ACER ' Supreme Court Holds That Parliament Acted In Accordance With The Constitution

• Published date: 11 January 2024
• Subject Matter: Energy and Natural Resources, Energy Law, Oil, Gas & Electricity
• Law Firm: BAHR
• Author: Stig K. Engelhart and Erik T'rrissen

The Norwegian Supreme Court in a plenary decision holds that Parliament acted in accordance with the Constitution when it in 2018 consented to the implementation of the rules of the EU's Third Energy Package into the EEA Agreement. The organization Nei til EU (No to the EU) argued that the decision was more than a "little intrusive" transfer of authority and should have been made with a three-quarters majority in Parliament, and thus that Parliament had acted unconstitutionally when the package was approved with simple majority.

One purpose of the Third Energy Package is to facilitate the trade of electricity and natural gas across borders. The establishment of the EU Agency for Cooperation of Energy Regulations (ACER) is part of the package. When the Third Energy Package was implemented into the EEA Agreement, the EFTA Surveillance Authority (ESA) was provided with similar authority with respect to the EFTA countries (including Norway) as ACER's authority in the EU, one distinction being that ESA may only direct relevant decisions to the national regulatory authorities.

The central question for the Supreme Court has been whether the correct procedure was followed when the Norwegian Parliament dealt with the matter, considering whether and to what extent statutory powers were transferred from Norwegian authorities to ESA.

The Supreme Court states that ACER/ESA cannot decide whether to build new interconnectors or prohibit restrictions on electricity exports. Nor can ACER/ESA determine electricity prices. No to the EU agrees with this. However, the organization has argued that decisions made by ACER/ESA can indirectly affect electricity prices. The Supreme Court believes that such an effect can only be marginal in context of what follows from the fact that the interconnectors...