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PR(04)09: Reasoned opinion sent to Norway regarding a discriminatory provision in the Fisheries Act concerning crew on fishing vessels


On 5 April, the EFTA Surveillance Authority sent a reasoned opinion to Norway concerning Section 3(2) of Act No 19 of 17 June 1966 of the Norwegian Fisheries Act, which requires at least 50% of the crew members or sharesmen on vessels fishing inside the Norwegian fisheries boundaries to be of Norwegian nationality or resident in Norway. In January 2002, the EFTA Surveillance Authority received a complaint against Norway concerning this provision. Infringement proceedings were initiated in July 2003.

The freedom of movement for workers as laid out in Article 28 of the EEA Agreement is one of the fundamental freedoms in the EEA and entails the abolition of any discrimination, direct or indirect (e.g. residence requirement), based on nationality between workers of the EEA States as regards employment, remuneration and other conditions of work and employment. Under Article 1 of Regulation 1612/68, any EEA national has, irrespective of his place of residence, the right to take up an activity as an employed person, and to pursue such activity, within the territory of another EEA State. Article 4 of the same Regulation provides that rules restricting, by number or percentage, the employment of foreign nationals in any undertaking, branch, activity or region, or at a national level, shall not apply to nationals of other EEA States.

The definition of a “worker” is a matter for EEA law. Otherwise, individual states could modify the meaning of the term “worker” and thereby prevent certain categories of persons from benefiting from the rules on free movement. According to EEA law, a “worker” is any person who, for a certain period of time, performs services for and under the direction of another person, in return of which he receives remuneration.

In the reasoned opinion the Authority is challenging Section 3(2) of the Fisheries Act in so far as it restricts non-Norwegian EEA nationals’ access to employment on board Norwegian fishing vessels. Therefore, the case concerns only the free movement of workers as laid out in Article 28 of the EEA Agreement.

Fishery policy as such falls outside the scope of the EEA Agreement. However, it is settled case law that even in the fields which as such fall outside the scope of application of the EEA Agreement, EFTA states must exercise their powers consistently with EEA law. This principle entails that the exercising of Norway’s powers in the fishery sector must not result in infringement of the EEA rules concerning the freedom of movement for workers.

The Norwegian rule requiring at least 50% of the crew members or sharesmen on a Norwegian fishing vessel to be Norwegian nationals or resident in Norway is directly discriminatory and thus incompatible with EEA law.

In light of these circumstances, the Authority has concluded that Norway is in breach of Article 28 of the EEA Agreement and Articles 1 and 4 of Regulation 1612/68.

The purpose of a reasoned opinion is to give the State in question a last chance to take corrective measures before the Authority decides whether to bring the matter before the EFTA Court. Norway has been given two months to take the measures necessary to comply with the reasoned opinion.

For further information, please contact Mr. Niels Fenger, Director of Legal & Executive Affairs, tel. (+32)(0)2 286 18 30.

6 April 2004

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