The plenary of the Supreme Court finds that the Storting with a general majority may consent to the incorporation of the fourth railway package into the EEA Agreement
Supreme Court opinion to the Storting in accordance with Article 83 of the Constitution, 26 March 2021, HR-2021-655-P, (case no. 21-001061SIV-HRET)
Justices: Øie, Matningsdal, Skoghøy, Indreberg, Webster, Matheson, Falkanger, Normann, Noer, Bull, Kallerud, Bergsjø, Ringnes, Arntzen, Falch, Bergh, Østensen Berglund, Thyness, Steinsvik
In accordance with Article 83 of the Constitution, the Storting has asked the Supreme Court whether the Storting, with a legal basis in Article 26 subsection 2 of the Constitution, may consent to two decisions by the EEA Committee on the incorporation into the EEA Agreement of Directive 2012/34/EU on the establishment of a single European railway area and legislative acts that constitute the fourth railway package. The fourth railway package entails a transfer of the power to make certain types of decisions for railway undertakings that wish to operate in Norway and for rolling stock producers from Norwegian regulatory authorities to the European Railway Agency. The Supreme Court answered in the affirmative. The Court stated that Article 115 of the Constitution would not be applicable, as Norway is not a member of the EU. The alternative to Article 26 would therefore be an ordinary constitutional amendment in accordance with Article 121. The Supreme Court's opinion provides an extensive outline of case law and legal theory from both before and after the adoption of Article 115 – the former Article 93 – in 1962. The opinion stresses the development of the Storting's practice – especially after the EEA Agreement was adopted in 1992 – which entails that consent to a transfer of power may only be granted with a general majority under Article 26 subsection 2 if the transfer is not radical. This has also been done in some cases where power has been transferred to organisations to which Norway does not belong. In the Supreme Court's view, this interpretation of the Constitution must be considered applicable law. The transfer of power to the European Railway Agency under the rules in the fourth railway package cannot be considered radical. The opinion is unanimous.