EEA law state liability - actions against the State for judicial decisions

The case concerns the right to bring an action for damages against the State based on a judicial decision alleged to constitute an infringement of EEA law. The central issue is the extent to which the absolute procedural conditions in section 200 subsection 3 of the Courts of Justice Act, governing actions for damages against public authorities for judicial decisions, must be set aside to comply with Norway’s obligations under the EEA Agreement; see section 1 of the EEA Act, read in conjunction with section 2.

In July 2017, Dartride AS applied to Oslo municipality for 150 taxi licences. The municipality rejected the application on the ground that a maximum number of licences had been set. In May 2019, the company brought an action against the municipality seeking damages for the rejection, arguing that it was contrary to Article 31 of the EEA Agreement on freedom of establishment.

The dispute proceeded through several rounds in court, without success for the company. Dartride subsequently brought an action for damages against the State on the ground that the courts had applied EEA law incorrectly. 

In August 2023, the company brought a new action against the State, seeking damages for the courts' handling of the municipality's rejection of the application for 150 tax licences. It asserted that the Court of Appeal, in 2020, had committed manifest errors of law for which the State was liable under EEA law.

The State argued that the action was inadmissible in its entirety under section 200 subsection 3 of the Courts of Justice Act. In the State's view, the principle of state liability in EU law did not apply to EEA law, at least it did not extend to decisions of courts other than the Supreme Court. Dartride responded by contending that the Supreme Court's Appeals Selection Committee had infringed EEA law by its decision of 10 March 2021 refusing leaving to appeal. 

In January 2024, the District Court held that EEA law provides no basis for state liability arising from judicial decisions contrary to the EEA Agreement. As the conditions in section 200 subsection 3 of the Courts of Justice Act had been relied upon, the action was struck out as inadmissible. Dartride AS appealed, and in July 2024 the Court of Appeal decided to seek an advisory opinion from the EFTA Court under section 51 a of the Courts of Justice Act.    

In its advisory opinion of 5 June 2025 in Case E-25/24 Dartride, the EFTA Court concluded that State liability under EEA law may arise where a national court adjudicating at last instance has manifestly infringed applicable EEA law. Subsequently, the State accepted liability under EEA law and that section 200 subsection 3 of the Courts of Justice Act must be interpreted restrictively in relation to such claims.

The State nevertheless maintained that the principle of State liability must be nuanced in the light of the differences between the EU and the EEA, and that such liability in any event extends only to decisions of the Supreme Court. Accordingly, the State argued that the action for damages based on the Court of Appeal’s judgment of November 2020 had to be struck out.

In October 2025, the Court of Appeal allowed the action to proceed in its entirety, including the action for damages based on the Court of Appeal’s November 2020 judgment. The State appealed to the Supreme Court. The Chief Justice decided that the case be heard by a grand chamber composed of eleven justices.

Like the EFTA Court, the grand chamber unanimously concluded that EEA law contains a principle of state liability corresponding to that under EU law. It endorsed the considerations emphasised by the EFTA Court in support of such liability. Considerations suggesting otherwise, namely the finality of judicial decisions and the independence of the courts, did not consitute a sufficiently weighty reason to depart from the advisory opinion. 

As regards the principle of liability, the Supreme Court stated that it is a relevant factor in assessing liability whether an advisory opinion has been requested from the EFTA Court. However, this factor carries less weight in the EEA than in the EU.

With respect to the scope of liability, the Supreme Court held that it applies only to decisions by courts adjudicating at last instance. This includes decisions by a division of the Supreme Court and by the Supreme Court’s Appeals Selection Committee. Actions for damages arising directly from decisions of the District Court or the Court of Appeal fall outside the scope of the principle.

The case before the Supreme Court did not concern whether the State was liable towards Dartride AS, but whether the action should be allowed to proceed. The grand chamber concluded that an action for state liability under EEA law based on a judicial decision may be brought only where the claim arises from a decision of a court adjudicating at last instance. Claims against the State arising from judicial decisions that satisfy neither the requirements of EEA law nor the conditions in section 200 subsection 3 of the Courts of Justice Act must be struck out as inadmissible. Consequently, the part of the action based on the Court of Appeal’s November 2020 judgment was struck out.

The case also raised issues concerning the Supreme Court’s jurisdiction in appeals against orders and awards of costs where pro bono arrangements are involved.

Read the order of the Supreme Court (PDF)

Area of law: EEA law. State liability for judicial decisions.

Key paragraphs: 55, 58, 59, 68–73, 82

Justices: Øie, Falkanger, Bull, Bergsjø, Høgetveit Berg, Thyness, Sæther, Hellerslia, Stenvik, Lund, Vang