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PR(06)20: The Norwegian Waterfall Acquisition Act brought before the EFTA Court

26.4.2006

The EFTA Surveillance Authority decided today to bring a matter before the EFTA Court relating to the Norwegian rules on waterfall acquisition. The Court is requested to rule on whether the Norwegian rules are compatible with the EEA Agreement. Today’s decision is prompted by the Norwegian Government’s decision last week not to amend the Waterfall Acquisition Act.

The Authority points out that it is not the system of reversion of waterfalls as such that it considers to be contrary to the EEA Agreement. The Agreement does not prevent Norway from maintaining a system whereby ownership to waterfalls are time-limited and where waterfalls and the accompanying installations are returned to the State after a certain number of years.

The EEA Agreement does, however, require that such a system does not discriminate against rights holders from other EEA States. State-owned enterprises, Norwegian municipalities and municipal counties, as well as entities where minimum two thirds of the capital is owned by such public bodies, will according to today’s system acquire time-unlimited concessions for the operation of waterfalls. Private operators, on the other hand, will have to return their waterfalls and the accompanying installations to the Norwegian State after 60 years. This excludes an operator from another EEA State  that wishes to establish and operate hydropower production in Norway from exercising such economic activity under the same conditions as Norwegian public operators. In the Authority’s view, this discrimination between public Norwegian rights holders, on the one side, and other rights holders – public as well as private entities from other EEA countries – on the other, breaches fundamental principles of EEA law.

The Authority delivered its reasoned opinion already in 2002, when it held that the Norwegian system with reversion of waterfall acquisition rights was contrary to the EEA Agreement. While the Norwegian Government had subsequently initiated a process to amend the system, the Government announced last week that it maintained its position that the rules regarding acquisition of waterfalls were outside the scope of the EEA Agreement.


Norwegian translation


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

Per Andreas Bjørgan
Senior Officer, Legal & Executive Affairs
Tel. (+32)(0)2 286 18 36

26 April 2006




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