Meld. St. 5 (2012–2013) Report to the Storting (White Paper)

The EEA Agreement and ’s other agreements with the EU

Translation from the Norwegian. For information only.

Contents

1 Introduction ...... 5 2.5.2 Norway’s participation in crisis 1.1 Purpose and scope ...... 5 management and military 1.2 Norway’s cooperation with capacity building ...... 33 the EU ...... 6 2.5.3 Dialogue and cooperation ...... 33 1.3 The content of the White Paper .. 8 2.6 Summary of actions the Government intends to take ...... 34 2 Norway’s options within the framework of its 3 Key priorities in Norway’s agreements with the EU ...... 9 European policy ...... 36 2.1 Introduction ...... 9 3.1 Norwegian companies and value 2.2 Early involvement in creation in the internal market .... 36 the development of policy 3.2 Key policy areas ...... 37 and legislation ...... 9 3.2.1 Labour relations and social 2.3 Management of welfare ...... 37 the EEA Agreement ...... 11 3.2.2 Energy ...... 40 2.3.1 Assessment of EEA relevance ..... 12 3.2.3 The environment, climate 2.3.2 Possible adaptations when change and food safety ...... 42 incorporating new legal acts into 3.2.4 Cooperation on research the EEA Agreement ...... 16 and education ...... 44 2.3.3 Bodies with powers to make 3.2.5 Rural and regional policy ...... 46 decisions that are binding 3.2.6 Market access for Norwegian on authorities, companies or seafood ...... 48 individuals ...... 17 3.3 The Nordic countries and 2.3.4 The options available when Europe ...... 48 implementing EEA legislation 3.4 Summary of actions the in Norway ...... 19 Government intends to take ...... 49 2.3.5 The surveillance and court system: Norway’s approach ...... 22 4 Key instruments of Norway’s 2.3.6 Article 102 procedures ...... 24 European policy ...... 51 2.4 Management of agreements 4.1 Information and knowledge ...... 51 in the area of justice and 4.2 Transparency and inclusion ...... 53 home affairs ...... 25 4.3 EU/EEA expertise in the public 2.4.1 The Schengen cooperation ...... 26 administration ...... 53 2.4.2 Development of cooperation 4.4 Close coordination of in other justice and home EU/EEA-related work in affairs areas ...... 28 the public administration ...... 54 2.5 Cooperation on foreign and 4.5 Mutual responsibility for security policy ...... 30 managing the EEA Agreement .... 55 2.5.1 Opportunities for Norwegian 4.6 Summary of actions the involvement ...... 30 Government intends to take ...... 56

The EEA Agreement and Norway’s other agreements with the EU

Meld. St. 5 (2012–2013) Report to the Storting (White Paper)

Recommendations of the Ministry of Foreign Affairs of 12 October 2012, approved by the Council of State on the same day. (Government Stoltenberg II)

1 Introduction

1.1 Purpose and scope and interests of the parties to the Agreement in the ongoing EEA cooperation. The expression The Norwegian Government’s European policy is “mutual responsibility” is used to mean that both based on the Agreement on the European Eco- parties should follow up the Agreement in a cor- nomic Area (the EEA Agreement) and Norway’s rect and responsible way that secures the quality other agreements with the EU. The EEA Agree- and efficiency of the cooperation. ment links Norway to the EU’s internal market Generally speaking, Norway benefits from the and forms the foundation of Norway’s European development of common rules and standards for policy. This White Paper will therefore not discuss the European market. In cases where the develop- other forms of association with the EU. ment of legislation is not compatible with Norwe- As set out in the Government’s policy plat- gian interests, the Government will use the oppor- form, the Government will pursue an active Euro- tunities and available options provided by the pean policy and will work proactively to safeguard Agreement to safeguard Norway’s interests. Norwegian interests vis-à-vis the EU. In this White Paper, the expression “available It is important for Norway that the EEA coop- options” is used to describe the opportunities the eration is effective, flexible and that it ensures Government has to influence how Norwegian mutual responsibility. Here, the word “effective” is companies and Norwegian citizens are affected by used to mean that the EEA Agreement should the EEA Agreement and other aspects of Nor- ensure equal treatment and predictability for Nor- way’s cooperation with the EU. The expression is wegian actors, as well as the greatest possible therefore used to describe both the opportunities degree of Norwegian participation in EU pro- the Norwegian authorities have to influence the cesses. The word “flexible” is used to mean that content of EU legislation, and how, and to what due account should be taken of the varying needs extent, the legislation should be implemented at 6 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU the national level. An awareness of the available was with a view to ensuring that Norway would be options that exist at any given time is essential for able to participate in the internal market that was the sound management of Norway’s agreements being developed in the European Community with the EU. (EC). In the view of the Storting, safeguarding The main purpose of this White Paper is to Norwegian companies’ equal access to the West- promote the sound management of Norway’s ern European market was important for the Nor- agreements with the EU. It is crucial to ensure the wegian economy and value creation. The EEA proper follow-up of the agreements, including the Agreement established a dynamic and homoge- best possible use of the options available to Nor- nous economic area that ensured this. way. This is essential not least in the light of the There are close links between Norway and the far-reaching changes the EU has undergone in EU countries due to historical and cultural ties, recent years, for example enlargements to include geographical proximity, common values and a a number of new member states, treaty reforms, shared commitment to the rule of law and human new modes of governance, and most recently rights. Norway has therefore also chosen to changes as a result of the financial crisis in develop its cooperation and agreements with the Europe. EU in areas outside the framework of the EEA In its European policy, the Government will Agreement. This applies to judicial and police focus its main efforts on areas of particular impor- cooperation, questions relating to asylum and tance to Norway. In following up Norway’s agree- immigration policy, and foreign policy and secu- ments with the EU, the Government will promote rity policy issues. To a great extent, Norway has openness and awareness-raising, and will give pri- taken the initiative to develop and strengthen its ority to enhancing knowledge and ensuring sound cooperation with the EU in these areas. Succes- management. sive Norwegian governments have been guided At the beginning of 2010, the Government by a common recognition of the need for transna- appointed a broad-based expert committee, the tional cooperation in order to address transna- EEA Review Committee, to review Norway’s tional problems, and have sought to further experience of the EEA Agreement and its other develop Norway’s cooperation with the EU in agreements with the EU. The aim was to obtain these areas, with broad support in the Storting. the best possible body of knowledge on Norway’s The EEA Agreement has been in force for agreements and cooperation arrangements with almost 19 years, and this period has mostly been the EU. The committee, chaired by Professor one of stability and economic growth for Norway. Fredrik Sejersted, presented its report on 17 Janu- The Agreement has remained an effective frame- ary 2012 (Official Norwegian Report NOU 2012: 2 work for economic relations between the coun- Outside and Inside: Norway’s agreements with the tries in the EEA, at a time when there have been European Union). The report is far-reaching and substantial changes in the EU cooperation, partic- thorough. It contributes to the establishment of a ularly the enlargements to include 12 new mem- sound body of knowledge as a basis for further ber states and changes to the founding treaties. developing Norway’s European policy. The Europe is now dealing with the repercussions report’s main conclusions, final remarks and sum- of the crisis that hit the global economy in 2008. maries of consultative comments are reproduced Most European countries have felt the economic in the Appendix of this White Paper (in the Nor- effects of the crisis, many have also been affected wegian version only). Other organisations and socially and politically. So far Norway has been actors have also helped to foster a broad debate spared the worst of the crisis in Europe. However, by providing their own analyses of Norway’s links developments in the EU and in the countries in to the EU and possible alternatives to today’s form the EEA have important implications for Norwe- of association. These analyses are also discussed gian interests. It has therefore been natural for in the Appendix. Norway to help reduce the effects of the current crises in European countries, for example by increasing its contribution to IMF funding sche- 1.2 Norway’s cooperation with the EU mes and by offering bilateral loans to neighbou- ring countries. The funding Norway provides Norway and the EEA Agreement under the EEA and Norway Grants and the contri- When, in 1992, the required three-quarters major- bution it makes as a long-term and reliable sup- ity of members of the Storting (Norwegian parlia- plier of energy also have a positive impact on ment) agreed to enter into the EEA Agreement, it developments in Europe. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 7 The EEA Agreement and Norway’s other agreements with the EU

Figure 1.1 Map of the EU/EEA

At a time when the EU and many of the EU vis-à-vis the EU. At the same time, Nordic policy countries are experiencing their worst crisis for has become an increasingly important element of many years, the internal market has proved to be European policy for Norway and the other Nordic a robust framework for trade and economic rela- countries. Nordic cooperation has thus become an tions between the countries in the EEA. The cur- integral part of the European cooperation. rent problems facing the EU and EU countries Cooperation between the Nordic countries on have not led to the destabilisation or break-up of foreign and security policy has also been consider- the internal market. ably strengthened, within the framework of the countries’ respective memberships of the EU and NATO. Cooperation on defence policy has The EEA, the EU and the Nordic countries entered a dynamic phase, as illustrated by the The EEA Agreement links the Nordic countries establishment of the Nordic Battle Group and the together in a common internal market. Within Nordic declaration of solidarity, in which the coun- this framework, integration between the Nordic tries state their willingness to assist one another countries has been consolidated and further in the event of natural or man-made disasters, developed in important areas such as the reduc- cyber attacks or terrorist attacks. tion and removal of border barriers, labour mobil- Security policy and foreign policy cooperation ity, welfare and employment, the environment, between the Nordic countries is part of a new and foreign and security policy. trend towards closer regional cooperation in Today Nordic cooperation provides an impor- Europe. The EU and key EU countries are show- tant framework for coordinating Nordic efforts ing increasing interest in the High North. Both in 8 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU the EU and NATO there is a growing interest in tion of the Government’s European policy, as set regional cooperation that includes both member out in the Government’s policy platform and states and non-member states. In the Nordic coun- Report No. 23 (2005–2006) to the Storting on the tries and in northern Europe this is illustrated not implementation of European policy. Chapter 5 dis- least by the fact that all the Nordic countries and cusses the Government’s assessments of Nor- the EU meet in the key, sub-regional cooperation way’s opportunities and available options in the forums: the Barents Euro-Arctic Council, the management of its agreements with the EU in the Council of Baltic Sea States, the Arctic Council areas of the EEA, justice and home affairs and for- and the Northern Dimension. Due to its history eign and security policy, respectively. Chapter 6 and broad set of common values, the Nordic coop- covers the Government’s assessment of certain eration is particularly well placed to play a role in policy areas that will be given particular attention further developing regional cooperation of this in Norway’s cooperation with the EU in the time kind within a broader European framework. ahead, both broad cross-cutting areas and more specific ones. Chapter 7 discusses how EU and EEA expertise can be enhanced in the public 1.3 The content of the White Paper administration and in society as a whole, as well as ways of involving relevant stakeholders more Chapter 2 provides a review of developments in closely in the development of European policy. the EU in recent years. Chapter 3 deals with Nor- Chapter 8 contains conclusions and final remarks. way’s cooperation with the EU, including the EEA The English version of the White Paper only cooperation, the Schengen Agreement/other includes chapter 1, chapter 5 (here chapter 2), agreements in the area of justice and home affairs, chapter 6 (here chapter 3) and chapter 7 (here and foreign and security policy. Chapter 4 is con- chapter 4). cerned with goals, principles and the implementa- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 9 The EEA Agreement and Norway’s other agreements with the EU

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

2.1 Introduction Norway participates more closely in the devel- opment of EU policy and legislation under the The Government will pursue an active European Schengen cooperation. The associated countries policy and will focus on safeguarding Norwegian are involved in Council discussions through the interests vis-à-vis the EU and EU member states. Mixed Committee. Norway needs to provide input The Government’s European policy is based on as early as possible in the process in this area too, the Agreement on the so that its views can be taken into account before (the EEA Agreement) and Norway’s other agree- the framework for the decision-making process ments with the EU. has been established. The Government intends to make use of the It is important to ensure early involvement in options that are available within the established legislative processes so that we can carry out a framework in its management of the agreements. preliminary assessment of EEA relevance when This involves both making use of the opportuni- the EU is preparing new legislation. Moreover, by ties Norway has to influence the development of being actively involved at an early stage we can EEA legislation and Schengen rules, and utilising develop insight that will help us to clarify and the options that are available as EEA legislation is make use of the options that are available as we implemented in Norwegian law. Knowledge and implement and apply the legislation in Norway. awareness of the options that are available at any In some respects the development of EU policy given time is essential for the sound management and legislation has changed considerably over the of Norway’s agreements with the EU. past ten years. Previously, legislation tended to deal This chapter discusses how we can make use with specific areas, and was based to a large extent of these opportunities in the management of the on Commission proposals. Now there has been a agreements on the EEA and in the fields of justice move towards broad cross-sectoral policies and leg- and home affairs and foreign and security policy. islation, developed on the basis of extensive discus- This is particularly important in the light of the sions in the Council and the European Parliament. far-reaching changes the EU has undergone in One example is the EU climate and energy pack- recent years. age, which was adopted in 2009. Another important feature is the development of broad framework leg- islation that establishes goals and general princi- 2.2 Early involvement in the ples and leaves the further development and development of policy and administration of the legislation to committees or legislation other bodies under the Commission. This type of system is being used in a number of areas. A third Within the framework of Norway’s agreements key feature is that the decision-making process is with the EU, Norway has greatest opportunity to now much quicker. In the past, new legislation usu- participate in the development of EU policy and ally required two rounds of discussions in the Euro- legislation at an early stage of the legislative pro- pean Parliament and the Council, but now one cess, i.e. during the preparation of Commission round of discussions is sufficient in most cases. proposals and during preliminary discussions in All in all, it has become more difficult to the Council of the EU (the Council) and the Euro- ensure that Norwegian interests are safeguarded pean Parliament. There is less opportunity for when new legislation is being developed in the Norway to have an influence towards the end of EU. It is therefore crucial for Norway to establish the legislative process in the EU, particularly as its national positions at an early stage in the legis- regards EEA legislation. lative process and to follow all stages of the pro- 10 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Box 2.1 Consumer Rights Directive In 2008 the Commission put forward a proposal issued. Following extensive discussions the for a new consumer rights directive. This was Council agreed on a general approach in Janu- intended to replace four directives that set mini- ary 2011, and the Consumer Rights Directive mum standards for the protection of consumers was formally adopted in October 2011 following with a new common directive, with a view to trilogue negotiations between the Council, the achieving full harmonisation of EU consumer European Parliament and the Commission. In law. The original proposal would have weakened Norway’s view, the Consumer Rights Directive consumer protection in Norway in several ways. as adopted is significantly better than the origi- The Norwegian Government established its nal proposal. Experience shows that that a position at an early stage, and had clear aims: to broad-based national process at an early stage achieve a directive setting out minimum stan- involving relevant stakeholders, combined with dards, and to ensure that overall consumer pro- clear standpoints, is crucial if Norway is to exert tection in Norway was not weakened. Policy an influence on a legislative process. This was guidelines for Norway’s efforts vis-à-vis the EU the rationale behind Norway’s targeted effort. were issued. Norway was working actively on Norwegian analyses and views developed at an this matter even before the Commission put for- early stage of the process served as a basis for ward its proposal. A coordination group was set contacts with stakeholders in the EU who had up in the public administration, and maintained not yet established clear positions. It was also close contact with consumer and business crucial to coordinate efforts and share informa- organisations. Documents supporting Norway’s tion at national level in order to keep ourselves arguments were drawn up. The EEA EFTA informed about progress within the EU. It was states also presented their views on the pro- particularly important to submit specific sugges- posed directive in the form of an EEA EFTA tions and not just general comments to the Euro- Comment. The senior political staff of the rele- pean Parliament. During a trilogue, there can be vant ministries played an active part in the pro- opportunities to put forward concrete proposals cess vis-à-vis the EU. They also held meetings that can help in reaching a compromise. At the with their Nordic colleagues. A Norwegian con- administrative level, we established contacts sumer rights expert was seconded to the unit of with the support staff of relevant members of the Commission that was dealing with the pro- the European Parliament and the secretariat of posed legislation. the parliamentary committee. We found that our The European Parliament presented a draft long-term involvement and participation in the report on the proposed consumer rights direc- process enhanced Norway’s credibility and our tive in summer 2010 containing extensive access to relevant actors in the EU system. amendments to the Commission’s proposal. Some points in the final directive were changed Norway held a consultation process at this in line with Norway’s views and proposals. stage, and a new EEA EFTA Comment was

cess closely from the preparatory or decision- ensure that legislation is implemented correctly in shaping phase to the adoption of legislation. This Norwegian law. may be followed by the development of common The Norwegian public administration is gene- rules for implementing the legislation (comitology rally well informed about legislation that is being procedures) and amendments to the legislation. developed in the EU. In addition, it is important The capacity of the Norwegian authorities to par- that the Norwegian authorities are in a position to ticipate actively in such processes is limited, and make rapid assessments of the consequences for for this reason focus will be on major legislative Norway of any proposed legislation and are able and policy developments. However, it is also nec- to communicate their positions clearly in dialogue essary to follow up less crucial developments, for with representatives of EU institutions and EU example technical regulations, closely enough to member countries. This requires firm commit- ensure that we have the necessary information, ment and active involvement at the political level can assess any proposed amendments and can in the relevant ministries. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 11 The EEA Agreement and Norway’s other agreements with the EU

Box 2.2 The CCS Directive Directive 2009/31/EC on the geological storage gian experts were also actively involved in the of carbon dioxide (the CCS Directive) was for- preparation of the Special Report on Carbon mally adopted by the EU in April 2009 and is Dioxide Capture and Storage by the Intergov- part of the EU climate and energy package. It ernmental Panel on Climate Change (IPCC), establishes a legal framework for environmen- which was published in 2005. These processes tally safe geological storage of CO2, including provided a starting point for drawing up the EU requirements for exploration and storage per- directive, which incorporates a number of the mits, the composition of the CO2 stream, moni- same principles. Norway continued to play an toring and reporting. The directive is largely active role when discussions started in the EU based on rules that had been established in 2007 in 2006, and was at an early stage invited to take under multilateral agreements on the marine part in the working group set up by the EU environment by which Norway is bound (the Commission to draw up the legislation. In addi- OSPAR Convention, which applies to the North- tion to representatives of the Climate and Pollu- East Atlantic, and the global London Protocol). tion Agency, Norwegian experts from institu- Norway played a leading role in discussions on tions such as SINTEF and DNV were involved. CCS in OSPAR and other international forums Bellona also played an important advocacy role from 2002 onwards. Norway’s input was based in the process. In cooperation with EU member on experience of CO2 storage on the Sleipner states such as the UK and the , and field in the North Sea since 1996. The Norwe- key members of the European Parliament, the gian authorities, including the Climate and Pol- alliance of which Norway was a part succeeded lution Agency, prepared expert input, led work- in gaining the necessary majority for integrating ing groups, and put forward proposals, often in CCS into the EU’s climate policy, and thus for cooperation with the UK, the Netherlands and the CCS Directive. . The Norwegian authorities and Norwe-

It is also important to involve stakeholders in when they are to be incorporated into the EEA civil society and the business sector in Norway in Agreement. The European Parliament and the formulating Norwegian positions, so that Norwe- Council are showing an increasing tendency to gian interests can be more clearly identified. This make amendments to the Commission proposals will enhance Norway’s efforts in this area. for directives and regulations. Therefore it is Sharing experience and results in specific important for Norway to focus not only on the areas at the appropriate time enables Norway as a Commission’s work but also on the subsequent non-member state to have its voice heard when processes in the Parliament and Council. new policies and legislation are being developed. Chapter 7 discusses ways in which knowledge Norway’s targeted, long-term lobbying efforts vis- of the EU/EEA in the public administration and in à-vis EU institutions have enhanced its credibility society as a whole can be strengthened, and how and provide a solid basis for Norway to have an the level of stakeholder involvement can be incre- influence. ased. Norway should seek to play an active role in EU legislative processes in all areas that have signifi- cance for Norway. In many cases Norway’s input 2.3 Management of the EEA will be of interest to the EU. As a rule it will be eas- Agreement ier to gain acceptance for Norway’s views if these are also perceived as useful and relevant to other As described above, Norway and the other EEA countries. It is important that Norway seeks to be EFTA states have the opportunity to participate in involved as early as possible in EU processes, parti- the development of EU legislation during the pre- cularly in matters of importance to Norway. It is paratory stage. However, for the EFTA states the usually more effective to seek to persuade EU more formal procedures do not begin until after bodies to adjust proposed EU legislation before it is the EU has adopted a legal act in an area within the adopted than to negotiate adaptations to legal acts scope of the EEA Agreement. These procedures 12 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU can be divided into a number of different phases: determining whether the act is EEA relevant, Box 2.3 Security of energy supply establishing whether adaptations are needed to incorporate an act into the EEA Agreement, the Proposition No. 100 (1991–92) to the Storting decision-making process and national implementa- on consent to ratification of the EEA Agree- tion. The Government will work actively to ensure ment made it clear that the EEA Agreement sound management of the EEA Agreement in all was not to encompass the development of a these phases and to participate as effectively as common energy policy. The EC’s directives on possible during the preparatory stage of the devel- oil stocks, which were designed to address the opment of EU policy and legislation. effects of a supply crisis during peacetime, were specifically discussed during the negotia- tions, and it was agreed that they were not to 2.3.1 Assessment of EEA relevance be part of the EEA Agreement. In accordance With the development of the EU cooperation in with this, the position of the EEA EFTA States recent years, the limits for what is covered by the has been that the EEA Agreement does not EEA Agreement have become less clear than they cover security of energy supply. In the light of were in the past. This is discussed in more detail this, Norway did not consider Council Direc- in Chapter 2. EU legislation in areas within the tive 2004/67/EC on security of natural gas scope of the EEA Agreement is dynamic. It is con- supply or Council Directive 2006/67/EC on stantly being developed to take account of chang- the maintenance of minimum stocks of crude ing needs, framework conditions and policy objec- oil and/or petroleum products to be EEA rele- tives. EEA legislation must be developed corre- vant. However, if the substance of an act is spondingly in order to ensure the homogeneity of considered to affect the functioning of the legislation throughout the EEA, as set out in Arti- internal market, a different decision may be cle 102 of the EEA Agreement. reached. For example, Directive 2005/89/EC The EEA Joint Committee is responsible for on the security of electricity supply was incor- assessing whether new EU acts governing areas porated into the EEA Agreement because of within the scope of the EEA Agreement should be its clear impact on the internal market. incorporated into the Agreement. This is a two- stage process. The first stage is to clarify whether the legislation is EEA relevant, i.e. whether it falls within the substantive and geographical scope of that the aim of the Agreement is to create a the EEA Agreement, as defined in the main homogeneous European Economic Area. In Agreement and its protocols and annexes. EEA order to achieve this goal, the cooperation is to relevance is assessed on the basis of objective and entail the free movement of goods, persons, ser- legal criteria. However, the criteria set out in the vices and capital, the setting up of a system Agreement are not precise, and assessments are ensuring that competition is not distorted and therefore to a certain extent discretionary. If an that competition rules are equally respected, and act is found to be EEA relevant, the next step is to closer cooperation in other fields, such as clarify whether it can be incorporated into the research and development, the environment, EEA Agreement as it is or whether it requires education and social policy. Assessment of the adaptations. A decision concerning this is taken EEA relevance of legal acts requires specific con- on the basis of expert input and political and insti- sideration of which areas fall partly or wholly tutional considerations. outside the scope of the EEA Agreement. If an act is only partly EEA relevant, those In assessing whether legal acts fall within parts that are not EEA relevant are removed the substantive scope of the EEA Agreement, through an adaptation text in the Joint Committee the term EEA relevance may be used in more Decision. Thus, only those parts of the act that are than one sense. In the narrowest sense, legal EEA relevant will be incorporated into the EEA acts are EEA relevant if their substance means Agreement. that they must be incorporated into the EEA Agreement. This applies to legislation relating to one of the four freedoms or in fields relevant The substantive scope of the EEA Agreement to the implementation of the four freedoms, The substantive scope of the EEA Agreement which must also be included to ensure that com- can be inferred from its Article 1, which states petition can take place on near equal terms. The 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 13 The EEA Agreement and Norway’s other agreements with the EU areas to which this applies are specified in Parts It may also be relevant to consider the legal basis II–V of the EEA Agreement. These acts can be of the act. This may give an indication of its pur- said to affect the functioning of the internal pose, as well as in certain cases its impact on the market by establishing rules of significance for internal market. This applies for example in cases free movement and competition across national where acts are adopted under Article 114 of the borders. If such acts are not incorporated into Treaty on the Functioning of the European Union the Agreement, the procedure set out in Article on the internal market. 102 may be applied, and the relevant part of the Agreement may be suspended. This procedure is described in more detail in Chapter 5.3.6. The geographical scope of the EEA Agreement In its broadest sense the term EEA rele- The geographical scope of the EEA Agreement is vance also encompasses activities (programmes set out in Article 126. The EEA Agreement applies and projects) in areas outside the four freed- to the territory of the Kingdom of Norway, but not oms, in the fields set out in Part VI, Article 78, to Svalbard. Norway’s position is that the term ter- of the EEA Agreement. These fields are descri- ritory is to be understood in accordance with bed in more detail in Chapter 3.1.1. Under the established practice in international law. This Agreement, the parties have undertaken to means that the EEA Agreement applies to Norwe- strengthen and broaden cooperation in these gian land territory, internal waters and territorial fields. This extends beyond the cooperation waters, but not to the exclusive economic zone, necessary to ensure the proper functioning of the continental shelf or the high seas. However, the internal market. In these cases, legal acts the geographical scope of the EEA Agreement is are only incorporated into the EEA Agreement not considered to be a legal obstacle if Norway, if the EEA EFTA states identify a common inter- after an assessment of a particular matter, decides est in aligning themselves with EU cooperation to assume specific EEA obligations outside its ter- in a specific field. A decision not to incorporate ritory. legal acts in these fields into the EEA Agree- If there is a strong thematic or economic link ment will not trigger application of an Article between parts of a specific activity that take place 102 procedure. within Norway’s territory and parts that take An assessment of whether a legal act falls wit- place outside Norway’s territory, Norway may in hin the substantive scope of the EEA Agreement certain situations choose to incorporate legal acts is based on an overall consideration of the provisi- whose scope encompasses the exclusive eco- ons and intentions of the Agreement, particularly nomic zone or the continental shelf into the EEA including the following factors: Agreement. In such cases Norway has made it a – Whether the legal act deals with one or more of condition that expanding the geographical appli- the fields specified in the main Agreement and cability of certain acts does not change the princi- its protocols and annexes. ple on which interpretation of the geographical – Whether it sets out rules of importance for the scope of the EEA Agreement is based. In other free movement of goods, persons, services and cases Norway can take a decision at national level capital and free competition across national to also apply rules outside its territory that an borders, and whether it imposes obligations on EEA act has established within its territory. market actors that will have economic conse- quences. – The purpose of the act, i.e. whether it applies to Differences between cooperation outside the four fields that are relevant for the functioning of freedoms and legislation relating to the four freedoms the internal market, or whether its purpose is EU legislation relating to the four freedoms is reg- cooperation beyond this. ulated by the Parts II–V of the EEA Agreement, – Whether the act amends, follows up or supple- and is incorporated into one of its annexes. Coop- ments legislation that has already been incor- eration in areas outside the four freedoms does porated into the EEA Agreement, and whether not in principle entail a legal obligation to cooper- related legislation has been incorporated into ate within the framework of the EEA Agreement, the EEA Agreement. and is regulated by Part VI of the EEA Agree- – The conditions set by the Storting for Nor- ment. Legal acts in these areas are normally incor- way’s adoption of the EEA Agreement in 1993, porated into Protocol 31 to the Agreement on as described in Proposition No. 100 (1991–92) cooperation in specific fields outside the four free- to the Storting. doms. If a legal act is incorporated into Protocol 14 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Box 2.4 Marine Strategy Framework Directive In 2008, the EU adopted the Marine Strategy an important source of inspiration in developing Framework Directive (2008/56/EC), which the Directive. In practice, Norway fulfils the requires Member States to draw up marine Directive’s requirements on the development strategies (management plans) to achieve good and implementation of marine strategies. The environmental status in their marine areas. The geographical scope of the EEA Agreement overall criteria for assessing good environmen- extends to the territorial limit, cf. Article 126 of tal status are determined by the EU, and these the EEA Agreement. On the other hand, the criteria are adapted and further refined through scope of the Directive includes all marine work done under the regional marine conven- waters, extending to the outer limits of national tions and at national level. The strategies are to jurisdiction, and thus including the exclusive include an assessment of the state of the envi- economic zone and the continental shelf. Its geo- ronment and a description of environmental tar- graphical scope therefore extends beyond that gets, monitoring programmes and measures to of the EEA Agreement. In 2011 the Government achieve or maintain good environmental status. decided that the Marine Strategy Framework The Directive does not regulate other activities Directive was not to be incorporated into the that may be affected by measures of this kind, EEA Agreement on the grounds that it applies such as fisheries, maritime transport and petro- largely to areas outside the geographical scope leum activities. Over the past few years Norway of the EEA Agreement. A decision was also has developed the basis for an integrated marine taken to further strengthen the already close environmental policy based on the ecosystem cooperation with the EU on management of the approach. This approach is also enshrined in the marine environment. Directive, and the Norwegian model has been

31, this creates the same type of legal obligation Horizontal adaptations: Protocol 1 to the EEA as incorporation into an annex, in that Norway is Agreement, which deals with horizontal adapta- then obliged under international law to comply tions, including the distribution in the EFTA pillar with the provisions of the act. Article 7 of the EEA of tasks that are carried out by the Commission in Agreement, which deals with states’ obligation to the EU pillar, applies only to acts listed in the make acts part of their internal legal order, also annexes to the EEA Agreement and not to Proto- applies to acts that are incorporated into Protocol col 31. If this needs to be regulated, it must be 31. There are, however, several differences agreed on separately. between incorporation of an act into an annex and Surveillance and settlement of disputes: It fol- incorporation into Protocol 31, the most important lows from Article 79 (3) that Part VII of the EEA of which are: Agreement (Institutional Provisions) only applies Precedence: When an act is incorporated into to Protocol 31 when specifically provided for. This an annex it can normally be assumed that later means that in principle, the EFTA Surveillance legislation relating to the same field will also be Authority and the EFTA Court have no role in this incorporated into the Agreement. This must be cooperation. Nor are the dispute settlement rules the basic assumption even though there is a for- (including the Article 102 procedure) applicable. mal requirement for a new, independent assess- Any disputes have to be dealt with through con- ment of any new acts relating to the same field, sultations between the Contracting Parties in including amendments, before a decision is accordance with the intentions of the Agreement. made on their EEA relevance. The incorpora- If, for example, it is considered appropriate that an tion of an act into Protocol 31 does not set the act incorporated into Protocol 31 is covered by the same precedent, as in these cases there is in surveillance procedure, this must be specifically principle no legal obligation to cooperate within agreed. the framework of the EEA Agreement. The par- The Government considers it important that ties therefore have more freedom to assess legal acts relevant to the implementation of the whether they wish to develop the cooperation four freedoms are incorporated into an annex, further. while acts regulating cooperation outside the four 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 15 The EEA Agreement and Norway’s other agreements with the EU freedoms should be incorporated into Protocol 31. This is in line with the intentions of the EEA Box 2.5 On Article 194 of the Agreement, helps to clarify the basis for coopera- Treaty on the functioning of the tion in each individual case and in general ensures European Union that management of the cooperation is as orderly and predictable as possible. With the adoption of the Lisbon Treaty, Article 194 of the Treaty on the functioning of the European Union now provides the legal Difficulties in assessing EEA relevance authority for the development of an integrated In most cases it is a straightforward matter to European energy policy, as well as for develop- determine whether or not an act is EEA relevant, ing European legislation in the energy sector. but in some cases it can be more complex. The Article 194 provides for the EU to adopt EU is adopting an increasing number of legal acts energy legislation to ensure the functioning of that fall partly within and partly outside the scope the energy market, ensure security of energy of the EEA Agreement. This is in part due to the supply in the Union, promote energy effi- increasingly cross-sectoral nature of the EU coop- ciency and energy saving and the develop- eration, in part due to the abolition of the pillar ment of new and renewable forms of energy, structure and in part due to changes that have and promote the interconnection of energy been made to EU treaties over time. The original networks. This has given the EU broader pow- parallel between EU treaty provisions and the ers in the following areas: EEA Agreement is gradually being erased. This 1. Security of energy supply in general (previ- makes it a more complex matter to establish EEA ously only in the event of serious problems relevance. It can also be difficult to assess the relating to security of energy supply) degree to which an act affects the internal market, 2. Infrastructure (previously only guidelines and the parties may disagree on this. for infrastructure, as a general rule) New legal acts are incorporated into the EEA 3. Energy efficiency in general (previously Agreement by consensus. The EEA Agreement only in the context of the environment) contains no provisions for dispute settlement in the event of disagreement on the question of EEA Since Article 194 provides for the adoption of relevance. The parties will therefore be obliged to legislation serving so many different pur- find a political solution. If the EU is of the view that poses, it may be difficult to assess the EEA rel- the legislation concerned should be incorporated evance of legal acts. It is likely that legal acts into the EEA Agreement, the outcome may be that will be adopted that are intended to serve sev- it initiates an Article 102 procedure, and the affec- eral purposes, of which one may be outside ted part of the legislation may be suspended. the scope of the EEA Agreement (such as Assessing EEA relevance requires technical security of energy supply), while others may and legal expertise, and must be carried out come within it (such as ensuring the function- within the framework of the basic premises and ing of the energy market). There are also principles of the EEA Agreement. However, likely to be legal acts in which not all the provi- there is also some room for discretion. The par- sions can be regarded as EEA relevant. ties’ priorities and objectives for the EEA cooper- ation can to some extent determine which factors are given most weight when assessing EEA rele- vance. decided to incorporate the original legal act into Each new legal act is independently assessed an annex rather than Protocol 31. before a final decision is made on EEA relevance. In practice, it is important to ensure that there Usually, however, if one legal act is incorporated is a reasonable degree of consistency and coher- into an annex to the EEA Agreement, it will be nat- ence in what is incorporated into the EEA Agree- ural to incorporate subsequent legal acts in the ment and what is not. This is necessary to ensure same area into the Agreement as well, irrespec- effective cooperation and a degree of predictabil- tive of whether they are revisions of the original ity for relevant stakeholders. legislation, related legislation or supplementary In order to avoid confusion, it should be made legislation. Nevertheless, in Norway’s view, there clear when legislation and cooperation in areas is no obligation to incorporate subsequent legisla- outside the four freedoms are incorporated into tion outside the four freedoms, even if it was the EEA Agreement that this is not something 16 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU that the parties are under a legal obligation to do. adjustments, transitional arrangements or deroga- Clarity about the basis for cooperation in each tions. Adaptations of this kind may be particularly case has become even more important as the pro- appropriate if only parts of the legislation are EEA cedures for the development of EU legislation relevant, if it contains institutional solutions that have become more complex, so that the distinc- need to be adapted to the two-pillar structure of tion between EEA-relevant elements of the legisla- the EEA Agreement, or if special circumstances in tion and elements that fall outside the scope of the Norway make them necessary. In some instances EEA Agreement is sometimes less clear. When adaptations may also be appropriate if the legisla- assessing whether or not a legal act should be tion involves a change in Norwegian policy that is incorporated into the EEA Agreement, and if so considered to be problematic. how, the Government will also seek to avoid set- The EU’s increasingly cross-sectoral ting unwanted precedents. The fact that it may be approach to developing legislation, the abolition difficult to foresee how legislation will be further of the pillar structure within the EU and new reg- developed in a given area should be taken into ulatory methods may mean that it becomes more account when making an assessment of this kind. relevant to negotiate adaptations in the form of The Government’s position is that Norway’s substantive delimitations and institutional adjust- obligations under the EEA Agreement only apply ments when incorporating legislation into the on Norwegian territory. If, in special cases, it is EEA Agreement. appropriate to extend the geographical applicabil- In certain cases, there may be a need to make ity of legislation to the exclusive economic zone or a joint or unilateral declaration when incorpora- the continental shelf, the Government’s premise ting legislation into the EEA Agreement, to clarify is that this does not change the fundamental prin- or delimit the parties’ understanding of the legis- ciple that the geographical scope of the EEA lation in question. A joint declaration expresses Agreement is limited to Norway’s territory. the parties’ common understanding of the legisla- The Government will seek to ensure a prelimi- tion, while a unilateral declaration only gives Nor- nary assessment of EEA relevance at the earliest way’s interpretation. possible stage when the EU is considering new Few transitional arrangements and deroga- legislative proposals. This is crucial if Norway’s tions have been agreed for the legal acts that have assessments and views are to be put forward been incorporated into the EEA Agreement. This effectively. is partly because the EEA EFTA states have con- sidered it to be in their interests to have common rules wherever possible, and they have therefore 2.3.2 Possible adaptations when sought to limit the use of different rules at incorporating new legal acts into the national level. It is also because the EU follows a EEA Agreement restrictive line as regards transitional arrange- The main principle underlying the EEA Agree- ments and derogations, because its aim is to ment is that legislation should be implemented achieve the greatest possible degree of homoge- and applied in the same way throughout the EEA. neity throughout the EEA. The question of sub- This is essential to ensure the homogeneity of leg- stantive adaptations to legal acts that are incorpo- islation, equal conditions of competition and pre- rated into the EEA Agreement should also be dictability for companies and citizens alike. As a seen in the context of the options available to Nor- general rule, adaptations in the form of deroga- way when implementing EEA legislation at tions and transition periods of any length are national level. Even if Norway does not gain incompatible with this principle. However, if spe- acceptance for an adaptation when incorporating cial circumstances so require, it will be natural to an act into the EEA Agreement, it may in a num- seek adaptations to legislation when incorporating ber of cases nevertheless be possible to imple- it into the EEA Agreement. ment the legislation in a way that also safeguards Almost all new EU legislation is incorporated Norwegian interests. into the EEA Agreement unchanged. This being said, the Agreement does allow for the parties to agree on substantive adaptations. In such cases, 2.3.3 Bodies with powers to make decisions the general objective of ensuring the homogeneity that are binding on authorities, of legislation will be part of the political assess- companies or individuals ment. Adaptations may concern delimitation of To an increasing extent, the EU is adopting legis- substantive or geographical scope, institutional lation that gives agencies and supervisory bodies 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 17 The EEA Agreement and Norway’s other agreements with the EU

make decisions that are binding on authorities, companies or individuals in the EU, the EEA Box 2.6 Derogations from EU EFTA states must decide whether and how corre- legislation sponding powers are to be exercised in the EFTA When the EEA Agreement was concluded, pillar. This may be done by giving the EFTA Sur- Norway was granted some adaptations and veillance Authority corresponding powers, by derogations, for example with regard to the deciding that corresponding decisions are to be Television Without Frontiers Directive, the made by the EEA Joint Committee, or by assign- Community Co-Insurance Directive and legis- ing the powers to national authorities in the lation on pesticides. Moreover, transitional respective EEA EFTA states. It is generally only in arrangements were agreed in the chemicals the field of competition that the EEA Agreement field so that Norway could maintain a high explicitly gives the EFTA Surveillance Authority level of protection. Norway’s technical input the authority to make decisions that have a direct during the development of EU chemicals leg- effect on companies. However, the EEA Agree- islation helped to bring the level of protection ment and the Storting’s basis for accepting the provided under EU legislation closer to that Agreement in 1993 cannot be said to rule out a provided under Norwegian legislation, so that limited transfer of powers in other areas, provid- there was no longer any need for derogations. ing that Norway agrees to this in each case. The Norway has also obtained some derogations EEA Agreement also provides for departures since the EEA Agreement was concluded. One from the two-pillar structure through special adap- of these concerns Directive 2004/54/EC on tations. This means that in special cases, it may be tunnel safety, and permits Norway to make decided to grant EU agencies or supervisory bod- use of other safety facilities than emergency ies powers to make decisions that are binding on exits. According to Official Norwegian Report EEA EFTA states, or that have a direct effect on 2012:2, Outside and Inside, by June 2011 Nor- legal entities in the EEA EFTA states. way had obtained derogations from a total of When it is proposed to transfer powers to a 55 legal acts, from 349 and Liechten- body either in the EU pillar or the EFTA pillar, the stein from 1056 legal acts. The majority of applicability of the rules on the conclusion of trea- these derogations are in the areas of goods ties set out in the Norwegian Constitution must be and transport. The main reason for the large clarified. The basic premise of the Constitution is differences between the EEA EFTA countries that the authority with which it is concerned is, as is that a number of legal acts are not relevant a general rule, to be exercised by the Norwegian to Iceland and for geographical branches of government. Therefore, any transfer or other reasons. Liechtenstein’s bilateral of legislative, executive or judicial authority that agreements with are another rea- has direct legal effect in Norway is in principle son for the differences. incompatible with the Constitution and must therefore be effected in accordance with the rules on amendments to the Constitution set out in Arti- cle 112. Alternatively, in some cases, powers may powers to make decisions that are binding on be transferred with the consent of the Storting authorities, undertakings or individuals in mem- under Article 93 of the Constitution, which ber states. This raises questions of a legal and requires a three-fourths majority and applies to political nature, including in relation to the EEA the transfer of powers to an international organisa- Agreement’s two-pillar structure and the Norwe- tion to which Norway belongs or will belong. gian Constitution. According to established constitutional prac- The concept “two-pillar structure” refers to the tice, an agreement involving a transfer of powers fact that the EEA cooperation is organised in two that is considered not to encroach too far on con- separate pillars: the EFTA pillar and the EU pillar stitutional powers may be entered into in the same (for more on this see Chapter 3.1.3). This is way as an ordinary treaty, cf. Article 26 of the Con- reflected in Part VII of the EEA Agreement, on stitution. Article 26 does not itself give any guid- institutional provisions. The principle is that it ance on how to assess when this is the case. An should be an EEA EFTA body that exercises assessment of what can be accepted must be authority vis-à-vis an EEA EFTA state. based on the specific provision of the Constitution In cases where the , EU granting the powers that would be affected in agencies or supervisory bodies have the power to each case (Article 3, 49, 75, 88, 90, etc). 18 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Box 2.7 Common rules for civil aviation and the power of the EFTA Surveillance Authority to impose fines Before Regulation (EC) No 216/2008 on com- thermore, it does not appear to be politically mon rules in the field of civil aviation was incor- controversial to put further sanctions at the porated into the EEA Agreement, its relation- disposal of the European Aviation Safety ship to the Norwegian Constitution was consid- Agency in addition to its already existing ered. The Regulation authorises the European power to withdraw certificates. This would Aviation Safety Agency to request the Commis- make it possible to respond in a more bal- sion to impose fines and periodic penalty pay- anced and proportionate way to breaches of ments on national companies for breaches of the rules, and would be beneficial for the provisions of EASA rules or individual certifi- Agency’s work on aviation safety. On this cates. Because of the two-pillar structure of the basis, we are inclined to conclude that, all in EEA Agreement, an adaptation text was needed all, the transfer of powers set out in Article 25 giving the EFTA Surveillance Authority the of Regulation (EC) No 216/2008 is not too same powers as regards companies in the EEA much of an encroachment on constitutional EFTA states. The adaptation text also had to be powers, so that the Regulation can be incor- assessed against the constitutional requirement porated into the EEA Agreement, provided for the Storting to give its consent to transfer of that the Storting gives its consent in accor- these powers to the Agency. dance with Article 26, second paragraph, of The Legislation Department of the Ministry the Constitution. As mentioned initially, how- of Justice considered the matter and concluded ever, the Storting’s views on the constitu- as follows in a statement issued on 18 January tional assessment will be of importance in 2010: cases of doubt.”

“...In principle, transferring the power to The Regulation was incorporated into the EEA impose sanctions directly on Norwegian Agreement on the basis of the Ministry’s state- undertakings [to a body outside Norway] ment. Constitutional requirements were indi- must be regarded as a considerable cated, meaning that the consent of the Storting encroachment on Norway’s administrative is required before the Regulation can enter into authority. On the other hand, the transfer of force in the EEA EFTA states. A declaration powers in this case has limited substantive from the EFTA states was also appended to the scope, in that it will only have an impact on Joint Committee’s decision, stating that giving undertakings that already have or later the EFTA Surveillance Authority the authority obtain certificates issued by the European to impose fines in the area of aviation safety is Aviation Safety Agency. Currently, this only without prejudice to solutions in similar cases in affects four Norwegian undertakings. Fur- the future.

Practice, primarily as expressed in the Stort- interests that would be affected is also taken in to ing’s deliberations on previous cases, will provide account. guidance on where the line should be drawn. So far, solutions have been found that have According to this, relevant factors in an assess- made it possible to incorporate rules of this type ment include the type of powers to be transferred into the EEA Agreement in most cases. However, and the scope of the transfer, including whether or the increased competences being given to new not the transfer of powers would apply to a spe- EU agencies and supervisory bodies are creating cific and well-defined area. It is also of importance challenges as regards the two-pillar structure of whether the transfer of powers would be based on the EEA Agreement. In certain cases, it has been reciprocity and equal participation. In practice, decided to depart from the general two-pillar prin- importance has also been attached to the degree ciple, either because it is not always possible to to which the Norwegian authorities would be able adapt the EU cooperation to the traditional two-pil- to mitigate any undesirable effects of the transfer lar structure, or because it, for resource or other of powers. The nature of the social or political considerations, has not been considered appropri- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 19 The EEA Agreement and Norway’s other agreements with the EU ate to give the EFTA Surveillance Authority the same powers as the European Commission. Box 2.8 Gaming and betting It is important for Norway to have the opportu- services nity to participate in the shaping of legislation that takes place in EU agencies and supervisory bod- The Storting has decided that certain services ies. Developments in the EU and new forms of of particular social significance are only to be cooperation mean that in a growing number of provided by the state, i.e. a public agency or a cases the EFTA states may have to accept new wholly state-owned company. One of the ser- solutions as a condition for being able to partici- vices covered by this decision is gaming and pate. However, the EU member states must betting services. In Norway, the state lottery acknowledge that the EEA EFTA countries partic- (Norsk Tipping) has sole rights to operate the ipate in the internal market on other institutional most important money games, such as Lotto and legal terms than they do, and that this places and betting on sports competitions, while the constraints on the solutions that can be chosen. horse-betting service Norsk Rikstoto can only In the Government’s view, balanced and well- offer betting on trotting races and flat-racing. functioning cooperation requires a pragmatic In 2003, the Storting extended this right so approach from all parties to the agreement. Practi- that it now also applies to gaming terminals. cal solutions should be sought that will in the best Gaming and betting services are covered possible way take account of the institutional by EEA legislation. Since 2003, two cases have structure of the EEA Agreement, the desire for been filed on this issue in the EFTA Court. In legislative homogeneity and national interests. the first of these, the gaming machine indus- The Government will consider the consequences try lodged a complaint against the Norwegian of the growing number of EU agencies and super- state with the EFTA Surveillance Authority, visory bodies for Norwegian participation, pro- and brought a case before a Norwegian court. cesses and policy formation, and which approach The gaming machine industry argued that the will best safeguard Norway’s interests in interac- extension of the Norwegian system to prohibit tions with these bodies. gaming machines run by private operators was a contravention of the EEA Agreement. In the second case, the international bookmak- 2.3.4 The options available when ers and gaming company Ladbrokes claimed implementing EEA legislation in that the Norwegian state monopolies (Norsk Norway Rikstoto and Norsk Tipping) and the fact that It follows from Article 3 of the EEA Agreement only Norwegian charitable organisations that Norwegian law must be in accordance with could offer certain kinds of games were a vio- EEA obligations. Article 3 states that the parties lation of the EEA Agreement. The Norwegian must take all appropriate measures to ensure that state won both cases outright. The Ladbrokes they fulfil their obligations under the Agreement, case continued to be brought before various and abstain from any measures that could jeopar- Norwegian courts for many years, but was dise the attainment of its objectives. This is known eventually withdrawn. In the meantime, the as the general principle of loyalty in the EEA. The European Court of Justice had passed a judg- principle applies to the implementation of legal ment in a similar Portuguese case, making acts that are incorporated into the EEA Agree- clear that national authorities have a good deal ment, and also to Norwegian legislation in areas of latitude to make use of state monopoly that are within the scope of the EEA Agreement, schemes in the gaming industry. Thus, the but not regulated by specific acts. Norwegian EEA Agreement allowed for the continuation legislation must be in line with the general provisi- of the Norwegian monopoly arrangements. ons 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. cerned, the authorities can as a general rule On this basis, the Norwegian authorities can decide on the best approach to implementation use various options to enable them to implement in Norwegian law. Thus, Norwegian values and legislation in a way that takes different conside- political and economic considerations can be rations into account. As far as directives are con- taken into account within the framework of the 20 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Box 2.9 The system of reversion In June 2001, the EFTA Surveillance Authority against foreign undertakings. In June 2007, the argued that Norway’s 1917 Industrial Licensing EFTA Court found that the differences between Act infringed Articles 31 and 40 of the EEA the rules applying to public and private owners Agreement on freedom of establishment and of hydropower resources constituted an indi- non-discrimination between Norwegian and for- rectly discriminatory restriction on the EEA eign undertakings. This was because licences rules on the right of establishment and the free without time limits for the acquisition of prop- movement of capital. According to the EFTA erty rights to waterfalls could only be issued to Court, the problem was not Norway’s system of Norwegian public undertakings. In all other reversion and state ownership in itself, nor was cases, the property rights would revert to the it the fact that the system involved national state after a certain period. The Norwegian restrictions. However, restrictions could only be response was based on the argument that the justified as part of a complete and consistent sys- system of reversion forms part of Norway’s tem of public ownership. As a result of the EFTA national management of its natural resources Court’s judgment, the Norwegian authorities and is therefore outside the scope of the EEA had to find other ways of safeguarding the sys- Agreement. Furthermore, Norway held that the tem of reversion. But this also provided the key system of time-limited licences and reversion of to a new solution: Norway could comply with property rights to the state is part of the Norwe- the judgment by strengthening public owner- gian state’s system for managing property rights ship. On 10 August 2007, the Government to hydropower resources, and Article 125 of the adopted with immediate effect a provisional EEA Agreement states that the Agreement ordinance under Article 17 of the Norwegian “shall in no way prejudice the rules of the con- Constitution, to rectify the situation that had tracting parties governing the system of prop- arisen following the ruling of the EFTA Court. erty ownership”. The EFTA Surveillance Its purpose was to ensure that Norway’s hydro- Authority recognised a state’s right to decide power resources are under public ownership whether or not a natural resource is to be used, and that they are managed for the common and the fact that states are fully entitled to man- good. Under the ordinance, private undertak- age their own resources. However, it argued ings were no longer to be granted licences for that the management system must be in accor- the acquisition of waterfalls and power plants. dance with the provisions of the EEA Agree- On the other hand, private undertakings could ment. Discrimination on grounds of nationality own up to a third of the capital and votes in pub- was a key element of the Authority’s arguments. lic undertakings that had ownership rights to When the EEA Agreement was concluded, Nor- waterfalls. The provisional ordinance was later way changed the system of reversion so that replaced by amendments to the Industrial Norwegian private undertakings and undertak- Licensing Act adopted in the autumn of 2008 and ings from other EEA states were treated equally. set out in Proposition No. 61 (2007–2008) to the However, Norwegian public undertakings were Odelsting. In the spring of 2009, the Storting still given preferential treatment in the form of adopted additional amendments that allowed the licences with no time limits and exemption from letting of hydropower plants for periods of up to the system of reversion. According to the 15 years, as set out in Proposition No. 66 (2008– Authority, this entailed indirect discrimination 2009) to the Odelsting.

directive. This will vary depending on how the national law, or explicitly sets out that states may provisions of the directive are formulated. If a depart from the provisions of the directive in one directive is very clear and concise and leaves way or another, the authorities will have conside- little room for interpretation or discretion, it will rably more leeway when implementing the direc- be difficult to depart from the wording of the tive at the national level. In such cases, the aut- directive to any great extent. In cases where the horities should implement the directive in a way directive merely gives a more general descrip- that is in accordance with established Norwegian tion of the rules that are to be implemented in legislative practice, as this will make it simpler 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 21 The EEA Agreement and Norway’s other agreements with the EU for those affected by the legislation to under- stand and interpret it. Furthermore, in areas Box 2.10 Tax deductions for such as the environment, where minimum direc- donations to charitable tives are often used, it is possible to set more organisations stringent national requirements, so that the aut- horities can choose from a wider range of The tax deductions scheme for donations to options. charitable organisations has existed since As a rule, the greatest range of options is avail- 2000, and is very important for Norwegian able in areas that are not regulated by specific organisations. Under the scheme, taxpayers acts. In these cases, it is the general provisions in can claim a tax deduction for donations of over the main part of the EEA Agreement that apply. NOK 500 per organisation per year, to certain Much of the public regulation of Norwegian soci- charitable organisations, with a ceiling of ety has a bearing on the four freedoms (free NOK 12 000 per taxpayer. In 2009, the Euro- movement of goods, services, persons and capi- pean Court of Justice ruled that a similar tal), and EEA law provides some flexibility here. scheme in Germany infringed EU law. In the Restrictions on the exercise of one of the four same year, the EFTA Surveillance Authority freedoms can be justified on the grounds of public delivered a reasoned opinion to Norway, main- interest if the public interest cannot be safe- taining that the Norwegian tax deduction guarded as effectively using less restrictive mea- scheme was an infringement of the EEA sures (the principle of proportionality). Agreement and that the legislation would have The narrowest range of options is available to be amended. The reason was that the Nor- when an area is governed by a regulation that has wegian tax deduction scheme only applied to been incorporated into the EEA Agreement. organisations with headquarters in Norway, Under Article 7 of the EEA Agreement, a regula- and not to organisations in other EEA coun- tion must be made part of Norway’s internal legal tries. In the Authority’s view, this was incom- order. This is interpreted as meaning that regula- patible with the provisions in the EEA Agree- tions must be implemented in national law verba- ment on the free movement of capital. Norway tim, normally as an act or regulation stating that had two choices: either to abolish the scheme the regulation concerned (in EEA-adapted form) or to change its tax rules so that the tax deduc- is to apply as Norwegian law. tions scheme also applied to donations to char- The number of new EU regulations has increa- itable organisations headquartered in other sed in recent years. Key examples in this context EEA states. The Government chose to change are the EU’s comprehensive legislation on chemi- Norway’s tax rules, so that all organisations cals (the REACH regulation) and food security, within the EEA that meet certain require- both of which have been incorporated into the ments are now treated alike. This case shows EEA Agreement. Recently, there has also been a that it may be possible to continue Norwegian trend towards the use of regulations in the area of schemes within the EEA, provided that they financial markets. Following the financial crisis of treat Norwegian and foreign organisations 2008–09, the EU has made increasing use of regu- equally and do not discriminate on grounds of lations to ensure as much legal homogeneity in nationality. this area as possible. Previously, legal acts in the area of financial markets were generally directi- ves, often minimum directives, which gave mem- ber states various options for implementation in the options available, including how national regu- national law. These developments show how latory measures are designed, their purpose, and important it is for Norway to make use of opportu- the grounds given for using them. nities to exert influence at an early stage in the National regulatory measures that do not development of EU legislation. discriminate on the basis of nationality or origin It will often be possible to realise Norway’s can under EEA law be justified on many more policies and objectives through various types of grounds of public interest than measures that are regulatory measures, some of which will be more directly discriminatory. Such public interests readily compatible with EEA law than others. include environmental concerns, consumer inter- Both central and local authorities should be aware ests, considerations of regional policy and social of this. There are a number of factors that affect policy, as well as public order, public security and 22 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU public health. It is important to make it clear Surveillance Authority may have implications for which grounds are used to justify such regulatory how EEA legislation is applied in practice. Thus, measures, both in preparatory documents and the decisions of the courts and the Authority may elsewhere. Usually this means that the public inte- affect the development of Norwegian law in areas rests that are to be safeguarded must be clearly that fall within the scope of the EEA Agreement. stated. It must also be shown that the proposed Provision has been made for the EEA EFTA arrangement will be suitable for this purpose, and states to influence such decisions and thereby the that these public interests cannot be safeguarded development of EEA law. Norway can have an as effectively by other means that would limit influence in two types of cases in particular. trade within the EEA to a lesser extent. Firstly, it can defend its position in cases where it Much of EEA legislation is technical in nature. is claimed that Norway has not complied with In these cases, it will be purely technical and sci- EEA law in a certain area (infringement cases, see entific considerations that determine how the Figure 5.1). Secondly, Norway has an opportunity legislation is to be implemented in Norway. In to exert an influence in cases where the EFTA areas where Norway has important interests, the Court and the European Court of Justice make Government will make use of the options available statements on how EEA law is to be interpreted, to safeguard them. either in the form of preliminary rulings/advisory In order to identify the options available under opinions or when the EFTA Court deals with EEA law, the public administration must have a infringement cases against other states. In both high level of expertise in the EEA legal system, cases, Norway can make submissions detailing EEA legislation and the case law of the EU Court Norway’s interpretation of EEA law. of Justice and the EFTA Court. The Government Previously, the EEA EFTA states and the will therefore give priority to further developing EFTA Surveillance Authority were also able to this expertise in the public administration, and to intervene in cases relating to EEA law between ensuring that good routines are established for EU member states and EU institutions before the using the options available actively and appropria- European Court of Justice, for example if the tely. Commission initiated infringement proceedings Before EU legal acts are incorporated into the against an EU state. Since 2010, the European EEA Agreement, they must be translated into Court of Justice has followed a different practice, Norwegian. Unofficial translations are sufficient and the EEA EFTA states have no longer had the at the time of incorporation, but these must later same opportunity to intervene. Norway considers be thoroughly revised before they are made offi- it important that the EEA EFTA states have this cial. High-quality translations are needed to opportunity, and the EEA EFTA states and the ensure correct implementation at the national Authority have raised the issue with the EU, both level. This is important for the Norwegian author- in the EEA Joint Committee and in the EEA Coun- ities, Norwegian companies and other stakehold- cil. The Government will continue to work actively ers who have to comply with the legislation in to gain acceptance for its view on this matter. question. The steady increase in the amount of In December 2011, the EFTA Court proposed legislation being incorporated into the EEA to the EEA EFTA states a number of amendments Agreement has led to a significant increase in to the Surveillance and Court Agreement relating translation work. The Government will ensure to the composition of the EFTA Court and its for- that priority is given to this work. mation. The proposals aimed to further reinforce the professional competence and standing of the Court and thus to enhance its legitimacy. 2.3.5 The surveillance and court system: The proposed amendments contained three Norway’s approach elements: the possibility of calling ad hoc judges EU law is dynamic, and the European Court of to the bench for an Extended Court in important Justice plays an active role in its development cases, the establishment of an Evaluation Panel through its case law. To ensure the homogeneity for candidate judges, and the creation of the post of legislation, EEA law should as a general rule be of Advocate General at the EFTA Court. developed correspondingly. When the EFTA Thus far, the Government has not seen a need Court and the European Court of Justice make to make amendments to the institutional setup of statements concerning the interpretation of EEA the EFTA Court. The proposals of the Court are legislation they influence the development of EEA currently under review by the three EEA EFTA law. In the same way, decisions taken by the EFTA States. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 23 The EEA Agreement and Norway’s other agreements with the EU

Figure 2.1 Procedures in possible infringement cases

Norway’s point of view is supported by sound, Infringement cases consistent arguments. It is crucial that there is Under the EEA Agreement, it is the task of the close coordination between the relevant minis- EFTA Surveillance Authority to ensure that the tries in processes relating to the EFTA Sur- participating EFTA states respect their obliga- veillance Authority. The involvement of the Minis- tions under the Agreement. The Authority can do try of Foreign Affairs, other relevant ministries this on its own initiative or on the basis of com- and the Office of the Attorney-General is determi- plaints from private parties. ned in each case in accordance with specific guid- There have been disagreements between the elines. Procedures have also been established for EFTA Surveillance Authority and Norway on the submitting matters relating to the EFTA Sur- interpretation of the EEA Agreement in a number veillance Authority to the Government. of individual cases. In some of these the Autho- The Government attaches importance to rity’s position has been upheld, while in others ensuring the best possible coordination between Norway’s views have won acceptance. Experience the relevant ministries and the Office of the Attor- shows that close dialogue with the Authority is ney-General. This will ensure that we have as important if Norway is to gain acceptance for its much information as possible about a case at an position. This should be initiated before any for- early stage and can put forward a coherent argu- mal case is brought, to ensure that Norway is ment. aware of the Authority’s assessments at an early In cases where it is not possible to reach stage. In order to safeguard Norwegian interests, agreement with the EFTA Surveillance Authority, it is also important that the Authority receives all the Government may decide to bring the case relevant information as early as possible and that before the EFTA Court. 24 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

have put forward similar arguments. There are, Advisory opinions from the EFTA Court and preliminary however, several examples where it is apparent rulings by the European Court of Justice that the Court has based its decision directly on A national court may ask the European Court of arguments put forward by Norway, including in Justice or the EFTA Court to give its interpretation cases where Norway’s views have differed from on a point of EU or EEA law by referring to them those of other actors. for a preliminary ruling or requesting an advisory The same applies to the EFTA Court. Fewer opinion respectively. The European Court of Jus- states tend to make submissions to the EFTA tice and the EFTA Court only give an opinion on Court than to the European Court of Justice. This questions of EU/EEA law. It is the national court means that there is an even greater need for Nor- that takes the final decision in a case. way to comment on cases and try to ensure that Norway is entitled to make submissions relat- the best possible decisions are made from Nor- ing to all requests to the EFTA Court for an advi- way’s point of view. sory opinion and to all questions referred to the In the Government’s view, Norway should European Court of Justice for a preliminary ruling make active use of opportunities to make submis- that fall within the scope of the EEA Agreement. sions relating to requests for advisory opinions It is established procedure that the Ministry of and references for preliminary rulings in order to Foreign Affairs submits all such matters that may set out Norway’s interpretation and understand- have EEA relevance to the ministries concerned. ing of the legislation in cases of importance for The ministry responsible assesses whether Nor- Norway. Norway should as a general rule make way should make use of its right to make a sub- submissions relating to requests for advisory mission to try to ensure that the law is interpreted opinions from the EFTA Court. Norway should in a way that accords as closely as possible with also make submissions relating to questions Norwegian interests. The Office of the Attorney- referred to the European Court of Justice for a General and the Ministry of Foreign Affairs act as preliminary ruling if they are particularly relevant the legal representatives for the state in these for the interpretation of the EEA Agreement in cases. areas of importance to Norway. The court proceedings are mainly written, and considerable effort goes into this part of the pro- cess. A short oral hearing is usually held after the 2.3.6 Article 102 procedures written submissions have been received. If this is In the event of disagreement between the parties done, parties other than those who made written to the EEA Agreement on whether new EU legis- submissions also have an opportunity to make lation is to be incorporated into the Agreement, oral submissions. In cases where it is initially con- the procedures set out in Article 102 may be cluded that there is no need for a written submis- applied: these describe what happens if a party sion from Norway, but where it subsequently decides not to incorporate legislation, including becomes clear that written submissions by other the possibility of provisional suspension of the parties include information or assertions that Nor- affected part of the Agreement. The provisions of way should comment on, a possible solution may Article 102 stipulate that the parties are to make be to request an oral hearing and to make a state- every effort to reach agreement. It is the party ment there. that wants a legal act to be incorporated into the In cases where other EEA states have similar EEA Agreement that decides whether and when arrangements to Norway or have a similar under- an Article 102 procedure is to be initiated. Such a standing of the legal act in question, the possibil- decision is not conditional on the other party hav- ity of establishing contact and where appropriate ing expressed a formal reservation about the also coordinating arguments is considered. incorporation of the new legislation; it may also be In Norway’s experience, submissions made by based on the fact that one party is of the opinion Norway to the European Court of Justice are con- that a disproportionately long time is being taken sidered on an equal footing with submissions to incorporate the act into the EEA Agreement. made by member states. It is the quality of the Since the EEA Agreement entered into force submission and the strength of the arguments the procedures set out in Article 102 have been that determine whether the views put forward activated twice. The first time was in 2002, and gain acceptance. It is difficult to gauge the extent concerned Liechtenstein and the EU Second to which a submission has influenced the Court in Money Laundering Directive. The second time its final decision, particularly when several states was in 2007, and concerned Iceland/Liechtenstein 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 25 The EEA Agreement and Norway’s other agreements with the EU and legislation for the free movement of persons. ensures that the legal situation is sufficiently pre- In both cases the EU considered that it was taking dictable for those affected by the suspension. too long to incorporate the legislation into the The purpose of Article 102 is to ensure that EEA Agreement. Following further dialogue, the the EEA Agreement functions as intended, and its parties reached agreement and the acts were procedural rules are formulated with this in mind. incorporated into the EEA Agreement. Even if agreement on the incorporation of a legal Norway has stated that it does not intend to act into the EEA Agreement is not reached, and incorporate the Third Postal Directive, but the EU parts of the Agreement may be temporarily sus- has so far not initiated an Article 102 procedure. pended, the EEA Joint Committee will pursue its Once an Article 102 procedure has been initi- efforts to agree on a mutually acceptable solution ated the EEA Joint Committee has six months to in order for the suspension to be terminated as try to find a solution. The parties have a duty to soon as possible. make every effort to reach agreement. The EEA Any decision not to incorporate legislation into Joint Committee must examine all possibilities to the EEA Agreement must be based on an assess- maintain the good functioning of the EEA Agree- ment that takes into consideration both Norway's ment. If the parties fail to reach agreement, and if interests in the matter in question and the risk and the EEA Joint Committee has not taken a decision potential consequences of a possible negative to the contrary, the affected part of the EEA response on the part of the EU. Generally speak- Agreement will be provisionally suspended. How- ing, Norway benefits from the development of com- ever, a suspension may not take effect if the Par- mon rules and standards for the European market. ties agree that it is not necessary. In practice, it is Experience has shown that relevant legal acts have up to the EU to decide whether a reservation by been accepted by Norway. Nevertheless, the possi- an EFTA state should result in parts of the EEA bility of entering a reservation is an integral part of Agreement being provisionally suspended or not. the EEA Agreement. It is a necessary mechanism According to Article 102 (5), it is “the affected for those cases where there are important strategic part” of the Annex to the EEA Agreement into interests that warrant its use. The Government will which the act should have been incorporated that consider entering a reservation in cases where par- is to be provisionally suspended. In Norway’s ticularly important Norwegian interests may be view, this means that only the part of the relevant jeopardised by legal acts that are proposed for Annex that is directly affected can be suspended. incorporation into the EEA Agreement. 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 2.4 Management of agreements in the directly affected part of the Annex. If there is dis- area of justice and home affairs agreement between the parties on which acts are affected, a political solution must be sought. In Justice and home affairs has become an increas- practice it is difficult to make a general assess- ingly important area of cooperation for the EU, pri- ment of the possible extent of a suspension. This marily within the EU itself, where ensuring the must be considered in the light of each specific sit- freedom and security of EU citizens is an important uation. goal. Transnational crime in its many forms makes As described above, experience of the applica- effective international police cooperation essential. tion of Article 102 is limited. According to the International cooperation is also required to meet wording of the provision, once the procedure has the challenges Europe is facing in terms of refugee been initiated and the deadline of six months has flows and illegal immigration. The common exter- expired without the parties having reached agree- nal border and the internal free-travel area mean ment, suspension will take effect without a prior that all participating states must implement and decision by the EEA Joint Committee. However, apply the common rules in an effective and respon- when the EEA Agreement was signed, the parties sible manner. Policy instruments in the area of jus- agreed (in the Agreed Minutes Ad Article 102(5) tice and home affairs are also an important compo- EEA in the Final Act to the EEA Agreement) that nent of the EU’s external policy. if a provisional suspension does take effect, its Norway participates in important aspects of scope and entry into force should be adequately EU cooperation in this area. As a Schengen mem- published. In other words, there must be some ber state, we are dependent on the effective imple- kind of confirmation of the suspension that mentation of legislation and measures relating to 26 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU control of the common external border across the ters are dealt with at the national level, not least the entire Schengen area. need to develop Norway’s positions and ensure Other parts of the EU cooperation in this area that these have the necessary political backing at also affect us in varying degrees. For this reason all levels throughout the legislative process from it has been Norwegian policy to seek broad partic- initial discussions up to a final decision by the EU. ipation in EU cooperation in the field of justice and home affairs and to work actively to ensure that this cooperation functions well. Schengen relevance The most important aspect of Norway’s partic- When the Commission draws up draft legislation ipation in EU cooperation in the area of justice and in the area of justice and home affairs, it must con- home affairs is its participation in the Schengen sider whether the proposed legislation is Schen- cooperation, with all its practical implications. As a gen-relevant or not. This will determine whether Schengen member state, Norway is entitled to the legislation in question is to be discussed in the take part in Council discussions on legal acts and Mixed Committee and could be binding for Nor- measures at all levels, at expert, senior official and way. ministerial level. The Government intends to con- Under the Schengen association agreement, tinue to build on the Schengen cooperation. its procedures are to be followed when any legisla- In addition, Norway has entered into several tion that changes or builds on the existing Schen- specific association agreements through which it gen acquis is being drafted. In most cases it is participates in other parts of EU cooperation in the clear whether a proposed legal act falls within or area of justice and home affairs. These agreements outside this definition. However, in some cases cover areas such as cooperation with Europol, the this may be more difficult to determine, for exam- European Police College (CEPOL) and the Euro- ple if some parts of an act build on the existing pean Union's Judicial Cooperation Unit (Eurojust), Schengen acquis while other parts do not. mutual assistance in criminal matters, access to The issue of Schengen relevance has given other countries’ criminal records (under the Prüm rise to disagreement primarily in cases where Convention), adoption of the European arrest war- Norway has sought to associate itself with cooper- rant, and participation in EU agencies. Norway also ation areas that in the view of the Commission or participates in EU cooperation on combating ter- some of the member states fall outside the scope rorism through the Counter-Terrorism Group of the Schengen Agreement. The solution has (CTG). In addition, Norway participates in cooper- generally been for Norway to enter into separate ation under the Dublin Regulation, which estab- agreements with the EU in the areas concerned. lishes the criteria and mechanisms for determining If a legal act is deemed to be Schengen-relevant the member state responsible for examining an and the procedures set out in the Schengen associa- asylum application. tion agreement are followed, Norway will be noti- The Norwegian authorities have found that fied when the act is finally adopted by the EU. Nor- there are good opportunities for cooperation and way must then consider whether the act in question dialogue with the EU in the field of justice and should be accepted and implemented in Norwegian home affairs in areas where Norway has experi- law. The issue of Schengen relevance must there- ence and expertise. This also applies to areas such fore be clarified before discussions in the Council as asylum and refugees, where we have not working group begin, so that Norway has the entered into separate association agreements with opportunity to participate and influence the content the EU. Norway is a valuable partner for the EU of the legal acts by which it will later be bound. when it comes to developing asylum systems in a Some legal acts are in a grey zone between the number of EU member states and third countries. Schengen Agreement and the EEA Agreement. Others might fall within the scope of both agree- ments. In such cases, Norway and the EU must 2.4.1 The Schengen cooperation agree on what form of association Norway should Norway’s agreement with the EU on participation have with the legislation in question. So far in in the Schengen cooperation entitles us to take part these cases, solutions have been found that have in Council discussions on new legislation. Norway taken Norwegian considerations into account. and the other non-EU Schengen states (Iceland, This issue is also relevant for other countries. Liechtenstein and Switzerland) participate in the Switzerland is not a party to the EEA Agreement, EU’s negotiations through the Mixed Committee. and the UK and do not participate in the This has implications for the way Schengen mat- Schengen cooperation. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 27 The EEA Agreement and Norway’s other agreements with the EU

The extent to which the efforts of each of the Horizontal legislation countries have an impact at this stage depends Assessing Schengen relevance has become more largely on the quality of the expertise provided difficult in step with institutional developments in and the arguments used. Norway has the same the EU. Justice and home affairs is no longer opportunities to promote its views as the EU defined as a separate pillar of the EU cooperation. member states. With the entry into force of the Treaty of Lisbon, Norwegian politicians and representatives of the EU adopted a standard decision-making sys- the Norwegian public administration take part tem that generally applies to all types of legal acts, directly in discussions on Schengen-related mat- including those in the area of justice and home ters at all levels under the Council, on an equal affairs. The system enables the adoption of hori- footing with EU member states. This means that zontal legislation that applies to several different Norway’s Schengen-related work requires a dif- policy areas. Some of these areas may be Schen- ferent approach from that needed under our gen-relevant, while others are not. Other legal other agreements with the EU. Norway has to acts may contain certain provisions that seen in develop its positions on an ongoing basis before isolation are Schengen-relevant, while the rest of relevant legal acts are discussed in the Mixed the act is not. It may be difficult to apply the defini- Committee. This means that Norway’s views tion of Schengen relevance set out in the Schen- need to be regularly reviewed and endorsed at gen association agreement to these types of acts. the political level, which helps to ensure the Experience to date has shown that in some involvement of the senior political staff in the rel- cases the EU has applied a somewhat narrower evant ministries. definition of Schengen relevance than the defini- Because of these differences in how Norway is tion used by Norway. The abolition of the pillar involved in the different processes, it can be diffi- structure could lead to an increase in the number cult to draw parallels between Norway’s efforts to of disagreements regarding Schengen relevance. exert an influence in the Schengen cooperation and Effective cooperation on border controls requires its efforts to do so under the EEA Agreement. the participation of all the parties concerned, and Experience has shown, however, that active cooperation with the EU in this area is in general involvement at the political level at an early stage is characterised by a will to find solutions within the essential if Norway is to gain acceptance for its framework of our association agreement. The points of view. Government will seek to maintain close contact The Government will continue to give priority with the Commission to ensure that the interests to making use of the options available under the of the non-EU Schengen states are taken into con- Schengen cooperation by developing national sideration when new laws are being drafted. positions that can be put forward at an early stage of the decision-making process in Brussels.

The importance of the Mixed Committee Norway takes part in Council discussions on Implementation in Norway Schengen-relevant legislation through the Mixed Once new Schengen legislation has been adopted, Committee. Norway and the other non-EU Schen- Norway’s options for implementation will depend gen states do not have the right to vote at any among other things on whether the act is a direc- stage of the decision-making process and do not tive, a regulation or a decision. Particularly if an participate in the formal adoption of legislation. In act establishes common minimum standards, practice, however, experience has shown that this there may be a number of options. is less important than the opportunities we have As regards Schengen legislation, it is essential to influence other countries by putting forward for Norway to put forward its national positions at effective, coherent arguments. an early stage of the Mixed Committee’s discus- The most important stage for influencing the sions. There is no opportunity at a later stage to development of Schengen legislation is early in seek adaptations, either in terms of content or tim- the Council’s decision-making process, i.e. in ing of implementation. If Norway needs to seek working groups and committees under the Coun- adaptations of any kind this must be done during cil, immediately after the Commission has put for- discussions in the Council’s working groups and ward a proposal for a legal act. Schengen member committees. Thus it is essential for Norway to states, including Norway, participate at this stage have clear national positions that have the neces- by providing expert input in the fields concerned. sary political backing. 28 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

European Parliament on Schengen-related mat- Evaluation mechanism and the courts within the ters. Experience of interparliamentary coopera- Schengen cooperation tion under the EEA Agreement has shown that There are normally no checks on persons at the this is a useful channel into the European Parlia- internal borders of the Schengen area. This ment’s work on EEA matters. The Government makes it essential for all the Schengen countries assumes that this would also be the case under to implement and enforce the Schengen rules the Schengen cooperation. So far none of the par- effectively. The Schengen Agreement was origi- ties have taken the necessary steps to establish nally an intergovernmental agreement, and it is such consultations. It is up to the Storting to con- still the Schengen member states that have the sider whether cooperation with the European Par- main responsibility for regular evaluation of the liament should also encompass Schengen-related implementation of the Schengen acquis. Applica- matters. tion of the Schengen acquis in Norway, Iceland, Liechtenstein and Switzerland is evaluated in the same way. 2.4.2 Development of cooperation in other In addition, the Commission has competence justice and home affairs areas to monitor EU countries to ensure that they apply The Government has a stated aim of pursuing an the Schengen area rules correctly, and the juris- active European policy in the field of justice and diction of the European Court of Justice has now home affairs, including areas that fall outside the been extended to include Schengen cases and the framework of the Schengen cooperation, as set rest of the area of justice and home affairs. out in the White Paper on Norwegian refugee and Norway’s association agreement with Schen- immigration policy in a European perspective gen is an agreement between Norway and the EU. (Meld. St. 9 (2009-2010), which discusses chal- The EFTA bodies do not play a role in the Schen- lenges and cooperation relating to illegal immigra- gen cooperation. This means that neither the tion. Closer cooperation in police and criminal law EFTA Surveillance Authority nor the EFTA Court matters will be useful for preventing and combat- has competence to make decisions on legal issues ing crime. In addition, enhanced judicial coopera- relating to Norway’s implementation of the Schen- tion in civil matters will contribute to the imple- gen Agreement. In the event of a dispute about mentation of the internal market. the application of the acquis, the dispute settle- Norway currently has formal cooperation ment arrangements set out in the agreement must arrangements with the EU in a number of justice be initiated. and home affairs areas beyond the Schengen, However, Norway is entitled to make submis- Dublin and EEA cooperation. sions to the European Court of Justice in cases In certain areas, such as asylum, Norway has referred by national courts in the EU member developed its own legislation independently but to states that relate to the interpretation of the a large extent in line with EU legislation. Schengen acquis. This does not apply to cases In areas where Norway and the EU have a between the Commission and EU member states. mutual interest in developing closer cooperation, This means, for example, that Norway cannot and where the aim is to create mutual rights and make submissions in cases brought against the obligations between the parties, formal agree- Commission concerning the definition of the term ments need to be put in place. Some agreements Schengen relevance. of this kind have been developed in cases where So far Norway has not made use of its right to there has been an absence of full agreement make submissions in Schengen cases. The Gov- within the EU as to the Schengen relevance of ernment will do so, if appropriate, both in cases specific legal acts. There are also some separate dealing with matters of principle and those where agreements in areas where Norway and the EU the ruling could have a direct impact on Norway’s for varying reasons have had a common interest implementation of the acquis. in further developing cooperation. Experience shows that negotiations on these separate, specific agreements are time-consum- Interparliamentary cooperation ing. Since Switzerland and Liechtenstein joined The joint declaration on parliamentary consulta- the Schengen cooperation, these two countries tion contained in the Final Act to the Schengen have also been invited to take part in negotiations association agreement paves the way for interpar- on participation in areas outside the Schengen liamentary cooperation between Norway and the cooperation. The negotiating processes may be 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 29 The EEA Agreement and Norway’s other agreements with the EU further complicated by the fact that the EU wants applicable law, and access to justice. To a certain its agreements with each of the four associated extent it allows for the development of rules that countries to be as near identical as possible. harmonise national legislation, but the main In Official Norwegian Report NOU 2012:2 emphasis is on procedural cooperation based on Outside and Inside: Norway's agreements with the the national legislation of the member states. Leg- European Union, the EEA Review Committee islation has been adopted on bankruptcy, mea- describes Norway’s overall affiliation to EU jus- sures to simplify the recovery of small and uncon- tice and home affairs policy as inadequate. The tested claims, the service of documents in other committee recommends that the Norwegian states, the taking of evidence in other states, com- authorities explore the possibility of establishing a pensation for victims of violent crime etc. comprehensive framework agreement for Nor- Norway is a party to the Lugano Convention way’s association with EU cooperation in the area on jurisdiction and the recognition and enforce- of justice and home affairs, which would encom- ment of judgments in civil and commercial mat- pass the Schengen cooperation, the other areas in ters, a parallel to the EU’s Brussels I Regulation. which Norway has specific association agree- We have also requested negotiations on Norwe- ments and any other areas the parties may agree gian association with EU legislation on the service on. The issue of establishing a more comprehen- of documents and the taking of evidence. This is sive framework for Norway’s agreements with the currently under consideration in the Commission. EU is also raised in the Council conclusions on The EU’s judicial cooperation in criminal mat- EU relations with EFTA countries of December ters is also based on the principle of mutual recog- 2010. nition of judgments and judicial decisions by In the Government’s view, establishing a more member states, and it allows for the development comprehensive framework agreement encom- of legislation on recognition of all types of judicial passing the Schengen legislation, other current decisions and on the prevention and settlement of agreements and any other possible areas of coop- conflicts of jurisdiction. The EU treaties also eration would not be in Norway’s interests. As authorise the harmonisation of national legislation mentioned above, within the framework of the on both criminal procedure and criminal law. Mea- Schengen cooperation the associated states are sures to support the member states’ crime preven- entitled to take part in Council discussions tion efforts may also be developed. There are also through the Mixed Committee. Other separate provisions relating to the EU’s Judicial Coopera- association agreements do not allow for this. Fur- tion Unit (Eurojust) and the establishment of a thermore the need to develop cooperation and European public prosecutor’s office. specific association agreements will vary from Secondary legislation has been adopted in the area to area in the field of EU cooperation on jus- area of judicial cooperation in criminal matters, tice and home affairs. such as the European Arrest Warrant, which sim- However, there may be reason to look into the plifies surrender procedures; rules on taking evi- possibility of simplifying procedures for associa- dence and the recognition of evidence taken in tion with parts of the EU justice and home affairs other states; the recognition and implementation legislation outside the Schengen cooperation if of alternative sanctions to custodial sentences; Norway is interested in this. Aspects of the EU’s conditional release; the transfer of sentenced per- judicial cooperation in civil and criminal matters, sons; the collection of fines; and the use of certain in particular, may be relevant in this context. coercive measures in criminal investigations. There has been extensive cooperation between Rules governing the exchange of information the Nordic countries in the area of civil law, which from national criminal records have also been has become more difficult as a result of the coun- adopted. tries’ differing forms of association with the EU. The Schengen agreement contains certain pro- Norway has already entered into some agree- visions relating to cooperation in criminal matters. ments in the areas of criminal law and police coop- However, most of the cooperation that takes place eration. in this area lies outside the scope of the Schengen The EU’s judicial cooperation in civil matters cooperation. Norway has signed a parallel agree- primarily encompasses legislation on the mutual ment to the European Arrest Warrant, an agree- recognition of legal and administrative decisions. ment on mutual assistance in criminal matters and It also authorises the development of measures to an association agreement with Eurojust. enhance cooperation on serving judicial and extra- The EU’s police cooperation mainly encom- judicial documents, taking evidence, rules on passes information gathering and exchange. Nor- 30 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU way is associated with parts of this cooperation A number of steps have already been taken to through the Schengen agreement. Norway has further develop the EU’s common foreign policy, also signed a parallel association agreement to the including the establishment of the European Prüm Decision, and association agreements with External Action Service (EEAS), which has pro- Europol and with the European Police College vided a more coherent organisational framework (CEPOL). for EU foreign policy. The EEAS has an important As regards the fight against transnational role to play in carrying out the responsibilities of crime, Norway is in many ways in the same situa- the High Representative for Common Foreign and tion as the EU member states. More extensive Security Policy. The High Representative and the cooperation with the EU on police and criminal EEAS are therefore important dialogue partners matters could have a positive impact on crime pre- for Norway in the field of foreign policy. However, vention in Norway. some key areas continue to fall under the compe- It would be useful to clarify whether negotia- tence of the Commission. tions with the EU in the areas mentioned above Norway generally cooperates with the EU in could be speeded up. This would not entail any areas where the parties share common interests obligation for any of the parties to enter into new and see each other as relevant partners. In order agreements, but could simplify the negotiating for Norway to be able to gain a hearing for its process. views in the EU, it is essential that we can offer The Government will examine the possibility experience, expertise and networks that give of establishing an understanding with the EU that added value. Norwegian experience that is of would make it quicker and easier for Norway to value in one area can serve as a door opener to EU enter into new agreements with the EU in specific activities in other areas. This is the rationale areas, in cases where this is of mutual interest. behind our efforts to maintain and further develop the meeting places we have with the EU in the for- eign policy field. 2.5 Cooperation on foreign and The absence of formal agreements in the field security policy of foreign and security policy has not prevented us from extending our cooperation with the EU in a Norwegian foreign policy is based both on the number of foreign policy areas where Norway and need to safeguard clearly defined national inter- the EU share common interests. At the same ests and on recognition of Norway’s responsibili- time, there are a number of options open Norway ties in an increasingly globalised world. The Gov- in its foreign policy cooperation with the EU, and ernment presented the main features of Norwe- the Government intends to make use of these. gian foreign policy in the White Paper Interests, Responsibilities and Opportunities (Report No. 15 (2008–2009) to the Storting). 2.5.1 Opportunities for Norwegian The EU is seeking to develop a more uniform involvement foreign policy, which will also have implications Norway is often regarded by the EU as an impor- for our cooperation with the EU. Our Nordic tant partner with interests that coincide with neighbours , and are those of the EU and a global policy of engage- members of the EU, as are most of our closest ment. This was evident, for example, during the allies in NATO. Norway and the EU countries climate negotiations in Durban in 2011 in which share fundamental values and attitudes and often the EU was a leading force, in alliance with the similar objectives. This applies to core policy least developed countries and small island states. areas such as human rights, -building, Norway played a key supporting role for the EU our policy of engagement, climate change and the in the discussions. environment. The EU supports the international At the international level Norway has taken on legal order and has a stated aim to promote global a particular responsibility for climate change peace, security and development. It is in Norway’s financing and efforts to reduce deforestation and interests that the EU has a clear foreign policy in forest degradation, and has been a leading advo- areas where we have common interests. It is often cate of ambitious targets for emissions reductions, also in Norway’s interests to cooperate closely with a view to achieving the goal of limiting the with the EU on foreign policy in order to achieve rise in global temperature to 2°C. These will con- greater influence and have a greater impact inter- tinue to be key areas in our cooperation with the nationally. EU at the regional level and in our role as a strate- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 31 The EEA Agreement and Norway’s other agreements with the EU

Figure 2.2 EU High Representative for Foreign Affairs and Security Policy Catherine Ashton visited Oslo and Svalbard for talks on developments in the Arctic and High North in March 2012. Here seen talking to Governor of Svalbard Odd Olsen Ingerø at the Return of the Sun celebration in Longyearbyen on 8 March. Photo: Lars-Erik Hauge, Norwegian Mission to the EU gic partner to the EU in the global climate negoti- The EU’s ability to respond rapidly and flexi- ations. Norway and the EU cooperate both for- bly in negotiations can be limited in certain situa- mally and informally in the global climate negotia- tions by the requirement for internal consensus. tions and our positions often coincide. This coop- In such cases Norway has more latitude to advo- eration is valuable; experience shows that by cate views that many EU countries may agree maintaining close dialogue with the EU, Norway with, but that they cannot always promote actively is able to influence the EU’s negotiating positions. outside the EU while the member states are still As a non-member state, Norway has more latitude in the process of developing a common position. on issues where the EU’s freedom of action may We have seen evidence of this in connection with be limited by internal processes. This may be par- the Middle East peace process and the EU’s pol- ticularly valuable for maintaining the momentum icy towards Myanmar. In these areas, Norway is a of the negotiations. Norway and the EU worked partner the EU listens to. Norway may also be together successfully to secure an agreement in perceived by many partner countries and by coun- Durban on a new commitment period under the tries receiving international aid as a more flexible Kyoto Protocol, as well as the launch of negotia- actor than the EU. tions for a legally binding agreement for the The High North is Norway’s most important period after 2020, to include all countries, and a strategic foreign policy priority. It is therefore in workplan designed to achieve greater emissions Norway’s interests to maintain close dialogue cuts before 2020. There is a widely held view that with the EU on developments in the High North. the future climate agreement must be an ambi- Arenas such as the Northern Dimension enable tious one that can limit the rise in global tempera- Norway – and Iceland and Russia – to maintain a ture to below 2°C, and under which each country close dialogue with the EU on High North policy. contributes according to its capacity. Since 2008 the EU has been working on develo- 32 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU ping a common Arctic policy. The Norwegian aut- Norway and the EU cooperate closely and are horities have had extensive discussions on the strongly engaged in the Western Balkans. Our High North with EU institutions. For Norway it interests in the region coincide to a large extent. has been important to provide adequate informa- Norway has been recognised for its efforts and tion and to explain and promote its views on key the EU has sought Norwegian participation for issues: the established legal framework in the example in developing the justice sector and inde- High North, in particular the UN Convention on pendent control bodies. Both Norway and the EU the Law of the Sea, and the importance of ensur- give priority to improving coordination of assis- ing that the Arctic remains a peaceful region, tance to the region. Norway is regularly invited to where cooperation and mutual respect for duties consultations with the EU on the Western Bal- and rights is the norm, including issues relating to kans, and in addition Norway holds consultations the situation of the indigenous peoples in the on the Western Balkans at senior-official level in region. The Government has attached importance EU capitals. These are examples of Norway’s suc- to demonstrating that Norway is a responsible ste- cessful political and practical cooperation with the ward of the environment and maintains high EU. safety standards in the High North. The transition processes in North Africa in the The Government has made it clear that it is wake of the Arab Spring have led to a much stron- willing to cooperate with the EU on Arctic issues. ger engagement in the region by Norway and the The EU has recognised the Arctic Council as the EU, both politically and in the form of aid. The key political cooperation forum for Arctic issues new strategy for the European Neighbourhood and the European Commission is now seeking Policy, which was presented in May 2011, is the permanent observer status in the Council. A deci- EU’s long-term response to political developments sion on this issue is expected to be taken at the in its neighbouring areas, particularly in the Arctic Council’s ministerial meeting in May 2013. South. The aim of the policy is to promote sustain- The Government has openly and consistently sup- able stability through lasting democratic change ported the Commission’s application. and inclusive economic development in the EU’s Relations with Russia are another important neighbouring countries to the South and the East. area for Norway. Norway enjoys constructive, Relations with the EU will focus not only on mar- pragmatic cooperation with its neighbour Russia, ket access and economic integration, but also on based on common interests. The two countries promoting respect for common democratic val- maintain a particularly close dialogue on issues ues. The EU also attaches importance to the relating to the High North. Norway and Russia implementation of migration initiatives (such as signed the Treaty concerning Maritime Delimita- return agreements and control measures.) tion and Cooperation in the Barents Sea and the Norway’s objectives in the region coincide to a Arctic Ocean in 2010, and it entered into force in large extent with those of the EU: the promotion 2011. The treaty has created a basis for enhanced of democracy, economic development, the rule of cooperation between our two countries in the law and good governance. Dialogue with the EU High North. Relations with Russia are also impor- on the neighbourhood policy is valued by both tant for the EU and it is of consequence to Norway parties. Norway and the EU also have many of the that the EU and Russia enjoy constructive coope- same partners in the region, such as the UN sys- ration. tem, the World Bank, the and Developments in other parts of Europe, out- the European Bank for Reconstruction and Devel- side the EEA, are also a priority for the Govern- opment. In connection with their efforts to sup- ment, and one we share with the EU. The EU port democratic reform processes it is useful for defines the countries of the Western Balkans as Norway and the EU to be able to exchange politi- part of the European project and is working to cal assessments of developments in the region. enhance the prospects of EU membership for Thus, it is in Norway’s interests to be invited to both the candidate countries and other countries. participate in forums where the neighbourhood Norway attaches importance to supporting com- policy is discussed. mon European stabilisation and development Norway is also strongly engaged in other efforts in the Western Balkans. Norway’s efforts more general foreign policy issues, such as in the Western Balkans are in line with a broad- human rights, democracy building, humanitarian based international approach that seeks to sup- issues and development. The EU is an important port these countries’ aim of integration into Euro- actor in these areas – not least as the world’s larg- Atlantic structures (the EU and NATO). est development aid donor, providing approxi- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 33 The EEA Agreement and Norway’s other agreements with the EU mately 60 % of the total global volume of aid. Nor- ground in areas where we have a presence, and at way has aligned itself with EU positions in interna- strategic level in formal and informal forums in tional forums on several occasions (for example in Brussels. connection with the Paris Declaration on Aid Norway provided a larger contingent to the Effectiveness and the Accra Agenda for Action). EU’s police mission in Afghanistan from 2007 to EU priorities in the area of development policy 2012 than many EU member states, thereby gain- have over time gradually moved closer to Norwe- ing the right to participate in decision-making dur- gian priorities. Norway has on several occasions ing the mission. been invited to participate at informal meetings of The EU has become more receptive to the development ministers and has played an active idea of Norway and other third countries partici- role at these meetings. pating in crisis management operations. At Nor- The EU’s role in the field of human rights is way’s request, for example, the EU allowed third also developing. The EU has begun the process of country participation in the civilian mission in accession to the European Convention on Human Iraq (the European Union Integrated Rule of Law Rights, and the European External Action Service Mission for Iraq (EUJUST LEX-Iraq), which is is playing an increasingly important role in coordi- providing assistance to the Iraqi authorities in nating EU positions in the UN Human Rights Coun- developing the criminal justice system. Norway is cil. In June 2012 the EU adopted a Strategic Frame- now participating in the mission and is the first work on Human Rights and Democracy, which sets third country to do so. Our participation in this out the EU’s updated policy for promoting human EU operation gives us access to far more informa- rights in all its external relations. EU priorities tion than we would have were we operating alone. include promoting freedom of expression and free- We would also face far greater security challenges dom of religion or belief, fighting discrimination in if we were operating on our own. all its forms, and continuing the campaign against Norway is also closely involved in efforts to the death penalty worldwide, priorities which Nor- alleviate the situation in the Horn of Africa in both way also shares. An Action Plan on Human Rights humanitarian and political terms. The EU is also and Democracy has also been adopted to imple- actively engaged in the region. Norway is now ment the Strategic Framework, and an EU Special more often being invited to take part in talks Representative for Human Rights has been about operations that are still at the planning appointed. This is the first time the EU has stage. Previously we often received the first for- appointed a non-geographically based special rep- mal information only after the decision to estab- resentative in a cross-cutting field. lish a mission had been taken. We have noticed To make progress in multilateral efforts in the this over the course of the past year; the EU has field of human rights, it is essential to be able to consulted Norway more extensively than it has wield the necessary influence, and the EU is an done in the past on the planning of a new mission important actor in this respect. At the same time, to support maritime capacity building in the Horn Norway as a non-EU member country can act as a of Africa. This gives us more time and a better bridge-builder between different groups of coun- basis for considering whether we wish to partici- tries and in this way help to create coalitions and pate in an operation when it is launched. secure broader international support for key ini- To ensure an integrated strategic approach to tiatives. the EU, there is close cooperation between the various Norwegian actors involved in security and defence policy (the Ministry of Foreign Affairs, 2.5.2 Norway’s participation in crisis the Ministry of Defence and the Ministry of Jus- management and military capacity tice and Public Security). building During the last 10 years Norway’s participation in EU crisis management operations has been an 2.5.3 Dialogue and cooperation important factor in its close cooperation with the The Government is working to strengthen cooper- EU in the area of foreign and security policy. ation arenas with the EU to ensure that they Participation in EU operations provides an remain relevant and effective. The Norwegian important basis for active dialogue with the EU on Mission to the EU in Brussels plays an important key security policy issues. It makes Norway a rel- role in facilitating cooperation with the EU, build- evant partner and provides us with insight and ing contacts and providing updated information opportunities to exert an influence, both on the on emerging issues. A valuable network has been 34 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU established with the European External Action Norway’s other agreements with the EU to pro- Service, the Commission and other actors such as mote Norwegian interests as effectively as possible. the missions of the member states. The Government will: The Commission delegations in third coun- – Continue to develop an active European policy tries have now been developed into EU diplomatic along the lines set out in Report No. 23 to the missions, with extended areas of responsibility Storting (2005–2006) on the implementation of and mandates. It is in Norway’s interests to fur- Norway’s European policy. ther develop contact and cooperation with EU del- – Work to ensure that the EEA Agreement con- egations in third countries, both so that we can tinues to secure equal treatment and predict- stand together on relevant issues and so as to ability for Norwegian companies and other maintain dialogue on the assessments and views actors operating in the internal market. The of EU and Norwegian diplomatic missions in the main principle underlying the EEA Agreement countries in which we operate. is to ensure the homogeneity of legislation. The Government intends to consider further Generally speaking, Norway benefits from how we can present our foreign policy and our this, and Norway will work at the European positions effectively in different EU arenas. It is level to promote the development of homoge- essential for our participation in these arenas neous legislation that is in line with Norway’s that Norway sets clear priorities and communi- interests. cates a message that is of interest to the EU. This – Play an active part in developing legislation for can be done through briefings to various EU the internal market, ensure that Norwegian working groups, and to the European Parlia- interests are formulated and promoted clearly ment, in areas where Norway has particular and at an early stage, as well as safeguard our expertise. We have for example provided brief- ability to influence the development of legisla- ings on the Middle East prior to the meetings of tion in the EU at all stages of the legislative pro- the Ad Hoc Liaison Committee (AHLC), which cess, in accordance with the conditions estab- coordinates international assistance to Palestine lished under the EEA Agreement. and is chaired by Norway. – When new legislation is being considered by It is also possible for Norway to align itself the EU, make sure that a preliminary assess- with EU sanctions against third countries, and we ment of its EEA relevance is carried out as have done so on many occasions. The Govern- early as possible. This is crucial if we are to be ment intends to further examine the possibility of able to promote Norway’s interests effectively. Norway participating more closely in the pro- When assessing whether, and how, a legislative cesses leading up to, during and after EU deci- act should be incorporated into the EEA Agree- sions on measures of this kind. It is important to ment, the Government will also seek to avoid ensure that sanctions are implemented in the setting unwanted precedents. most uniform and therefore the most effective – Seek modifications to new legislation that is way in cases where Norway chooses to align itself being incorporated into the EEA Agreement in with EU measures. cases where Norway has important interests to The Government will continue to attach con- safeguard or where there are special circum- siderable importance to developing bilateral con- stances that warrant this. Any decision not to tacts with individual EU member states as well as incorporate legislation into the EEA Agree- with the EU itself, as governments still play a key ment must be based on an assessment that role in developing the foreign policy positions of takes into consideration both Norway’s inter- the member states. For this reason maintaining ests in the matter in question and the risk and Norwegian diplomatic and consular missions in potential consequences of a possible negative these countries will continue to be an important response on the part of the EU. The Govern- element of Norwegian foreign policy. ment will consider entering a reservation in cases where particularly important Norwegian interests may be jeopardised by legal acts that 2.6 Summary of actions the are proposed for incorporation into the EEA Government intends to take Agreement. – Develop good and pragmatic solutions to The Government considers it important that Nor- enhance Norway’s links with and participation way makes full use of the opportunities and avail- in the various EU agencies and supervisory able options provided by the EEA Agreement and bodies, on the basis of the framework and pro- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 35 The EEA Agreement and Norway’s other agreements with the EU

cedures set out in the Norwegian Constitution, – Safeguard and make use of the rights to partic- in the two-pillar system of the EEA Agreement ipate granted to us under our association agree- and in the Schengen Agreement. ments in the field of justice and home affairs. – Defend Norway’s views in cases brought – Help to ensure that all Schengen member before the EFTA Surveillance Authority (ESA) states are able to fulfil their obligations under and the EFTA Court, and actively promote our the Schengen cooperation. views in cases brought before the EFTA Court – Actively participate in efforts to combat trans- and the European Court of Justice that are par- national crime in Europe. ticularly relevant for the interpretation of the – Examine the possibility of establishing an EEA Agreement in areas of importance to Nor- understanding with the EU that would make it way. quicker and easier for Norway to participate in – Make active use of the opportunities Norway specific areas of the EU’s cooperation in the has to make submissions to the European fields of civil justice, criminal justice and police Court of Justice in cases referred by national cooperation, in cases where this is of mutual courts in the EU member states that relate to interest. the interpretation of the Schengen acquis, par- – Further develop our close foreign and security ticularly cases dealing with matters of principle policy cooperation with the EU in areas of stra- and those where the ruling could have a direct tegic importance to Norway and fields where impact on Norway’s implementation of the together we can make an effective contribution acquis. to international cooperation, for example in the – Build on the Schengen cooperation by actively High North, democracy building and human participating in the development of new Schen- rights, climate change and the environment, gen-related legislation. international development assistance and efforts to promote peace and reconciliation. 36 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

3 Key priorities in Norway’s European policy

Norway’s interests in the context of its coopera- nomic growth at a time when Europe is feeling the tion with the EU are complex and diverse. They effects of the global financial crisis. This is clearly are primarily related to areas where Norway is reflected in the Europe 2020 strategy. In April covered by EU policy and legislation, and to the 2011, the European Commission presented a further development of the internal market. Nor- Communication on the internal market, the Single way is also affected by EU policy in areas that lie Market Act I, which identified 12 levers to boost outside the scope of its agreements with the EU, growth and strengthen confidence. Revitalising though more indirectly. and deepening the internal market is considered The Government will work to safeguard Nor- particularly important for enhancing the growth wegian interests in all aspects of Norway’s rela- potential of small and medium-sized enterprises tions with the EU. However, to achieve results, it (SMEs). is also important for Norway to concentrate its The Commission carried out an extensive con- political efforts on priority areas. This chapter out- sultation process in connection with the prepara- lines some of the key policy areas that will be tion of the Single Market Act I. Norway partici- given particular attention in the time ahead. pated in this process, and as part of this work the A more comprehensive review of Norway’s Government conducted an open dialogue with priorities and interests is given in the annual work representatives of Norwegian companies and programme for EU/EEA issues. The Government organisations. The Government intends to con- intends to develop the work programme into a tinue this dialogue with stakeholders when devel- more strategic instrument of Norway’s European oping and preparing Norway’s input on the devel- policy. opment of the internal market. The European Commission presented a sec- ond Communication on the internal market, Better 3.1 Norwegian companies and value Governance for the Single Market, in June 2012. creation in the internal market This Communication proposes a number of mea- sures to improve governance of the internal mar- Under the EEA Agreement, Norwegian compa- ket including measures to promote more effective nies, workers and consumers have access to the implementation of internal market rules, to speed internal market on the same terms as citizens and up procedures for dealing with breaches of EU companies in the other 29 EEA countries. This law and to ensure smarter use of IT technology. effectively increases the size of the Norwegian The Commission also urges all the states to estab- market from 5 million to 500 million people. lish Single Market centres as national centres of Developments in the EU in this area are therefore expertise on the internal market. A European net- highly significant for the Norwegian economy. work of single market centres will also be estab- The Government will seek to influence the lished. The Government will consider whether to development of new EU/EEA legislation and establish a centre of this kind in Norway. implement legislation in such a way that Norwe- In many areas it is more important to imple- gian citizens and companies can more easily par- ment existing rules than to develop new legisla- ticipate in the internal market. The development tion. For Norwegian companies and value cre- of common rules ensures predictability and equal ation in Norway, it is important that the rules are conditions of competition for all actors operating implemented at national level in a timely manner in the internal market. and in a way that ensures the good functioning of In the wake of the financial crisis, developing the internal market. A thorough knowledge of the the internal market has moved higher up the polit- rights and obligations of the various actors operat- ical agenda once again. The internal market is ing in the internal market is also vital if we are to seen as an important tool for stimulating new eco- make the most of the opportunities it offers. The 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 37 The EEA Agreement and Norway’s other agreements with the EU

Government will work to ensure that the relevant economic collapse. However, the increasing har- actors are informed of their rights and of how to monisation of legislation may reduce the options make effective use of them. In this way the posi- available to individual countries at national level. tive effects of the EEA Agreement can be In the view of the Norwegian authorities it is cru- enhanced. Putting in place tools to address these cial that legislation promotes the development of needs is part of ensuring good governance of the strong financial institutions to the greatest extent internal market, as is establishing effective sys- possible. tems for cooperation between the authorities in The EU’s increasing use of supervisory the EEA states. authorities raises issues in relation to the EEA In autumn 2012 the Commission will propose Agreement’s two-pillar structure and the Norwe- further measures to strengthen the internal mar- gian Constitution’s provisions on transfer of pow- ket, in the form of the Single Market Act II. The ers, as discussed in Chapter 5.3.3. It does not Government has expressed its support for these appear appropriate to develop corresponding pow- efforts, with particular emphasis on promoting ers relating to the financial sector in the EFTA good governance of the internal market and the institutions. As long as Norway is unable to partic- systematic reduction of trade barriers, and on ipate fully in the work of the EU’s new financial strengthening the social dimension and consumer supervisory authorities, the extent to which Nor- rights and developing the digital internal market. wegian legal entities can be made subject to the decisions of these authorities is clearly limited. So far, contact with the EU has indicated that it will Banking system and financial services be difficult for the Norwegian authorities to gain Rules regulating the banking system and financial more than limited observer status in the Euro- services account for an increasing proportion of pean supervisory bodies. The fact that the Norwe- internal market legislation. This is largely due to gian authorities do not participate in the European the financial crisis. The EU recently adopted financial supervisory bodies on the same footing extensive new capital requirements for insurance as the EU member states, and in particular the companies and new securities legislation. The other Scandinavian countries, may prove to be Commission has also proposed new capital challenging. The establishment of the proposed requirements for banks and investment firms, a banking union in the EU could lead to more prob- new directive on deposit guarantee schemes, a lems of this kind. These issues are being dis- new EU framework for bank recovery and resolu- cussed with the EU. tion, as well as a regulation on insider trading and market manipulation (market abuse). Most of these are considered to be EEA relevant. 3.2 Key policy areas In 2010–11, the EU established new supervi- sory authorities for the financial sector. The new 3.2.1 Labour relations and social welfare European Systemic Risk Board is responsible for In the Government’s view it is essential to ensure the macro-prudential oversight of the financial that the Norwegian model of labour relations is system, i.e. for monitoring systemic risk across maintained. This involves continuing the tripartite the entire European financial market. Three new cooperation between employers, trade unions and supervisory authorities are responsible for super- the state, and retaining the ability to enforce Nor- vising financial activities at the micro level, i.e. for wegian rules on pay and working conditions effec- supervising individual institutions in the banking, tively. insurance and pensions, and securities sectors. The main features of the Norwegian model of Norway’s association with these new bodies has labour relations – legislation and agreements, not yet been clarified, see Chapter 5.3.3. More wage determination, cooperation between the recently, the EU also presented plans for a bank- social partners and labour market policy – have ing union involving joint regulation and supervi- been in place since 1994. In general, the period sion of major banks operating in several countries, 1994–2012 has been one of positive development as well as a joint deposit guarantee scheme for in terms of investment, employment, pay and these banks. working conditions, and the collective agree- Norway intends to contribute to the develop- ments. Cooperation between the social partners ment of effective common international rules and and the authorities has been strengthened. Work- framework conditions for the financial sector. This ing life in Norway is well organised; most people is important for reducing the risk of crisis and are in permanent employment and have written 38 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU contracts of employment. The proportion of peo- ple in temporary employment in Norway is lower Box 3.1 The Government’s than in many countries in Europe. The Norwegian initiative to ensure decent work social model, of which the tripartite cooperation is a cornerstone, is set to last. The Government has introduced a number of Since the enlargement of the EU/EEA in 2004 initiatives, within the framework of EEA law, and 2007, Norway has been one of the countries to ensure decent work in Norway. These where labour immigration from other EEA coun- include: tries has been highest in proportion to the popula- – Service centres for foreign workers in tion. This is partly due to the strong demand for Oslo, Stavanger and Kirkenes labour and high wage levels in Norway. These – ID cards in the building and construction labour immigrants have contributed greatly to industry growth in production and employment, not least – The right of access to information for in rural districts, and thus have also played a role employee representatives in safeguarding the Norwegian welfare system. – The duty to provide information on regula- At the same time this increase in labour immi- tions concerning general application of gration has made it more challenging to ensure wage agreements and to ensure compli- decent work and combat social dumping in Nor- ance with them. way. The Government has taken a number of – Requirements to observe Norwegian stan- steps to deal with these issues, including produc- dards for working conditions in municipal ing two action plans against social dumping. It has contracts – ILO Convention no. 94 been possible to introduce far-reaching measures, – Joint and several liability for employers such as employer joint and several liability under under wage agreements that have been the system of general application of wage agree- made generally applicable ments, within the framework of the EEA Agree- – Regional safety representatives in the ment. The measures have also strengthened hotel, restaurant and cleaning industry efforts to improve conditions in certain branches, – An authorisation scheme for cleaning com- such as the cleaning industry, that had unresolved panies and ID cards for the cleaning indus- problems relating to unscrupulous practices long try before 2004. Norway’s efforts to combat social dumping are further discussed in a White Paper from the Ministry of Labour, Joint responsibility for a good and decent working life (Meld. St. 29 (2010- dimension, which is based on the establishment of 2011)), and in Chapter 16 of the report Outside common minimum rules for the working environ- and Inside: Norway's agreements with the Euro- ment and workers’ rights. In many areas these pean Union (NOU 2012: 2). rules have also strengthened the rights of Norwe- Given the continuing and sometimes large dis- gian workers. parities in pay and working conditions between In order to find a balance between conflicting different EEA countries, labour migration and the considerations and interests in the labour and ser- associated risks of low-wage competition and cir- vices markets, the EU has adopted legislation cumvention of legislation must be expected to such as the Posting of Workers Directive (96/71/ continue. In future, the level of labour immigra- EC) and the Directive on Temporary Agency tion to Norway will depend in part on the develop- Work (2008/104/EC). In recent years the Euro- ment of the labour market in Norway and how pean Court of Justice has dealt with several cases this compares with the situation in other coun- that have had implications particularly for the free tries. This in turn will be affected by economic movement of services and freedom of establish- developments in Europe in the light of the finan- ment. Some of these judgments, often referred to cial and debt crisis. In times of economic decline, as the Laval Quartet, have sparked controversy. labour rights can come under pressure. The Gov- They illustrate the way in which contentious ernment has worked to prevent this. Together issues in labour market policy in the EU and EEA with the social partners, the Government will are to a large extent decided through the judicial maintain its efforts to combat social dumping and system. These decisions also have implications for unscrupulous practices in Norway. Norway. National courts, the EFTA Surveillance Through the EEA Agreement, Norway partici- Authority and the EFTA Court also set precedents pates in efforts to strengthen the EU’s social in this area. There has been disagreement bet- 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 39 The EEA Agreement and Norway’s other agreements with the EU ween Norway and the Authority over certain pro- when used abroad. For people resident in Norway visions of the regulations on pay and working con- the benefits are generally designed to make it ditions in public contracts. Some aspects of the more attractive to work than to collect benefits. regulations concerning general application of This incentive is undermined if the benefits are wage agreements in the shipping and shipbuild- paid out in countries where the cost of living is ing industry have also been subject to judicial lower. However, the recorded export of benefits review. amounts to only a small proportion of the total The Government will seek to ensure that new expenditure channelled through the Norwegian EU rules do not obstruct measures that Norway Labour and Welfare Administration. Nevertheless, has introduced or plans to introduce, for example with the rise in labour immigration to Norway and in connection with the action plans against social the increased mobility of people between Norway dumping. For Norway it is particularly important and other EEA countries, the proportion of bene- to safeguard pay and working conditions for work- fits that are exported is growing. The possibility ers who are involved in business establishment that benefits will be exported is assessed when and the provision of services across national bor- the various schemes are developed. The Govern- ders, and to protect collective rights, including the ment is monitoring the situation closely to ensure right to strike. that benefit schemes are not abused. There is no reason to expect that the EU will In 2009, the Government appointed the Wel- introduce extensive new labour legislation. How- fare and Migration Committee, chaired by Profes- ever, in March 2012 the Commission put forward sor Grete Brochman, to assess the elements in the a proposal for an Enforcement Directive to correct Norwegian welfare model that influence and are weaknesses and inadequacies in the way the Post- influenced by increasing migration. The commit- ing of Workers Directive is applied. The purpose tee presented its recommendations in June 2011 is to increase monitoring and compliance and to in Official Norwegian Report NOU 2011: 7 Welfare combat unfair competition and social dumping. and Migration. As part of the follow-up to the com- The Government is, in principle, in favour of mittee’s recommendations, the Ministry of improving the enforcement of posted workers’ Labour has initiated an internal process with a rights, but has certain concerns about the pro- view to carrying out a comprehensive review of posed directive. current rules for membership of the Norwegian A new Regulation, known as the Monti II Reg- National Insurance Scheme and the export of ben- ulation, was proposed at the same time, with the efits received under the scheme. This will involve aim of removing the uncertainty surrounding the an assessment of the existing rules for the various exercise of the right to take collective action that pension schemes, such as the retirement pension has arisen following the European Court of Jus- and the disability pension, as well as for tempo- tice rulings. The draft Regulation gave equal sta- rary benefits, such as sickness benefits and unem- tus to the national right to strike and the freedom ployment benefits and other forms of cash pay- to provide services. The proposal met consider- ment under the National Insurance Scheme. The able resistance in many EU countries and in 2012 review will also look at rules for exporting bene- the Commission decided to withdraw the pro- fits to other EEA countries, countries with which posal. The Government’s view is that it is inappro- Norway has a social security agreement and coun- priate to introduce legislation that restricts the tries with which it has no such agreement. The right to strike. purpose of this work is to provide a basis for Participation in working life brings with it enti- achieving the best possible understanding of the tlement to many welfare benefits, both for individ- problems associated with increased mobility ual employees and for their family members. across national borders and the legal options open These apply equally to foreign and Norwegian to Norway, and to identify areas where adjust- workers. ments are needed. Under the EEA Agreement, the general rule is The Government takes a broad approach in its that social security benefits are to be paid irre- efforts to promote Norwegian views and interests spective of where the person who is a member of in the area of employment and social affairs vis-à- the social security scheme or his/her family mem- vis the EU. Norway participates in various work- bers are resident. Entitlements under Norway’s ing groups, expert groups and meetings within National Insurance Scheme are adapted to the the EFTA/EEA, for example concerning the free high salary levels and cost of living in Norway, movement of workers, health, safety and environ- and the payments are therefore very generous ment, and labour law. Norway is also involved in 40 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU relevant Nordic working groups and committees in the Community Mechanism for Civil Protec- where topics relating to EU/EEA are discussed. tion, which coordinates the response to incidents Norway cooperates with its Nordic neighbours in both inside and outside Europe. The main func- areas where the Nordic countries have common tion of the EU’s Monitoring and Information Cen- interests. Like Norway, several EU countries have tre, a tool under the Mechanism, is to monitor been sceptical to aspects of the Commission’s potential and actual emergencies, receive and dis- work on labour legislation. Norway is therefore in tribute requests for assistance and coordinate the a good position to continue to work together with member states’ offers of assistance. The Norwe- like-minded countries to influence developments gian Directorate for Civil Protection and Emer- so that they take the desired direction. gency Planning is responsible for following up the Labour rights are also safeguarded through work of the mechanism on behalf of the Ministry other international conventions by which Norway of Justice and Public Security and is the national is bound, including several human rights conven- contact point for requests from both NATO and tions and labour conventions. the Monitoring and Information Centre. In recent years the Community Mechanism for Civil Protection has developed considerably, Cooperation on cross-border health threats and health particularly in terms of its operational role. Ini- preparedness tially an emergency preparedness and response Safeguarding health and welfare and ensuring mechanism for dealing with incidents within adequate emergency preparedness and response Europe, it has now become a relevant and much are important goals of international cooperation. needed resource for responding to natural disas- Over the past few years our emergency prepared- ters outside Europe too. There is also focus on ness and response systems have been put to the ensuring close coordination between civil protec- test in situations that have varied widely in nature tion and humanitarian aid efforts, as well as on and in scope. Major incidents such as the terrorist areas such as critical infrastructure, environmen- attack on the government offices in Oslo and the tal contamination, major accidents etc. island of Utøya on 22 July 2011, the earthquake As part of the EU Action Plan on combating and tsunami in Japan in March 2011, the volcanic terrorism the EU has initiated a process to regu- eruption in Iceland in 2010 and the 2009 flu pan- late and limit access to explosives and chemical, demic have led to new demands for civil protec- biological, radiological and nuclear materials. Nor- tion and emergency preparedness and response, way has followed this process closely. The pro- and have demonstrated the need for cooperation posed measures fall within the scope of the EEA at both national and international level. Agreement. Norway cooperates with the EU in the area of health security, in particular through the EU’s Health Security Committee, the European Centre 3.2.2 Energy for Disease Prevention and Control and the Euro- As a major net exporter of energy, Norway is in a pean Food Safety Authority. The cooperation unique position in the EEA, with interests, encompasses information exchange, prevention, resources, needs and opportunities which may monitoring and risk assessment, and the develop- differ from those of other countries. The Govern- ment of early warning and response mechanisms ment gives priority to managing Norway’s inter- for dealing with incidents that may pose cross-bor- ests in such a way that its energy resources bene- der health threats. This cooperation is particularly fit the entire Norwegian population. important for ensuring that national measures and The EU has expanded regulatory measures plans are adequately coordinated with those of for energy and developed a more comprehensive our neighbouring countries and the rest of the energy policy over the years, particularly as a world. It also enables us to learn from other coun- result of the desire to create a more integrated tries’ experiences and solutions. internal market. The EU has not, however, chal- lenged the right of individual countries to control their own energy resources, and the member Norway’s cooperation with the EU in the field of states continue to develop their own energy poli- security and emergency preparedness and response cies based on national interests. Under the EEA Norway’s cooperation with the EU in the area of Agreement, Norway has implemented all the civil protection is regulated primarily through the most significant EU energy legislation related to EEA Agreement. Norway has participated actively the internal market. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 41 The EEA Agreement and Norway’s other agreements with the EU

Under the Lisbon Treaty, the EU now has the Some 20 % of the EU’s natural gas consumption authority to develop a more integrated energy pol- comes from Norway. Norway therefore plays an icy, which has heightened ambitions of developing important role in ensuring security of supply in a common European energy policy. Resource the EU. At the same time, as an export nation Nor- management still remains a national responsibil- way is dependent on well-functioning and predict- ity. The 2007 climate and energy package estab- able markets for its energy products. EU policy lished what are known as the 20–20–20 targets, (a affects the Norwegian energy sector both directly 20 % reduction in EU greenhouse gas emissions, through EEA legislation and indirectly as a result raising the share of EU energy consumption pro- of the impact it has on the gas and electricity mar- duced from renewable resources to 20 %, and a kets. This is particularly important in the case of 20 % improvement in the EU’s energy efficiency). gas. In this context, indications from the EU that Legislation intended to achieve these targets has natural gas has a long-term place in the future also been introduced. In March 2011, as a follow- European energy mix are very significant. up to 20–20–20 targets, the EU adopted the Norway has been an integral part of the EU’s Energy Efficiency Plan 2011 for the period up to internal electricity market for a long time. The 2020. The Energy Efficiency Plan is in principle Norwegian electricity grid is physically connected not part of the EEA Agreement, but contains mea- to the other Nordic countries and the Netherlands sures supported by EU legislation that may be through a number of power lines and cable links. EEA relevant. It is therefore in Norway’s interests Work is currently underway to establish two new to follow the implementation of the Energy Effi- cable links in the near future, first to Germany and ciency Plan closely. then to the UK. According to the Energy Roadmap 2050, Through the EEA Agreement, Norway partici- which was under discussion in the Council in pates fully in the internal energy market. This has 2011–12, the primary objective for the EU’s included close cooperation with the EU on energy energy policy is to ensure a secure, sustainable efficiency, renewable energy and the development and competitive energy supply. The long-term of new energy technologies within the framework strategic choices the EU makes in the period up to of the EEA Agreement, for example through rele- 2050 will be important for Norway as a major sup- vant EU programmes. Norway has a clear interest plier of oil and gas to the EU and part of the EU in participating in the development of EU legisla- internal energy market. The roadmap focuses on tion and in EU programmes. EU legislation in the the need to cut CO2 emissions to 80–95% below area of energy is important for Norway, as energy 1990 levels by 2050, but also identifies security of is an area in which Norway has strong economic supply and reduced import dependency as addi- interests. Close follow-up is required throughout tional incentives for transforming the energy sys- the entire legislative process, from the early deci- tem. The EU’s efforts to increase renewable sion-shaping phase to the work on EEA adapta- energy production must be seen in this light. It is tions and implementation in Norway. difficult to estimate how much renewable energy The EU aims to have a fully functioning production will grow in the period up to 2050, but energy market in place in 2014. Three internal it seems clear it will increase. An increase in energy market packages, the most recent of renewable energy production in the EU will make which was adopted in 2009, have resulted in mar- production more unpredictable and irregular, ket opening and increased integration of the which will increase the need for flexibility in the energy markets in the EU. The Government will rest of the power system. Hydropower and gas work actively to enable Norway to participate in could be important in this context and may open the bodies and joint structures that are developed up new opportunities for Norway. in Europe as far as possible on an equal footing More than 60 % of the gas and more than 80 % with the EU member states, within the framework of the oil used by the EU is imported. Given the of the EEA Agreement. Norway participates as an large volumes of energy imported by the EU, it observer in the EU’s committee on cross-border will not be enough to develop a common internal trade and in the forums for national regulatory energy market. Relations with countries outside authorities and member states under the Commis- the EU are also important for achieving the EU’s sion – the Electricity Regulatory Forum (Florence primary energy policy objectives. In this context Forum) and the Gas Regulatory Forum (Madrid Norway is an important partner for the EU. Forum). Norway is a major supplier of energy to the In the area of energy technology Norway par- EU, in the form of natural gas, electricity and oil. ticipates in the EU’s Seventh Framework Pro- 42 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU gramme for Research and Technological Develop- implementation of relevant legislation in Norwe- ment as well as in the European Community gian law. Steering Group on Strategic Energy Technologies EU environmental legislation has developed and subsidiary groups under the Strategic Energy considerably since the conclusion of the EEA Technology Plan, which establishes guidelines for Agreement. Nowadays the tendency is towards future EU research and technology cooperation. framework directives and cross-sectoral policy Norwegian participation in the new EU Frame- instruments and objectives. Like legislation in work Programme for Research and Innovation, other policy areas, new environmental legislation Horizon 2020, which is due to be launched in must be independently assessed to determine its 2014, will be a key priority in the future. Norway EEA relevance and the consequences for Norway also participates in relevant initiatives and cooper- if it is incorporated into the EEA Agreement. This ates with the EU on carbon capture and storage. is further discussed in Chapter 5. Norway maintains close dialogue with the EU Norway will continue to be a leading nation in on energy issues. In 2002, as a complement to the environmental and climate policy and will work to EEA Agreement, a regular dialogue on energy secure ambitious and binding multilateral envi- policy with the EU’s Commissioner for Energy ronmental agreements. Norway cooperates with was established. Over the course of 10 years this the EU with a view to establishing ambitious cli- has been an important channel for raising issues mate targets at the international level and cost- of particular significance to Norway’s relations effective, market-based instruments to reduce with the EU. The dialogue is an important instru- emissions in the EEA. The further development of ment and has enhanced understanding both of EU the EU emissions trading system will be particu- political processes relating to energy and of Nor- larly important for Norway. With the extension of way’s energy situation. The dialogue addresses the system in 2013, it will apply to approximately issues relating to key topics such as energy infra- 50 % of Norway’s greenhouse gas emissions. A structure, energy development in the period up to further tightening of the cap (reducing the total 2050, natural gas, renewable energy and the inter- number of emission allowances) is being dis- nal market. The Government attaches great cussed by the EU and is supported by Norway. importance to cooperation with the EU in the area Norway will cooperate with the EU on establish- of energy and regards the energy dialogue as ing stricter standards for vehicles and encourag- extremely important in this context. ing the use of more environmentally friendly fuels to reduce emissions in the transport sector, as dis- cussed in the most recent White Paper on Norwe- 3.2.3 The environment, climate change and gian climate policy (Meld. St. 21 (2011–2012). The food safety EU’s work on these issues is also important for The major environmental problems we are facing reducing emissions in Norway. transcend national borders and make binding In accordance with the precautionary principle, cooperation and common rules essential. Norway Norway attaches importance to the further devel- and the EU base their environmental policy on the opment of EU chemicals legislation to ensure risk same fundamental principles and an understand- assessment of new substances, including nanoma- ing that environmental considerations must also terials and endocrine disruptors, as well as to be an integral part of other areas of policy. As set ensure better consideration of the combined out in the EEA Agreement, Norway and the EU effects of chemicals (the cocktail effect). Norway share the same aims: to ensure a high level of pro- also considers it important that legislation govern- tection concerning health, safety and the environ- ing articles imported from outside the EEA is ment and to preserve, protect and improve the strengthened. Norway intends to play an active quality of the environment. Since the EEA Agree- role in further developing the EU chemicals legisla- ment was signed, it has therefore been a political tion, the REACH Regulation, both because it is part aim to maintain close, binding cooperation with of the EEA Agreement and as such has a direct the EU on environmental policy, and much of the impact on Norwegian chemicals policy, and EU’s legislation on environmental issues has been because it can be used to gain acceptance for Nor- incorporated into the EEA Agreement. Norway way’s proposals on raising the level of ambition in therefore participates actively and extensively in this area in Europe. In the current economic situa- the development of common EU environmental tion it is important to support REACH and promote rules. This participation is also important in terms its further development and improvement. This of developing knowledge and ensuring effective legislation is also helping to raise global standards, 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 43 The EEA Agreement and Norway’s other agreements with the EU since countries outside Europe are also adapting to The EU is developing comprehensive strate- it. The Norwegian authorities were actively gies for climate and environmental policy through engaged in lobbying efforts vis-à-vis the EU in con- what are known as roadmaps and environmental nection with the development of the REACH Regu- action programmes. In 2012 the EU is due to lation during both the preparatory and the adoption establish a new strategy in the form of a seventh phase of the legislative process. This work is now Environmental Action Programme, which will set continuing in the implementation phase as the out important guidelines for environmental and scope of the regulation is continually being climate policy in the EEA for the next decade. The expanded to encompass new substances. EU’s Roadmap to a Resource Efficient Europe is a In the area of waste management countries tool for promoting a green economy and the sus- have considerable flexibility in implementing the tainable use of resources. The roadmap contains a rules as the EU’s waste legislation only estab- number of initiatives and proposals for new legis- lishes minimum standards, allowing countries to lation. Key themes include waste as a resource, introduce stricter rules in their national legisla- the value of ecosystem services and green public tion. One example is the rules on take-back procurement. Norway has wide experience of schemes for waste electrical and electronic equip- using environmental taxes and of integrating envi- ment under the WEEE Directive, which have now ronmental considerations into all sectors of the been revised by the EU. Norway’s experience and economy. expertise in waste management has made it possi- High priority will be given to cross-sectoral ble to exert an influence on the development of efforts, as new environmental and climate legisla- EU legislation, and the EU’s new WEEE Directive tion, such as maritime spatial planning and is closer to Norwegian waste legislation. Norway revised air pollution legislation, will primarily be has long had a high profile in this area and has cross-sectoral in nature. Norway will continue to taken a proactive approach throughout the entire cooperate with the other Nordic countries at all process, both by providing written input at the levels to build alliances and coordinate input into political level and through meetings with senior decision-making processes. EU officials. Marine and inland water management in the EEA is a key area for Norway. Norway has a par- Food safety ticular responsibility here in its capacity as stew- Legislation relating to food safety accounts for by ard of vast sea areas and of the environment and far the largest proportion of legislation under the natural resources in the High North. Both the EEA Agreement. Norway and the EU share many management plans for sea areas and the manage- common interests and values in this area, includ- ment plans drawn up under the Water Manage- ing an interest in ensuring a high level of con- ment Regulations are important tools for achiev- sumer protection and effective controls at all ing a more integrated approach to the various stages of the food production chain. Food safety types of environmental pressure. Norway has legislation is constantly being further developed played a pioneering role in the development of and revised. It is therefore essential to maintain a integrated marine management plans, and the focus on this area. Priority will be given to ensur- EU’s Marine Strategy Framework Directive has ing active Norwegian participation and involve- been developed largely along the same lines as ment in the development of EU policy and legisla- the plans for Norway’s sea areas. In 2011 the Gov- tion. Norway will work to ensure that food is safe ernment decided that the Marine Strategy Frame- and wholesome, and will give priority to prevent- work Directive was not to be incorporated into the ing food safety problems by taking an integrated EEA Agreement on the grounds that it applies approach to environmental considerations, inter- largely to areas outside the geographical scope of mediate inputs, animal health and human health. the EEA Agreement. A decision was also taken to It is important that we use the options available to further strengthen the already close cooperation us under the EEA Agreement to ensure that Nor- with the EU on management of the marine envi- way’s food legislation is as flexible as it is in the ronment. The implementation of the Water other EEA countries. Caution must be exercised Framework Directive in the EEA, the implementa- when new technologies are harnessed and the tion by the EU countries of the Marine Strategy focus must be on production methods that are Framework Directive and the ongoing reform of considered safe. We will continue to pursue a the EU’s common fisheries policy are important in restrictive policy with regard to genetically modi- this context. fied organisms. 44 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Figure 3.1 The Norwegian company Pharmaq has received funding under the EU’s Eurostars Programme to develop new salmon vaccines, together with the Swedish company Isconova. The Eurostars Pro- gramme provides funding to research-performing small and medium-sized enterprises. Photo: Kjetil Malkenes Hovland

in most of the committees that administer the pro- 3.2.4 Cooperation on research and grammes and in other advisory bodies, and is reg- education ularly invited to participate at informal ministerial An integrated policy for the internationalisation meetings. of research and education is essential for ensur- The need for a common research effort in pri- ing quality, increasing competitiveness and ority policy areas has led to a strengthening of access to new knowledge, and for strengthening research cooperation across national borders in cooperation on societal challenges and in policy Europe. Under Article 179 of the Lisbon Treaty, areas that are important for Norway. Participa- the EU countries have undertaken to work tion in the EU framework programmes for towards the achievement of a European Research research and technological development and EU Area (ERA). The ERA is described as an open programmes for education and training is crucial space for research within the internal market in in this context. The EU’s Seventh Framework which there is free movement of knowledge – the Programme for Research (FP7) is the largest “fifth freedom”. The ERA is discussed in more programme in which Norway participates under detail in Box 6.2. the EEA Agreement. It accounts for close to 70 % The EU research programmes have served as of Norway’s total contribution to EU programme important instruments for promoting concrete cooperation. steps towards the development of the ERA, which Norway has taken part in the EU framework is also a key element of the Commission’s green programmes for research and in EU education paper on a new strategic framework for EU rese- and training programmes since the 1980s and arch and innovation funding, Horizon 2020, to be 1990s respectively. Through the EEA Agreement, launched in 2014. Participation in the ERA is the- Norway participates on an equal footing with the refore closely linked to participation in EU rese- EU member states. Norway has observer status arch programmes. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 45 The EEA Agreement and Norway’s other agreements with the EU

Norway’s GDP and the combined GDP of all the EU countries. For the period 2014–20 the Com- Box 3.2 About the ERA mission has proposed a budget of approximately The Commission launched the idea of a Euro- EUR 88 billion. It has been challenging for Nor- pean Research Area in 2000. The aim was to way to obtain as much in project funding from the create a space for the free movement of knowl- EU as it contributes to the programme budget, edge, by strengthening cooperation and the despite the fact that Norwegian research groups integration of research policies in Europe. The have a high profile in Europe and contribute to development of the ERA therefore involves policy development in the EU in fields such as the establishing a framework for integrating environment, climate, polar issues, and the research policy at the European level and marine and maritime sector. Health research identifying ways in which Europe can address groups are also increasingly focusing their efforts common priorities and challenges through on EU research initiatives, and Norway plays an joint programmes. Concrete examples of this active role in several joint programming initiatives are the joint programming initiative to meet on health policy issues. However, project funding the challenges regarding European seas and received from the EU is only one of the benefits oceans (JPI Oceans) and cooperation on the Norway gains by participating in EU research establishment of an integrated pan-European cooperation. Norwegian research groups are able infrastructure for state-of-the-art research on to build valuable networks and gain access to all technologies enabling CO2 capture, transport the knowledge generated in the projects in which and storage (CCS). In 2007–08 the idea of the they participate. Continued Norwegian participa- ERA was further defined and five areas for fur- tion in EU research programmes must be asses- ther development and cooperation were identi- sed from a societal, business, budgetary and broa- fied: joint programming initiatives; policies to der foreign policy perspective. Horizon 2020 will safeguard working conditions and career be discussed further in the forthcoming White development opportunities for mobile Paper on research policy. researchers; common European research The EU’s growth strategy, Europe 2020, pro- infrastructures; policies to promote access to vides the political framework for the next period and transfer of scientific knowledge; and inter- of education and research programmes. national research cooperation with countries The proposed new EU programme for educa- outside Europe. Under the Lisbon Treaty, the tion, training, youth and sport, Erasmus for All, is EU countries are committed to working broader in scope than the current education pro- towards the realisation of the ERA. Norway grammes. The main motivation for developing the participates in the ERA, both in specific pro- Erasmus for All programme is to strengthen the grammes and in advisory committees and links between the development of education and cooperation bodies. This participation enables training policy and education programmes at the us to encourage initiatives in areas that are EU level, from early childhood to adult education. politically important to Norway (for example The programme will also promote a knowledge- on marine and maritime issues and in areas based economy in the EU – for example by creat- such as climate change, energy, health and ing a solid foundation for innovation. There will be food). a new focus on strengthening partnerships between the education sector and employers. The programme will promote innovation, entrepre- neurship, growth and employment, as well as Horizon 2020 will focus on three priority areas: democracy-building, active citizenship and multi- excellent science, competitive industries and bet- cultural understanding in Europe. In addition it ter society. The programme will provide the basis will have a greater and more visible international for innovation and policy development in a num- dimension and will promote cooperation beyond ber of sectors, with a view to meeting common Europe’s borders. societal challenges relating to the environment The Government intends to follow the pro- and climate change, energy, health and food secu- cesses in the EU closely and will revert to the rity, transport and civil protection. Storting about Norway’s participation in Erasmus Norway’s contribution to the programme bud- for All and Horizon 2020 once the programmes get is calculated on the basis of the ratio between have been adopted by the EU. 46 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

The Government will also follow the develop- The links between regional development in ment of the ERA and work to ensure close cooper- Norway and developments in the rest of Europe ation in priority policy areas. have become increasingly clear in recent years. Parts of the Norwegian public and private sec- tors are experiencing a shortage of labour. 3.2.5 Rural and regional policy Labour immigration therefore has a positive The objectives of the Government’s rural and impact on business development and the provi- regional policy are to ensure equal living condi- sion of public services. Following the enlarge- tions, to maintain settlement patterns, and to pro- ment of the EU to include the countries of Cen- mote value creation, employment and welfare tral and Eastern Europe, there has been consid- throughout the country. erable labour immigration to Norway from the The population of Norway is relatively small, EU. Many of these labour migrants come from and settlement is dispersed. Overall, Norway has the Baltic countries and , as well as from a high rate of population growth, high levels of Sweden. It will be important in the future to fol- employment, low levels of unemployment and a low the further development of this labour immi- high standard of living. The positive population gration and to assess the consequences for local growth in many municipalities in recent years can communities and companies in Norway of a pos- largely be explained by immigration. sible return migration. However, some regions of Norway face con- One of the objectives of Norway’s rural and siderable challenges. These relate primarily to regional policy is, as mentioned above, to maintain population decline (an aging population and out- the main features of present settlement patterns. ward migration) and a lack of job opportunities. To achieve this goal, the Government is seeking Domestic net migration towards the central to promote local and regional growth in areas regions of Norway is in part due to the greater where economic growth is relatively low, dis- number of jobs that are attractive to young people tances to markets are long, the economy is poorly to be found in these areas. However, these chal- diversified and the population is stagnant or lenges must be said to be moderate in comparison declining. with those faced by the other Nordic countries The challenges Norway’s regions are facing and the rest of Europe. differ somewhat from those seen in EU regions. A characteristic feature of interactions In Norway wealth is relatively evenly distributed, between urban and rural areas in Norway is that but low population density and long distances natural resources and production tend to be between communities and economic centres pose located in less central regions, whereas the head problems for companies in peripheral regions. It offices of companies serving national and interna- in is Norway’s interests to continue to be able to tional markets are located in the larger cities, as is pursue a vigorous policy to meet the challenges most of the public administration. The Norwegian Norway’s regions are facing. Key instruments of export sector is largely located in the coastal rural and regional policy, covered by the EEA counties of Norway. The Norwegian economy, Agreement, are regional investment aid and the based as it is on raw materials and exports, is differentiated employers’ national insurance con- dependent on the existence of good, stable inter- tribution scheme. It is important for Norway to national framework conditions for foreign trade. continue to be able to use schemes such as these International framework conditions are therefore to support business development and thereby very important for Norway’s rural and regional population growth in sparsely populated areas. policy. Positive economic and social development in the Economic growth in Norway in recent years is EU is also very important for Norway’s rural and largely due to improvement in its terms of trade, regional policy in terms of providing a solid basis in other words between export prices for products for Norwegian exports. such as oil and fish on the one hand and consumer The Government will monitor EU processes goods that Norway imports on the other. Market that may have implications for the range of access and the economic situation in our trading options available to Norway in pursuing an active partner countries are two key factors that affect and targeted rural and regional policy. EU com- the overall Norwegian economy. Because of the petition legislation is very important in this con- structure of the Norwegian economy, these fac- text, in particular legislation on state aid and tors are also highly significant for Norway’s rural regional aid. Public procurement legislation is of and regional policy. crucial importance for Norway’s municipalities 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 47 The EEA Agreement and Norway’s other agreements with the EU

Box 3.3 Differentiated employers' national insurance contributions The Norwegian scheme for differentiated sion of the Authority. In 2002, following a similar employers’ national insurance contributions is case in the EU, the Authority required Norway an important instrument of regional policy. to make further amendments to the scheme. Under the scheme, the country is divided into With broad backing from all the political parties, different geographical zones with varying rates Norway received support from Iceland and of national insurance contributions. Employers Liechtenstein to invoke an exemption clause in in more peripheral areas pay lower national the Surveillance and Court Agreement and con- insurance contributions than employers in cen- tinue parts of the scheme, i.e. the zero rate in tral areas. State aid schemes that existed when Finnmark and Troms. The Authority’s decision the EEA Agreement came into force in 1994 had was thereby set aside. In 2004 the Commission to be submitted to the EFTA Surveillance carried out a further revision of the guidelines Authority for approval. Norway did not consider for regional aid. Norway cooperated closely with the scheme for differentiated employers’ Sweden and Finland to achieve the desired national insurance contributions to be state aid, adjustments to the guidelines. In 2005 the Com- and so did not submit it for approval. The mission adopted new regional aid guidelines Authority disagreed with this assessment and that allowed for aid to be provided to regions opened an investigation procedure in 1995. In with low population density to prevent outward 1997 the Authority concluded that aspects of the migration. As a result Norway was able to rein- Norwegian scheme must be regarded as state state the system of regionally differentiated aid and required Norway to amend the scheme. employers’ contributions of 2007. There has In 1999 the Norwegian authorities brought the been broad political agreement about the case before the EFTA Court. Norway lost the scheme in Norway and the Norwegian authori- case, but the Court ruled that the scheme ties will give priority to ensuring that the current involving different zones and rates could be con- scheme can be continued after the next revision tinued, if amended in accordance with the deci- of the guidelines for regional aid in 2013.

and counties in their role as purchasers of goods The Government will also make use of Nordic and services, and compliance with the legislation arenas for discussion and will seek to cooperate requires significant resources and expertise. In with countries that are facing similar challenges connection with the ongoing revision by the EU as regards rural and regional policy. Experience of the existing public procurement directives, a has shown that cooperation at Nordic level is review of Norwegian legislation will also be car- important for making views heard and for obtain- ried out. A committee will be appointed to review ing information in the EU. the specifically Norwegian aspects of public pro- The Government will also promote training curement legislation, including an assessment of and development in rural districts and regions the national threshold value and the need for through participation in regional development national rules of procedure over and above those programmes together with EU member states. arising from Norway’s international obligations. Through the INTERREG programmes, which Experience of the legislation in the municipal support interregional cooperation across Europe, sector and in Norwegian companies will be Norwegian participants have gained new inspira- important in this work. tion and ideas for solutions to concrete issues, in Norway has gained acceptance for continued areas ranging from business development to envi- support for business development in the form of ronmental problems. This cooperation has also regional investment aid and differentiated employ- enabled the Norwegian municipal sector, the ers’ national insurance contributions in areas of research and consultancy community, private low population density and population decline. EU companies and public institutions to expand their legislation is revised periodically. The Govern- networks, acquire knowledge on different ment will seek to participate in formal and infor- approaches to regional development and achieve mal arenas to discuss and obtain information on better results than they could have done working developments in this field. alone. 48 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

dic cooperation on important European issues and 3.2.6 Market access for Norwegian seafood will make active use of bilateral ties and networks. Norway and the EU are partners in the manage- Norway has enjoyed particularly fruitful coopera- ment of living marine resources, and are mutually tion with the EU Presidency when it has been dependent on one another as regards the manage- held by a Nordic country, most recently by Den- ment of common stocks. Norway is the EU’s most mark in the first half of 2012. It is important that important supplier of seafood and the EU is Nor- issues that are to be dealt with in the EU and EEA way’s most important market for the export of and that have relevance for all the Nordic coun- seafood. Some 60 % by value of Norwegian sea- tries are discussed in a Nordic context at an early food exports go to the EU, and Norway is the stage. Nordic cooperation enables Norway to fol- country that supplies the largest share of seafood low legislative developments in the EU more imports to the EU (20 %). Norway alone has a total closely than would otherwise be possible. Much annual catch of approximately 2.5 million tonnes, of this cooperation focuses on what the Nordic whereas the total annual catch for all the 27 EU countries can contribute to the development of EU member states combined is no more than around legislation in terms of input and expert documen- 5 million tonnes (figures for 2011 from Eurostat). tation, as well as on supporting work on global Norway is one of the world’s leading fisheries conventions. At the same time it is also important nations, and Norwegian fisheries and aquaculture to be informed at an early stage of cases where management are highly respected in EU institu- the Nordic countries do not have common inter- tions. Norway is therefore an important partner ests. for the EU when it comes to addressing common Norway chose the welfare state in a Nordic challenges and promoting common interests perspective as the main focus area for its presi- within marine resource management. Norway’s dency of the Nordic Council of Ministers in 2012. cooperation with the EU in this area is based on a This theme was chosen against the backdrop of common approach to some of the major issues the current situation in Europe, including the con- relating to the sustainable management of living tinuing impact of the financial crisis, the debt cri- marine resources. It is in the interests of both par- sis and the economic, social and political chal- ties to maintain and further develop this coopera- lenges the EU and a number of EU member states tion. are facing. The economic situation in Europe and Market access for Norwegian seafood in the its consequences have also affected the Nordic EU is not satisfactory and over time a complex countries. The Nordic countries can bring experi- system of over 50 bilateral tariff quotas has devel- ence and examples of political solutions reached oped, while at the same time the EU has retained across national borders to the EU cooperation as customs duties on important fish species. The EU concrete contributions to policy development in has introduced restrictions on the import of Nor- Europe. Thus, policy development in the Nordic wegian fish on several occasions. The Norwegian countries and Europe are closely intertwined in a authorities will continue to work to improve mar- process where dialogue and exchange of experi- ket access for Norwegian seafood in the EU. ence are crucial. In the Government’s view, the Nordic coun- tries are well placed to become a pioneer region 3.3 The Nordic countries and Europe within Europe, particularly in the field of green growth, i.e. economic growth and development There are many examples of how Nordic coopera- within safe ecological limits. During its Presi- tion has contributed to wider European coopera- dency of the Nordic Council of Ministers the Gov- tion and put its imprint on policy developments in ernment will also focus on the links between edu- Europe. This is particularly evident in areas such cation, research and innovation, green growth and as social and health issues, gender equality, the sustainable health and welfare systems. working environment, environmental protection, In certain areas the Nordic countries should electricity supply and transparency and access to seek to develop models of cooperation and solu- information. tions that can later be implemented in the EU and The Government gives priority to strengthen- the EEA. The Nordic countries deregulated their ing the contacts and information exchange on the electricity markets long before the other Euro- EU and European issues that takes place under pean countries, for example, and have established the Nordic cooperation in a wide range of areas. the Nordic electricity exchange Nord Pool Spot. The Government is seeking to maintain close Nor- Institutionalised Nordic cooperation under the 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 49 The EEA Agreement and Norway’s other agreements with the EU

Nordic Council of Ministers has also proved effec- 3.4 Summary of actions the tive in various areas. It is perhaps particularly ben- Government intends to take eficial for small countries to develop meeting places such as these to establish close contact and The Government will: learn more about each other and about other – Promote the development of a well-functioning groups. This could also have a positive impact on internal market that ensures good framework our cooperation with the EU and EEA. conditions for Norwegian companies, value creation and welfare. In this work emphasis is placed on maintaining close dialogue with Border barriers and mobility stakeholders in Norway. The removal of border barriers between the Nor- – Make use of the opportunities and available dic countries is a key area of cooperation under options provided by the EEA Agreement when the Nordic Council of Ministers. The free move- implementing EEA legislation in Norway, so as ment of labour, goods and services is essential for to promote the development of a well-function- the development of a well-functioning internal ing internal market and safeguard the Norwe- market. One of the priorities of the Norwegian gian model of labour relations, the needs of presidency in 2012 is the removal of existing bor- Norwegian companies and Norwegian value der barriers and the prevention of new ones. creation. Efforts are underway to draw up an overview of – Ensure that the Norwegian model of labour existing border barriers and ensure that new bar- relations is maintained. This involves continu- riers are not created as a result of new EU legisla- ing the tripartite cooperation between employ- tion. ers, the trade union movement and the state, safeguarding pay and working conditions in connection with the establishment of compa- The Nordic countries, the international community nies and the provision of services across and Europe national borders, and protecting collective Due to the close Nordic cooperation in interna- rights, including the right to strike. tional forums and processes, our Nordic neigh- – Cooperate with the EU in the areas of health bours are also close partners in an EU context. security and civil protection. Close Nordic cooperation on international and – Promote the development of well-functioning security policy issues, for example in the UN, is an and predictable energy markets in Europe and important supplement to the cooperation that safeguard Norwegian interests in connection takes place between Norway and the EU within with the development of EU policy and legisla- the framework of the EU Common Foreign and tion, particularly that relating to natural gas, Security Policy. The further development of coop- electricity, oil and renewable energy. The Gov- eration between NATO and its partner countries, ernment attaches importance to continuing including in Afghanistan, Libya and towards Syria Norway’s energy dialogue with the EU. and other Arab Spring countries, offers opportuni- – Continue its close, binding cooperation with ties for a Nordic approach to European coopera- the EU on environmental policy. This involves tion. The involvement of the Nordic countries in safeguarding Norway’s environmental inter- peace and reconciliation efforts, for example in ests and promoting a sound environmental pol- Myanmar, is another important contribution to icy in Europe. European foreign and security policy cooperation. – Seek to ensure that the EU’s new programmes The Nordic countries have particular advan- for 2014–20 are developed in line with Nor- tages in that they have developed stable demo- way’s views and priorities, particularly in the cratic institutions and promoted human rights, in fields of education and research. Norwegian particular women’s rights, over the course of participation in the EU’s new framework pro- many years. Many countries are therefore seek- gramme for research and innovation (Horizon ing to learn from their experience. The Nordic 2020) must be assessed not only in terms of its countries have a common message, share the research and innovation dimension, but also same values and employ similar policy instru- from a societal, business, budgetary and ments, and as a result reinforce each other’s posi- broader foreign policy perspective. tions. – Continue to pursue an active regional policy The Government will present a White Paper within the framework of the EEA Agreement. It on Nordic cooperation in autumn 2012. is particularly important that support for busi- 50 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

ness development in the form of regional as well as strong financial institutions, and investment aid and differentiated employers’ thereby reduce the risk of crisis and economic national insurance contributions can continue collapse. to be provided to areas of low population den- – Seek to maintain close Nordic cooperation on sity and population decline. important European issues. The Government – Work to secure improved market access for considers it important that issues to be dealt Norwegian seafood in the EU market and fur- with in the EU and EEA and that have rele- ther develop cooperation on joint management vance for all the Nordic countries are discussed of the marine environment and living marine in a Nordic context at an early stage. resources. – Further develop the annual work programme – Promote the development of a sound European for EU/EEA issues so that it becomes a strate- regulatory framework for the financial sector gic instrument in Norway’s European policy. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 51 The EEA Agreement and Norway’s other agreements with the EU

4 Key instruments of Norway’s European policy

The Government pursues a proactive European will be further developed in the future. The policy based on the objectives set out in the Gov- updated portal was launched in July 2012. The aim ernment’s policy platform and Report No. 23 has been to make the new European portal a com- (2005–2006) to the Storting on the implementa- prehensive source of information on Norway’s tion of European policy. The Government consid- cooperation with the EU. This means that relevant ers it important that Norwegian positions are for- EU/EEA information both from the ministries mulated as far as possible on the basis of open and and from the Norwegian Mission to the EU in inclusive consultative processes. This will ensure Brussels is now gathered on one website. that Norwegian positions are better informed and The European portal has also been made more will help to enhance political awareness of matters user-friendly. It contains a combination of back- under discussion in the EU. Strengthening knowl- ground information and information on current edge of the EU/EEA in the public administration issues and is aimed at different target groups, and ensuring more systematic dialogue with rele- such as the public administration, interest organ- vant stakeholders will be key policy instruments. isations, Norwegian companies, school pupils and The Government is also seeking to strengthen the students. democratic basis for the development of Norway’s Sound information is essential but not in itself European policy by increasing the level of interest sufficient to secure awareness of and political in and debate on the EU and the EEA in Norway. debate on key EU/EEA issues. The Government Ensuring access to better information and promot- will work to ensure that information is communi- ing knowledge about Norway’s agreements with cated in such a way that it stimulates broad the EU in Norwegian society is of key importance debate, which is important for safeguarding effec- in this context. tive democratic processes. The European portal will have a separate web- page for new Commission initiatives. The Com- 4.1 Information and knowledge mission sends information about new initiatives to the EEA/EFTA bodies, and the Government will The Government’s aim is to pursue an open Euro- make this information available to the public via pean policy that encourages debate and dialogue. the portal. The aim is to ensure that relevant Our relations with our European partners, which stakeholders in Norway have access to informa- are governed by the EEA Agreement and Nor- tion about new EU initiatives at the earliest possi- way’s other agreements with the EU, affect most ble stage. sectors of Norwegian society. The public debate concerning the referen- The Government will work to promote the dums on EU membership in 1972 and 1994 highest level of transparency in EU/EEA pro- showed a great deal of popular interest in issues cesses. Priority will be given to ensuring access to relating to Norway’s cooperation with the EU. information on important EU/EEA processes. People were generally well-informed and there The EEA database on the Government’s Euro- was broad participation in the debate. pean portal (“Europaportalen”) will be further The Government considers it important in developed, and a database for justice and home terms of safeguarding Norwegian interests that affairs matters will be established. Norwegian citizens have an adequate knowledge The web-based information channels are cru- of Norway’s cooperation and agreements with the cial to the Government’s efforts in this area. EU. Updating and improving the European portal has A new generation has grown up since the sec- been a key part of the Government’s work to ond referendum in 1994. In a survey of knowledge make information on the EEA and Norway’s rela- of the EU and Norway’s agreements with the EU tions with the EU more accessible, and the portal among the Norwegian population, which was car- 52 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU

Figure 4.1 An upgraded European portal was launched in summer 2012. The new portal is a comprehen- sive source of information on Norway’s cooperation with the EU. ried out by the Sentio Research Group in May ment of information material that can be used to 2011 in connection with the preparation of Official support teaching in schools. Norwegian Report NOU 2012:2 Outside and Inside: Norway's agreements with the European Union, young people in particular reported that Norwegian research on European issues their knowledge of these areas was poor. Both the Since the 1990s Norwegian researchers have official report itself and a large number of com- gained international recognition for their in-depth ments received in connection with its preparation research on European integration and its conse- indicate a need to increase efforts to enhance quences. Norwegian research on European issues young people’s knowledge of Norway’s agree- has helped to promote public debate in Norway, ments with the EU. Knowledge of the EU/EEA is enhance education at various levels and one of the subject areas included in the current strengthen the knowledge base for Norway’s national curriculum for social studies and in the European policy. Given the importance of develop- learning objectives set for years 7, 10 and the first ments in the EU and of European integration for year of upper secondary school. The Government Norway in a wide range of areas, the Government will support the work carried out by schools to will continue to promote the development of a ensure that these learning objectives are strong community of researchers on European achieved. It is important for young people to have issues in Norway. It is vital that the results of access to up-to-date and neutral information. The research projects are made available to the gen- Government will therefore facilitate the develop- eral public. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 53 The EEA Agreement and Norway’s other agreements with the EU

4.2 Transparency and inclusion up cooperation with the EU on an ongoing basis, but also in the local and regional administration, One of the Government’s clear aims is to secure which has considerable responsibility for applying the involvement of Norwegian stakeholders in the the legislation in practice, in accordance with our authorities’ work on EU/EEA matters at an early EEA obligations. It is also important that stake- stage. The Government considers it important to holders in the private sector and in society as a obtain information about how new EU initiatives whole are well informed about the EU/EEA. This affect private individuals, organisations, compa- will enhance Norway’s ability to identify and pro- nies and the local and regional public administra- mote its interests effectively. tion. The Government also emphasises the impor- tance of ensuring that, through their participation in European umbrella organisations, relevant Training courses stakeholders have access to information and A great deal of expertise on the EU/EEA has opportunities to exert an influence, both of which been developed in the public administration, but are important when promoting common interests. there is scope for improvement. A survey carried The Government has taken several steps to out by the Agency for Public Management and increase the level of stakeholder involvement in eGovernment in 2008 indicated that knowledge is work on EU/EEA matters. These include estab- particularly good among employees who have lishing a number of dialogue forums where Euro- worked on EU/EEA-related matters for a long pean policy issues are discussed. These efforts time. However, this knowledge is to some extent will be further strengthened in the future. held by individual employees, which makes gov- The EU decision-making process is rapid, and ernment agencies vulnerable to employee turn- the Commission’s proposals are often amended over. The survey showed that knowledge of the during discussions in the Council and the Euro- EU/EEA is generally poor among employees who pean Parliament. Ensuring that stakeholders in are not directly involved in work in this area, Norwegian society have the opportunity to put including at management level. EU/EEA issues forward their assessments and views well before affect most areas of society and are a cross-cutting the EU takes a decision that may have implica- element of almost all activity within the public tions for Norway is one of the Government’s clear administration. It is therefore vital that all civil ser- objectives. It is also important to obtain technical vants have some general knowledge of the EU and legal expertise from outside the public admin- and EEA. Training courses in this area should be istration, including from relevant stakeholders, on further developed within already existing struc- the issue of how EEA legislation should be imple- tures. The Government will work to ensure that mented into Norwegian law in specific fields. basic knowledge of EU/EEA issues is integrated into training courses provided at all levels of the public administration. Information on EU/EEA 4.3 EU/EEA expertise in the public matters will be part of the general training pro- administration vided to all new employees and to new managers in the public administration. Work on EU/EEA-related matters requires knowl- Civil servants in ministries and government edge of EU policy and legislation in the various agencies who work with EU/EEA legal issues fields. It also requires knowledge about institu- must have a thorough knowledge of EU/EEA law tions and decision-making processes in the EU so that Norway can make good use of the options and EEA. Expertise in EU/EEA law is also cru- available at the national level when implementing cial, as are language skills, knowledge of meeting EU/EEA legislation. At present no systematic practices and the ability to build networks. More- training in EU/EEA law is provided to lawyers over, a high level of EU/EEA expertise is essen- and other employees responsible for dealing with tial if Norway is to be able to participate actively at EEA legislation. The Government therefore an early stage of the EU legislative process. It is intends to strengthen and systematise the training also crucial if Norway is to be able to make use of provided. This can be done by including a module the options available at the national level when on EU/EEA law in the programme on Norway’s implementing EEA legislation. In-depth knowl- cooperation with the EU offered by the Agency edge of the EU/EEA is needed not only in the cen- for Public Management and eGovernment. The tral government administration and its subordi- Agency plans to carry out an evaluation of this nate agencies, which are responsible for following programme in autumn 2012, which will give an 54 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU indication of whether it is successfully meeting evant expertise. Experience shows that in many the needs of the users and will provide a basis for areas, such as food safety, Norwegian national its further development. experts are given responsibility for key policy areas on the basis of their qualifications and as a result of their well-developed networks in the EU Making good use of existing expertise system and a proactive recruitment policy by the In addition to improving the training provided to relevant Norwegian authorities. employees, it is important to make the best possi- The Agency for Public Management and eGov- ble use of existing resources. Priority will there- ernment recently conducted a survey on the pub- fore be given to ensuring that expertise that has lic administration’s use of seconded national been developed through work on EU/EEA mat- experts to the Commission, which showed that ters is put to good use. Much of the EU/EEA better use could be made of the scheme. The Gov- expertise to be found in the Norwegian public ernment will work to ensure that all ministries administration has been developed through par- develop a strategic approach to recruitment, ticipation in expert groups and committees under choice of place of service, contact during the the Commission. In addition, participation in EU period of secondment and the use of acquired agencies and administrative networks, and in the expertise following return to Norway. The Gov- context of the Schengen cooperation in the Mixed ernment will also work to make it possible for Committee under the Council, has become impor- local and regional authorities to second experts tant in terms of providing opportunities for learn- and other personnel to the Commission. ing and developing expertise. Sound expertise and the continuity of Norwegian participation are essential if Norway is to be able to exert an influ- 4.4 Close coordination of EU/EEA- ence in these forums. To ensure the transfer of related work in the public knowledge, new employees should be involved in administration this work, for example by participating in meet- ings together with more experienced employees. The increase in cross-sectoral initiatives and legis- lation in the EU has led to a need for closer coordi- nation in the public administration. The Govern- National experts ment is seeking to improve coordination between Under the EEA Agreement, Norway has the the ministries, based on the current division of opportunity to second national experts to the responsibilities between members of the Govern- Commission, and also to EU agencies that are ment. The political and constitutional responsibil- under the Commission’s administrative authority. ity for the various fields lies with the relevant min- However, we have no such agreement with the ister. The Ministry of Foreign Affairs is responsi- other EU institutions. Nevertheless, in the period ble for ensuring that Norway fulfils its obligations 2006–09 a national expert from the Ministry of under the EEA Agreement and its other agree- Trade and Industry was seconded to the secretar- ments with the EU, and also for ensuring that Nor- iat of the European Parliament’s Committee on way has an integrated European policy by coordi- the Internal Market and Consumer Protection. nating Norway’s views and communicating a This provided an important channel into the Euro- coherent position to the EU and our EFTA part- pean Parliament for both the Norwegian public ners. The Ministry of Finance’s responsibility for administration and other Norwegian stakehold- coordinating the budget and implementing eco- ers. Due to the success of this secondment, the nomic policy also encompasses EU/EEA matters. Government is seeking to continue this arrange- Coordination will be strengthened on the basis ment. of existing structures, including separate coordi- It is important to ensure that the ministries nating committees for EEA and Schengen matters take full advantage of the opportunities we have to and a well-developed system of EEA special com- second national experts to the Commission. The mittees. In priority areas where there is a particu- Government will give priority to ensuring that sec- lar need for coordination, the Government will be onded national experts from the Norwegian pub- able to appoint working groups on a more ad hoc lic administration are as far as possible given pol- basis within this framework. Efforts will also be icy-oriented tasks while working at the Commis- made to involve relevant stakeholders more sion. This means that we have to be able to pro- closely and systematically in the public adminis- vide highly qualified candidates who can offer rel- tration’s work on EU and EEA matters. 2012–2013 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 55 The EEA Agreement and Norway’s other agreements with the EU

The Norwegian Mission to the EU in Brussels The Government is also seeking to strengthen has a key role to play in communicating Norway’s its contact with stakeholders in its ongoing work views to EU institutions. The mission’s staff are on EU/EEA matters. Most of the EEA special recruited from all parts of the government admin- committees have appointed reference groups con- istration. The mission’s role includes following sisting of representatives of relevant interest political developments in the EU in the various groups and local authorities. The Government will fields, analysing these developments and keeping encourage the special committees to involve the relevant ministries informed on an ongoing basis. reference groups to a greater extent and at an Firm commitment and active involvement at early stage in the work of developing Norway’s the political level in the ministries is essential to positions on EU/EEA matters. enable Norway to put forward its views at an early The possibility of offering secondments or stage. In connection with this, it is important to internships at the Norwegian Mission to the EU ensure close coordination between relevant minis- in Brussels for representatives of Norwegian tries and their subordinate agencies, since the lat- organisations will also be considered. ter often represent the Norwegian authorities in expert groups and committees. Defining clear national positions requires an understanding of 4.5 Mutual responsibility for the fundamental issues involved in each case. It is managing the EEA Agreement therefore an important task to identify and com- municate the politically important aspects of a EU institutions and member states have repeat- new case as early as possible. This does not edly expressed their satisfaction with the EEA require the creation of new structures, but rather Agreement and other agreements between the that there are effective procedures for transfer- EU and Norway. Through the EEA Agreement ring relevant information from the public adminis- the EU enjoys orderly and predictable relations tration to the political level. with Norway, a key trade partner and important Municipalities and counties are responsible for supplier of energy, seafood, capital, maritime following up much of EEA legislation once it has transport services, environmentally sound solu- been incorporated into Norwegian law. The Gov- tions and so on. Both the EU and Norway have a ernment will therefore work to promote a more clear interest in maintaining these good relations. systematic dialogue between the various levels of The EU generally appears to have great confi- the public administration, as part of its efforts to dence that the EFTA Surveillance Authority and develop Norwegian positions and promote Nor- the EFTA Court function as intended and are able way’s views, and in connection with the implemen- to ensure compliance with the provisions of the tation of new EEA legislation. EEA Agreement. In 2011, responsibility for managing the EEA Agreement was transferred from the Commission Increasing the involvement of the research community to the European External Action Service (EEAS), and other external actors the EU’s new diplomatic corps. The assumption is A number of Norwegian research groups, stake- that by concentrating responsibility for the EUs holders, municipalities and counties participate external relations in the EEAS, the EU will be in a actively in efforts relating to the EU through vari- better position to develop a coherent foreign pol- ous European organisations. A common feature of icy. This could strengthen the basis for a broad these actors is that they have important expertise dialogue between the EU and Norway. There are and often also access to networks and information also indications that the EU’s relations with third that the Norwegian authorities lack. It is therefore countries are becoming more streamlined. Partici- crucial to coordinate the work of relevant authori- pation in EU expert groups and committees is ties and external actors more systematically than based on the rights conferred by the EEA Agree- is the case today. The Government will seek to ment. It is important for Norway that this is con- increase the level of involvement of the research tinued, in line with the intentions and principles of community and relevant stakeholders in the the EEA cooperation. It is important to emphasise development of Norway’s policy towards the EU that it is in the interest of both parties that the in priority areas. The plan is to hold annual consul- EEA Agreement functions as well as possible, and tations on important European policy issues based both parties are responsible for ensuring that it on the model of the six-monthly consultations does so. This means that it is essential that the EU with the Storting. also has a thorough knowledge of the EEA and 56 Meld. St. 5 (2012–2013) Report to the Storting (White Paper) 2012–2013 The EEA Agreement and Norway’s other agreements with the EU that work related to the EEA Agreement is given – Promote the development of a strong commu- the necessary attention. nity of researchers on European issues in Nor- Day-to-day work relating to the EEA Agree- way. ment involves extensive contact between Norwe- – Work to strengthen knowledge about the EEA gian officials and the Commission and relevant at all levels of the public administration by pro- expert bodies. This is crucial for the EEA cooper- viding relevant training and making better use ation in the various fields and helps the EU to of existing expertise. maintain its knowledge of key EEA matters. The – Work to ensure that all ministries take full Norwegian Mission to the EU, the Norwegian advantage of the opportunities we have to sec- embassies and relevant ministries play an impor- ond national experts to the Commission. In the tant role in providing information to EU institu- Government’s view, local and regional authori- tions and the member states. In addition, the Min- ties should also be given the opportunity to sec- istry of Foreign Affairs holds regular meetings ond experts and other personnel to the Com- and conferences on Norwegian European policy mission. at which representatives of the EU participate. – Work to ensure the secondment of national The Government will continue to give priority to experts to the European Parliament. these contact-building and information activities. – Continue to promote close coordination and efficiency in the public administration’s work on EU and EEA matters. 4.6 Summary of actions the – Strengthen dialogue with stakeholders and Government intends to take local authorities in ongoing work on important EU and EEA matters. The Government will: – Involve the research community and stake- – Support the work carried out by schools to holders in efforts to assess important Euro- ensure that established learning objectives are pean policy issues. achieved, and facilitate the development of – Make sure that the business sector is provided information material that can be used to sup- with adequate information about the EEA port teaching in schools. Agreement and Norway’s other agreements with the EU.