In a new case at the EFTA Court, Case E-13/24, Friends of the Earth Norway and Others v The Norwegian Government, represented by the Ministry of Climate and Environment and the Ministry of Trade, Industry and Fisheries, the Borgarting Court of Appeal (Borgarting lagmannsrett) is asking what constitutes ‘reasons…of overriding public interest’ under Directive 2000/60 establishing a framework for Community action in the field of water policy (the Water Framework Directive).
The case concerns a company and its subsidiary – Nordic Mining ASA and Engebø Rutile and Gamet AS – that has been granted permission to operate a mine in Norway, as well as the disposal of submarine tailings , known as ‘submarine tailings disposal’ (STD). Two organisations – Friends of the Earth Norway (Norges Naturvernforbund) and Young Friends of the Earth Norway (Natur og Ungdom) – are challenging the decision that granted them such a licence. The validity of one of the decisions giving effect to the licence is being challenged on the basis that is based on the premise that the pollution permit is valid, when the two organisiations argue that an initial permit is actually invalid.
Whilst it is acknowledged that the national measures in question might lead to a deterioration in the quality of surface water in the local vicinity that is prohibited by the Directive, the same piece of secondary law provides for potential grounds of exception that are available to states. For example, Article 4(7)(c) of the Water Framework Directive provides:
‘Member States will not be in breach of this Directive when…the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development‘
The referring court is asking whether the arguments put forward by Norway in the case at hand are those that could be invokved as ‘whether certain justifications such as those that have been invoked before the Court of Appeal may constitute ‘reasons…of overriding public interest‘, within the meaning of the Directive.
And it boils down to this:
‘the parties disagree whether the notion only denotes the types of interests that may justify a derogation, or whether it also calls for a balancing of interests between the advantages of a project causing a deterioration in the status of a water body and its negative impact on the water body. In case a balancing of interests is required, the parties disagree whether the advantages of the project must weigh extensively in favour of the project. Furthermore, the parties disagree as to whether certain justifications that have been invoked before the Court of Appeal may constitute ‘reasons… of overriding public interest.’
The case was initially heard by the Oslo District Court (Oslo tingrett), but was dismissed. On appeal before the national judiciary, the request for an advisory opinion made under Article 34 SCA by the Borgarting Court of Appeal was made in English, and is one of the clearest ‘referrals’ you are ever likely to see from a court in terms of the question whose answer is disputed, the facts of the case, the applicable law, existing case-law, and the position of the parties. Bravo.
The questions referred to the EFTA Court are therefore as follows:
1. What is the legal test when determining whether there is an “overriding public interest” within the meaning of Article 4(7)(c) of Directive 2000/60/EC?
a. Is a qualified preponderance of interest required and/or are only particularly important public interests relevant?
b. What will be key factors in the assessment of whether the public interests that justify the measure are “overriding”?
2. Can the following economic considerations constitute an “overriding public interest” under Article 4(7)(c) of Directive 2000/60/EC, and if so, under what conditions?
a. Purely economic considerations (i.e. the expected gross income generated by the planned mining operations).
b. That a private undertaking will generate income for shareholders.
c. That a private undertaking will generate tax revenue for the state and municipality.
d. That a private undertaking will provide wage income for employees.
3. That a private undertaking will provide wage income for employees Can the following considerations constitute an “overriding public interest” under Article 4(7)(c) of Directive 2000/60/EC, and if so, under what conditions?
a. That a private undertaking will generate employment effects (increased local business activity, employment and settlement).
b. Global supply of rutile.
c. Ensuring Norway and Europe access to critical minerals.
More information on Case E-13/24 Friends of the Earth Norway and Others before the EFTA Court is available here.