On 5 June 2025, the EFTA Court delivered its judgment in Case E-25/24, Dartride AS v The Norwegian State, referring to it by the Eidsivating Court of Appeal (Eidsivating lagmannsrett) of Norway).
For the first time, the EFTA Court confirmed that state liability for judicial decisions of national courts deciding at final instance (by which is meant as referring to a decision of a national court against whose decision there is no judicial remedy under national law) exists as a matter of EEA law. This was a clear extension of its line of case-law that started all the way back in Sveinbjörnsdóttir (Case E-9/97).
The first and main question of the referring national court was as follows: can an EFTA-EEA state be held liable for breaches of EEA law committed by its judiciary, particularly by national courts adjudicating at final instance? The Court’s answer was, in essence, that under certain conditions, judicial decisions of national courts adjudicating at final instance can give rise to state liability, just like the Köbler comparison at the Court of Justice of the European Union (CJEU), and as applied in the EU pillar of the EEA.
Background and Facts
The dispute originated in Norway, where Dartride AS, an undertaking in the taxi industry, sought damages for the failure of a public authority (the Municipality of Oslo) to issue taxi permits to it in 2017. The undertaking argued that the refusal violated its rights under Article 31 EEA which guarantees the freedom of establishment.
Dartride initially brought its claim against the public authority in the national courts, but the courts ruled that the proper defendant was the state (and not the public authority), as the contested rules were of national origin. By the time Dartride redirected its claim, the national statute of limitations had expired, and the national courts dismissed the case as time-barred.
In a final attempt to obtain redress, Dartride initiated a new action—this time against the state itself for an alleged breach of EEA law by the national courts themselves. The company argued that the Borgarting Court of Appeal (Borgarting lagmannsrett), in particular, had erred in its earlier ruling by misidentifying the proper defendant, thereby depriving Dartride of the opportunity to bring a timely claim against the state. When Dartride sought leave to appeal to bring the matter before the Supreme Court of Norway (Høyesterett), the Appeals Committee of the Supreme Court (Høyesteretts ankeutvalg) dismissed its leave to appeal application.
The set of proceedings – of which there will multiple – eventually made its way to the Eidsivating Court of Appeal (Eidsivating lagmannsrett), which referred the main question on state liability for judicial decisions.
Judgment of the Court
Despite there been one main question of the existence of state liability of judicial decisions, the overall set issues in Dartride were as follows:
- whether EEA law permits state liability for judicial decisions,
- what constitutes a court adjudicating at last instance, and,
- whether national procedural rules that restrict such claims are compatible with EEA law.
The EFTA Court reaffirmed that state liability is a general principle of EEA law, and that, by extension, this general principle obliges EFTA-EEA states to provide compensation for damage caused by breaches of the state’s obligations under EEA law, regardless of which organ of the state is responsible. This includes as in the case at hand, the judiciary.
The EFTA Court emphasised that the judiciary plays a central role in safeguarding the rights conferred by EEA law. If national courts, particularly those adjudicating at final instance, could breach EEA law, the effectiveness of the EEA legal order would be severely undermined. Therefore, for the EFTA Court, individuals must have the possibility of obtaining redress when their rights are violated by judicial decisions.
The judgment drew heavily on the jurisprudence of the CJEU, particularly the Köbler case, which established that EU Member States can be held liable for breaches of EU law by their national courts of final instance. The EFTA Court found no reason to diverge from this approach in the EU pillar, affirming that the same principles apply within the EFTA pillar of the EEA. As the EFTA Court put it,
‘there is no reason why the scope of the principle of State liability under EEA law should be narrower than under EU law.’ (para. 34).
The EFTA Court further clarified that this term of ‘final instance’ refers to any national court whose decisions are not subject to further judicial remedy under national law. This includes bodies like the Appeals Committee of the Supreme Court of Norway (Høyesterett), which can refuse leave to appeal. The EFTA Court explicitly rejected arguments that only decisions on the merits by the Supreme Court, after Appeals Committee stage, could trigger liability.
Lastly, the EFTA Court found that certain provisions of national law of Norway, which impose additional conditions for bringing damages claims against the decisions of national courts, were incompatible with EEA law. This included the requirement that the decision be annulled, or that a deciding judge be criminally convicted. Such conditions, too onerous in the EFTA Court’s view, were deemed to undermine the principle of effective judicial protection.
Analysis
The Dartride judgment is a big development within EEA law, for it raises several interconnected new considerations in the operational working of EEA.
First, quite evidently, although the advisory opinion procedure is, textually, what is says on the tin, an ‘advisory opinion’, evidently, national courts deciding at final instance are now under a heightened obligation to make a request for an advisory opinion under Article 34 SCA to the EFTA Court when there is uncertainty in a case before. The EFTA Court was in effect say that, by making use for this possibility, the advisory opinion procedure is effective at eliminating judicial error. In the future therefore, national courts deciding at final instance that fail to seek an advisory opinion in ambiguous situations may be more likely to commit a manifest breach of EEA law, thereby potentially triggering state liability. The Dartride judgment of the EFTA Court, therefore, creates a strong incentive for all national courts – not just national courts deciding at final instance – to engage in judicial dialogue with the EFTA Court through the advisory opinion procedure.
Second, the Dartride judgment sends a clear message that national procedural law must not make it excessively difficult or impossible to obtain redress for breaches of EEA law by national courts adjudicating at final instance. Therefore, the judgment will open up a new avenue for aggrieved actors, who have been subject to judicial wrongs, to seek compensation. The mere recognition that such claims for damages and compensation are now possible, as a matter of EEA law, is a very welcome development.
Third, the EFTA Court also gave indication as to what the EFTA Surveillance Authority (ESA) might do in subsequent cases where national courts in EFTA-EEA states are failing to give full effect to EEA law. The EFTA Court stated, boldly, that infringement proceedings under Article 31 SCA could be opened, and brought to the EFTA Court. As it put it, ‘if ESA considers an EFTA[-EEA] [s]tate – including its national courts – to have failed to fulfil an obligation under the EEA Agreement or SCA, [ESA] may bring the matter before the Court’ (para. 48).
Operative part of the judgment
The Court concluded, inter alia, that,
‘that the principle according to which EEA States are liable to afford reparation for damage caused to individuals and economic operators as a result of infringements of EEA law for which they are responsible is also applicable where the alleged infringement stems from a decision of a national court adjudicating at last instance. State liability for an infringement of EEA law by a decision of a national court adjudicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable EEA law. In circumstances such as those of the main proceedings, where all domestic remedies against a judicial decision which is alleged to have infringed EEA law have been exhausted, the condition that a decision was rendered by a national court adjudicating at last instance must be considered to be satisfied’ (para. 77).
Read the judgment
The judgment of the EFTA Court in Case C-25/24, Dartride AS v The Norwegian State, delivered on 5 June 2025, can be read here.