The "Nav case" - Acquittal in reopened criminal case on social security fraud
The Supreme Court judgment 2 July 2021, HR-2021-1453-S, (case no. 20-046393STR-HRET), criminal case, appeal against judgment.
The Public Prosecution Authority (Counsel Henry John Mæland) v. A (Counsel Anders Morten Brosveet and John Christian Elden).
Attending in the case: The State represented by the Ministry of Labour and Social Affairs (The Office of the Attorney General represented by Pål Wennerås)
Justices: Indreberg, Webster, Matheson, Falkanger, Noer, Bull, Falch, Bergh, Østensen Berglund, Høgetveit Berg og Steinsvik
In a reopened case on social security fraud, a grand chamber of the Supreme Court acquitted the defendant.
The defendant had received work assessment allowance (arbeidsavklaringspenger) while staying in Italy without having notified the Norwegian Labour and Welfare Administration (NAV) or having applied for NAV's approval. The basis for the original conviction was that the defendant had breached the requirement in section 11-3 of the National Insurance Act of stay in Norway to receive such benefits, and thus secured "unlawful gain" by fraud.
The Supreme Court's judgment, HR-2017-560-A, which concerned the sentence only, was reopened by the Criminal Cases Review Commission after questions had been raised whether NAV's application of the Norwegian stay requirement in connection with travel within the EEA was compatible with EEA law. During the preparatory phase of the new hearing, the Supreme Court requested and received an advisory opinion from the EFTA Court.
The Supreme Court found that the stay requirement in section 11-3 subsection 1, cf. subsection 3, of the National Insurance Act was contrary to EEA law. After Regulation (EC) No 883/2004 on social security coordination was incorporated into the EEA Agreement on 1 June 2012, the requirement of stay in Norway was contrary to Articles 7 and 21 of this Regulation. Before this Regulation entered into force, the stay requirement was contrary to Article 36 of the EEA Agreement on the freedom to provide services.
The ruling gives guidance to the authorities' and the courts' further proceedings in this matter.