Kiri

Reg istered at the EFTA Court under N' E-14l23-1 on 18th day of October 2023 EFTA ESA Authority Surveillance Brussels, 18 October 2023 Case No: 90307 Document No: 1368958 ORIGINAL IN THE EFTA COURT APPLICATION submitted pursuant to Article 31(2) of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by THE EFTA SURVEILLANCE AUTHORITY represented by Hildur Hjorvar, Kyrre lsaksen, and Melpo-Menie Jos6phidds, Department of Legal & Executive Affairs, acting as Agents, AGAINST THE KINGDOM OF NORWAY Seeking a declaration that Norway has failed to adopt the measures necessary to fully implement the Act referred to at point 13 of Annex Vl to the Agreement on the European Economic Area (Drlective 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member Sfafes by improving the acquisition and preseruation of supplementary pension rightsl into its internal legal order. Avenue des Arts 19H, 1000 Brussels, tel: +32 2286 18 11, www.eftasurv.int Page 2 E SA I i:l'iJ,i,'"eirrance Table of Contents 1 INTRODUCTION .3 2 PRE.LITIGATIONPROCEDURE .3 3 RELEVANT LAW I 3.2 National Law 10 4 SUBMISSIONS 11 4.1 General principles 11 4.2 The scope of the present application ..12 4.3 Norway's ongoing failure to fulfil its ob|igation............... .........14 4.3.1 The obligation incumbent on EFTA States under Article 4(1)(c) of the Act ..14 4.3.2 Deficiencies in the notification of 28 June 2023......... ..16 5 CONCLUS!ON.......... ..19 6 SCHEDULE OF ANNEXES ..21  Page 3 ESA li:HJ,V"eirrance 1 INTRODUCTION 1. By this application, the EFTA Surveillance Authority ("ESA") brings an action under Article 31 of the Agreement between the EFTA States on the Establishment of a Surveillance and a Court of Justice ("SCA";.1 2. ESA seeks a declaration from the Court that Norway has failed to adopt the measures necessary to fully implernent the Act referred to at point 13 of Annex Vl to the Agreement on the European Economic Area ("EEA" or "EEA Agreement"), that is Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member Sfafes by improving the acquisition and preseruation of supplementary pension rights ("the Act") into its internal legal order, as required by Article I of the Act and by Article 7 EEA, 2 PRE.LITIGATION PROCEDURE 3. On 4 October 2018, after correspondence,2 ESA sent a letter of formal notice to Norway, concluding that as Nonrvay had failed to take the necessary measures to make the Act part of its internal legal order, it had failed to fulfilits obligations under Article 7 of the EEA Agreement.3 4. On 4 December 2018, the Norwegian Government replied to the letter of formal notice,a stating that the preparation of legislative amendments was underway and that a proposal would be submitted to Parliament as soon as possible. The Government also emphasised that "Norwegian legislation already contain[ed] provisions regarding conditions governing the acquisition of right under supplementary pension schemes, in line with the [Actf', and that "the relevant acts also contain[ed] information obligations that mainly reflected the [ActJ'.5 5. Having considered Norway's response, ESA maintained the view that the Act had not been made part of the Norwegian internal legal order as required by Article 7 EEA and Article 8 of the Act and delivered a reasoned opinion on 6 March 2019.6 1 This application is based on College Decision 102l23lCOL (Document no. 1382866, Annex A.1 to this Application), taken on 19 July 2023. 2 Details of the prior correspondence between ESA and Nonray are set out in the letter of formal notice, see footnote 3 below. 3 Document no. 929909; Annex A.2 to this Application. a Document no. 1041705; Annex A.3 to this Application. 5ldem. 6 Document no. 1051 171; Annex A.4 to this Application.  Page 4 E SA I i:l'iJ,y"eirrance Norway was given two months in which to take the measures necessary to comply with the reasoned opinions, i.e. no later than 6 May 2019. 6. ln its reply of 21 June 2019, the Norwegian Government reiterated that"Norwegian legislation contain[ed] national measures that [were] in line with the [Actl'. The Government indicated that a proposal for legislation implementing parts of the Act had been submitted to Parliament.T 7. On 13 February 2020, having still not received a Form 1 in respect of the above- mentioned legislative initiatives, ESA contacted the Norwegian Government informally to seek information on the adoption of legislative amendments intended to impfement the Act. ln its reply of 14 February 2020, the Norwegian Government acknowledged that the mentioned legislative amendments had been passed, and had come into effect on 1 January 2020. The Government stated it would submit the Form 1 "as soon as possib/e'. On 31 March 2020, having still not received a Form 1 , ESA sent a further informal reminder to the Norwegian Government.s 8. On 8 April 2O20 the Norwegian Government submifted a Form 1 to ESA, dated 3 April 2020.e As the Form 1 did not indicate the date of entry into force of the legislative amendments to which it referred, ESA requested the submission of a new Form 1.10 9. On 17 April 2020 the Norwegian Government submitted a new Form 1 to ESA, dated 15 April 2020.11 In that Form 1, as in the previous one, the Norwegian Government submitted that it had partially implemented the Act. This had been done by way of amendments to several acts.12 The amendments had entered into force on 1 January 2020. According to the Form 1, these amendments had implemented Articles 1,2,3,4(1)(a),4(1Xb),5, and 6 of the Act. 7 Document no. 1076699; Annex A,5 to this Application. 8 Document no. 1124964; Annex A.6 to this Application. e Document no. 1126461; Annex A.7 to this Application. 10 Document no. 1126535; Annex A.8 to this Application. 11 Document no.1127941; Annex A.9 to this Application. 12 Namely Act no. 69/1989 on lnsurance Contracts (forsikringsavtalerl; Act no. 1612000 on Company Pensions (foretakspensjon); Act no, 81/2000 on Defined Contribution Pension Scheme (innskuddspensjon); Act no. 9512001 on the Protection of Complementary Pension Rights for Employees and Self-Employed Persons Moving within the EEA Area (beskyttelse av supplerende penjonsreftigheter for arbeidstakere og selvstendig neringsdrivende som flytter innefor E@S- omrddet); Act no. 4412005 on lnsurance Companies, Pension Undertakings and TheirActivities, etc. (forsikringsvirksomhet); and Act no. 106/2013 on Occupational Pension (flenesfepensjon).  Pase5 EsA|i:l'fJ$'eirrance 10.The Nonregian Government noted that there was "one outstanding tssue fo complement the implementation" of Article 4(1)(c) of the Act. That provision ("the outstanding provision") concerns the reimbursement of contributions to a supplementary pension scheme to an outgoing worker who has not yet acquired vested pension rights (see paragraph 29 below). The Government further noted that "Parliament [had] adopted a change in the Act relating to the protection of complementary pension rights for employees and self-employed persons moving within the EEA Area Section 8", which had entered into force. Furthermore, the Government stated that "pursuant to this provision, the Ministry may lay down rules regarding reimbursement of contributions" and that the Ministry was following up on that issue, to be coordinated with tax law. The Government concluded that "some delay [was] to be expected, due to unexpected work with Covid-l9 related cases". 11.On 14 December 2020, ESA again contacted the Norwegian Government informally for an update on the status of the full implementation of the Act.13 The Norwegian Government responded on 15 December 2020, stating that it was working on a consultation document regarding the implementation of Article 4(1)(c) of the Act.1a The Government again cited delays due to the COVID-19 pandemic, and the need to assess tax issues. Assuring ESA that the matter enjoyed high priority, the Government stated its aim to circulate for consultation a proposal for administrative provisions in the beginning of 2021. 12. ESA made two further informal inquiries on the status of the full implementation of the Act; one on 16 April 2021 and another on 1 3 December 2021 .15 On the former occasion, the Government assured ESA that it was consulting internally on outstanding issues and expected to progress on the matter soon. On the latter occasion, the Govemment explained that "private occupational pension scheme regulations [were] in the process of being amended, and comprehensive evaluation processes on keyissues [had] been finalised or reached their end phase".16 These included, inter alia, 'processes in relation to designated individualpension accounts and the inclusion of allwage income in the mandatory calculation basis for pension accruaf'. The Government further stated that"defined contribution pension scheme is fhe most common pension scheme in the pivate sector in Norwaf' and that, as 13 Document no. 1169059; Annex A.10 to this Application. 1a Document no. 1169237; Annex A.11 to this Application. 15 Document no.1267617; Annex A.12 to this Application. 16 ldem.  Page 6 ESA I [:l'iJ,V"eirrance of 1 January 2O21, "the so-called twelve-month rule [had] also [been] repealed', meaning lhat "employees who leave companies that have a defined-contribution pension scheme are now entitled to keep their earned pension capital regardless of the length of the employment relationship". The Government submitted that "in practice, [its] assumption [was] that reimbursement [would] already be covered by other arrangements for the vast majority of workers". The Government finally noted that it was preparing the relevant consultation document and looking at issues regarding tax law, and that it expected to make progress "in the beginning of 2022'. 13. ESA made a further informal inquiry on the status of the full implementation of the Act on 6 April 2022.In its response of 21 June 2022, the Norwegian Government acknowledged that no further legislative amendments had been made, but, in contrast to its previous position, the Government asserted that the Act had nevertheless been fully implemented.lT The Government took as its basis for this argument that, from 1 January 2021, the twelve-month vesting period rule had been repealed in respect of defined contribution pension schemes. lt stated that, considering how much more common defined contribution pension schemes were than defined benefit pension schemes, and that no vesting period applied to such schemes anymore, reimbursement "[would] already be covered by other arrangements for the vast majortty of workers" and that consequently it was "nof necessary to franspose the rule regarding the right to reimbursement of contributions explicitly in Noruegian lavl' .18 14, On 9 August 2022ESA replied to this changed position, pointing out that companies were still free to choose a defined benefit pension scheme, for which a twelve- month vesting period was still applicable. Thus, an outgoing worker who had contributed to such a scheme and left before the expiry of the vesting period could not claim reimbursement pursuant to Nonnregian law.1e 15. ESA followed up again with the Norwegian Government by informal correspondence on 12 October 2022 and 4 November 2022.20 ESA reiterated its 17 Document no. 1306180; Annex A.14 to this Application. 18'Defined benefit' pension schemes are schemes where the benefit depends mainly on the years of employment and salary, and where the employer bears the investment risk. 'Defined contribution' pension schemes are those schemes where the future benefit depends mainly on the accrued value of saved capital and where the investment risk is borne by the scheme member. See European Commission Report, Annex A.13 to this Application, footnote 32, le Document no. 1306181; Annex A.15 to this Application. 20 Document no. 1325438; Annex A.16 to this Application.  Paser ESA li:l'ii'Y"eirrance position to the Nonrvegian Government that transposing Article 4(1)(c) of the Act into national legislation would be necessary in order to guarantee the right to reimbursement of contributions of outgoing workers involved in defined benefit pension schemes. 16.1n its reply of 17 November 2022, the Norwegian Government reiterated that defined contribution pension schemes were the most common pension schemes in the private sector in Norway, and that in respect of these schemes the twelve-month vesting period had been eliminated,2l In respect of defined benefit pension schemes and hybrid pension schemes, the Government allowed that a twelve- month vesting period still applied, but submitted that "vety few workers [would] be affected [by] a targeted exception from the twelve-month rule for the employees covered by [the Actl'. 17. Notwithstanding its clarifications, the Government in its reply of 17 November 2022 appeared to accept ESA's view that legislative action was still necessary. lt reiterated that it was "working on adjusfmenfs to Norwegian rules, to prepare regulatory provisions on this", explaining the implications which this would have inter alia on tax matters. The Government submitted that it was"looking at how to address the questions raised by the Norwegian Tax Authority, and how fit couldl set up a reimbursement scheme that is manageable from a tax administrative point of vieul'and that "it might also be necessary to amend Norwegian tax law, which [would] require some further assessrnenfs". The Government noted that it was "already looking into whether to abolish the twelve-month rule for hybrid schemes in generaf' and reflected on possible alternatives for defined benefit pension schemes. The Government underlined its concern with creating a disproportionately heavy financial and administrative burden on employers, in particular small businesses, relative to the gain of the workers. The Government concluded that "tT hoped to be able to conclude on this quite soon". 18.Having not received any further news or any further Form 1 from the Norwegian Government, ESA on 2 May 2023 informed the Government of its intention of bringing the matter before the EFTA Court.22 21 Document no. 1329419; Annex A.17 to this Application 22 Document no. 1370454; Annex A.18 to this Application  Pases EsAliil'iJ,V"eirrance 19. On 23 June 2023, the Government replied and indicated that it was "rh fhe process of finalizingthe consultation documenf'previously referred to in its correspondence, and that the consultation document "[set] ouf possib le legislative amendments" .23 20. On 26 June 2023, the Authority responded to the Norwegian Government, indicating that while it appreciated the ongoing efforts, the Authority would nevertheless proceed with a referral to the EFTA Court, in light of the longstanding noncompliance and the fact that no amendments had yet been adopted by Norway.2a 21.On 28 June 2023, Norway submitted a Form 125 notifying full implementation of the Act by way of a Ministerial Regulation2o to the Act on the protection of supplementary pension rights for employees and self-employed persons who move within the EEA area ("the Ministerial Regulation"). This Ministerial Regulation was set to enter into force on 1 October 2023. The Ministerial Regulation had apparently been adopted by the Ministry of Finance, without public consultation and without amendments to primary legislation. 22.On 14 July 2023, the Authority informed the Norwegian Government that it could not accept the Form 1 of 28 June 2O23 indicating full implementation of the Act.27 The Authority noted that the implementation was not sufficient, in particular, for a citizen to rely on, since it was unclear which other national provisions applied in such circumstances, and that the Form 1 was not sufficient for the Authority to be able to positively conclude that the notified legislation fully implemented the outstanding provision. 23. On 19 July 2023, the Authority decided to bring the matter before the Court pursuant to Article 31 SCA.28 3 RELEVANT LAW 3.1 EEA Law 24.Arlicle 3, first and second paragraph, EEA provides: 23 Document no. 1382694; Annex A.19 to this Application. 2a Document no. 1382702; Annex A.20 to this Application. 25 Document no. 1383919; Annex A.21 to this Application. 26 Document no, 1383921 ; Annex A.22lo this Application. 27 Document no. 1386597; Annex A.23 to this Application. 28 College Decision 1O2l23lCOL; Annex A.1 to this Application.  Pasee EsAli:l'fJt$'eirrance "The Contracting Parties shal/ take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations aising out of this Agreement. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Agreement." 25.Article 7 EEA provides, insofar as relevant: "Acts referred to or contained in the Annexes to this Agreement or in decisions of the EEA Joint Committee shall be binding upon the Contracting Parties and be, or be made, part of their intemal legal order as follows: t...1 (b) an act corresponding to an EEC directive shall leave to the authorities of the Contracting Parties the choice of form and method of implementation." 26.Article 31 SCA provides: "lf the EFTA Surueillance Authority considers that an EFTA Sfafe has failed to fulfil an obligation under the EEA Agreement or of this Agreement, it shall, unless otherwise provided for in this Agreement, deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its obseruations. If the State concerned does not comply with the opinion within the period laid down by the EFTA Surueillance Authority, the lafter may bring the mafter before the EFTA Court-" 27. Recital 19 to the Act provides, insofar as relevant: "Where an employment relationship is terminated before an outgoing worker has accrued vested pension rights and when the scheme orthe employer bears the investment risk, in particular in defined benefit schemes, the scheme should always refund the pension contributions of that outgoing worker. [...]" 23.Article 3 of the Act, entitled "Definitions", provides, insofar as relevant: "Forthe purposes of this Directive the following definitions apply: t...1 (e) 'vesting period' means the period of active membership of a scheme, required under national law orthe rules of a supplementary pension scheme, in order to trigger entitlement to the accumulated supplementary pension rights; t...1  Page 10 ESA lhllffi,V"eirrance (g) 'outgoing worker' means an active scheme member whose current employment relationship terminates for reasons other than becoming eligible for a supplementary pension and who moves between Member Sfafes; [..J" 29.Article 4 of the Act, entitled "Conditions governing the acquisition of rights under supplementary pension schemes", provides, insofar as relevant: .1. The Member Sfafes shall take all necessary sfeps to ensure that: t...1 (c) where an outgoing worker has not yet acquired vested pension rights when the employment relationshp is terminated, the supplementary pension scheme shall reimburse the contributions paid by the outgoing worker, or paid on behalf of the outgoing worker, in accordance with national law or collective agreements or contracts, or, where the outgoing worker bears the investment risk, either the sum of the contributions made or the investment value arising from these contributions. [...f' 3.2 National Law 30.Article 1 of the Ministerial Regulation, adopted by the Ministry of Finance on 28 June 2023 on the basis of Article 8 of the Act on the protection of supplementary pension rights for employees and self-employed persons who move within the EEA area, reads as follows: "lf the employee's employment ends before the employee has accrued the right to pension rights in supplementary pension schemes as mentioned in the Act on pension rights within the EEA $ 2 no. 1 and no. 3 to no. 5 and the employee moves to another EEA country, the pension provider must ensure that proof of accrued pension ls issued in accordance with otherwise applicable rules which ensure the employee's right to payments that the employee has made himself. The first sentence applies regardless of how long the employee has been employed. The provision applies to the extent that the member does nof take such deposifs for pension rights with him in any other way.'2s 2e Authority's translation. For the original Nonregian text, see Document no. 1383921; Annex A.22 to this Application.  Page 1 1 ESA I illf":,Y"eirrance 4 SUBMISSIONS 4.1 General principles 3l.Article 3 EEA imposes upon the EFTA States the general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the EEA Agreement.3o This duty, known as the principle of loyalty or the principle of sincere cooperation, is a cornerstone principle of EEA law. lt establishes inter atia a mutual duty of cooperation between the EFTA States and the EFTA institutions.sl Similarly to the principle of loyalty enshrined in Article 4(3) of the Treaty on the European Union ("TEU"), it can be understood to reflect a principle of good faith, requiring all parties' mutual respect and readiness to cooperate.32 Inherent in the principle of sincere cooperation is the principle of effectiveness, which requires States to ensure the effective protection of EEA rights and the effective enforcement of EEA law in national courts.33 32. Under Article 7 EEA, the EFTA States are obliged to implement all acts referred to in the Annexes to the EEA Agreement, as incorporated by decisions of the EEA Joint Committee. According to settled caseiaw, the lack of direct legal effect of acts referred to in decisions by the EEA Joint Committee makes timely implementation crucial for the proper functioning of the EEA Agreement in Norway. The EFTA States find themselves under an obligation of result in that regard.il Without clear, timely, and complete implementation of EEA law into national law, the EEA Agreement cannot properly guarantee to citizens the rights and freedoms which it is meant to safeguard. 33.The correct implementation of an EEA Act takes on a special significance in the case of Directives, which leave a discretion to the EFTA States as to the choice of implementing measures, rendering them ineffective if the desired aims are not achieved within the prescribed time-limits.3s The EFTA States' discretion with regards to the transposition of Directives into national law is therefore necessarily accompanied by a special duty of care in the choice of measures, meaning that the 30 See, inter alia, Case E-6/18 ESA v lceland,judgment of 14 May 2019, paragraph 16. 31 P6ll Hreinsson: "General Principles", p. 357 in The Handbook of EEA Law, pp.349-390, ed. Carl Baudenbacher. 32 ldem. 33 lbid, pp. 376-377; Finn Arnesen and others (eds.): Agreement on the European Economic Area: A Commentary, pp. 264-265. 3a Case E-6/18 ESAv lceland,judgment of 14 May 2019, paragraph 17. 35 See, mutatis mutandis, Case Q-52fi5 Gommrssion v ltaly, judgment of 26 February '1976, paragraph 10.  Page'12 ESA li:l'iJ$'ei'ance States must ensure that the measures chosen comply with the principles of effectiveness and legal certainty.e0 Provisions of Directives must be implemented with unquestionable binding force and the specificity, precision and clarity necessary to satisfu the requirements of legal certainty.3T 34. Moreover, the special functioning of the EEA Agreement renders it especially important for the EFTA States to properly notify the measures taken to make Directives and Regulations part of national law.38 That obligation is imperative to enable the Authority to achieve its tasks, which consist, inter alia, under Article 5 SCA, in ensuring the fulfilment by the EFTA States of their obligations, thereby ensuring the proper functioning of the EEA Agreement.3e 35.Accordingly, the Authority submits that it follows from the principle of sincere cooperation, read together with the principle of effectiveness as reflected in Article 3 EEA, and from Article 7 EEA, that the EFTA States must notifu, in a timely manner, national measures which transpose an EEA Act into national law, and that such transposition should be done in a manner that is prima facie clear, precise, and effective (see further paragraph 48 below). In the case of Directives, the obligation to notifo also stems directly from a Directive provision to that effect, which in the present matter is Article 8 of the Act. 4.2 The scope of the present application 36. Decision of the EEA Joint Committee No 188/201 4 of 25 September 2014 amended Annex Vl (Social security) to the EEA Agreement by adding the Act at point 13. That decision entered into force on 1 May 2018.|t included no adaptation of the Act. Pursuant to the Act's Article 8, Member States were to adopt the laws, regulations, and administrative provisions necessary to comply with it by 21 May 2018, and to notiff the Commission immediately thereof. Under the EEA Agreement, the EFTA States have a corresponding obligation to notify ESA. 36 See, for example, Case E-1l1 1 Dr A,judgment of 8 April 2013, paragraph 74, and Case E-12l10 ESA v lceland,judgment of 8 April 2013, paragraphs 40 and 60. 37 See, for example, Case E-15/1 2 Jan Anfinn Waht, judgment ol 22 July 2013, paragraph 51. 38 See, mutatis mutandis, Case C-543117 Commission v Belgium, judgment of 8 July 2019, paragraph 51. The Authority recognises that there is no primary law provision in the EFTA pillar mirroring Article 260(3) of the Treaty on the Functioning of the European Union ('TFEU"), but notes that the notification obligation has been recognised in the consistent case-law of the EFTA Court as being of crucial importance for securing the two fundamental EEA law principles of homogeneity and reciprocity. See, for example, CaseE-12113 ESA v lceland,judgment of 11 February 2014, paragraph 68. 3e See Article 5(1)(a) SCA and, mutatis mutandis, Gase C-456/03 Commlssio n v ttaly t200sl ECR l- 5335, paragraph 26.  Pase 13 ESA I i:l'fJ$"eirrance 37.The question whether an EFTA State has failed to fulfil its obligations must be determined by reference to the situation as it stood at the end of the period laid down in the reasoned opinion,a0 ln the present case, that reference point was 6 May 2019.411t is incontestable that Norway had not notified any implementing measures by that time.a2 38. Nevertheless, ESA does not by the present application seek a declaration of a breach of Article 7 EEA concerning those parts of the Act which were notified as having been implemented in Norway's partial implementation Form 1 dated 15 April 2020, even though those implementing measures only entered into force on 1 January 2021 .43 Exercising its discretion as regards the parts of the Directive which have been (albeit belatedly) implemented, ESA has chosen to limit the substantive scope of the present application to the issue of the failure by Norway to implement and to notify implementation of Article a(1Xc) of the Act.aa 39.As regards the temporal scope of the present case, in light of the fact that the reference point for assessment is the situation as it stood on 6 May 2019, ESA recognises that the indisputable failure by Norway to implement Article a(1)(c) of the Act by that time is in and of itself determinative for the matter upon which ESA requests the Court to rule. Thus, the shortcomings in the notification made by way of a Form 1 submitted on 28 June 2O23,45 four years after the reference point, are not strictly necessary for the determination to be made in the present case. 40. However, in order to provide as full a picture as possible to the Court, ESA will explain below the shortcomings in the notification made on 28 June 2023 which led the Authority not to accept the Form 1. ESA considers the case to present an opportunity for the Court to address the standards inherent in the EFTA States' ao See, inter alia, Case E-6/06 ESA v The Pincipality of Liechtenstein l2OO7l, EFTA Ct. Rep. 238, paragraph 20. al Reasoned opinion, p. 3, see Annex A.4 to this Application. a2 ln this context, it should be noted that a general reference to national legislation containing "measures in tine with the Act'(see paragraph 4 above) can by no means be regarded as providing sufficiently clear and precise information to the Authority on the transposition of a Directive, see for example Gase C456tO3 Commission v ltaly l2015l ECR l-5335, paragraphs 27 and 30, and Case C-427107 Commission v lreland,judgment of 16 July 2009, paragraphs 105-109. a3 See Annex A,9 to this Application. aa See, inter alia, Case C-52l00 Commr.ssion v France,judgment of 25 April 2002, paragraph 44; Case C-22'1t04 Commr.ssion v Spain,judgment of 18 May 2006, paragraph 33; and Case C-134110 Commission v Belgium,judgment of 3 March 2011, paragraph 24. a5 See paragraph 21 above and Annex A.21 to this Application.  Page 14 ESA li[ffi,V'eirrance obligation to notiff implementing measures, as will be further explained below (see paragraphs 48 and 49 below). 41. ESA wishes to underline that providing the Court with as full a picture as possible of the facts of the case, before and after the reference point, does not detract from the clarity of the subject-matter of the present case orfrom the requisite consistency between the pre-litigation stage and the present application.ao The claim on which ESA requests the Court to rule by the present application is, still and regardless of later developments, that Norway failed to fulfil its obligations to fully implement and notify implementation of the Act into its internal legal order by the reference point. Moreover, that claim is based on the same arguments as the reasoned opinion delivered on 6 March 2019.47 4.3 Nonrayns ongoing failure to fulfil its obligation 4.3.1 The obligation incumbent on EFTA Sfafes under Article 4(1)(c) of the Act 42,Article a(1)(c) of the Act stipulates that where an outgoing worker has not yet acquired vested pension rights when the employment relationship is terminated, the supplementary pension scheme is to reimburse the contributions paid by the outgoing worker, or paid on behalf of the outgoing worker, in accordance with national law or collective agreements or contracts, or, where the outgoing worker bears the investment risk, either the sum of the contributions made or the investment value arising from these contributions. 43. Recital 19 to the Act states that outgoing workers participating in pension schemes where the scheme or the employer bears the investment risk, in particular in defined benefit schemes, "should always" be refunded their pension contributions where an employment relationship is terminated before the end of the vesting period, This is because, as explained in Recital 17 to the Act, the fact that in some supplementary pension schemes pension rights can be forfeited if a worker's employment relationship ends before the vesting period is up can prevent workers who move between Member States from acquiring adequate pension rights, representing an obstacle to workers' freedom of movement. lt is therefore clear that a vesting period ao See EFTA Court Rules of Procedure, Article 101(1 )(c), and relevant case-law of the GJEU on the parallel provision of the CJEU Rules of Procedure, including for example Case C-185/00 Commissionv Finland [2003lECR l-14189, paragraphs 86-87, Case C-139/00 Commrssionv Spain 120021ECR l-6407, paragraphs 19-22, and Case C-456/03 Commission v ltaly t20051 ECR l-5335, paragraph 39. a7 See, for example, Gase C-139100 Commission v Spain l2012l ECR l-6407, paragraphs 19-22, and Case C-458/08 Commission v Portugal,judgment of 18 November 2010, paragraphs 42-28.  Pase 15 ESA I llffitV'eirrance should not prevent an EEA worker from enjoying their contributions to a supplementary pension scheme, whether by way of the vesting of pension rights or by way of reimbursement. 44.The non-transposition of Article a(1Xc) into national legislation in Nonruay in effect deprives outgoing workers who participate in defined benefit or hybrid pension schemes, and whose vesting periods have not expired, of the rights which they should enjoy under EEA law, hinders their free movement rights, and places them in a disadvantaged position vis-ii-vr.s nationalworkers. In this context, the Authority also notes the possible implications of the non-transposition on the affected workers'fundamental right to peaceful enjoyment of property.a8 45.|t is of no consequence if, as Norway has contended, few workers will be affected by the non-implementation of the outstanding provision as a majority of private sector employees in Norway contribute to defined contribution pension schemes, which have no vesting periods. The reality remains that defined benefit pension schemes, as well as hybrid pension schemes, are lavvful and exist in Norway. Moreover, the choice between whether to opt for a defined benefit or defined contribution pension scheme is made by the employer, not by the employee. EEA workers can therefore not overcome the absence of a right to reimbursement by opting for defined contribution pension schemes; those whose employers opt for defined benefit or hybrid schemes are placed at a significant disadvantage vis-d- yis those whose employers opt for defined contribution schemes. As is made clear by Recital 19 to the Act (see paragraphs 27 and 43 above), the right to reimbursement for an outgoing worker who has participated in a defined benefit scheme should be unconditional. The suggestion that the workers affected by the absence of such a right might be few, or that the implementation of such a right to a8 Fundamental rights form part of the general principles of EEA law. The provisions of the European Convention on Human Rights and the judgments of the European Court of Human Rights are important sources for determining the scope of these fundamental rights (see, for example, Case E- 2120 The Notwegian Government r L, judgment ol 21 April 2021, paragraph 50), including the Convention's Protocol No. 1, which all three EEA-EFTA States have signed and ratified without reservation. Article 1 of Protocol No. 1 protects the right to peaceful enjoyment of property, and has been interpreted as applying, under certain circumstances, to the right to a pension. Those certain circumstances in particular apply in the case of contribution-linked pension schemes, and the European Court of Human Rights has held that where such contributions have been made, an award cannot be denied to the person concerned (see, for example, ECTHR Kein v Austria, no. 57028/00, paragraphs 42-43,3 March 2011). The purpose of Article a(1)(c) of the Act being to directly and concretely guarantee the right of an EEAworker, under certain circumstances, to the vesting of their pension rights or reimbursement of their contributions, the subject matter of the present case thus concerns EEA law which is a concrete expression in a particular context of the right to peaceful enjoyment of property.  Page 16 ESA I [:l'iJ,V"eirrance reimbursement might be complicated, in no way changes or diminishes the Member State's obligation in this respect. 46.The fact that Norway has an outstanding, unfulfilled obligation to implement Article a(1Xc) was recognised by Norway itself, in its correspondences of 15 December 2020,21 April2021, and 17 December 2021, as well as being evidenced by the fact that Norway's Form 1 submitted on 17 April 2020 indicated only partial implementation of the Act.as 4.3.2 Deficiencies in the notification of 28 June 2023 47.4s concerns the notification of implementation made by way of the Form 1 submitted on 28 June 2023 (see paragraph2l above), the Authority considered this notification and concluded that it was insufficient. 48.The Authority recalls the EFTA States' obligations in the context of the implementation of EEA law into national law and the notification thereof (see paragraph 35 above). ln particular, as the Authority has reasoned above, it must be incumbent on the EFTA States to properly notify the Authority of the measures taken to implement EEA law at the national level. This obligation also follows from Article 8 of the Act. 49.|t follows that sincere cooperation, the principle of effectiveness, and the principle of legal certainty require that the obligation to notify the implementation of EEA law into national law be understood as entailing not merely a formal obligation, but also an obligation with some degree of substance. ln the context of Directives, the measures notified must, at least prima facie, be able to comply with the obligations established by a Directive in an unambiguous and effective manner.s0 Moreover, ae See also Case C-456/03 Commission v ltalyl2OOSl ECR l-5335, paragraphs 28-29. 50 See, mutatis mutandis, Case C-456103 Commission v ltaly [20051ECR l-5335, paragraphs 26- 27, and Case C-543/17 Commission v Belgium,judgment of 8 July 2019, paragraphs 51 and 59. As regards the relevance of the latter judgment to the present case, ESA notes that in that case, like in the present case, Belgium had not notified transposition measures by the reference point, leading to a finding of a violation of the obligation to transpose and to notify transposition (see paragraphs 23 and 26-27 of the judgment). ln the same set of proceedings, the Commission also asked the CJEU to rule on the imposition of a fine for failure to transpose, pursuant to Article 260(3) TFEU. For that latter assessment, transposition measures adopted and notified subsequent to the reference point and up until the examination of the facts were taken into account (see paragraphs 60-62 and 68 of the judgment). ln that lafter assessment, the CJEU had the opportunity to examine the standard of detail and quality required of such notifications (see paragraphs 48, 50-52, and 58- 59 of the judgment), finding that the Commission could impose fines inter alia when transposing measures notified were 'clearly lacking'. ESA submits that the principles employed, and findings made, by the CJEU in that latter assessment are relevant, mutatis mutandis, for the purposes of the present case (see further paragraph 53 below),  Pase 1r ESA I ill'iJ'V*irrance the notification must be sufficienlly "clear and precise"Sl to enable the Authority to perform that prima facie assessment, i.e. to assess whether the notified measures are "clearly lacking"s2 or whether the Member State has "genuinely implemented the d irective com plete$' .53 50. The Authority recognises that the present application does not amount to an allegation of incorrect implementation of an EEA Act into national law. The present application concerns an allegation of a failure to implement and to notify implementation of an EEA Act into national law. ESA submits that the assessment to be made in the context of such a case must inherently include a minimum standard of prima facie appropriateness of a notification of an implementing measure.s A conclusion to the contrary would deprive the EFTA States' obligations in this respect of all meaning, and would undermine ESA's capability to discharge its prescribed duty to monitor and ensure the fulfilment by the EFTA States of their obligations under the EEA Agreement.ss 51.|t is thus not sufficient, in order for an EFTA State to discharge its obligation in this context, for the State to submit to the Authority a manifestly deficient, incomplete, or unclear notification. Nor can an EFTA State circumvent the Authority's pursuit of a non-implementation case by submitting such notifications.56 The Authority, as the guardian of the EEA Agreement in respect of the EFTA States,s7 is tasked with 51 Case C-456/03 Commission v ltaly [2005] ECR l-5335, paragraph 27, and Case C-543117 Commission v Belgium,judgment of 8 July 2019, paragraph 59. 52 Case C-543117 Commission v Belgium,judgment of 8 July 2019, paragraph 59. 53 Case C-456/03 Commission v ltaly [2005] ECR l-5335, paragraph 27, and Case C-543117 Commission v Belgium,judgment of 8 July 2019, paragraph 51. The latter employs the phrase "genuinely implemented the directive in fulf'. n See, mutatis mutandis, Case G-543117 Commission v Belgium, judgment of 8 July 2019, paragraphs 53-54 and 59. 55 ldem. s See, mutatis mutandis, Case C-543117 Commission v Belgium, judgment of 8 July 2019, paragraph 54. s7 ln this context, the Authority notes the parallel role entrusted to the European Commission by the TEU and the TFEU. The Commission's role as "the guardian of the [EU] Treaties" constitutes, in essence, "[the] task of overseeing compliance with Union law [which] is carried out principally within the framework of the action for infringement (Article 258 TFEU)" (Allan Rosas and Lorna Armati, EU ConstitutionalLaw,2012, p.9S).The expression "guardian of the Treaties" is "used to describe the Commission's role both as the keeper of the 'soul' of the Community" and the "role of ensuring that the Member States honour their obligation to give effect to the [EC] Treaty and the implementing legislation (Art 10 EC Treaty)" (John Fairhurst, Law of the European Union,2006, p. 92). The concept of "guardian of the Treaties" is derived from caselaw (dating back to at least Cases C- 108/81, G.R. Amylum v Councitand Commission, and C-1'14181, Tunnel Refineries Ltd. v Council and Commisslon, both judgments of 30 September 1982, pp. 13 and 16, respectively) and does not figure explicitly in the TFEU or the TEU as they stand today, nor did it figure in the TEG at the time when the concept appeared in caselaw. ln this respect, the Authority's role in respect of the EFTA States mirrors that of the Commission in respect of the EU States (compare, for example, Article 258 TFEU and Article 31 SCA).  Page 18 ESA I iil'i":'y"eirrance ensuring the EFTA States' fulfilment of their obligations under the EEA Agreement and the SCA.58 Due to the special functioning of the EEA Agreement, proper notification of measures taken to make Directives and Regulations part of national law is especially important so that the Authority can serve its role (see also paragraph 34 above) in order that the proper functioning of the Agreement is ensured. lf any notification, however unclear or insufficient, could block an action for non-implementation and require the Authority to initiate a new procedure based on incorrect implementation, it would hinder the proper functioning of the EEA Agreement.se 52.In order for the Authority to properly exercise its mandate and ensure the good functioning of the EEA Agreement, the States' obligation to implement and to notify implementation of EEA Acts into national law should be interpreted as encompassing a minimum standard of prima facie clarity, precision, and effectiveness. The Authority notes in this context that, contrary to the situation in the EU pillar, EFTA States do not run the risk of the imposition of a fine by the Authority in case it considers a notified measure to fall short of such a minimum standard.60 53.In the present case, ESA considers the 28 June 2023 notification from Norway to have fallen short of the requisite standard. 54.That notification, which referred to a single-provision Ministerial Regulation, lacked clarity and precision as to its scope and content, leaving uncertainty regarding the extent to which the situation of an affected EEA worker would be subject to other rules. ln this context, two elements should be underlined. 55. F,rsf, that the notification refers to measures that appear prima facie to impose a vague duty on pension providers to ensure that proof of accrued pension is issued "in accordance with otherwise applicable rules", without any reference, especially in the notification, to what those otheruvise applicable rules are and how they ensure that the worker in question is actually reimbursed. 58 See Article 5 SCA. se See, mutatis mutandis, Case C-543117 Commission y Belgium, judgment of 8 July 2019, paragraph 53. 60 See, a contrario, Case C-543/17 Commission v Belgium,judgment of 8 July 2019, paragraph 57.  Page 1e ESA I i:lti.V"eirrance 56. Second, that this notification was submitted after Norway had repeatedly, over the course of several years, informed ESA that implementing Article 4(1)(c) of the Act involved a number of complexities since the legal system, including the tax system, did not accommodate such reimbursement of contributions to defined benefit and hybrid pension schemes. Neither in the notification, nor in any informal correspondence with the Authority, did Norway explain how, or even indicate that, these issues had been resolved. 5T.Against this background, and in the absence of any explanations in the notification, ESA was unable to conclude, within the context of a prima facie assessment, that the Act had been "genuinely implemented in fulf'.61 Thus, the notification fell short of the minimum standard of prima facie clarity, precision, and effectiveness. 5 coNcLustoN 58. For all of these reasons, the Authority could not accept the notification of 28 June 2023, and decided to pursue the present case. 59. The indisputable failure by Norway to implement Article 4(1Xc) of the Act by 6 May 2019 (see paragraph 37 above) suffices for the Court to establish that Norway has failed to fulfil its obligations under Article 7 EEA and Article 8 of the Act. 60. Nevertheless, in light of the particularities of the subsequent developments, ESA invites the Court to take this opportunity to address the content and scope of the EFTA States' obligations in the context of implementation of EEA law into national law and notification thereof. 61.|n light of the above, ESA submits that Norway has failed to fulfil its obligations under Article 7 EEA and under Article 8 of the Act, by failing to make the Act part of its internal legal order. Accordingly, the Authority requests the Court to: 1. declare that Norway has failed to fulfil its obligations under Article 7 of the EEA Agreement and Article 8 of the Act by failing to fully implement the Act referred to at point 13 of Annex Vl to the Agreement on the European Economic Area (Directive 2014/50/EU of the European Parliament and of 01 Case C-543117 Commission v Belgium,judgment of I July 2019, paragraph 51, and Case C- 456/03 Commission v ltaly l2O05l ECR l-5335, paragraph 27. Page 20 ESA lilmJ,ll'eirrance the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member Sfafes by improving the acquisition and preseruation of supplementary pension rights) into its internal legal order. 2. order Norway to bear the costs of these proceedings. Hildur Hjorvar Kyrre lsaksen Melpo-Menie Jos6phidds Agents of the EFTA Surveillance Authority Page2l E SA I i:l'iJ,il'eirrance 6 SGHEDULE OF ANNEXES Referred to in No Description this Application Number of at paragraph(s) pages Decision to refer the case to the 3 4.1 Paragraph 1, 23 EFTA Court 4.2 Letter of Formal Notice Paragraph 3 2 Norway's response to the Letter of 2 A.3 Paragraphs 3, 4 Formal Notice 4.4 Reasoned Opinion Paragraph 4,37 3 Norway's response to the Reasoned 2 A.5 Paragraph 6 Opinion Correspondence February to March 3 A.6 Paragraph 7 2020 4.7 Form 1dated3April2020 Paragraph 8 3 A.8 Correspondence 8 April 2020 Paragraph 8 3 A.9 Form 1 dated 15 April 2020 Paragraph 9 3 A.10 Correspondence 14 December 2020 Paragraph 11 1 A.11 Correspondence 15 December 202O Paragraph 11 2 Page 22 ESA liilH$'ei'ance Correspondence April to December 6 4.12 Paragraph 12 2021 Commission Report on the 17 A.13 Paragraph 13 appl ication of Directive 201 4 I 50 IEU 4.14 Correspondence April to June 2022 Paragraph 13 I A.15 Correspondence 9 August 2022 Paragraph 14 I Correspondence 12 October and 4 2 4.16 Paragraph 15 November 2022 A.17 Correspondence 17 November 2022 Paragraph 16 7 A.18 Correspondence 2 May 2023 Paragraph 18 5 A.19 Correspondence of 23 June 2023 Paragraph 19 7 4.20 Correspondence of 26 June 2023 Paragraph 20 8 A.21 Form 1 dated 28 June2023 Paragraph 21,53 2 Paragraphs 21, 1 4.22 Ministerial Regulation 30,54 4.23 Letter to Nonuay dated 14 July 2O23 Paragraph 22 2 Registered at the EFTA Court under N° E-14/23-7 on 5th of January 2024 To the EFTA Court OSLO, 05 January 2024 Statement of Defence by the Kingdom of Norway represented by Pål Wennerås, advocate at the Office of the Attorney General for Civil Affairs, Jon-Christian Rynning, trainee lawyer at the Office of the Attorney General for Civil Affairs and Margrethe R. Norum, international law adviser at the Ministry of Foreign Affairs, acting as agents, in Case E-14/23 EFTA Surveillance Authority v the Kingdom of Norway in which the EFTA Surveillance Authority is seeking a declaration that Norway has failed to fulfil its obligations under Article 7 of the EEA Agreement and Article 8 of Directive 2014/50/EU. ••• Universitetsgata 8, 0164 Oslo [email protected] +47 22 99 02 00 P.O. Box 8012 Dep. NO-0030 Oslo [email protected] 1/3 1 INTRODUCTION (1) By its application, the EFTA Surveillance Authority requests the EFTA Court to declare that Norway has failed to fulfil its obligations under Article 7 of the EEA Agreement and Article 8 of Directive 2014/50/EU on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights (“the Directive”). The Authority claims that Norway has breached these obligations by failing to implement Article 4(1)(c) of the Directive and to notify the requisite national implementing measures within the period laid down in the Authority’s reasoned opinion, i.e. 6 May 2019. 2 FAILURE TO TAKE THE NECESSARY MEASURES WITHIN THE DEADLINE LAID DOWN IN THE REASONED OPINION (2) Norway acknowledges its failure to implement Article 4(1)(c) of the Directive and to notify the implementing measures within 6 May 2019. The Court may therefore declare judgment in accordance with the request sought by the Authority, as described in section 1 above. The Norwegian Government consents to dispensing with the oral procedure. 3 MATTERS FALLING OUTSIDE THE SCOPE OF THE REASONED OPINION (3) Article 4(1)(c) of the Directive has subsequently been implemented in Norwegian law through Regulation 28 June 2023 No 1157 to the Act on the protection of supplementary pension rights for employees and self-employed persons who move within the EEA (“Forskrift til lov om beskyttelse av supplerende pensjonsrettigheter for arbeidstakere og selvstendig næringsdrivende som flytter innenfor EØS-området”). The Authority was notified of this amendment by the Norwegian Government on 28 June 2023. (4) The Government notes that the Authority in its application also questions whether this notification fulfils the requirements of EEA law. It is apparent, however, that this matter falls outside the scope of the subject matter of the Authority’s reasoned opinion in this case. Should the Authority consider that the notification on 28 June 2023 did not fulfil the requirements of EEA law, it must, in accordance with proper procedure, initiate new proceedings against Norway in that regard. (5) Indeed, the Authority seemingly recognises as much in its application (para. 39), in which it notes that Norway’s notification of the full implementation of the Directive on 28 June 2023 falls outside the temporal scope of the present case. Accordingly, the Government will not address the Authority’s views concerning these matters since the infringement alleged in this regard falls out the remit of the present case.1 1 See, for example, judgment of 16 June 2005, Commission v Italy, C-456/03, EU:C:2005:388, paragraph 35, on the parallel limitation by the pre-litigation procedure in EU law. 2/3 4 CONCLUSION (6) The Norwegian Government acknowledges its failure to implement Article 4(1)(c) of the Directive and to notify the implementing measures within 6 May 2019. The Court may therefore declare judgment in accordance with the request sought by the Authority. As matters related to the notification submitted by the Government on 28 June 2023 fall outside the remit of the present case, there is no need for the Court to consider the arguments raised in that regard. (7) The Government consents to dispensing with the oral procedure. (8) On these grounds, the Government accedes to the Authority’s request. ••• Oslo, 05/01/2024 OFFICE OF THE ATTORNEY GENERAL MINISTRY OF FOR CIVIL AFFAIRS FOREIGN AFFAIRS Pål Wennerås Jon-Christian Rynning Margrethe R. Norum Agent Agent Agent 3/3