A new case has been lodged at the EFTA Court, Case E-23/24, AO and IM, by the Immigration Appeals Board of Norway (Utlendingsnemnda) (UNE). The body has made a request for an advisory opinion to the EFTA Court under Article 34 SCA for the first time.
The case concerns Article 7(1)(b) of the Free Movement Directive (Directive 2004/38), but in fact, the case should be declared inadmissible given that the requester is not, in fact, a ‘court’ or ‘tribunal’ within the meaning of Article 34 SCA.
Background and facts
The case on substantce concerning the interpretation of the Free Movement Directive (Directive 2004/38) in the context of the EEA Agreement, more specifically, Article 7(1)(b). The main issue is whether the income of a third-country national can be considered when assessing if an EEA national has ‘sufficient resources’ to reside in a host state, without becoming a burden on its social assistance system.
The parties involved are AO, a national of Poland; and IM, a national. of Egypt. AO’s application for a permanent residence certificate was denied because she did not have continuous employment or sufficient personal income during her stay in Norway. IM’s application for a permanent residence card was also denied, as it depended on AO’s lawful residence. AO had periods without income, and received unemployment benefits, while IM had a stable income throughout.
The referring national body questions whether IM’s income can be included in determining AO’s sufficient resources. The body refers to the well-known Singh case, which allows partial consideration of a spouse’s income, but the referring body seeks clarity on whether this can be the sole source of resources, and if continuous personal contribution from the national of a Member State/EU citizen is required.
Issues with admissibility
In the request sent to the EFTA Court, the UNE lays out precisely why it is a court a tribunal. In fact, however, its own proves proves the precise opposite, as to why it is not.
Take the third paragraph of the referral as a starting point in which it claims that it is,
‘a politically independent administrative body within the Ministry of Justice and Public Security‘.
- First, it states it is ‘administrative’. That means it is not judicial.
- Second, it states is ‘witin the Ministry’. This reaffirms that it is not judicial.
It is apparant from the request for an advisory opinion (otherwise known at the CJEU as the ‘order for reference’ in the other pillar of the EEA), that the referring body is fundamentally part of the public administration in Norway because when it decides on a case file, the case can then be appealled, judicially to the actual Norwegian courts.
In other words, the referring body is just a cog in the wheel of the administration, and therefore, not judicial.
The EFTA Court’s case-law on referrals from non-judicial bodies
I have written extensively on the EFTA Court’s case-law on this topic. Three pieces I will highlight in particular however:
- Graham Butler (2020), Independence of non-judicial bodies and orders for a preliminary reference to the Court of Justice. European Law Review, 2020, Vol 45 No. 6, pp. 870-887. Download PDF here.
- This focuses on the CJEU’s ‘turn’ from being open to referrals from non-judicial bodies, to imposing, rightly, a demanding standard of judicial character, most prominently, Banco de Santander (C-274/14).
- Graham Butler, Mind the (Homogeneity) Gap: Independence of Referring Bodies Requesting Advisory Opinions from the EFTA Court. Fordham International Law Journal, 2020, Vol. 44, No. 2, pp. 307-352. Download PDF here.
- The EFTA Court’s case-law, all to way up to its Tak (Case E-7/19) and Scanteam (E-8/19) case, which has explicitly, and I argue incorrectly, departed from CJEU case-law.
- Graham Butler, Tribunals in the Nordic States and Referrals to the European Courts. in Jane Reichel, & Mauro Zamboni (eds.), Scandinavian Studies in Law: Volume 69 – Rule of Law (2023) (pp. 145-176). Jure. Download PDF here.
- A complete analysis of all referrals by non-judicial bodies across all five Nordic states to both the CJEU and the EFTA Court, both admissible and inadmissible.
I will not repeat all my arguments contained therein. They can all be downloaded at the click of a button or two via the links above.
But needless to say, they all point in one direction: the CJEU and the EFTA Court need to be stricter on the admissibility of the references for whom it engages with judicial dialogue under.
The EFTA Court is a laggard here.
The need for humbleness
The AO and IM case before the EFTA Court calls for a court that demonstrates humility. While there may have been valid reasons in the past for maintaining loose admissibility criteria for referring bodies under Article 34 SCA, such as in the Restamark case, the evolving legal landscape suggests that it might now be time for a change.
The CJEU exemplified this humility in its Banco de Santander judgment, where it overturned its own case-law, including decisions made in recent years. Similarly, it would be beneficial for the EFTA Court to acknowledge that its previous rulings, such as in Tak and Scanteam, may have been incorrect regarding the admissibility of certain cases.
In the AO and IM case, there is no judicial gap, as cases before the UNE can and do proceed to the Norwegian courts, which are capable of requesting advisory opinions when necessary.
As the EFTA Court celebrates its thirtieth anniversary, it stands as a mature, esteemed institution. It is fitting for the EFTA Court to establish and apply a minimal threshold for engaging in judicial dialogue, recognising that the referring body in this case does not meet that threshold.
Read the referral (but also research the research)
The request for an advisory opinion of the EFTA Court in Case E-23/24, AO and IM, made by the Immigration Appeals Board of Norway (Utlendingsnemnda) (UNE) can be read here.