The EFTA Surveillance Authority has sent a letter of formal notice to Norway, the second to last stage of infringement proceedings, for its alleged failure to give effect to Directive 2005/65 on port security. ESA alleges, inter alia, that Norway’s narrow definition of a ‘port’ constitutes a security threat.
Background
ESA conducted an inspection of the national competent authority (Norwegian Coastal Administration) on port security in March 2022. The inspection report was shared with Norway one month later in April 2022, which identified the issues.
EEA law on maritime security, such as the Directive in question, inter alia, aim to ensure that adequate measures are put in place throughout the maritime transport chain, beyond the strict boundaries of port facilities and terminals.
The alleged infringement: Narrow interpretation of ports
The Directive require EU Member States and EFTA-EEA states to carry out a risk assessment for every port receiving international traffic, and to have measures in place to mitigate the identified security risks.
In ESA’s view, Norway has failed to apply these rules in several ports, adopting a restrictive interpretation of what constitutes a ‘port’ for the purposes of the Directive.
The alleged infringement: Failures
Moreover, the ESA has stated that Norway has:
- failed to define port boundaries correctly,
- failed to review port security assessments (PSAs) and port security plans (PSPs),
- failed to implement the necessary content of PSPs, and,
- failed to monitor the implementation of port security measures and ensuring that recognised security organisations (RSOs) did not draft PSPs for ports where they conducted PSAs.
Over a one year period that followed, the ESA state that in its view, did not resolve all the issues, and that a subsequent inspections in both March 2023 and October 2023 saw continued conformity, which amounts to a systematic failure to give effect to the Directive.
Thus, the ESA concludes that Norway’s administrative practice of excluding ports from the scope of the Directive is both consistent and general, leading to a failure to comply with EEA law.
The letter requests that the Norwegian Government submit its observations on the content of the letter within two months.
If Norway does not satisfactorily comply with the identified issues, the ESA may choose deliver a reasoned opinion in accordance with Article 31 SCA.
Context
Given the elevated global geopolitical tensions and the resulting risks in Europe, including in Norway, ensuring the security of maritime infrastructure and related supply-chains is crucial.
Moreover, the European Commission is currently pursuing an alleged infringement against another Nordic states, albeit in the other EEA pillar, against Sweden. This has been highlighted here.
Fines
Given similar infringements across both pillars of the EEA, it seems inequitable that Sweden, as an EU Member State, could be subject to fines by the Court of Justice of the European Union if found non-compliant with the Directive. This could happen if the Commission escalates the case under Articles 258 and 260 TFEU. Meanwhile, the ESA bringing Norway to the EFTA Court would result in only a declaratory judgment, with no fines issued by the EFTA Court.
These simultaneous infringement proceedings against Sweden and Norway highlight the need for the EFTA Court to impose fines on EFTA-EEA states when infringements are found. The ESA should request fines for systematic infringements, such as the one at hand.
Read the letter of formal notice sent to Norway
The letter of formal notice, sent by ESA to Norway on 18 September 2024, can be read here.