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

The case concerns the right to bring an action for damages against the State based on a judicial decision allegedly contrary to EEA law. The principal issue is the extent to which the absolute procedural bars in section 200 subsection 3 of the Courts of Justice Act on actions for damages against public authorities based on judicial decisions must yield ro Norway’s obligations under the EEA Agreement, see section 1 of the EEA Act, read in conjunction with section 2.

In July 2027, Dartride AS applied to Oslo municipality for 150 taxi licences. The municipality rejected the application because a cap had been set on the number of licences. In May 2019, the company brought an action for damages against the municipality in May 2019, arguing that the municipality’s decision infringed Article 31 of the EEA Agreement on the freedom of establishment.

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

In August 2023, the company brought a new action, seeking to hold the State liable for the court proceedings relating to the municipality's rejection of the application for 150 tax licences. The company contended that the Court of Appeal, in 2020, had committed manifest errors of law for which the State was liable under EEA law.

The Stat argued that the action was inadmissible in its entirety under section 200 subsection 3 of the Courts of Justice Act. According to the State, the principle of state liability in EU law did not apply to EEA law, at least not in relation to decisions by courts other than the Supreme Court. Dartride further alleged that the Supreme Court's Appeals Selection Committee had infringed EEA law when, in March 2021, it refused leave to appeal against the Court of Appeal's judgment from 2020. 

In January 2024, the District Court held that EEA law did not provide a 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 were not satisfied, the action was dismissed as inadmissible. Dartride AS appealed, and in July 2024 the Court of Appeal decided to request an advisory opinion from the EFTA Court under section 51a of the Courts of Justice Act.    

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

The State nevertheless maintained that the principle of liability had to be adapted to reflect the differences between the EU and the EEA and that, in any event, liability could arise only from decisions of the Supreme Court. Accordingly, the State argued that the claim 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 claim 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 should 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, were not considered sufficiently weighty to justify a departure from the EFTA Court’s interpretation.

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 ruling in the last instance. This includes decisions by a division of the Supreme Court and by the Supreme Court’s Appeals Selection Committee. Claims for damages arising directly from rulings by 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 could be brought. 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 ruling in the last instance. Claims for damages against the State based on 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 dismissed 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 (Norwegian only) (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