Law professor Finn Arnesen is often cited in discussions of the scope for action within the EEA. Here, it is important to distinguish between the nuances of the profession and political rhetoric. Professor of Law Finn Arnesen is one of Norway’s leading experts on EEA law, and his points regarding ‘scope for action’ refer to something other than what many politicians often mean by the term.
Arnesen has repeatedly pointed out that politicians speak as if the EEA Agreement did not exist. He believes that the scope for action is, in reality, far narrower than political rhetoric would suggest, particularly when it comes to intervening directly in markets such as electricity and energy.
When Arnesen talks about ‘room for manoeuvre’, he is referring to the legal scope for interpreting and applying the Agreement within the framework we have already accepted.
This does not mean that Norway is free to ignore the EU’s climate targets or levies, but that we can choose how we implement them, provided the targets are met.
Arnesen has made it clear that if Norway wishes, for example, to restrict electricity exports or completely remove European-imposed taxes, we are in conflict with the core of the agreement – and in the worst-case scenario, we would have to terminate the entire agreement.
A key aspect of Arnesen’s work emphasises that the EEA Agreement requires ‘loyalty’.
This means that we cannot use national resources (such as oil or electricity) in a way that discriminates against other countries in the single market.
When Trygve Tamburstuen claims we are in control, he ignores the fact that this loyalty is legally binding.
Note: Arnesen thus points out that our room for manoeuvre only exists as long as we do not breach this loyalty. The duty of loyalty means that Norway has agreed to behave as a team player within the EU. We are free to sell our goods to them, but in return we have lost the right to use our own natural resources as a national weapon to secure a cheaper cost of living for ourselves than our neighbours.
Finn Arnesen points out that the ‘room for manoeuvre’ is not an open door, but an extremely narrow corridor. He believes we need to understand the framework better in order to make the most of the limited space we have. This could involve:
-Targeted support for vulnerable groups (housing benefit, electricity subsidies for those on the minimum pension).
-Technical requirements for grid expansion.
However:
This does not include undermining the market price or removing common charges such as ETS2.
That would constitute a systemic breach.
When the EU adopts ETS2 (emissions trading scheme for fuel) or the Fourth Energy Market Package, these are specific legal acts that Norway has incorporated into the EEA Agreement.
Arnesen emphasises that these rules are designed to be the same throughout Europe.
To believe that one can use a national ‘interpretation’ to avoid the quota price on petrol is what he calls ‘cheating’. The legal framework within the EEA does not permit accepting the objective (climate reduction) whilst refusing to use the means (high prices). EEA law takes absolute precedence, which is why the courts have been given a clear message: if a Norwegian ‘loophole law’ (e.g. to keep electricity prices down) conflicts with EEA obligations, the Norwegian law must give way.
The legal machinery is now in place to detect and halt such national manoeuvres. The quote below is a compilation of legal principles (as discussed by Arnesen) and Tamburstuen’s own political conclusions regarding ‘Norwegian will’.
Whilst Arnesen describes the narrow and demanding legal paths Norway can take to retain control, Tamburstuen presents this as an ‘open door’ that the government is deliberately choosing not to walk through. Although Arnesen believes there is a small margin for manoeuvre, he is clear that this is challenging terrain: Any reorganisation that gives Norwegian users an advantage not enjoyed by other EEA citizens will immediately be challenged by the ESA as illegal state aid or a breach of the free movement of goods.
Finn Arnesen’s point that we have a tool others lack was a legal observation on what MIGHT have been possible had Norway dared to challenge the framework before the system became completely locked down. However, with the Energy Market Package 4 and the principle of total primacy, this tool is now locked away in a cupboard to which Brussels holds the key.
The EEA rules are so firmly entrenched in Norwegian law that extremely strong legal evidence is required to prioritise national considerations over the EU’s market rules. Tamburstuen uses Arnesen as a ‘witness to the truth’ to demonstrate that there is room for manoeuvre, but he omits Arnesen’s thorough caveat that this room is severely limited by the EEA Agreement’s requirements of loyalty and primacy, and of equal treatment and non-discrimination.
This is where the political ‘nit-picking’ turns into a legal dead end. By taking Arnesen’s academic discussions out of context, Tamburstuen creates the illusion that national control is merely a matter of political will, when the truth is that Arnesen’s caveats effectively act as a legal lock.
When activists use Arnesen as a witness to the truth of ‘national control’, they overlook his warning about the duty of loyalty. Arnesen is crystal clear: you cannot be part of the single market whilst at the same time refusing to play by the rules when things get tough.
The quote below is therefore a highly simplified political version of a complex legal analysis. This quote often circulates in the debate on the EEA and electricity prices, and it originates from academic discussions at the Centre for European Law at the University of Oslo. The quote is used in a way that could be said to stretch the legal context quite considerably. Here is a clarification of what Arnesen is actually pointing out, as opposed to how it is presented.
-The legal point (Arnesen):
Arnesen has argued that electricity can be defined as a ‘service of general economic interest’. This is a concept in EU law which allows the state to organise services (such as water, sewerage and roads) outside the usual market requirements if this is necessary for society. He points out that, since the state and the local authorities own almost all electricity generation in Norway, we have – in theory – a tool for regulating the sector that many other countries lack.
When ownership is highlighted, the focus is on a power that exists on paper but which is illegal to exercise in practice as long as we are bound by a ‘duty of loyalty’ to the EEA.
Sweden tried to exercise its national regulatory powers over fuel, and the daily fines it is now facing are the EU’s way of reminding them who is actually in charge. Since EEA law takes absolute precedence, the EU’s energy market rules (which state that electricity prices must be set freely by the market) will override a Norwegian definition of electricity as a ‘public utility’.
If Norway tries to push ahead, the ESA will take us to court.
We will then end up like Sweden: facing demands for an immediate retreat and threats of massive fines.
What Tamburstuen omits when he refers to Arnesen are the professor’s strong warnings. Arnesen has stated in several opinion pieces that if Norway actually uses this scope for action to restrict exports or grant Norwegian companies advantages that harm the internal market, we will be in direct breach of the EEA Agreement. When the quote is used to suggest that “we are in control”, it is presented as though it were merely a matter of political will. But Arnesen is clear that this scope for action is like a narrow path through a minefield.
You can walk along it, but if you take a wrong step (for example, by discriminating against foreign buyers), the ESA and the EFTA Court will crack down on it immediately. The quote is accurate in the sense that Arnesen believes the regulatory framework for water, roads and sewerage could have been applied to electricity. However, he also believes that doing so in practice would have triggered a massive legal conflict with the EU, which, in the worst-case scenario, could have required Norway to terminate the entire EEA Agreement.
Water, roads and sewerage are natural monopolies that are not traded across national borders.
Electricity and fuel, on the other hand, are goods within the single market.
Arnesen’s point is that if one attempts to treat electricity as water (i.e. outside the market), one undermines the very foundation of the EEA Agreement: the principle of the free movement of goods.
Tamburstuen thus uses Arnesen’s description of a theoretical door as if it were a safe emergency exit. When one looks at the actual legal framework, Tamburstuen’s argument regarding a ‘conflict-free decoupling’ falls apart. Here is why the law itself refutes his claims:
-The principle of primacy is the legal lock.
The Storting has decided that EEA rules take absolute precedence. This means that if Norway attempts to introduce special national rules on electricity prices (decoupling), these will be in direct conflict with the EU’s regulations on the internal energy market.
Norwegian courts would then be legally obliged to rule in accordance with EU law, not in accordance with national wishes.
-The prohibition on export restrictions.
Article 12 of the EEA Agreement prohibits quantitative export restrictions and measures having equivalent effect. ‘Decoupling’ in order to keep prices down in Norway will inevitably affect the flow and price of goods abroad. This is considered a breach of the free movement of goods within the internal market.
It is therefore not possible to ‘decouple’ without simultaneously restricting exports, which is illegal under EEA law.
-The prohibition of discrimination.
EEA law prohibits discrimination on the basis of nationality. If Norway were to introduce a dual-pricing system (cheap electricity for Norwegians, expensive for foreigners), we would be breaching the principle of non-discrimination. This would immediately be stopped by the ESA and the EFTA Court as unlawful state aid or a distortion of the market.
When Tamburstuen refers to Finn Arnesen, he is drawing on legal theory about what might have been possible in an ideal world, but he is ignoring the legal reality of 2026. By claiming that there is scope for action that does not require a breach of EEA law, he is perpetuating an illusion.
This leads people to fight for ‘political changes’ that the law has already made impossible, rather than engaging in a debate about membership of the single market itself.
The law itself is crystal clear:
You cannot have both full access to the single market (EEA) and national control over pricing.
You must choose one, and the Storting has already chosen to give precedence to the EU.
In practice, the Storting has bricked up the emergency exit.
When politicians today promise cheaper electricity or petrol, they are speaking against the legal reality they themselves adopted in 1992. They have chosen the rules of the single market over national price control, and this primacy ensures that Brussels holds the legal remote control over Norwegians’ wallets.
To drive the point home so that people might grasp the gravity of the situation: through our ever-prevailing duty of loyalty and the primacy of EEA law, the Storting has bricked up all the emergency exits.
Brussels has total legal control over your everyday life, without exception.
Whether it concerns electricity prices, petrol taxes, transport, agriculture or the use of one’s own woodland and property, the EU’s market rules and climate packages (such as ETS2 and LULUCF) trump all Norwegian decisions.
The example of Sweden, with fines running into millions every day, shows that national control is an illusion; sovereignty has, in practice, been transferred, and the legal straitjacket will only be tightened further as new requirements come from the EU.
Siri Hermo
