The Eidsivating Court of Appeal (Eidsivating lagmannsrett) in Norway has made a new request for an advisory opinion under Article 34 SCA to the EFTA Court: Case E-25/24, Dartride AS v Norwegian State.
The substance of the case is particularly novel, as it raises directly, for the first time, where state liability for judicial decisions exists as a matter of EEA law.
Backgrounds, and first set of judicial proceedings
The background of the case dates back to May 2019, when Dartride AS brought an action against the Municipality of Oslo (Oslo kommune), claiming damages for the failure to issue taxi permits in 2017.
Dartride argued that the municipality’s decision violated Article 31 EEA, which pertains to the freedom of establishment. This claim was supported by a statement from the EFTA Surveillance Authority (ESA) in February 2017, which indicated that the criteria for allocating taxi permits were indeed contrary to Article 31 EEA.
At first instance, the Oslo District Court (Oslo tingrett) ruled in favour of the Municipality of Oslo in November 2019, finding no causal link between the alleged financial loss and the refusal of the taxi permit application.
This ruling was appealed to the Borgarting Court of Appeal (Borgarting lagmannsrett), which dismissed the appeal in November 2020. This court of appeal held that under national civil procedural law, the correct defendant in such a damages claim should have been the state, and not the municipality.
On appeal again, this time to the Supreme Court of Norway (Høyesterett), this decision was subsequently upheld in March 2021, which refused to grant leave to appeal.
Second set of judicial proceedings
In October 2021, Dartride AS filed a new action, this time against the state, again seeking damages for the failure to issue taxi permits. This claim was dismissed by the Oslo District Court (Oslo tingrett) in November 2022 on the grounds that it was time-barred.
On appeal, the Borgarting Court of Appeal (Borgarting lagmannsrett) upheld this dismissal in March 2023.
The Supreme Court of Norway (Høyesterett) refused to grant leave to appeal in June 2023.
Third set of judicial proceedings
Dartride AS filed yet another action in August 2023, against the Norwegian State, represented by the Ministry of Justice and Public Security.
The basis for this claim was the alleged infringement of EEA law by the national courts, specifically the Borgarting Court of Appeal’s judgment of November 2020, from the ‘first set’ of judicial proceedings. Dartride AS argued that the Court of Appeal’s ruling violated Article 31 EEA which should take precedence over national law.
In this third set of judicial proceedings, Oslo District Court (Oslo tingrett) dismissed this action in January 2024, citing the third paragraph of section 200 of the national secondary law, which sets strict conditions for bringing an action for damages against the state due to judicial decisions.
The case is now pending before the Eidsivating Court of Appeal, and is being asked to determine whether there are obligations under EEA law that would require the action to be heard despite these national limitations. Against this background, is the request for an advisory opinion of the EFTA Court.
National law
The legal background of the case involves several pieces of Norwegian law. Section 87 of the Constitution of Norway establishes the hierarchy of the courts, while Section 88 outlines the finality of Supreme Court judgments.
There is national secondary law which governs the procedure for appeals and the reopening of cases, and the secondary law sets the conditions for bringing actions for damages against the state. Notably, the third paragraph of section 200 of the applicable law stipulates that such actions can only be brought if the decision is quashed or amended, has lapsed, or if the public official is convicted of a criminal offense related to the decision.
The case before the EFTA Court
The advisory opinion of the EFTA Court is sought to address two main questions:
First, whether the EEA Agreement and the principle of state liability under EEA law entail that the state can be liable for damages for errors by the courts in the application of EEA rules.
Second, if so, which decisions by national courts can trigger such liability.
Third, and further if so, whether it is compatible with EEA law for the possibility of filing a lawsuit concerning damages for judicial errors to be subject to the conditions laid down in the third paragraph of section 200 of the national secondary law.
Arguments of the parties
The applicant, Dartride AS, argues that state liability under the EEA Agreement should encompass judicial decisions, drawing parallels to the EU’s Köbler doctrine, which allows for state liability for judicial errors under certain conditions. They contend that the EFTA Court has previously indicated, in an obiter dictum in the Kolbeinsson case, that such liability could exist under EEA law. Dartride AS emphasizes the principles of homogeneity, loyalty, and effectiveness, arguing that these principles necessitate state liability for judicial decisions to ensure effective legal protection and enforcement of EEA law.
On the other hand, Norway argues that the EEA Agreement does not entail state liability for judicial decisions. They highlight the structural differences between the EU and EEA legal frameworks, particularly the absence of a mandatory reference procedure to the EFTA Court and the non-binding nature of the EFTA Court’s advisory opinions. Norway also contends that these differences mean that the Köbler doctrine should not be directly applicable in the EEA context. Furthermore, they argue that the third paragraph of section 200 of the national secondary law does not preclude state liability, but rather ,ensures that judicial decisions are challenged through appropriate legal remedies.
Analysis
There is absolutely little doubt that the Köbler doctrine of state liability for judicial wrongs exists as a matter of EEA law. This will now be known as the Dartride doctrine for the EFTA pillar of the EEA.
The arguments of the respondent state in this instance, that a distinction between EU law and EEA law exists in this regard on judicial liability, should easily be dismissed. It knows this, but is putting up a fight regardless.
It is obviously more circumspect whether or not the national courts of Norway have actually engage in judicial liability as a result of their actions in this specific case.
Either way, the EFTA Court’s judgment here will affirmity clarify whether decisions of national courts can trigger state liability under EEA law and whether the conditions set by national secondary law, such as those in the present case, are compatible with EEA law.
Read the referral to the EFTA Court
The referral of the Eidsivating Court of Appeal (Eidsivating lagmannsrett) to the EFTA Court in Case E-25/24, Dartride AS v Norwegian State can be read here.