The Norwegian Concept of “Room for Manoeuvre”: A Nail in the EEA’s Coffin

The Norwegian concept of “Room for Manoeuvre” (RFM) is a political programme of resistance to European Economic Area (EEA) law, the European Free Trade Association (EFTA) Court and the EFTA Surveillance Authority (ESA), but also to the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). The central figure in this regard is Fredrik Sejersted, the current Norwegian State Attorney. As a staff lawyer for the Office of the State Attorney, Mr. Sejersted argued four landmark cases before the EFTA Court between 2004 and 2006: E-4/04 Pedicel concerning the national ban on alcohol advertising; E-1/06 Gaming Machines and E-3/06 Ladbrokes concerning the state gambling monopolies; and E-2/06 Hjemfall on the reversion system for Norwegian waterfalls. Under Norwegian law, waterfalls reverted after 60 years, with the exception of publicly owned waterfalls. Since 88% of the production was controlled by the public sector, a large proportion of Norwegian waterfalls were, however, not subject to reversion. This put private companies at a significant disadvantage. Mr. Sejersted lost three and a half of these cases, but back in Norway he proclaimed he had won them all. Indeed, the EFTA Court’s rulings in the Gaming Machines and Ladbrokes cases were not correctly implemented by the Norwegian courts. In the Hjemfall case, the Norwegian Parliament amended the relevant legislation in a way that allowed the retention of the home-fall system for Norwegian waterfalls. And in the Pedicel case, the Norwegian Supreme Court exploited an obvious (and probably intended) error in the Norwegian translation of the EFTA Court’s judgment to save the advertising ban. What the State Attorney lost in the EFTA Court proceedings, he was thus able to take back in the Norwegian courts. Legal arguments that would have been unsuccessful before the EFTA Court, distortion of the facts and preaching a wrong proportionality test secured the final result in each case. The EEA law principle of loyalty was flatly disregarded. ESA never had the strength to enforce this duty laid down in Article 3 of the EEA Agreement.