation of the internal market.

Norway currently has formal cooperation arrangements with the EU in a number of justice and home affairs areas beyond the Schengen, Dublin and EEA cooperation.

In certain areas, such as asylum, Norway has developed its own legislation independently but to a large extent in line with EU legislation.

In areas where Norway and the EU have a mutual interest in developing closer cooperation, and where the aim is to create mutual rights and obligations between the parties, formal agreements need to be put in place. Some agreements of this kind have been developed in cases where there has been an absence of full agreement within the EU as to the Schengen relevance of specific legal acts. There are also some separate agreements in areas where Norway and the EU for varying reasons have had a common interest in further developing cooperation.

Experience shows that negotiations on these separate, specific agreements are time-consuming. Since Switzerland and Liechtenstein joined the Schengen cooperation, these two countries have also been invited to take part in negotiations on participation in areas outside the Schengen cooperation. The negotiating processes may be further complicated by the fact that the EU wants its agreements with each of the four associated countries to be as near identical as possible.

In Official Norwegian Report NOU 2012:2 Outside and Inside: Norway's agreements with the European Union, the EEA Review Committee describes Norway’s overall affiliation to EU justice and home affairs policy as inadequate. The committee recommends that the Norwegian authorities explore the possibility of establishing a comprehensive framework agreement for Norway’s association with EU cooperation in the area of justice and home affairs, which would encompass the Schengen cooperation, the other areas in which Norway has specific association agreements and any other areas the parties may agree on. The issue of establishing a more comprehensive framework for Norway’s agreements with the EU is also raised in the Council conclusions on EU relations with EFTA countries of December 2010.

In the Government’s view, establishing a more comprehensive framework agreement encompassing the Schengen legislation, other current agreements and any other possible areas of cooperation would not be in Norway’s interests. As mentioned above, within the framework of the Schengen cooperation the associated states are entitled to take part in Council discussions through the Mixed Committee. Other separate association agreements do not allow for this. Furthermore the need to develop cooperation and specific association agreements will vary from area to area in the field of EU cooperation on justice and home affairs.

However, there may be reason to look into the possibility of simplifying procedures for association with parts of the EU justice and home affairs legislation outside the Schengen cooperation if Norway is interested in this. Aspects of the EU’s judicial cooperation in civil and criminal matters, in particular, may be relevant in this context. There has been extensive cooperation between the Nordic countries in the area of civil law, which has become more difficult as a result of the countries’ differing forms of association with the EU. Norway has already entered into some agreements in the areas of criminal law and police cooperation.

The EU’s judicial cooperation in civil matters primarily encompasses legislation on the mutual recognition of legal and administrative decisions. It also authorises the development of measures to enhance cooperation on serving judicial and extrajudicial documents, taking evidence, rules on applicable law, and access to justice. To a certain extent it allows for the development of rules that harmonise national legislation, but the main emphasis is on procedural cooperation based on the national legislation of the member states. Legislation has been adopted on bankruptcy, measures to simplify the recovery of small and uncontested claims, the service of documents in other states, the taking of evidence in other states, compensation for victims of violent crime etc.

Norway is a party to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, a parallel to the EU’s Brussels I Regulation. We have also requested negotiations on Norwegian association with EU legislation on the service of documents and the taking of evidence. This is currently under consideration in the Commission.

The EU’s judicial cooperation in criminal matters is also based on the principle of mutual recognition of judgments and judicial decisions by member states, and it allows for the development of legislation on recognition of all types of judicial decisions and on the prevention and settlement of conflicts of jurisdiction. The EU treaties also authorise the harmonisation of national legislation on both criminal procedure and criminal law. Measures to support the member states’ crime prevention efforts may also be developed. There are also provisions relating to the EU’s Judicial Cooperation Unit (Eurojust) and the establishment of a European public prosecutor’s office.

Secondary legislation has been adopted in the area of judicial cooperation in criminal matters, such as the European Arrest Warrant, which simplifies surrender procedures; rules on taking evidence and the recognition of evidence taken in other states; the recognition and implementation of alternative sanctions to custodial sentences; conditional release; the transfer of sentenced persons; the collection of fines; and the use of certain coercive measures in criminal investigations. Rules governing the exchange of information from national criminal records have also been adopted.

The Schengen agreement contains certain provisions relating to cooperation in criminal matters. However, most of the cooperation that takes place in this area lies outside the scope of the Schengen cooperation. Norway has signed a parallel agreement to the European Arrest Warrant, an agreement on mutual assistance in criminal matters and an association agreement with Eurojust.

The EU’s police cooperation mainly encompasses information gathering and exchange. Norway is associated with parts of this cooperation through the Schengen agreement. Norway has also signed a parallel association agreement to the Prüm Decision, and association agreements with Europol and with the European Police College (CEPOL).

As regards the fight against transnational crime, Norway is in many ways in the same situation as the EU member states. More extensive cooperation with the EU on police and criminal matters could have a positive impact on crime prevention in Norway.

It would be useful to clarify whether negotiations with the EU in the areas mentioned above could be speeded up. This would not entail any obligation for any of the parties to enter into new agreements, but could simplify the negotiating process.

The Government will examine the possibility of establishing an understanding with the EU that would make it quicker and easier for Norway to enter into new agreements with the EU in specific areas, in cases where this is of mutual interest.

2.5 Cooperation on foreign and security policy

Norwegian foreign policy is based both on the need to safeguard clearly defined national interests and on recognition of Norway’s responsibilities in an increasingly globalised world. The Government presented the main features of Norwegian foreign policy in the White Paper Interests, Responsibilities and Opportunities (Report No. 15 (2008–2009) to the Storting).

The EU is seeking to develop a more uniform foreign policy, which will also have implications for our cooperation with the EU. Our Nordic neighbours Sweden, Denmark and Finland are members of the EU, as are most of our closest allies in NATO. Norway and the EU countries share fundamental values and attitudes and often similar objectives. This applies to core policy areas such as human rights, democracy-building, our policy of engagement, climate change and the environment. The EU supports the international legal order and has a stated aim to promote global peace, security and development. It is in Norway’s interests that the EU has a clear foreign policy in areas where we have common interests. It is often also in Norway’s interests to cooperate closely with the EU on foreign policy in order to achieve greater influence and have a greater impact internationally.

A number of steps have already been taken to further develop the EU’s common foreign policy, including the establishment of the European External Action Service (EEAS), which has provided a more coherent organisational framework for EU foreign policy. The EEAS has an important role to play in carrying out the responsibilities of the High Representative for Common Foreign and Security Policy. The High Representative and the EEAS are therefore important dialogue partners for Norway in the field of foreign policy. However, some key areas continue to fall under the competence of the Commission.

Norway generally cooperates with the EU in areas where the parties share common interests and see each other as relevant partners. In order for Norway to be able to gain a hearing for its views in the EU, it is essential that we can offer experience, expertise and networks that give added value. Norwegian experience that is of value in one area can serve as a door opener to EU activities in other areas. This is the rationale behind our efforts to maintain and further develop the meeting places we have with the EU in the foreign policy field.

The absence of formal agreements in the field of foreign and security policy has not prevented us from extending our cooperation with the EU in a number of foreign policy areas where Norway and the EU share common interests. At the same time, there are a number of options open Norway in its foreign policy cooperation with the EU, and the Government intends to make use of these.

2.5.1 Opportunities for Norwegian involvement

Norway is often regarded by the EU as an important partner with interests that coincide with those of the EU and a global policy of engagement. This was evident, for example, during the climate negotiations in Durban in 2011 in which the EU was a leading force, in alliance with the least developed countries and small island states. Norway played a key supporting role for the EU in the discussions.

At the international level Norway has taken on a particular responsibility for climate change financing and efforts to reduce deforestation and forest degradation, and has been a leading advocate of ambitious targets for emissions reductions, with a view to achieving the goal of limiting the rise in global temperature to 2°C. These will continue to be key areas in our cooperation with the EU at the regional level and in our role as a strategic partner to the EU in the global climate negotiations. Norway and the EU cooperate both formally and informally in the global climate negotiations and our positions often coincide. This cooperation is valuable; experience shows that by maintaining close dialogue with the EU, Norway is able to influence the EU’s negotiating positions. As a non-member state, Norway has more latitude on issues where the EU’s freedom of action may be limited by internal processes. This may be particularly valuable for maintaining the momentum of the negotiations. Norway and the EU worked together successfully to secure an agreement in Durban on a new commitment period under the Kyoto Protocol, as well as the launch of negotiations for a legally binding agreement for the period after 2020, to include all countries, and a workplan designed to achieve greater emissions cuts before 2020. There is a widely held view that the future climate agreement must be an ambitious one that can limit the rise in global temperature to below 2°C, and under which each country contributes according to its capacity.

The EU’s ability to respond rapidly and flexibly in negotiations can be limited in certain situations by the requirement for internal consensus. In such cases Norway has more latitude to advocate views that many EU countries may agree with, but that they cannot always promote actively outside the EU while the member states are still in the process of developing a common position. We have seen evidence of this in connection with the Middle East peace process and the EU’s policy towards Myanmar. In these areas, Norway is a partner the EU listens to. Norway may also be perceived by many partner countries and by countries receiving international aid as a more flexible actor than the EU.

The High North is Norway’s most important strategic foreign policy priority. It is therefore in Norway’s interests to maintain close dialogue with the EU on developments in the High North. Arenas such as the Northern Dimension enable Norway – and Iceland and Russia – to maintain a close dialogue with the EU on High North policy. Since 2008 the EU has been working on developing a common Arctic policy. The Norwegian authorities have had extensive discussions on the High North with EU institutions. For Norway it has been important to provide adequate information and to explain and promote its views on key issues: the established legal framework in the High North, in particular the UN Convention on the Law of the Sea, and the importance of ensuring that the Arctic remains a peaceful region, where cooperation and mutual respect for duties and rights is the norm, including issues relating to the situation of the indigenous peoples in the region. The Government has attached importance to demonstrating that Norway is a responsible steward of the environment and maintains high safety standards in the High North.

The Government has made it clear that it is willing to cooperate with the EU on Arctic issues. The EU has recognised the Arctic Council as the key political cooperation forum for Arctic issues and the European Commission is now seeking permanent observer status in the Council. A decision on this issue is expected to be taken at the Arctic Council’s ministerial meeting in May 2013. The Government has openly and consistently supported the Commission’s application.

Photo: Lars-Erik Hauge, Norwegian Mission to the EU

Relations with Russia are another important area for Norway. Norway enjoys constructive, pragmatic cooperation with its neighbour Russia, based on common interests. The two countries maintain a particularly close dialogue on issues relating to the High North. Norway and Russia signed the Treaty concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean in 2010, and it entered into force in 2011. The treaty has created a basis for enhanced cooperation between our two countries in the High North. Relations with Russia are also important for the EU and it is of consequence to Norway that the EU and Russia enjoy constructive cooperation.

Developments in other parts of Europe, outside the EEA, are also a priority for the Government, and one we share with the EU. The EU defines the countries of the Western Balkans as part of the European project and is working to enhance the prospects of EU membership for both the candidate countries and other countries. Norway attaches importance to supporting common European stabilisation and development efforts in the Western Balkans. Norway’s efforts in the Western Balkans are in line with a broad-based international approach that seeks to support these countries’ aim of integration into Euro-Atlantic structures (the EU and NATO).

Norway and the EU cooperate closely and are strongly engaged in the Western Balkans. Our interests in the region coincide to a large extent. Norway has been recognised for its efforts and the EU has sought Norwegian participation for example in developing the justice sector and independent control bodies. Both Norway and the EU give priority to improving coordination of assistance to the region. Norway is regularly invited to consultations with the EU on the Western Balkans, and in addition Norway holds consultations on the Western Balkans at senior-official level in EU capitals. These are examples of Norway’s successful political and practical cooperation with the EU.

The transition processes in North Africa in the wake of the Arab Spring have led to a much stronger engagement in the region by Norway and the EU, both politically and in the form of aid. The new strategy for the European Neighbourhood Policy, which was presented in May 2011, is the EU’s long-term response to political developments in its neighbouring areas, particularly in the South. The aim of the policy is to promote sustainable stability through lasting democratic change and inclusive economic development in the EU’s neighbouring countries to the South and the East. Relations with the EU will focus not only on market access and economic integration, but also on promoting respect for common democratic values. The EU also attaches importance to the implementation of migration initiatives (such as return agreements and control measures.)

Norway’s objectives in the region coincide to a large extent with those of the EU: the promotion of democracy, economic development, the rule of law and good governance. Dialogue with the EU on the neighbourhood policy is valued by both parties. Norway and the EU also have many of the same partners in the region, such as the UN system, the World Bank, the Council of Europe and the European Bank for Reconstruction and Development. In connection with their efforts to support democratic reform processes it is useful for Norway and the EU to be able to exchange political assessments of developments in the region. Thus, it is in Norway’s interests to be invited to participate in forums where the neighbourhood policy is discussed.

Norway is also strongly engaged in other more general foreign policy issues, such as human rights, democracy building, humanitarian issues and development. The EU is an important actor in these areas – not least as the world’s largest development aid donor, providing approximately 60 % of the total global volume of aid. Norway has aligned itself with EU positions in international forums on several occasions (for example in connection with the Paris Declaration on Aid Effectiveness and the Accra Agenda for Action). EU priorities in the area of development policy have over time gradually moved closer to Norwegian priorities. Norway has on several occasions been invited to participate at informal meetings of development ministers and has played an active role at these meetings.

The EU’s role in the field of human rights is also developing. The EU has begun the process of accession to the European Convention on Human Rights, and the European External Action Service is playing an increasingly important role in coordinating EU positions in the UN Human Rights Council. In June 2012 the EU adopted a Strategic Framework on Human Rights and Democracy, which sets out the EU’s updated policy for promoting human rights in all its external relations. EU priorities include promoting freedom of expression and freedom of religion or belief, fighting discrimination in all its forms, and continuing the campaign against the death penalty worldwide, priorities which Norway also shares. An Action Plan on Human Rights and Democracy has also been adopted to implement the Strategic Framework, and an EU Special Representative for Human Rights has been appointed. This is the first time the EU has appointed a non-geographically based special representative in a cross-cutting field.

To make progress in multilateral efforts in the field of human rights, it is essential to be able to wield the necessary influence, and the EU is an important actor in this respect. At the same time, Norway as a non-EU member country can act as a bridge-builder between different groups of countries and in this way help to create coalitions and secure broader international support for key initiatives.

2.5.2 Norway’s participation in crisis management and military capacity building

During the last 10 years Norway’s participation in EU crisis management operations has been an important factor in its close cooperation with the EU in the area of foreign and security policy.

Participation in EU operations provides an important basis for active dialogue with the EU on key security policy issues. It makes Norway a relevant partner and provides us with insight and opportunities to exert an influence, both on the ground in areas where we have a presence, and at strategic level in formal and informal forums in Brussels.

Norway provided a larger contingent to the EU’s police mission in Afghanistan from 2007 to 2012 than many EU member states, thereby gaining the right to participate in decision-making during the mission.

The EU has become more receptive to the idea of Norway and other third countries participating in crisis management operations. At Norway’s request, for example, the EU allowed third country participation in the civilian mission in Iraq (the European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX-Iraq), which is providing assistance to the Iraqi authorities in developing the criminal justice system. Norway is now participating in the mission and is the first third country to do so. Our participation in this EU operation gives us access to far more information than we would have were we operating alone. We would also face far greater security challenges if we were operating on our own.

Norway is also closely involved in efforts to alleviate the situation in the Horn of Africa in both humanitarian and political terms. The EU is also actively engaged in the region. Norway is now more often being invited to take part in talks about operations that are still at the planning stage. Previously we often received the first formal information only after the decision to establish a mission had been taken. We have noticed this over the course of the past year; the EU has consulted Norway more extensively than it has done in the past on the planning of a new mission to support maritime capacity building in the Horn of Africa. This gives us more time and a better basis for considering whether we wish to participate in an operation when it is launched.

To ensure an integrated strategic approach to the EU, there is close cooperation between the various Norwegian actors involved in security and defence policy (the Ministry of Foreign Affairs, the Ministry of Defence and the Ministry of Justice and Public Security).

2.5.3 Dialogue and cooperation

The Government is working to strengthen cooperation arenas with the EU to ensure that they remain relevant and effective. The Norwegian Mission to the EU in Brussels plays an important role in facilitating cooperation with the EU, building contacts and providing updated information on emerging issues. A valuable network has been established with the European External Action Service, the Commission and other actors such as the missions of the member states.

The Commission delegations in third countries have now been developed into EU diplomatic missions, with extended areas of responsibility and mandates. It is in Norway’s interests to further develop contact and cooperation with EU delegations in third countries, both so that we can stand together on relevant issues and so as to maintain dialogue on the assessments and views of EU and Norwegian diplomatic missions in the countries in which we operate.

The Government intends to consider further how we can present our foreign policy and our positions effectively in different EU arenas. It is essential for our participation in these arenas that Norway sets clear priorities and communicates a message that is of interest to the EU. This can be done through briefings to various EU working groups, and to the European Parliament, in areas where Norway has particular expertise. We have for example provided briefings on the Middle East prior to the meetings of the Ad Hoc Liaison Committee (AHLC), which coordinates international assistance to Palestine and is chaired by Norway.

It is also possible for Norway to align itself with EU sanctions against third countries, and we have done so on many occasions. The Government intends to further examine the possibility of Norway participating more closely in the processes leading up to, during and after EU decisions on measures of this kind. It is important to ensure that sanctions are implemented in the most uniform and therefore the most effective way in cases where Norway chooses to align itself with EU measures.

The Government will continue to attach considerable importance to developing bilateral contacts with individual EU member states as well as with the EU itself, as governments still play a key role in developing the foreign policy positions of the member states. For this reason maintaining Norwegian diplomatic and consular missions in these countries will continue to be an important element of Norwegian foreign policy.

2.6 Summary of actions the Government intends to take

The Government considers it important that Norway makes full use of the opportunities and available options provided by the EEA Agreement and Norway’s other agreements with the EU to promote Norwegian interests as effectively as possible.

The Government will:

• Continue to develop an active European policy along the lines set out in Report No. 23 to the Storting (2005–2006) on the implementation of Norway’s European policy.

• Work to ensure that the EEA Agreement continues to secure equal treatment and predictability for Norwegian companies and other actors operating in the internal market. The main principle underlying the EEA Agreement is to ensure the homogeneity of legislation. Generally speaking, Norway benefits from this, and Norway will work at the European level to promote the development of homogeneous legislation that is in line with Norway’s interests.

• Play an active part in developing legislation for the internal market, ensure that Norwegian interests are formulated and promoted clearly and at an early stage, as well as safeguard our ability to influence the development of legislation in the EU at all stages of the legislative process, in accordance with the conditions established under the EEA Agreement.

• When new legislation is being considered by the EU, make sure that a preliminary assessment of its EEA relevance is carried out as early as possible. This is crucial if we are to be able to promote Norway’s interests effectively. When assessing whether, and how, a legislative act should be incorporated into the EEA Agreement, the Government will also seek to avoid setting unwanted precedents.

• Seek modifications to new legislation that is being incorporated into the EEA Agreement in cases where Norway has important interests to safeguard or where there are special circumstances that warrant this. Any decision not to incorporate legislation into the EEA Agreement must be based on an assessment that takes into consideration both Norway’s interests in the matter in question and the risk and potential consequences of a possible negative response on the part of the EU. The Government will consider entering a reservation in cases where particularly important Norwegian interests may be jeopardised by legal acts that are proposed for incorporation into the EEA Agreement.

• Develop good and pragmatic solutions to enhance Norway’s links with and participation in the various EU agencies and supervisory bodies, on the basis of the framework and procedures set out in the Norwegian Constitution, in the two-pillar system of the EEA Agreement and in the Schengen Agreement.

• Defend Norway’s views in cases brought before the EFTA Surveillance Authority (ESA) and the EFTA Court, and actively promote our views in cases brought before the EFTA Court and the European Court of Justice that are particularly relevant for the interpretation of the EEA Agreement in areas of importance to Norway.

• Make active use of the opportunities Norway has to make submissions to the European Court of Justice in cases referred by national courts in the EU member states that relate to the interpretation of the Schengen acquis, particularly cases dealing with matters of principle and those where the ruling could have a direct impact on Norway’s implementation of the acquis.

• Build on the Schengen cooperation by actively participating in the development of new Schengen-related legislation.

• Safeguard and make use of the rights to participate granted to us under our association agreements in the field of justice and home affairs.

• Help to ensure that all Schengen member states are able to fulfil their obligations under the Schengen cooperation.

• Actively participate in efforts to combat transnational crime in Europe.

• Examine the possibility of establishing an understanding with the EU that would make it quicker and easier for Norway to participate in specific areas of the EU’s cooperation in the fields of civil justice, criminal justice and police cooperation, in cases where this is of mutual interest.

• Further develop our close foreign and security policy cooperation with the EU in areas of strategic importance to Norway and fields where together we can make an effective contribution to international cooperation, for example in the High North, democracy building and human rights, climate change and the environment, international development assistance and efforts to promote peace and reconciliation.