No the EU may bring an action against the State regarding the EU's third energy market package

​Supreme Court order 1 March 2021, HR-2021-417-P, (case no. 20-072085SIV-HRET), civil case, appeal against order.

No to the EU (Counsel Kjell Magnus Brygfjeld) (Assisting counsel: Bent Endresen) v. The State represented by the Ministry of Foreign Affairs (The Office of the Attorney General represented by Fredrik Sejersted)

Background to the case

No to the EU has brought an action against the State because, in the organisation's opinion, it was contrary to the Constitution that the Storting with a general majority consented to the incorporation of the EU's third energy market package into the EEA Agreement. The organisation finds that the consent involves such a radical transfer of power to an international body that the decision should have been made with a three-fourths majority.

The State contends that the case is inadmissible as it does not involve such a specific legal claim as is required to be raised in court. The District Court and the Court of Appeal supported the State in this. Like the lower instances, the Supreme Court only considered the action's admissibility in court.

The Supreme Court finds that the courts in principle may review whether the Storting acted in accordance with the Constitution 

In 2015, the Storting adopted a new Article 89 of the Constitution. The provision lays down, in line with long-standing case law, that the courts have the power and the duty to review whether applying a statutory provision is contrary to the Constitution. The Article was specified in 2020. A united Supreme Court finds that Article 98 in principle allows constitutional review of a consent by the Storting to the entry into of international agreements.

The Supreme Court is split when it comes to the manner in which the constitutional issue may be reviewed

The Supreme Court was split twelve to five as concerned the circumstances under which such constitutional issues may be reviewed. The disagreement relates to which limitations follow from the Constitution's Article 89 on constitutional review and from section 1-3, cf. section 1-4, of the Dispute Act on which cases may be brought before the courts.

The majority finds that none of the provisions prevents No to the EU from bringing the action. The minority finds that Article 89 of the Constitution precludes such an action. As ordinary statutory provisions must yield when in conflict with the Constitution, there was no reason for the minority to consider the right to bring an action under the Dispute Act.  

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