(June 4, 2021) On May 27, 2021, the European Free Trade Agreement (EFTA) Surveillance Authority announced in a news release that Norwegian COVID-19 travel restrictions on entry into the country violated the free movement provisions of the European Economic Area (EEA) Agreement.
Under the European Economic Area (EEA) Agreement, three members of EFTA—Iceland, Lichtenstein, and Norway—are prohibited from discriminating against citizens of EEA member states. (The fourth member state of EFTA, Switzerland, is not a member of the EEA.) Specifically, the EEA Agreement provides that persons from the EEA (European Union, Iceland, Lichtenstein, and Norway) enjoy free movement of travel to work or to provide services in another member state. (EEA arts. 28 & 36.) EEA countries are bound by European Union law with respect to freedom of movement, in particular Directive 2004/38/EC and Directive 2006/123/EC.
Accordingly, the right to movement of EEA citizens in Norway may be restricted only when based on “public policy, public security or public health” and must be necessary, proportional and not discriminatory. (Art. 28 (3).)
In its letter of formal notice on its finding, the surveillance authority recognized that Norway has a right to restrict the movement of persons to achieve its public health objective of limiting the spread of the coronavirus, but argued that the rules and measures adopted were discriminatory and that Norway had not proved that the measure was necessary. The surveillance authority in particular noted that residents were admitted into Norway from EEA countries after completing a quarantine period in designated quarantine hotels, and that there was no reason to believe that nonresident EEA citizens, if subject to the same quarantine mandate, would constitute a higher risk of spreading the virus if they too were quarantined in such facilities.
The formal notice by the surveillance authority is the first step of the EEA’s procedure for addressing violations of the EEA Agreement. The Norwegian government must respond to the surveillance authority’s notice by July 7, 2021, and explain why citizens of EEA countries are treated differently than Norwegian citizens and noncitizen residents.
In accordance with the EEA protocol, the surveillance authority may deliver a reasoned opinion on treaty violations by member states and bring treaty violation charges against Norway before the EFTA Court. (Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice art. 31; Protocol 5 to the EEA art. 36.) Although EFTA Court decisions do not have automatic suspensory effect, the EFTA Court may prescribe interim measures or suspend Norwegian law. (Agreement between the EFTA States arts. 31 & 40.)
As of June 2, 2021, the Norwegian Institute of Public Health had reported that 125,530 persons had tested positive for COVID-19, 785 had succumbed to the disease, and 1,696,625 first doses of vaccine had been administered.