The ACER case
The Supreme Court is to determine whether the Storting could consent to the EU's third energy market packet with a simple majority.
The ACER case will be heard by the plenary of the Supreme Court. The hearing will be open to the public in the Supreme Court Building and livestreamed on this website.
The plenary will be composed of seventeen justices. Justices Indreberg and Noer will not participate.
Parties to the case
No to the EU
(Counsel Kjell Magnus Brygfjeld and Bent Endresen)
v.
The State represented by the Ministry of Foreign Affairs
(The Office of the Attorney General represented by Fredrik Sejersted and Lisa-Mari Moen Jünge)
Subject matter
In 2018, the Storting decided to consent to the rules in the EU's third energy market package being implemented into the EEA Agreement and made into Norwegian law. The stated purpose of the energy market package is to facilitate the trading of electricity and natural gas across national borders. The package largely carries on the previous rules, but also involves some key changes. The creation of the EU's energy agency ACER is one of the elements in the package.
The decision on consent was made in the Storting by a simple majority in accordance with Article 26 subsection 2 of the Constitution. This procedure can be followed if the decision involves transfer of authority that is only "low intrusive". No to the EU believes that the procedure contravenes the Constitution. In the organisation's view, the implementation of the third energy market package involves such an intrusive transfer of authority to ACER that the Storting's decision should have been made with a three-fourths majority as prescribed in Article 115 of the Constitution.
The Supreme Court is to decide whether the implementation of the third energy market package involves more than just a low-intrusive transfer of authority, so that the appropriate procedure would have been that in Article 115 of the Constitution. In this regard, the Supreme Court is also to determine the extent to which the courts may review the Storting's decision in an area such as this. There is also a question of whether the transfer of authority in the third energy market package should be assessed in isolation, or whether it must be seen in connection with previous and future transfers of authority within the energy sector.