As early as five years before the Nav scandal broke, an internal government investigation found that the Norwegian practice of refusing people to take social security with them abroad violated the EEA Agreement.
“The introduction of residency requirements or direct export bans will be prohibited by the regulation, except for the few situations where the regulation exceptionally allows such requirements,” wrote an internal working group within the government system in 2014.
However, the working group concluded that it would have been possible to use the room for maneuver provided by the EEA Agreement to create Norway’s exceptions to the right of free movement of the EEA Agreement.
The 2014 report is entitled “Export of welfare benefits”.
It was kept secret throughout the wash following the outbreak of the Nav scandal in 2019. Storting’s oversight committee was also denied access to the report when Storting took on the Nav case in Fall 2020.
VG now knows parts of the report content.
The blind spot
The Nav case is considered to be one of the biggest legal scandals in Norwegian history. A committee headed by law professor Finn Arnesen was tasked with investigating the scandal. The committee concluded as follows:
“The absence of critical thinking, good organization and behavior consistent with the responsibilities of the various bodies, has meant that the importance of EEA law was in the blind spot of almost all those involved”.
But the 2014 report shows that the working group paid close attention to specific issues that would lead a number of people to be unfairly sentenced to prison.
VG also mentioned nine notices from 2013 onwards that revolve around the same issues.
Look for exceptions
In March 2014, the Solberg government started a working group to find out how to make as many exceptions as possible to the main rule of free movement between EEA countries. He was ordained by two ministers: Robert Eriksson (Frp) and Vidar Helgesen (H).
The assignment was entrusted internally to public service figures from the Ministry of Labor and four other ministries, with the assistance of two lawyers from the Government Prosecutor’s Office.
it would hinder exports
I the government platform since 2013 the Solberg government had announced “measures that can limit and stop exports of social security, but within the international agreements to which Norway is bound”.
Recent data also showed that around NOK seven billion was paid by the Norwegian social security system to people abroad.
What the Solberg government wanted to do were mainly EEA citizens who had gained social security rights because they worked and paid taxes to Norway.
If they get sick or become unemployed, they could bring generous Norwegian welfare schemes to low-cost countries. The government will try to limit this.
Loophole
“Strong Norwegian economy, combined with times of economic crisis and hay
unemployment in other parts of Europe indicates that people from other EEA countries will continue to come to Norway to work. Other factors that can stimulate greater labor immigration, and therefore greater export of welfare benefits, are that Norway has a particularly high wage level and good universal welfare schemes, “writes the working group in the introduction.
As Norway had committed to the EEA Agreement to facilitate free movement across borders between EU countries and the EEA countries Norway, Iceland and Liechtenstein, the government wanted to find loopholes in the agreement:
The working group had to find provisions that could limit people’s access to welfare benefits with them abroad, proposals that could circumvent the main rule of free movement.
The exceptions must be justified
Although residency requirements or direct export bans will be prohibited by EEA law, the 2014 report supports the search for other conditions that could justify Norwegian special exceptions to the core rule of free movement. It could be control considerations, financial sustainability of social security, or the purpose of the benefit, for example to stimulate job training:
The Working Party therefore considered that “not all elements of residency in a national social security rule are affected (by the EEA Agreement), as long as the national rule is, or perhaps mainly, justified in other circumstances as well”.
Vacation stay
One paragraph goes straight to the heart of what was revealed in 2019 as the Social Security scandal in Nav:
“A special aspect of the requirement for effective residence in Norway relates to cases where absence from the country as a basis for the loss of a benefit, essentially absence during longer holiday stays or other stays abroad. The working group assumes that EEA law grants states relatively wide freedom to determine such limitations in the right to receive social security benefit in the event of absence from the country, provided that the regulation is designed in a non-discriminatory way, “he writes. the working group.
“However, the group assumes that a tightening here will mainly affect those who are members of the social security system as residents of Norway and therefore will not be a good measure to reduce the export of social security benefits,” he continues.
Storting: no freedom of action
In October of this year, eight years later, a majority in Storting’s Labor and Social Affairs Committee stated that this premise, for the working group’s investigation, was not tenable:
In matters of social security, “the government has no freedom of actionbut it must confer the same rights and duties on all EU and EEA citizens “.
– The door to the so-called action space in these cases is now closed, Mayor Per Olaf Lundteigen (Sp) told the VG.
Storting will discuss this position next Thursday.
Norway misinterpreted
The secret report shows that the working group was aware of a 2009 case in which a Swedish citizen had his unemployment benefit application rejected by the Nav while in Sweden.
In 2013 the EFTA Court affirmed this Norway had misinterpreted the court take unemployment benefit to another country of origin. The court ruled that the Norwegian state requirement for residency in Norway was not compatible with EEA regulations.
This case was considered a warning that Norway misinterpreted EEA law in social security cases.
However, it would be another six years before the social security scandal came to light.
Requirements for advertising
In October, seven professors joined the Law School of the University of Oslo out to Aftenposten and asked for the working group document to be made public.
They argued that the consideration of protecting internal work processes in the ministry and government may have outweighed the consideration of a thorough cleanup.
The government prosecutor has now shared a redacted version of the 2014 report with the plaintiffs in a new Nav court case, which will be filed before the Oslo district court in December.
The Nav-Opryddingen association and many of those whose prison sentence was lifted following the social security scandal have sued the state and demanded that the state pay restitution and default interest to the Nav victims.
