The ACER case - The Storting acted in accordance with the Constitution

In 2018, the Storting consented to the regulations in the EU's third energy market package being included in the EEA Agreement and becoming binding on Norway. Towards Norway, the EFTA Surveillance Authority (ESA) has powers that otherwise lie with the European Union Agency for the Cooperation of Energy Regulators (ACER). The Storting's decision was made by a simple majority in accordance with Article 26 subsection 2 of the Constitution. The organisation No to the EU brought an action against the State holding that the transfer of powers to ESA that the decision entailed was more than "of limited significance", and that the matter should therefore have been dealt with in accordance with section 115 of the Constitution, which requires a three-quarters majority. Like the previous instances, the Supreme Court came to the conclusion that the transfer of powers was "of limited significance". It was pointed out that the ACER Regulation gives ACER/ESA subsidiary administrative powers to make individual decisions in a limited area – in connection with cross-border infrastructure for electric power transmission – to ensure efficient and reliable use of this infrastructure. ACER/ESA cannot set electricity prices, decide whether to build new foreign cables or prohibit restrictions on the export of power, and any effects on electricity prices of ACER/ESA's decision-making powers will be marginal, considered in isolation. It therefore concerned a limited transfer of powers at the extreme of what can be considered a transfer. The powers granted to ESA to make decisions on the provision of information and to impose fines also represents a very limited transfer of power. The Storting's decision in 2018 was thus made in accordance with the Constitution. The Supreme Court further stated that the "of limited significance" assessment should be linked to the specific transfer of powers presented to the Storting in 2018, and should not be viewed in context with previous transfers of powers in the same area. The Supreme Court also found that the Storting's view plays an important role if there is reasonable doubt as to what is "of limited significance". If, on the other hand, it is beyond reasonable doubt that the transfer of powers is not in accordance with the Constitution, the Storting's view must give way. The appeal against the Court of Appeal's judgment was dismissed.

Read the whole judgment

Areas of law: State law, Article 26 subsection 2 and Article 115 of the Constitution. 

Key paragraphs: 104, 143, 197, 203, 205, 238, 243, 250, 251.

Justices: Øie, Webster, Matheson, Falkanger, Normann, Bull, Bergsjø, Ringnes, Arntzen, Falch, Bergh, Berglund, Høgetveit Berg, Thyness, Steinsvik, Sæther, Hellerslia