NAV Skandalen. Want to "cut to the chase"?

Can Norway prove it has not been, for decades, defining EU citizens' residency status so as to ensure they are denied benefits in return for Trygdeavgift they're forced to pay into Folketrygden? That's how it appears.

From at least as early as 1997, Norway has been aggressively declaring EU citizens working in Norway as resident in Norway for tax purposes, forcing them to pay Trygdeavgift despite it not being possible for them to be granted permanent residence in Norway until 2008. Many such individuals had no desire to live in Norway in any way. On the grounds the EU citizens are not registered as living in Norway, they are denied, by NAV and HELFO benefits including free health care, the use of a fastlege and an EU healthcard. To try and settle in Norway, EU citizens buy properties in Norway since being registered as living in Norway requires an EU citizen to own or rent a property in Norway. The process of registering as living in Norway takes place at tax offices.

It is not unknown for Skatteetaten to claim the fact an individual owns a house in Norway justifies them being defined as living in Norway for tax purposes whilst, for the purposes of registering an individual as resident in Norway Skatteetaten refuses to accept the same individual has proved they own a house in Norway, a Kafkaesque interpretation of Schrodinger's house.

From Utlendingsnemnda web site

"In the Immigration Act of 1988 and the Immigration Regulations of 1990, right of residence was granted in the form of a residence permit issued on application to EEA nationals and their family members. Pursuant to the regulatory framework that applied at the time, it was not possible to be granted permanent right of residence in Norway. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 has been implemented in Norwegian law in the Immigration Act of 2008 Chapter 13 and the Immigration Regulations Chapter 19"

So why was Norway declaring as resident in Norway for tax purposes individuals to whom Norway would later deny permission to reside in Norway?

EU citizens' applications for residence permits failed if they did not intend to be in Norway for more than three months at a time in any given year.

 

and from Skatteetaten's web site ......

"Persons deemed, for National Insurance purposes, to be resident in Norway
Persons who are resident in Norway are as a rule obliged to be members of the Norwegian National Insurance Scheme, cf. the National Insurance Act section 21. A person is deemed to be resident if his/her stay in Norway is intended or has lasted for at least 12 months.
It is a condition that the person in question has a residence permit in Norway. Membership applies irrespective of the employee's citizenship and the employer’s nationality"

So decisions by UDI (who grant or refuse residence permits) terminated EU citizens' membership of Folketrygden

Effectively, Norway demanded EU citizens remained in Norway for at least three months every year to be granted the permission needed to live legally in Norway, be registered as living in Norway and receive benefits in return for the Trygdeavgift they were forced to pay. No such restriction exists for Norwegians so it is possible Norway has failed to uphold the human rights of thousands of EU citizens in respect of Article 1 Protocol 1 in conjunction with Article 14 of the European Convention of Human Rights (see * below)

Norway might, in the circumstances, seek to reduce the burden it's behaviour places on the European Court of Human Rights by, as Finland has done, ratifying Protocol 16 of "the Convention" enabling Norwegian courts to request opinions from the European Court of Human Rights whilst bearing much of the administrative burden of rectifying Norway's failure to uphold human rights on what appears to be an "industrial scale"

Another alternative is to try and use the EFTA Court via Section 51a of the Norwegian Courts of Justice Act though I suspect the EFTA Court will not be keen on the idea as it merely gives opinions which Norway will still have to administer through its own court system. Opinions of the Court are not binding and the process for individuals bringing cases is cumbersome.

For some EU citizens, Norway's intervention in the defining of their residency status left them unable to apply for work permits needed to return to work outside of the EEA with disastrous consequences for their businesses, careers and incomes. Those whose work relied on them passing "fit to work" medical examinations found themselves unable to accept offers of work due to being denied fastleger in Norway who could arrange or perform such medicals as well as administer records imported from an individual's previous fastlege and a medical history from their native land.

So individuals must use a lawyer. Bearing in mind the scale of the NAV Skandalen, does Norway possess adequate capacity in terms of court and legal representation to administer the problem like NAVSkandalen? If so, how long must victims wait for "justice"? In the meantime, what do they live on? If they have lost their homes, where do they live? What is their postal address? How does NAV or courts contact them?

Until two weeks ago (November 8th 2019), NAV was still advising EU citizens they could receive no benefits unless they were registered as living in Norway.

It seems that Norway's error in creating the #NAVSkandal was allowing Norwegians to be caught in this system, then convicted and imprisoned. So long as it was "only foreigners" affected by this system, no-one seemed to care.

Affected EU citizens are unlikely to be able to define where they live for the purposes of issuing stevninger in Norwegian courts which, in any case, rely on Norwegian law into which the pertinent EU / EEA / EOS laws have not been adopted. Thus, Norway faces a tsunami of cases already arriving at the European Court of Human Rights. The EU Commission kindly placed in the public domain the following advice in 2013.

* "Lastly, the Commission would draw the petitioner’s attention to the possibility of taking a case against Norway in the European Court of Human Rights (ECHR) on the grounds of failure to follow the court’s case law, specifically its judgment of 16 September 1996 in Gaygusuz v. Austria. The ECHR found in the Gaygusuz judgment that a social security benefit constituted a ‘pecuniary right’, one of the aims of social security being to give people economic security. In the light of that judgment, there can be no doubt that social security benefits are part of an individual’s assets, as they constitute an entitlement vis-à-vis social security funds. To strip a person of that entitlement without objective justification thus violates the right to property as laid down in the European Convention on Human Rights"

I think those who claim Norway's relations with the EU will remain cordial are unrealistically optimistic.

In 2013, had the EU Commission already ceased to see the ESA (EFTA Surveillance Authority) as a remedy for EU citizens seeking to have their rights upheld?

In 2016, the EU Commission advised another petitioner

"The petition raises the question whether the Norwegian legislation is compatible with the fundamental freedoms as guaranteed by the EEA Agreement. Thus, it does not fall within the competence of the Commission, but within the competence of the European Free Trade Association (EFTA) Surveillance Authority" so by 2016, it seems the ESA was again seen as the vehicle for upholding EU citizens' rights in Norway.

In 2015, Oslo City Court refused to hear a stevning brought by an EU citizen based on Norway's failure to uphold and implement the outcome of a case heard and closed at the ESA Domstolen between 2012 and 2015 stating

"The subpoena deals with a number of topics, such as health and social insurance, tax matters and housing issues, and you describe a period from 1997 onwards to today.

The subpoena does not fill the law's requirements for a subpoena. A summons must state a specific defendant. In your case, the lawsuit is assumed to be brought against one or more government agencies at their respective ministries"

In 2011, though there were over 70,000 EU citizens registered as living in Norway, it seems there were other EU citizens, "living in Norway for tax purposes" not registered as living in Norway or as members of the Norwegian National Insurance Scheme due to not being in Norway often or long enough to be granted a residence permit.

It might prove fruitful to ask Skatteetaten how many EU citizens are paying Trygdeavgift or are resident in Norway for tax purposes. If you subtract from that number the total of EU nationals on the Folkeregister, you have a reasonable estimate of the number of EU nationals with grounds to send cases to the European Court of Human Rights

Bearing in mind the imminent danger and hardship #NAVSkandalen victims face, the potential cost of compensation and back-dated, unpaid benefits plus legal and court costs and the damage to Norway's reputation, would not admitting liability, aplogising profusely and making generous payments directly to those affected immediately almost certainly be, the best option for Norway?

The alternative is creating more people who, due to their treatment by Norway, become more vulnerable, unemployable and an even greater burden on Folketrygden.