In a new case referred to the EFTA Court in recent weeks – Case E-2/24, Bygg & Industri Norge AS and others v Norway – the Oslo District Court (Oslo tingrett) has asked the EFTA Court to rule on an issue that the EFTA Surveillance Authority (ESA) is also examining, and has initially opened infringement proceedings against Norway on, including having issued a letter of formal notice.
Norway has recently introduced new national measures, which bring about an absolute prohibition on the use of temporary agency workers in the construction sector in Oslo and other select places. Accordingly, a number of Norwegian temporary-work agencies, a Norwegian employers organisation, and an Estonian temporary-work agency have all lodged complaints with the ESA.
However, Bygg & Industri Norge AS and others have also lodged proceedings in the national courts, and thus, Case E-2/24 reaches the EFTA Court before the ESA has had a chance to.
The EFTA Court in the pending case is being asked whether the fact that a temporary work agency from an EEA state that hires out workers to undertakings in the same EEA state has employees who are nationals of other EEA states have any implications for the determination of whether there is a cross-border element under the rules on the freedom to provide services (Article 36 EEA).
Given that Norway claims that national measures are justified in order to reduce the use of temporary agency workers and increase permanent and direct employment in Norway, the referring national court in Case E-2/24 also wants to know if such a claim can constitute legitimate objectives for restrictions on the freedom to provide services. It is likely that, just like the ESA, the applicants in this case are arguing that the measures taken by Norway are disproportionate.
Given that the there are now two pending processes, it is crucial that the EFTA Court does not simply pass the proportionality test back to the referring national court. If the EFTA Court does so in Case E-2/24, then it remains the prerogative for the ESA to continue to push the existing case it has on this matter to the EFTA Court thereafter, where the EFTA Court will be forced to make that determination – a possibility that the EFTA Court can avoid in Case E-2/24.
Further information on the new request for an advisory opinion of the EFTA Court in Case E-2/24, Bygg & Industri Norge AS and others v Norway is available here.