The EEA Agreement entered into force on 1 January 1994. Through the EEA Agreement, Norway has adopted large sections of EU legislation. In 2014, the EEA Agreement had been in force for 20 years. The EEA EFTA States (Norway, Iceland and Liechtenstein) have, in accordance with Article 108 of the EEA Agreement, established their own court; the EFTA Court. This court has three judges and its seat in Luxembourg.
The EFTA Court gives advisory opinions to the courts of EFTA states on the interpretation of EEA rules. “When such an issue is brought before a court in an EFTA state and the court finds that an opinion is needed before it pronounces its judgment, it may request the EFTA Court to give such an opinion”, cf. the Surveillance and Court Agreement, Article 34. The arrangement is implemented in Norwegian law through Section 51a of the Courts Act.
Since 1994, Norwegian courts and tribunals have requested the EFTA court for advisory opinions in 43 cases. Six of these cases have been dealt with by the Supreme Court. These cases are included in Rt. 1997, page 1965 (Business transfer), Rt. 2000, page 1811 (Finnanger I), Rt. 2004, page 904 (Paranova), Rt. 2009, page 839 (Alcohol advertising), Rt. 2012, page 1793 (Motor vehicle liability), Rt. 2013, side 258 (General application). The Supreme Court decided to request two of the opinions (Finanger I and Paranova). In addition, at the time of the hearing in Rt. 2007, page 1003 (Norsk Tipping), there was a decision by the EFTA Court.
In the summer of 2014, the EFTA Court celebrated its 20th anniversary. The Supreme Court attended a conference that year in Luxembourg, where, among other things, there was a panel debate on advisory opinions entitled: ‘To refer or not to refer’. One reason for the debate was the President of the EFTA court's criticism of Norway requesting advisory opinions from the court in too few cases. Chief Justice Schei explained the practice followed by the Supreme Court and the reason for this, but also said that the Supreme Court would review its practice in light of the debate that had been raised. The end of the debate has been referred to on the EFTA Court's website as follows: “At the end, Chief Justice Schei invited the EFTA-Court to a round table with the Supreme Court of Norway on the matter”. The invitation was followed-up with a joint seminar in Oslo in October 2014 for all justices and legal staff in the two courts.
28 November 2018
Copyright. Availability to the public. TV channels.
RiksTV AS is a commercial undertaking distributing TV channels through the terrestrial network. The Supreme Court found, like the lower instances, that this distribution involved making a work available to the public, see section 2 subsection 3 of the Copyright Act 1961 and section 3 subsection 1 (b) of the Copyright Act 2018. RiksTV AS was thus liable towards TONO AS, which manages the copyright to musical works on behalf of the right holders, for loss caused by the distribution of the relevant TV channels. It was emphasised that "available to the public" must be interpreted widely and flexibly, and that the sources of law suggest that it covers any form of spreading of intellectual work regardless of technical solution. The Broadcasting Act and Regulations on broadcasting activities, as well as the agreement with the broadcasters, under which the use of copyrighted material must be cleared with the right holders, could not give any other result. The same applied to EU case law. Nor was the undertaking covered by the exception for technical services and equipment.
Supreme Court HR-2018-2268-A (case no. 2018/233), civil case, appeal against judgment.
12 September 2018
Tort law. Motor vehicle liability. Damages for non-economic loss to the bereaved. Fatal accident. Psychotic driver.
A psychotic driver had caused a fatal traffic accident. The family of the deceased filed a claim for damages for non-economic loss against the motor insurance bureau of the injuring car. The Supreme Court found like the lower instances that the insurer's liability under section 4 second sentence of the Motor Vehicle Insurance Act was limited to damages for non-economic loss for which the personal injuring party could have been held liable under sections 1-3 and 1-5 of the Compensatory Damages Act, and which the district court and the court of appeal had set to NOK 75,000. Decisive emphasis was placed on statements in the preparatory works. System and consequence considerations could not have given any other result.
Supreme Court HR-2018-1729-A (case no. 18- 34154SIV-HRET)
28 June 2018
Enforcement. Execution lien. Pro forma.
Through an enforceable judgment, a company registered in the Turks and Caicos Islands was ordered to pay a significant amount to a German bank. After the bank had submitted a claim against the company, the latter's shares in a Norwegian IT company had been transferred to its Norwegian sole shareholder, and then on to the sole shareholder's father. The main issue of the case was whether the shares in the IT company should be considered to belong to the debtor, cf. section 7-1 of the Enforcement Act, so that the bank could levy execution on them. The Supreme Court found, contrary to the court of appeal, that the question whether a single creditor could levy execution on an item or right transferred from the debtor to a third party by an invalid transaction should be settled under Norwegian law and that a single creditor may levy execution on assets unlawfully distributed from a limited liability company. The question whether the transfer to the father was a pro forma transaction had to be assessed objectively. Taking this into account, the court of appeal's ruling was based on a too narrow assessment. The court of appeal's ruling was set aside due to error in law.
The Supreme Court HR-2018-1265-A (case no. 2017/1886), civil case, appeal against order
4 June 2018
Employment law. Temporary worker. Travel time allowance.
A temporary worker from Manpower AS had been hired by the Norwegian Public Roads Administration (Statens vegvesen) to work at Tønsberg traffic station. But, like the permanent employees at the traffic station, he was to work in Larvik on certain days. As opposed to the permanent employees, he did not receive travel time allowance for the days he worked in Larvik. The Supreme Court found, like the lower instances, that travel time allowance was covered by the equal treatment provision in the now repealed Civil Service Act section 3B no. 1, so that he was entitled to the same travel time allowance as the others. The Supreme Court referred to the intention expressed in the preparatory works that the equal treatment provision should have a relatively broad area of application, and held that the purpose of genuine equality would not be fulfilled if such travel time allowance was not part of it. The identical provision in the Working Environment Act section 14-12a now also applies to civil servants.
The Supreme Court HR-2018-1037-A (case no. 2017/206), civil case, appeal against judgment
4 June 2018
Employment law. Travel time. Overtime work. Collective bargaining agreement.
A policeman had performed work during three travels to and from a workplace different from his usual one and outside of normal working hours. The Supreme Court unanimously found that he had a legal interest in having established that the travel time was working hours pursuant the provisions in the Working Environment Act chapter 10, and that the disputed travel time was to be counted as working hours. A majority of four justices found that two of the travels should count as working hours pursuant to the main rule on compensation for domestic travel in the applicable collective bargaining agreement, while the third travel, which the policeman had been ordered to make when he was off duty, entitled him to overtime pay pursuant to a special provision in the collective bargaining agreement on overtime work. Dissenting votes 4-1.
The Supreme Court HR-2018-1036-A (case no. 2016/928), civil case, appeal against judgment
9 May 2018
International private law. Jurisdiction. The Lugano Convention.
Following a collision in foreign waters between two ships registered abroad with foreign proprietors and managing owners, the proprietor and managing owner of one of the ships brought an action in Norway against the Norwegian insurer of the other ship. The court of appeal had allowed the case. Regarding the question whether Norwegian courts have jurisdiction, the Supreme Court found that there was no legal basis in Article 2(1) of the Lugano Convention for bringing an action directly to the courts of the insurer's domicile state. A majority of four justices concluded that Section 3 of the Convention provided a self-contained regulation of jurisdiction in insurance matters except for the express reservations in Article 8. The conditions for asserting Norwegian jurisdiction under Article 11(2), cf. Article 9(1), of the Lugano Convention were also not met. The choice of law issue had to be resolved under international private law. Section 7-6 subsection 5 of the Insurance Contracts Act did not contain a provision on choice of law, as assumed by the court of appeal, and it fell outside the Supreme Court's authority to assess whether the court of appeal's result could be upheld on any other grounds. The order of the court of appeal was set aside. Dissenting opinions 4-1.
The Supreme Court HR-2018-869-A (case no. 2017/1119), civil case, appeal against order.
23 March 2018
Immigration law. Revocation of residence permit.
In a case regarding the validity of revocation of residence permit for a mother and daughter from Afghanistan, see the Immigration Act section 37 subsection 1 e, the Supreme Court found, similar to lower instances, that the Immigration Appeal Board's decision was invalid. When the application was granted, it was assumed that the conditions in their home country were unstable and that the women and her daughter risked being subjected to inhuman treatment. The revocation was justified by the fact that the woman had been reunited with her partner, who came to Norway the year after. The Immigration Appeals Board found that the family could be returned to their home country, but did not consider whether the safety situation in the district had changed significantly and non-temporarily during the period from the asylum application was granted, which was an error in law. It was also held that section 37 subsection 1 e did not contain a proportionality requirement. The state's appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2018-572-A (case no. 2017/1659), civil case, appeal against judgment
17 January 2018
Trademark right. Infringement. Damages.
A company selling a silage additive to the fishing industry had after a switch of suppliers attached labels on the packing showing a trademark belonging to the original supplier. The Supreme Court concluded unlike the lower instances that this was an infringement of the trademark proprietor's exclusive right pursuant to the Trademarks Act section 4. The Supreme Court, guided by case law from the European Court of Justice, held that the Trademarks Act section 4 must be interpreted as giving protection only if the use is within one of the functions of the trademark, including its guarantee of origin and quality. However, it was sufficient for establishing infringement that there was a risk that the trademark's functions were infringed by the relevant use. This condition was deemed fulfilled. The fact that the use took place after the sales had been completed and that the company's fixed circle of customers had been notified of the switch of suppliers could not give a different result. The damages payable for the infringement pursuant to the Trademark Act section 58 were stipulated to five percent of the purchase price of the delivery in question, which constituted NOK 80,000.
The Supreme Court HR-2018-110-A (case no. 2017/1490), civil case, appeal against judgment.
11 December 2017
Intellectual property law. Trademark. Colour.
A manufacturer of pharmaceutical drugs had asserted that two specific shades of purple on a product constituted an established trademark, see the Trademarks Act section 3 subsection 3, and that a competitor was thus banned from using these shades on its corresponding product. The Supreme Court held that a colour trademark can be considered established if the colour well-known as someone's sign. In this case, however, the manufacturer had used a number of different shades of purple in its marketing, which implied that the relevant shades had not been consciously established as a sign for the product. There was also nothing unusual about the use of purple on drugs. These aspects implied that the relevant shade was not perceived as a sign for the relevant drug or for a specific manufacturer. Market surveys that had been carried out suggested the same. The appeal against the court of appeal's judgment in favour of the defendant was dismissed.
The Supreme Court HR-2017-2356-A (case no. 2017/1062), civil case, appeal against judgment
4 December 2017
Employment law. Transfer of an undertaking.
A personal assistant employed to provide user-managed personal assistance in accordance with health care legislation, was laid off when the specific user changed service providers. The Supreme Court concluded, like the court of appeal, that the change of providers was a transfer of an undertaking pursuant to the Working Environment Act section 16-1, and that the assistant was thus entitled to continued employment with the new provider. The unit consisting of five persons assisting the user was clearly separated from the provider's other business activities and constituted a separate economic entity. Also, the economic activity remained mainly the same after being transferred to the new provider. Both the entity requirement and the identity requirement were thus regarded as fulfilled.
The Supreme Court HR-2017-2277-A (case no 2017/789) civil case, appeal against judgment.
11 October 2017
Employment law. Termination. Downsizing. Length of service. EEA law.
Two foreign employees who had been terminated due to downsizing, see the Working Environment Act section 15-7, were unsuccessful with their claim that employment in foreign companies in the same group must count when estimating length of service in connection with downsizing. The non-application of the length of service in the group constituted neither direct nor indirect discrimination of the employees, see the EEA Agreement article 28. The applicable collective bargaining agreement also contained a provision stating that the length of service in the company must count in connection with downsizing. A statement in the preparatory works suggesting the opposite did not give sufficient legal basis for setting this provision aside. The employer was found for.
The Supreme Court HR-2017-1943-A, (case no. 2017/606), civil case, appeal against judgment.
22 June 2017
Competition law. Tender cooperation.
Two taxi companies, which through a wholly owned subsidiary had submitted joint tenders in two tender competitions regarding purchase of patient travel, were fined under section 29 of the Competition Act for violation of section 10 of the Act. The Supreme Court upheld the fine imposed. The two companies were considered potential competitors. The tender cooperation also appeared sufficiently injurious to competition that it was a restriction of competition by object pursuant to section 10, subsection 1 of the Competition Act, cf. the EEA Agreement Article 53.
Supreme Court HR-2017-1229-A, (case no. 2015/1026), civil case, appeal against judgment.
30 January 2017
Labour law. Age discrimination. Compensation.
In Rt-2012-219, the Supreme Court ruled that it was in violation of the prohibition on age discrimination, cf. Chapter 13 of the Working Environment Act, when in 2008, an employer required, in accordance with the collective agreement, that ten helicopter pilots should retire on turning 60. Therefore, they had the right to be reinstated in their jobs. The Supreme Court now concluded that the pilots were not entitled to compensation pursuant to section 13-9 of the Working Environment Act, because they had not been in the job for a period. It was found that the employer could only be liable for damages if under the prevailing law at the time of the act in 2008, it was age discriminatory to rely on the collective agreement, while the 2012 ruling considered the discrimination issue based on the prevailing law on the date of judgment. The sources of law were also unclear until the provisions on age discrimination came into force in 2004. A majority of three justices concluded that the special age limit in the collective agreement was not age discriminatory, based on the sources of law in 2008. It was the subsequent legal development, including a ruling by the European Court of Justice in the autumn of 2011, which lead to the collective agreement’s age limit being in violation of the prohibition on age discrimination. On these grounds, the majority of justices concluded that the employer had not committed any breach of the law by following the collective agreement. Therefore, there was no basis of liability. The minority of two justices were of the opinion that the 2012 ruling had to be construed in such a way that the pilots were also the victims of age discrimination prior to 2012, but that in an uncertain legal and actual situation the employer did not incur liability by acting in the way he did.
Supreme Court HR-2017-219-A, (case no. 2016/512), civil case, appeal against judgment.
16 December 2016
Labour law. Boycott. EEA law.
The Norwegian Transport Workers’ Union had notified of a boycott to force a Danish user of the port of Drammen to enter into a collective agreement with provisions on preferential right to loading and unloading work for stevedores affiliated with the Administration Office in the Port of Drammen. The Supreme Court, which heard the case in plenary session, concluded that the boycott was unlawful, because it had an unlawful purpose, cf. section 2, letter a) of the Boycott Act. Although the overriding purpose of the boycott was to protect workers’ interests, it involved an unacceptable restriction on the right of establishment under Article 31 of the EEA Agreement. The preferential right that was claimed also did not satisfy the requirement of a fair balance between the right of establishment and any basic right to boycott. The Supreme Court stated that section 92 of the Constitution must be understood as an obligation of the courts and other authorities to enforce the human rights at the level these are incorporated in Norwegian law. It was also stated that the EFTA Court's interpretation of EEA law could not be derogated from without there being good and weighty reasons for this. Dissenting judgment 10-7.
Supreme Court HR-2016-2554-P, (case no. 2014/2089), civil case, appeal against judgment.
1 November 2016
Trademark law. Registration of place name. “Route 66”.
In a case regarding the validity of the decision by the Norwegian Board of Appeal for Industrial Property Rights to refuse registration of “Route 66” as a trademark for certain goods and services related to tourism, the Supreme Court concluded, unlike the lower courts, that the conditions for refusal pursuant to section 14, subsection 2, litra a) of the Trademark Act were met and that the decision was valid. It was pointed out that an average Norwegian consumer would perceive “Route 66” as a geographical place, and would also perceive the “Route 66” trademark as a description of characteristics of the goods and services the refusal concerned.
Supreme Court HR-2016-2239-A, (case no. 2016/14), civil case, appeal against judgment.
22 September 2016
Intellectual property law. Registration of a business name.
In a case concerning registration of a business name, the Supreme Court concluded that registration of the business name, Pangea Property Partners AS, is not in violation of the previously registered business name, Pangea AS, cf. section 2.6 no. 4 of the Business Names Act, compared with section 3-2 and 3--3. Pangea Property Partners AS offered services within brokerage and corporate finance in the commercial property market, while Pangea AS offered credit card services in the consumer credit market. Following a specific assessment, the requirement regarding the same or similar type of business, which is a necessary condition for there to be a risk of confusion, was deemed not to have been met. (Rt. summary)
Supreme Court HR-2016-1993-A, (case no. 2016/396), civil case, appeal against judgment.
10 Mach 2016
Copyright clearance for cable distribution of TV channels.
The court sustained the claim of cable distributor Get AS that Norwaco was not to be paid remuneration for cable transmission of TV channels TVNorge, FEM, MAX and VOX.
The case clarifies that there is no retransmission of broadcasts, cf. section 34 of the Copyright Act, when a cable company distributes television channels, which it receives in a closed electronic transmission, but which are broadcast simultaneously via satellite and the terrestrial network. Dissenting judgment 4-1
Supreme Court HR-2016-562-A, (case no. 2015/1101), civil case, appeal against judgment.
13 February 2014
Contractual relationship. Exclusive distributor. Severance pay.
After termination of an exclusive distributorship of long standing the exclusive distributor claimed severance pay by analogy based on the provision contained in section 28 of the Agency Act. The claim was not upheld. The Supreme Court cited the decision in Rt-1980-243 (Tampax), stating that there has been no evolution of the law to provide grounds for a different assessment of the analogy question today. The rules contained in the Agency Act relating to severance pay are in the nature of a positive regulation of the law formulated for agency relationships and neither foreign law nor the regard for international unification of law supports an analogous application of the provision.
Ref.: HR-2014-306-A, case no. 2013/1887, civil appeal against judgment.
17 December 2013
Limitation period. Claim for reimbursement. Illegal state support. ESA decision
In a decision of 30 June 2004 ESA had ordered the State to claim reimbursement of illegal state support in the form of exemption from electric power tax for power-demanding industry. A reimbursement decision was made by Customs Region West Norway on 17 September 2007. The Supreme Court concluded that it was the latter decision, and not ESA’s decision of 30 June 2004 that established a reimbursement obligation. The limitation period of three years under section 2 of the Statute of Limitations consequently did not start to take effect until 17 September 2007. Hence, the claims were not statute-barred.
Ref.: HR-2013-2623-A, case no. 2013/1112, civil appeal against judgment.
5 March 2013
Labour law. EEA law. General Application of Wage Agreement
By the Tariff Board’s adoption of Regulations of 6 October 2008 concerning partial general application of the Engineering Industry Agreement to the maritime construction industry -
later superseded by corresponding Regulations of 20 December 2010 no. 1764 – unorganised and foreign employees acquired a right to wage and working conditions which are equal to those that Norwegian employees have within the scope of the wage agreement. A group of industrial companies filed a legal action to have the regulations found invalid. They argued that Article 36 of the EEA Agreement and Directive 96/71/EF relating to seconded employees prevent a general application of contract conditions relating to out-of-town allowance, working hours, overtime allowance and compensation for costs of overnight stays away from home. The Supreme Court unanimously concluded that the conditions for a general application contained in the Act relating to the General Application of Wage Agreements were met, that the disputed provisions in the Regulations were compatible with Article 36 of the EEA Agreement and Article 3 of the Directive and that the Regulations were accordingly valid. Statements about the significance of advisory statements from the EFTA Court.
Reference: HR-2013-496-A, Case no. 2012/1447, civil appeal against judgment.
22 November 2012
The state’s liability in damages. Redress for non-economic loss. EEA. Implementation of Motor Vehicle Directives.
Under section 6 subsection 2 of the Motor Vehicle Liability Act, as the provision read until the Amendment Act of 5 June 2009 no. 34, claims for redress for non-economic loss were exempt from the compulsory insurance coverage for motor vehicles. In a statement of 20 June 2008 the EFTA Court declared that this exemption was not compatible with the EU's Motor Vehicle Insurance Directives and that the exemption constituted a sufficiently serious breach of EEA law to entail State liability. In a class action filed by the Norwegian Organization of Traffic Victims, where the issue in dispute was whether this fault was sufficiently serious to entail liability, the Supreme Court found that the fact that the Directive had been breached may in itself be sufficient for the breach to be sufficiently serious, that the clarity of the Directive has a key position in the evaluation and that the threshold must not be set so high that there will be no reality in the compensation scheme. The Supreme Court subsequently concluded that an article in one of the Directives was worded in such a way that the Directives were not clear enough for the breach in itself to justify liability. However, the ambiguity was cleared up by a decision by the EU Court in 1996. The State was consequently held liable for claims for redress for non-economic loss following traffic accidents that had taken place after 1 January 1997.
Reference: HR-2012-2213-A, case no. 2012/963, civil appeal against judgment.
11 October 2012
Competition law. Cooperation for tenders. Administrative fine.
The Norwegian Competition Authority issued an administrative fine of NOK 2 million against a contracting company for unlawful cooperation for tenders, cf. section 29 cf. section 10 of the Competition Act. The Supreme Court maintained the Competition Authority's determination of the fine. With reference to recent Supreme Court case law it was stated that the issue of an administrative fine under the Competition Act - an administrative sanction which is in the nature of a punishment under Article 6 of the ECHR - requires a clear preponderance of probability that the culpability requirement is satisfied. This applies also to the decision as to whether the infraction is intentional or negligent. The contracting company's conduct was considered to be intentional. The predominant element in the determination of the fine was that the coordination that had taken place had totally undermined the crucial purpose of the traditional announcement of tenders: as effective a competition as possible. Two judges had special comments related to the evidentiary requirement.
Reference: HR-2012-1942-A, case no. 2012/449, civil appeal against judgment.
10 May 2012
Criminal law. Securities trading. Inside information. Confidentiality
The defendant had as portfolio administrator received information about an offer to acquire a major shareholding in a limited company which made him suspect that the market had different access to information. He passed on the information to the management of the limited company. The Supreme Court construed section 3-4 subsection 1 of the Securities Trading Act, cf. Council Directive 2003/6/EF, to mean that it would normally constitute a breach of confidentiality if a company is given information about attempts at concealed acquisition of the company’s shares. The defendant’s sole purpose of contacting the company was, however, to prevent inside trading and price manipulation with the risk of losing other shareholders. The management of the limited company was in this situation not to be regarded as “unauthorised” under section 3-4 subsection 1 of the Securities Trading Act. Reference was made to the fact that the purpose of the law and the Directive was to ensure a well- functioning share where the players can rely on buying selling on equal conditions. Deviating rationale from one judge. The prosecuting authority’s appeal against the Court of Appeal’ acquittal was rejected.
Reference: HR-2012-1012-A, case no. 2011/2142), criminal appeal against judgment.
2 May 2012
Criminal law. Market manipulation.
Two « day traders » had, independently of each other, found a pattern as to how bid and ask prices were changed regardless of the volume traded. This was exploited to carry out a series of transactions that were later reversed. For the most part, the reversal generated a profit. The Supreme Court majority held that the defendants’ conduct fell under the wording of section
3-8 subsection 2.1 first alternative of the Securities Trading Act, cf. Regulation to section 3-2 subsection 1 of the Securities Trading Act, and under the wording of section
3-8 subsection 2.1 second alternative of the Securities Trading Act. The majority nevertheless concluded that the consequence of the general reservation of unlawfulness was that the defendants must be acquitted. Importance was attached to the fact that the procedure seemed to be generally accepted in the market and that the defendants did not in effect manipulate, but reacted to an inefficiency in the market. They had acted in total openness and not given any incorrect information. The appeal was rejected. (Dissenting votes 3-2).
Reference: HR-2012-919-A, case no. 2011/1916, criminal appeal against judgment.
23 April 2012
Criminal law. Application of the law. Inside trading.
The case concerned criminal inside trading and raised the question of the understanding of the term « inside information » in section 2-2 of the Securities Trading Act of 1997 (now section 3-2 of the Securities Trading Act of 2007). The Supreme Court agreed with the Court of Appeal that the definition in section 2.2 subsection 3 - the so-called "sensible-investor test" - was exhaustive and that no quantifiable price-impact effect could be required in addition. This interpretation was not contrary to the EU market abuse directive, Article 1 No. 1. The appeals against the Court of Appeal's judgment were rejected
Reference: HR-2012-812-A, case no. 2011/2045), criminal appeal against judgment.
15 March 2012
Labour law. Age discrimination. Person seeking work. Damages for non-economic loss.
A 61-year old male trained social worker alleged that he was the subject of age discrimination when he was not called in for an interview in connection with the filling of a public position and claimed damages for non-economic loss under section 13-9 of the Working Environment Act. The Supreme Court, which relied on the reversed burden of proof rule in section 13-8 of the Working Environment Act, held that the reason why the applicant was not called in for an interview was in all probability that the employer wanted to recruit people with other skills than social education. This was accordingly not a question of discrimination in violation of section 13-1 subsection 1 of the Working Environment Act. The appeal against the Court of Appeal's judgment in favour of the Defendant was quashed.
Reference: HR-2012-580-A, case no. 2011/1714), civil appeal against judgment.
14 February 2012
Labour law. Age discrimination. Collective agreement. Helicopter pilots.
The case concerned age discrimination, cf. section 13-1 cf. section 13-3, and raised the question whether the employer based on the collective agreement is entitled to demand that helicopter pilots resign upon attaining the age of 60 years. The Supreme Court referred to the fact that the rules of the Working Environment Act must be interpreted to be compatible with EU Directive 2000/78/EF relating to equal rights in working life and the European Court of Justice’s case law. In the decision C-447/09 (Prigge) the EU Court held that a special age limit for pilots could not be justified by safety considerations or health given that the certificate rules allow flying until the pilot attains the age of 65. Also in Norway the certificate rules provide that commercial flying is allowed until the pilot is 65 subject to certain specific conditions. The Supreme Court held that it then followed directly from the Prigge judgment that safety considerations or health aspects cannot justify the 60-year limit for the helicopter pilots. The pilots’ claim for continued employment was allowed and they were awarded costs before all courts.
Reference: HR-2012-325-A, case no. 2010/127, civil appeal against judgment
22 December 2011
Labour law. Transfer of an undertaking. Discrimination on the basis of membership of a trade union. The Working Environment Act sections 16-1, 13-1 and 13-4. EU law.
The case concerned the application of the rules relating to transfer of an undertaking in chapter 16 of the Working Environment Act and the discrimination provisions contained in chapter 13 regarding the transfer of a catering business for airlines from one company to another. The Supreme Court held that the appeal must be allowed as regards the issue relating to transfer of an undertaking, but rejected the appeal as regards the discrimination issue.
Reference: HR-2011-2393-A, case no. 2011/539 civil appeal against judgment.
29 June 2011
Employment law. Age discrimination. EU law. Working Environment Act section 13-1, cf section 13-3 (2) and section 15-13a (1).
The question before the Supreme Court was whether an insurance company’s internal retirement age of 67 violated the prohibition against age discrimination in the Working Environment Act, and whether it nevertheless was lawful pursuant to the exemption provisions in the Act. There is a long tradition in Norway for private companies to have a retirement age of 67 and the government has accepted this for socio-political reasons. The Supreme Court concluded that the insurance company’s retirement age policy was objectively and reasonably justified by a legitimate aim. The retirement age was therefore in accordance with the exemption clause in the Council Directive 2000/78/EC Article 6 no. 1, and thus also complied with the Working Environment Act section 13-3 (2). Dismissal of the employee did not violate the prohibition against discrimination in section 13-1 (1). The Supreme Court also held that the age limit was appropriate and necessary to achieve certain objectives of a socio-political nature.
Reference: HR-2011-1291-A, case no. 2011/366, civil appeal against judgment
22 June 2011
Competition law. Financial penalty. Abuse of dominant position. Competition Act section 11
The case concerns judicial review of the Competition Authority's decision to impose a financial penalty on Tine SA (Norway’s largest producer, distributor and exporter of dairy products) pursuant to the Competition Act section 29 for infringement of the prohibition against abuse of dominant position. The majority of the Supreme Court did not find that Tine had used improper means in competition with other suppliers. Tine’s agreement with the Rema grocery retail chain did not bind Rema contractually or otherwise in a manner that prevented Rema from having Synnøve Finden (another large dairy company) as a supplier. The increase in financial contributions payable from Tine to Rema was not extraordinary if one took account of Rema’s obligations in return, other factors that could influence the negotiation result and Tine’s contributions to other grocery retail chains. Neither Tine’s memo about the benefits of having a sole supplier, nor its agreement, at Rema’s request, to prepare a draft planogram which excluded the Synnøve Finden and Q-dairies brands and to manufacture a private label cheese for Rema were unacceptable means. The Supreme Court affirmed the District Court's ruling and set aside the Competition Authority's decision. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-1251-A, case no. 2010/1947, civil appeal against judgment.
21 June 2011
International private law. Jurisdiction. Financial loss. Lugano Convention 1988 Article 5 (3). Marketing Act 1972 section 1 and section 8a.
A Norwegian clothing manufacturer claimed to have suffered loss of income because a Swiss company had copied, manufactured and sold jackets developed by the Norwegian company. The question before the Supreme Court was whether the financial loss which the company claimed to have suffered was deemed to have been suffered in Norway. According to the case law of the European Court, legal proceedings for financial loss can only be filed in the country of the place where direct loss is suffered. The majority of the Supreme Court held that the loss of income that the company claimed to have sustained must be deemed to have been suffered in Switzerland or in the countries to which the jackets were sold. The fact that the economic loss ultimately ended up with the Norwegian producer in Norway could not be decisive. The Norwegian courts therefore had no jurisdiction to entertain legal proceedings for damages, and the Supreme Court rejected the appeal. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-1240-A, case no. 2010/1972, civil appeal against interlocutory order.
1 June 2011
Disclosure of evidence. Protection against self-incrimination for corporations. ECHR Article 6 (1). Criminal Procedure Act section 210 and section 123
The case concerned an order made against a number of corporations to disclose evidence pursuant to the Criminal Procedure Act section 210. The main question before the Supreme Court was whether the prohibition against self-incrimination in the ECHR also applies to legal entities. After reviewing the case law of the ECHR and the European Court of Justice, the Supreme Court held that corporations are protected by the self-incrimination rule unless there is a legal basis for making an exception. There was no such legal basis in the present case. The protection against self-incrimination applied whether the corporations were registered in Norway or abroad, see ECHR Article 8 The Supreme Court found that the rule against self-incrimination in section 123 of the Criminal Procedure Act must be interpreted in the same way as ECHR Article 6 (1) so that the safeguards in the provision also apply to corporations. The Supreme Court set aside the ruling of the Court of Appeal on the grounds that it was based on an erroneous interpretation of the law and also contained several procedural errors.
Reference: HR-2011-1118-A, case no. 2011/456, criminal appeal against interlocutory order.
5 May 2011
Employment. Dismissal of pilots. Age discrimination.
The case concerned the validity of the dismissals of ten pilots employed be SAS Norge AS. All of the pilots were over 60 and the main question before the Supreme Court was whether the dismissals were invalid on the grounds of unlawful age discrimination. The Supreme Court held that the selection of the dismissed pilots was based on fair and unbiased considerations; see the Working Environment Act section 15-7. The age-based discrimination was not illegal within the framework of the Working Environment Act section 13-3 (2), as this provision must be interpreted in light of Council Directive 2000/78/EC and the practice of the European Court of Justice. Consequently, there were no grounds for compensation for non-pecuniary loss pursuant to the Working Environment Act section 15-12 (2). No order for legal costs was made before any instance because the case had raised fundamental issues that were not previously debated in Norwegian law, see the Dispute Act section 20-2 (3).
Reference: HR-2011-910-A, case no. 2010/1676, civil appeal against judgment.
4 March 2011
License. Agricultural property. Residence obligation. Allodial Rights Act prior to a statutory amendment dated 1 July 2009 section 1 and section 27a. Concession Act section 9.
The case concerns the validity of an administrative decision of the County Agricultural Board in the County of Sogn and Fjordane, which rejected an application for a license to purchase an agricultural property where the license obligation had been imposed due to a breach of a statutory residence obligation. The main reason for the rejection was that the transferee did not intend to take up residence at the property. The County Board had found that the property must be deemed to be useable for agricultural purposes pursuant to the now-abolished conditions in section 1 of the Allodial Rights Act, although the case was a borderline case. A majority of the Supreme Court held that the decision of the County Agricultural Board must be repealed because the County Board had not exercised its discretion in accordance with the criteria specified in the (former) Allodial Rights Act section 27a, subsection 2, but in accordance with the general licensing criteria in section 9 subsection 1 of the Concession Act. The judgment was passed with dissenting votes (3-2).
Reference: HR-2011-476-A, case no. 2010/1716, civil appeal against judgment.
7 December 2010
Tax law. EEA law. Deficient implementation. Taxation of dividends. Taxation Act section 10-12 and section 10-13. Article 40 of the EEA Agreement.
The case concerns a claim for compensation for deficient implementation of the Agreement on the European Area (the “EEA Agreement”), alternatively a claim for restitution of tax paid without authority in law. The Norwegian tax rules were based on the assumption that the prohibition against restrictions on the free movement of capital in Article 40 of the EEA Agreement did not prohibit discrimination in taxation, see the Taxation Act section 10-12 and section 10-13. The case before the Supreme Court concerned what consequence followed now that it was established that the discrimination in taxation was unlawful, see e.g. the judgment of the EFTA Court in case E-104 . The Supreme Court held that the legal position in the Autumn of 2003 was not so clear that the Norwegian state could be held liable for the fact that the rules on taxation of dividends were not amended by then. The Supreme Court stated that it was unlikely that the EFTA Court would uphold the opinion expressed in the Fokus Bank case (case no. E-1/04 ) if a similar case was brought before the Court again. The case illustrates the disadvantages of establishing an obligation on states to react at an early stage in the development of law. The Supreme Court dismissed the appeal.
Reference: HR-2010-2082-A, case no. 2010/821, civil appeal against judgment.
16 March 2010
Employment law. Transfer of undertaking. Employment Act section 16-1.
The issue in the case was whether the change of supplier of ground handling services at Bardufoss Airport represented a transfer of undertaking pursuant to section 16-1 of the Employment Act. The Supreme Court held that the change of supplier of ground handling services from SGS to Bardufoss Flyservice AS did represent a transfer of undertaking. The respondents were therefore employed by Bardufoss Flyservice AS with the rights and obligations in their employment contracts with SGS. The decision was based on court practice, particularly the practice of the European Court of Justice, where the scope of the provisions relating to transfer of undertakings was somewhat wider than might be deemed to follow from a literal interpretation of the term. The particular circumstances of the case fell within the scope of the term according to this practice, although they were not at its core. Appeal rejected.
Reference: HR-2010-473-A, case no. 2009/1618, civil appeal against judgment.
18 February 2010
Employment law. Dismissal. Age discrimination. Seafarers Act. Directive 2000/78/EF
The issue in the case was whether a dismissal on the grounds of age pursuant to section 19 no. 1 subsection 6 of the Seafarer’s Act was a violation of the prohibition against discrimination in section 33, cf. section 33 B of the Seafarer’s Act. The Supreme Court commented that it was questionable, on the basis of a proportionality assessment, whether the special retirement age of 62 years for seamen was compatible with the EU Directive 2000/78/EF . However, there was a wide margin of discretion in this area, and the balancing of conflicting interests was therefore a matter that should principally be undertaken by the legislator. The Supreme Court recalled that the legislator had consciously decided that the retirement age for seamen should be 62 years and that the retirement age shall apply for seamen in general, i.e. in domestic and foreign trade. Since Norway was not bound by international law to incorporate the Directive, and the legislator had applied it simply because it found it appropriate to do so, the Court should be cautious in case of doubt in setting aside the assessments that the legislator had made when deciding at the same time to retain the provision in section 19 no. 1 subsection 6. The Supreme Court held that the retirement age of 62 years for seamen was not a violation of Article 6 no. 1 of Directive 2000/78/EF and rejected the appeal. Dissent 4-1.
Reference: HR-2010-303-A, case no. 2009/1594, civil appeal against judgment.
22 December 2009
Tax law. Value added tax. Corporate finance services. Value Added Tax Act section 5b no. 4 (e).
The case concerns the validity of a decision to recalculate value added tax payable by a securities trading company for fees received for corporate finance services in connection with the merger of two financial institutions and, for one of the companies, for fees received for similar services in connection with the sale of two companies. The main issue before the Supreme Court concerned interpretation of section 5b no. 4 (e) of the Value Added Tax Act, which grants an exemption for VAT for “the sale of … financial instruments and the like, and brokerage services during such supply “. The Supreme Court held that the appeal from ABG Sundal Collier Holding ASA must be dismissed, while the appeal from Carnegie ASA was allowed in part.
Reference: HR-2009-2396-A, case no. 2009/1153, civil appeal against judgment.
2 December 2009
International private law. Choice of law. Damages. Protection of privacy. Freedom of speech.
The issue in the case was which country’s law was to apply to determine the right to damages in a case concerning alleged breach of personal privacy. The majority of the Supreme Court, like the lower courts, found that Norwegian law should apply, but for different reasons. The majority did not take a position on the general choice of law rules applicable in cases concerning protection of privacy. Pursuant to the Disputes Act section 11-3, the court is obliged to ensure that there is a proper basis on which to apply the law. The Supreme Court found that it would not be possible to ascertain the rules of afghan law with a sufficient degree of certainty. In these circumstances, the Court had to apply Norwegian law. One justice held that Norwegian law was the proper choice of law pursuant to general Norwegian principles of the choice of law.
Reference: HR-2009-2266-A, case no. 2009/869, civil appeal against judgment.
24 June 2009
Alcohol advertising. EEA law. Alcohol Act section 9-2 subsection 1.
The case concerns the validity of the Marketing Board’s decision of 22 June 2005 concerning breach of the prohibition against alcohol advertising in section 9-2 subsection 1 of the Alcohol Act. The question before the Supreme Court was whether an absolute prohibition is deemed necessary. This is first and foremost a question of whether there are suitable alternative measures to obtain the same goal but which to a lesser degree limit restrictions on trade within the EEA. In addition, it has to be decided whether to weigh the political issues related to alcohol policy against the principle of freedom of movement of goods. The Supreme Court came to the same conclusion as the Court of Appeal and held that the decision of the Marketing Board did not violate EEA law. The Supreme Court dismissed the appeal.
Reference: HR-2009-1319-A, case no. 2009/43, civil appeal against judgement.
5 June 2009
Immigration law. Extradition. Immigration Act section 58. Council Directive 64/221/EØF.
The case concerns judicial review of an extradition order pursuant to the special rules for citizens of member states of the EEA Agreement. A Polish citizen was convicted for the second time of serious drug felonies in Norway. He also had three other criminal convictions against him. The Directorate of Immigration issued an extradition order, limited to five years, pursuant to section 58 subsection 1 cf. subsection 2 of the Immigration Act. The Court of Appeal found that the order was void and gave decisive weight to the defendant’s family ties in Norway. The Supreme Court found that the order of the Directorate of Immigration was valid. The convictions clearly demonstrated that the defendant had no inhibitions about contravening societal norms. In such circumstances, the extradition was not disproportionate onerous on his family
Reference: HR-2009-1151-A, case no. 2009/205, civil appeal against judgement.
28 May 2008
Claim for restitution of seat and passenger charges. EEA Agreement Article 36. Council Regulation no. 2408/92 (Air Passenger Transport Regulation) (392R2408).
The case concerns a claim for restitution of seat and passenger charges imposed by the Norwegian government in breach of the EEA rules. The main question was whether the claim should be limited to the actual financial loss suffered by the airline so that a deduction should be made for the amount of the charge that had been passed on to and borne by passengers. The case also concerns a question regarding surcharge.
Reference: HR-2008-935-A, case no. 2007/1738, civil appeal.
3 April 2008
Reduction in damages. Motor Vehicle Liability Act section 7 subsection 1.
The case concerns a claim for compensation for personal injury under a motor insurance policy and the extent to which the measure of compensation should be reduced due to the victim’s contribution to the injury, see the Motor Vehicle Liability Act section 7 subsection 1.
Reference: HR-2008-600-A, case no. 2007/1341, civil appeal.
26 June 2007
Lottery case. State monopoly gaming machines. EEA law.
The issue in the case was whether a statutory amendment, which gives Norsk Tipping AS the exclusive right to run slot machines, must be set aside as contrary to Articles 31 and 36 of the EEA Agreement, see Act of 27 November 1992 section 2. Article 31 concerns the right of establishment and Article 31 concerns the freedom to provide services in the EEA.
Reference: HR-2007-01144-A, case no. 2005/1320, civil appeal; see also the Judgement of the EFTA Court in case E-1/06.
5 February 2007
Value added tax. Joint registration. Value Added Tax Act section 12. EEA Agreement art. 31 and 36, cf. art. 4
The case concerns the validity of a decision of the Directorate of Taxes which disallowed joint registration in the VAT-register.
Reference: HR-2007-00257-A, case no. 2006/1317, civil appeal.
19 October 2006
Deadline for bringing action. Payment and Collection of Taxes Act section 48 no. 5
The issue in the case was whether the deadline in the Payment and Collection of Taxes Act section 48 no. 5 applies to an action for compensation for loss resulting from failure to adequately implement the main part of the EEA Agreement in Norwegian tax law.
Reference: HR-2006-01795-A, case no. 2006/543, civil interlocutory appeal.
19 October 2006
Deadline for bringing action. Payment and Collection of Taxes Act section 48 no. 5
There were two main issues in the interlocutory action. The first issue was whether the deadline for bringing an action pursuant to the Payment and Collection of Taxes Act 1952 section 48 no. 5 applies to an action for compensation/reimbursement. The second issue was whether the applicant should be granted reinstatement for breach of the deadline for bringing a claim for invalidity or annulment of the tax assessment decision.
Reference: HR-2006-01796-A, case no. 2006/1284, civil interlocutory appeal.
7 December 2005
Contract law. Public procurement. Military equipment. Compensation
The case concerns a claim for compensation after a competitive bid with negotiations was held for the procurement of military equipment, in particular what legal principles apply and whether general principles of procurement law could apply notwithstanding that the procurement of military equipment is not governed by legislation. Reference: HR-2005-01917-A, case no. 2005/843, civil appeal.
3 May 2005
Locus standi. EEA law
The case concerns the locus standi of a group of employees in a case concerning judicial review of a decision of the tax appeal board ordering the employer to pay national insurance employer’s contribution. The primary question was whether locus standi could be founded in EEA law. Reference: HR-2005-00713-A, case no. 2004/1706, civil interlocutory appeal.
7 October 2004
Trademark law. Domain name. Trademark Act sections 4 and 6, Trademark Directive (89/
The issue in the case was whether the use of the domain name “volvoimport.no” was an infringement of the registered trademark “Volvo”. The Supreme Court upheld the judgement of the Court of Appeal. Reference: HR-2004-01671-A, case no. 2004/213, civil appeal.
4 June 2004
Parallel import of drugs. Trade Marks Act section 4. Trade Marks Directive 89/104/EEC
The case concerns the parallel import of drugs, more particularly the right of the parallel importer to use his own packaging with vertical or horizontal coloured stripes or other graphical markings on the packaging for repacked drugs that carry the manufacturer’s trade mark, see section 4 of the Trademarks Act. The case gives rise to questions concerning the application of Article 7(2) of the First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to Trade Marks (89/104/EEC) (The Trade Mark Directive) Reference: HR-2004-00981-A, case no. 2002/582, civil appeal.
11 April 2002
Trade Marks Act. Registered trade mark.
The case concerned whether the expression "God Morgen" ("Good Morning") could be registered as a trade mark for orange juice. Case history: Oslo City Court no. 99-00017 A/25 - Borgarting Court of Appeal LB-2000-02229 A/03 - Supreme Court HR-2001-01049, civil appeal.
16. November 2000
The Finnanger Case. The Motor Vehicles Liability Act section 7 (contributory negligence). EEA-law. Case concerning a claim for damages pursuant to the Motor Vehicles Liability Act, and settlement under an accident insurance from a passenger who was permanently injured when the car in which she was a passenger, and which was driven by a person who was under the influence of alcohol, left the road. A primary issue in the case was whether section 7, subsection 3 litra b of the Motor Vehicles Liability Act accords with three EEA motor insurance directives and, furthermore, to what extent a Norwegian legal provision can be interpreted narrowly in order to avoid conflict with EEA-law in the situation where the legislature has wrongly assumed that the legal provision harmonises with the EEA-provision. Finally, the case concerned reduction of the insurance sum payable on the grounds of gross negligence on the part of the assured, see the Insurance Agreements Act section 13-9. Case history: Frostating Court of Appeal LF-1998-00997 A and LF-1998-00998 A - Supreme Court HR-2000-00049B, no. 55/1999.
15. September 2000
Penal Code section 48a. Case concerning the application of the provisions of the Penal Code section 48a on corporate criminal liability in relation to a one-man heavy transport company, for breach of the regulations concerning driving- and resting time. Case history: Sunnmøre District Court no.99-00008 - Frostating Court of Appeal LF-1999-00808 M - Supreme Court HR-2000-00079 (criminal appeal).