ESA: Norway must end restrictions on the retention of sickness benefits while abroad

Norway continues to be in breach of EEA rules on the coordination of social security systems and on the free movement of persons by restricting sickness benefits from being paid when recipients go to other EEA states. In response, the EFTA Surveillance Authority (ESA) has today sent a reasoned opinion (RDO) to Norway asking it to change its rules and practices. 

Norwegian rules require individuals to stay in Norway in order to be eligible for certain sickness benefits. While recipients of these benefits may be allowed to travel abroad occasionally, this requires a prior authorisation from the Norwegian Labour and Welfare Administration (NAV). Approval is subject to several stringent conditions, including a maximum limit on the amount of time recipients can spend in other EEA states. 

Such conditions are contrary to EEA law, including EEA social security law and rules on free movement. ESA’s concerns only relate to the restrictions imposed on recipients regarding travels outside of Norway and not to the eligibility to receive such benefits in the first place.

While Norway maintains that the requirement to stay in the country is no longer applied in practice, the legal texts remain largely unchanged. ESA therefore concludes in its reasoned opinion that Norway continues to restrict the free movement of EEA citizens.  

At the core of ESA’s concerns lie the lack of clarity and predictability of the rules put in place by Norway. All citizens have a right to a clear, precise and predictable framework that allows them to easily understand and navigate EEA rules.

On  20 November 2020 ESA sent a letter of formal notice (LFN) to Norway, the first step in infringement proceedings. This followed a thorough investigation and dialogue with the Norwegian government, after it had admitted in October 2019 to wrongfully have applied EEA rules by restricting the free movement of recipients of three types of sickness benefits.

The EFTA Court on 5 May handed down its judgment in Case E-8/20 - Criminal proceedings against N, relating to free movement and the retention of social security benefits in another EEA State, specifically work-assessment allowance. This judgement confirmed ESA's views with regard to work-assessment allowances as set out in the its letter of formal notice. In the reasoned opinion, ESA maintains that the same conclusions are applicable to other sickness benefits such as attendance allowance and sick pay.

Today's reasoned opinion is the second step in ESA's formal infringement procedure against Norway. The Norwegian government is now given three months to express its views, after which ESA may decide to refer the case to the EFTA Court.

ESA’s reasoned opinion is available here.