Free Movement of Persons in the Nordic States: EU Law, EEA Law, and Regional Cooperation 9781509951840, 9781509951871, 9781509951864

Table of contents :
Acknowledgements
Contents
List of Contributors
PART I: INTRODUCTION
1. Free Movement of Persons in the Nordic States
I. Introduction
II. A Tradition of Cooperation in the Nordic Region
III. A Closer Look: A Nordic Take on Free Movement of Persons Law?
PART II: THE INTERPLAY OF EU LAW, EEA LAW AND NORDIC COOPERATION: VARIOUS PERSPECTIVES
2. The Vision and Legal Reality of Regional Integration in the Nordic States
I. Introduction
II. Historical Developments
III. Institutions and Decision-Making
IV. Nordic Cooperation and EU Law
V. Future Prospects: Proposals for Developing Nordic Integration and Closure of Borders in Times of Crisis
VI. Conclusion
3. Free Movement of Persons in the Nordic States through EU Law and EEA Law
I. Introduction
II. Free Movement of Persons and the Nordic States
III. Free Movement of Persons: The Law and the Case Law
IV. Conclusion: Nordic Integration through the EU
4. Fundamental Rights of the Individual in EEA Law: The Tension between the ECHR Standards and the EU Charter
I. Introduction
II. The Legal Characteristics of the EEA Agreement
III. Protection of Fundamental Rights under the EEA Agreement
IV. The Tension between the ECHR Standards and the Charter
V. Summary and Conclusions
5. Closure of Borders in the Three Nordic EU Member States During the Covid-19 Pandemic
I. Introduction
II. The Divergent Nordic Covid-19 'Models' and Strategies
III. The Administrative Letters from the Commission and the Responses
IV. The Nordic BORDER OBSTACLE Council Letters to the Nordic States
V. Approaches and Actions
VI. Conclusions: Lessons Learned and the Importance of Rebuilding Trust
PART III: THE INDIVIDUAL’S ACCESS TO FREE MOVEMENT RIGHTS IN THE NORDIC REGION
6. Free Movement Rights in Denmark
I. Introduction
II. The Legal Arrangements for EU, EEA and Nordic Nationals in Denmark
III. Legal Basis for Establishing Residence in Denmark
IV. Access to Social Rights/Inclusion in Residence-Based Social Systems in Denmark
V. Denmark's Tense Relationship with Free Movement and Migration
VI. Nationality and Naturalisation in Denmark
VII. Conclusion for Denmark
7. Free Movement Rights in Sweden
I. Introduction
II. The Legal Arrangements for EU, EEA and Nordic Nationals in Sweden
III. Legal Basis for Establishing Residence in Sweden
IV. Access to Social Rights/Inclusion in Residence-Based Social Systems in Sweden
V. Nationality and Naturalisation in Sweden
VI. Conclusion: Sweden
8. Free Movement Rights in Finland
I. Introduction
II. The Legal Arrangements for Nordic, EU and EEA Nationals in Finland
III. The Legal Basis for Establishing Residence in Finland
IV. Access to Social Rights/Inclusion in the Residence-Based Social System in Finland
V. Nationality and Naturalisation in Finland
VI. The Special Treatment of Nordic Nationals: A Problem or Not?
VII. Conclusion
9. Free Movement Rights in Norway
I. Introduction
II. The Legal Arrangements for EU, EEA and Nordic Nationals in Norway
III. Legal Basis for Establishing Residence in Norway
IV. Access to Social Rights/Inclusion in Residence-Based Social Systems in Norway
V. Nationality and Naturalisation in Norway
VI. Other Differences in Nordic/EFTA Regulation
VII. Conclusion: Norway
10. Free Movement Rights in Iceland
I. Introduction
II. The Legal Arrangements for EU, EEA and Nordic Nationals in Iceland
III. Legal Basis for Establishing Residence in Iceland
IV. Access to Social Rights/Inclusion in Residence-Based Social Systems in Iceland
V. Nationality and Naturalisation in Iceland
VI. The Relationship between National and EEA Concepts of Residence
VII. Conclusion: Iceland
11. Free Movement of Persons and the Autonomous Territories in the Danish Kingdom: Greenland and the Faroe Islands
I. Introduction
II. Greenland
III. The Faroe Islands
IV. Conclusions
PART IV: CONCLUSION
12. Flickering Contours of a Nordic Citizenship Encircling a Legal Core of EU/EEA Law
I. Introduction
II. Encouraging Free Movement of Persons in the Nordic Region
III. The Nordic Legal Framework: Complementary But Also Integrationist
IV. Equal Treatment, Easy Naturalisation and Cooperative National Administrations: The Essence of Nordic Freedom of Movement
V. The Flickering Contours of a Non-Formalised Nordic Citizenship
Index

Citation preview

FREE MOVEMENT OF PERSONS IN THE NORDIC STATES: EU LAW, EEA LAW AND REGIONAL COOPERATION Can it be argued that there exists a concept of Nordic citizenship, founded on inter-Nordic cooperation and its relationship with EU law and EEA law? Researchers from all five Nordic States (Denmark, Finland, Iceland, Norway and Sweden) explore the tensions, gaps and overlaps arising from the interplay of EU citizenship, EEA law and the Nordic initiatives that aim to facilitate cross-border mobility of persons in the region. The analysis takes a dual approach. Firstly, it tracks the legal development of nationality law in Nordic states. Secondly, it sets out the rights of residence and access to social rights that follow from the three different regimes. It asks if the Nordic States, through their regional cooperation, are ‘going beyond’ EU free movement law, making naturalisation to a citizenship in a Nordic state particularly attractive. This important new work gives a unique perspective on EU citizenship and free movement law. Volume 9 in the series EU Law in the Member States

EU Law in the Member States Located at the cross-section between EU law, comparative law and socio-legal studies, EU Law in the Member States explores the interaction of EU law and national legal systems by analysing comparative evidence of the impact landmark EU measures – from CJEU decisions and secondary legislation to soft-law – have had across different Member States. The nature and operation of EU law has traditionally been analysed in a highly ‘centralised’ way, through the lenses of Brussels and Luxembourg, and in terms of the Treaty and its interpretation by the Court of Justice. Beneath this orthodoxy, however, lies the complex world of the genuine life of EU law in the Member States. Judicial and administrative practices across the Union’s 28 Member States considerably qualify and sometimes even challenge the long-standing assumption that doctrines such as the direct effect and supremacy of EU law ensure a uniform and effective application of its provisions. Each volume brings together leading academics, national experts and practitioners in order to draw conclusions both for EU law generally and the specific area in question on the basis of Member State reports and broader horizontal papers, and will be of interest to generalist EU lawyers and specialists in each field across the Member States. Academic audiences will benefit from the tight integration of national case studies and doctrinal analysis, whilst practitioners and policy makers will find systematically presented comparative evidence and commentary. Series Editors Jeremias Prassl Michal Bobek Volume 1: Viking, Laval and Beyond Edited by Mark Freedland and Jeremias Prassl Volume 2: Central European Judges under the European Influence: The Transformative Power of the EU Revisited Edited by Michal Bobek Volume 3: Air Passenger Rights, Ten Years On Edited by Jeremias Prassl and Michal Bobek Volume 4: The Eurosceptic Challenge Edited by Clara Rauchegger and Anna Wallerman Volume 5: The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond Matej Avbelj and Jernej Letnar Cernic Volume 6: The Effectiveness of the Köbler Liability in National Courts Zsófia Varga Volume 7: The EU Charter on Fundamental Rights in the Member States Edited by Michal Bobek and Jeremias Prassl Volume 8: EU Soft Law in the Member States: Theoretical Findings and Empirical Evidence Edited by Mariolina Eliantonio, Emilia Korkea-aho and Oana Stefan Volume 9: Free Movement of Persons in the Nordic States: EU Law, EEA Law, and Regional Cooperation Edited by Katarina Hyltén-Cavallius and Jaan Paju

Free Movement of Persons in the Nordic States EU Law, EEA Law, and Regional Cooperation

Edited by

Katarina Hyltén-Cavallius and

Jaan Paju

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2023 Copyright © The editors and contributors severally 2023 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2023. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022946910 ISBN: HB: 978-1-50995-184-0 ePDF: 978-1-50995-186-4 ePub: 978-1-50995-185-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements

T

his volume of analyses on the interplay of EU and EEA law with Nordic legal cooperation in the area of free movement of persons law does not, as is normally the case, originate from a conference organised by the editors. In fact, neither the editors nor the contributors to this volume have been able to meet during the work on this book. Separated by Covid-19 restrictions and hard Nordic border closures, a real-life conference was never possible. Instead, we approached the respective contributors in writing and had continuous dialogue with each of them. This process turned out to be very successful thanks to our fantastic and dedicated contributors, and the volume evolved slowly over the months. The editors would like to give a warm thank you to Hart Publishing for believing in this project on the particularities of free movement of persons in the Nordic region. Thanks, too, to the anonymous reviewers of the project and for the helpful comments of the editors of the Hart Book Series EU Law in the Member States, Jeremias Adams-Prassl and Michal Bobek, who chose to include this volume in that series. In the process of editing this volume, the role of Sasha Jawed was essential. Without her untiring and efficient coordinating efforts, this volume would not have appeared. Thanks to Catherine Minahan for careful copy-editing work and for the language revision. Thanks also to Tom Adams and the production team. Finally, warm thanks are due to Sinead Moloney at Hart Publishing for her friendly and professional publishing skills. Katarina Hyltén-Cavallius and Jaan Paju Växjö and Stockholm December 2022

vi

Contents Acknowledgements����������������������������������������������������������������������������������������v List of Contributors������������������������������������������������������������������������������������� ix PART I INTRODUCTION 1. Free Movement of Persons in the Nordic States����������������������������������������3 Katarina Hyltén-Cavallius and Jaan Paju PART II THE INTERPLAY OF EU LAW, EEA LAW AND NORDIC COOPERATION: VARIOUS PERSPECTIVES 2. The Vision and Legal Reality of Regional Integration in the Nordic States�������������������������������������������������������������������������������������������9 Henrik Wenander 3. Free Movement of Persons in the Nordic States through EU Law and EEA Law����������������������������������������������������������������������������������������31 Graham Butler 4. Fundamental Rights of the Individual in EEA Law: The Tension between the ECHR Standards and the EU Charter����������������������������������55 Davíð Þór Björgvinsson 5. Closure of Borders in the Three Nordic EU Member States During the Covid-19 Pandemic���������������������������������������������������������������77 Ulla Neergaard, Jaan Paju and Juha Raitio PART III THE INDIVIDUAL’S ACCESS TO FREE MOVEMENT RIGHTS IN THE NORDIC REGION 6. Free Movement Rights in Denmark��������������������������������������������������������97 Catherine Jacqueson 7. Free Movement Rights in Sweden��������������������������������������������������������� 121 Thomas Erhag

viii  Contents 8. Free Movement Rights in Finland��������������������������������������������������������� 147 Päivi J Neuvonen 9. Free Movement Rights in Norway�������������������������������������������������������� 175 Christian NK Franklin 10. Free Movement Rights in Iceland��������������������������������������������������������� 199 Ciarán Burke and Ólafur Ísberg Hannesson 11. Free Movement of Persons and the Autonomous Territories in the Danish Kingdom: Greenland and the Faroe Islands������������������������������� 225 Ulla Neergaard PART IV CONCLUSION 12. Flickering Contours of a Nordic Citizenship Encircling a Legal Core of EU/EEA Law���������������������������������������������������������������������������������� 249 Katarina Hyltén-Cavallius and Jaan Paju Index��������������������������������������������������������������������������������������������������������� 261

List of Contributors Davíð Þór Björgvinsson,  Vice-President of the Icelandic Court of Appeal, professor at University of Akureyri and University of Iceland, and former judge of the European Court of Human Rights. Graham Butler,  Associate Professor of Law, Aarhus University, Denmark. Co-editor of EU External Relations Law: The Cases in Context (Hart Publishing 2022). He specialises in EU constitutional law, EU internal market law and EU external relations law. Ciarán Burke,  Senior Research Fellow and Professor, Jena Center for Reconciliation Studies and Legal Officer at the EFTA Surveillance Authority. Former Chair of International Law, Friedrich Schiller University of Jena; Former Director of Research, Irish Law Reform Commission; specialist in international law, EU law, comparative law and human rights law. Thomas Erhag,  Professor of Public Law, University of Gothenburg, Sweden. Has a specific research interest in EU free-movement law and social security law, and is the author of several articles and edited books in these fields. Editor of Nordisk Socialrättslig Tidskrift and member of the editorial board of Journal of Social Security Law. Christian NK Franklin, Professor of Law, University of Bergen, Norway. Author of several publications related to free movement and citizenship rights under EU/EEA law, and co-author of the updated law commentary on Chapter 13 of the Norwegian Immigration Act (Universitetsforlaget 2022). Ólafur Ísberg Hannesson, Legal Secretary, EFTA Court, Luxembourg. Former Legal Officer at the EFTA Surveillance Authority. Author of several publications related to EEA law. Obtained his PhD in Law at the European University Institute, Florence. Katarina Hyltén-Cavallius,  Assistant Professor of Law, Linnæus University, Sweden. Conducts research within the area of EU free-movement law, taking a particular interest in the concept of EU citizenship and fundamental rights protection in EU law. Author of EU Citizenship at the Edges of Freedom of Movement (Hart Publishing 2020). Catherine Jacqueson,  Professor of EU Law, University of Copenhagen, Denmark. Has published extensively on free movement of persons, Union citizenship, social Europe and the implementation of EU law in Denmark.

x  List of Contributors Ulla Neergaard,  Professor of EU Law, University of Copenhagen, Denmark. President of the Danish Association of European Law, member of the advisory board of the Common Market Law Review and the Nordic Journal of European Law, and member of the editorial board of Europarättslig Tidsskrift. Obtained her PhD in Law at the European University Institute, Florence. Päivi J Neuvonen,  Assistant Professor in European Law, Durham University, UK; Co-Director of the Durham European Law Institute (DELI); and Docent in European Law, University of Helsinki, Finland. Specialises in EU citizenship and has also published on the role of citizenship rights in other regional integration organisations, including the ASEAN, the ECOWAS and the Mercosur. Author of Equal Citizenship and Its Limits in EU Law: We the Burden? (Hart Publishing 2016). Jaan Paju,  Associate Professor of EU Law, Stockholm University, Sweden. Conducts research within the area of EU social law, the concept of EU citizenship and fundamental rights protection in EU law. Author of The European Union and Social Security Law (Hart Publishing 2017). Dr Juha Raitio, Professor of European Law at the University of Helsinki (since 2007) and docent (associate professor) in European law at the Universities of Lapland, Tampere and Turku. His theoretical works revolve around the concepts of legal certainty and rule of law. Currently, his main research interests relate to Internal Market Law as well as EU Constitutional Law. President of the Finnish European Law Association (FIDE) and member of the steering group in the Nordic Network for European Legal Studies. Henrik Wenander, Professor of Public Law, Lund University, Sweden. Researches Swedish and other Nordic public law, especially with respect to Europeanisation. Work experience from the Nordic Council of Ministers’ Secretariat 2009–10. Author of Fri rörlighet i Norden – Nordiska gränshinder i rättslig belysning (Juristförlaget i Lund 2014) and Europeisk förvaltningsrätt i Sverige (Norstedts Juridik 2021, with Jane Reichel).

Part I

Introduction

2

1 Free Movement of Persons in the Nordic States KATARINA HYLTÉN-CAVALLIUS AND JAAN PAJU

I. INTRODUCTION

T

his book offers thorough analyses of free movement of persons law and naturalisation processes in the respective legal systems of the Nordic states, as shaped by European Union (EU) law, European Economic Area (EEA) law and legal initiatives within the framework of interNordic cooperation. It engages with all five Nordic states: Denmark (EU), Sweden (EU), Finland (EU), Norway (EEA) and Iceland (EEA), as well as the Danish associated territories of Greenland and the Faroe Islands. The main issue that this volume of the series EU Law in the Member States illuminates is whether Nordic cooperation adds anything qualitatively as part of the multi-layered field of free movement of persons law that applies in this region, or whether Nordic cooperation merely further compounds any tensions between national law and EU/EEA law.1 Part II of the book explores and clarifies how Union citizenship and EU/EEA free movement law interact with the initiatives stemming from Nordic legal cooperation that have been implemented in each of the national, Nordic jurisdictions. Part III goes into depth regarding the legal realities of free movement of persons between the Nordic states, analysing the conditions for individuals’ access to social rights when in a free movement situation in each of the Nordic states and associated territories, as well as each Nordic state’s conditions for naturalisation. With these insights, Part IV concludes with discerning the contours of a non-formalised ‘Nordic citizenship’ of sorts. II.  A TRADITION OF COOPERATION IN THE NORDIC REGION

The Nordic states have a long tradition of political and legal cooperation, with the Nordic Council of Ministers recently having proclaimed the vision of the 1 For an analysis of the role of Nordic legal cooperation in light of EU law, see P Leino-Sandberg, LH Leppävirta and S Miettinen, ‘Har det nordiska rättsliga samarbetet en framtid i Europeiska Unionen?’ [2016] Europarättslig Tidskrift 399.

4  Katarina Hyltén-Cavallius and Jaan Paju Nordic region to become the most integrated region in the world by 2030.2 Some legal tools for creating such an integrated region and common framework of personal free movement rights have long been established through inter-Nordic agreements and conventions for facilitating the mobility of individuals, such as the Agreement on a common Nordic labour market,3 the 1957 Nordic Passport Control Agreement and the 1981 Nordic Convention on Social Security. This integrationist vision for the Nordic region is spurred on by the fact that all five Nordic states have strong ties to the free movement regime of the EU, either via EU membership or via association through the EEA Agreement, and come within the scope of the Schengen acquis. The starting point of this book is the question of to what extent the Nordic initiatives really add anything that Union citizenship and EU law or EEA law do not already ensure.4 However, in light of variations of either EU law or EEA law as applicable across the Nordic region, the supranational free movement regime conferred at the EU law level may appear quite different when implemented in the five Nordic states of Denmark, Sweden, Finland, Norway and Iceland, as well as in the associated territories of Greenland and the Faroe Islands.5 Only three of the five states apply the legal concept of Union citizenship and other treaty-based rights to personal free movement in their jurisdictions, the interpretation of which is often made by the Court of Justice of the European Union (CJEU), with the EU’s own Charter of Fundamental Rights as a backdrop.6 While the CJEU has made clear that EEA nationals enjoy similar protection to Union citizens under EU law when they are in an EU Member State, for example with regard to fundamental rights guarantees for extradition measures,7 it is less clear what the status of Union citizenship should mean in the EEA jurisdictions, where technically that concept is not applicable, nor is the Charter.8 There is therefore a tension in EEA law between, on the one hand, not having a Treaty-based concept of Union citizenship, no non-economic personal freedom 2 See www.norden.org/en/our-vision-2030 (accessed 28 June 2022). 3 Agreement concerning a common Nordic labour market (with protocol), signed at Copenhagen on 6 March 1982, in force 1 August 1983. Replaced an agreement from 22 May 1954. 4 See P Leino and L Leppävirta, ‘Does Staying Together Mean Playing Together? The Influence of EU Law on Co-Operation between EU and Non-EU States: The Nordic Example’ (2018) 43 EL Rev 295. 5 As discussed by Jacqueson in ch 6, Erhag in ch 7, Neuvonen in ch 8, Franklin in ch 9, and Burke and Ísberg Hannesson in ch 10. 6 See, eg, Case C-709/20 CG, ECLI:EU:C:2021:602; Case C-673/16 Coman and Others, ECLI:EU:C:2018:2; Case C-182/15 Petruhhin, ECLI:EU:C:2016:630; Case C-133/15 Chavez-Vilchez and Others, ECLI:EU:C:2017:354. On discrepancies in implementation of EU and EEA law in national courts, see C Franklin, The Effectiveness and Application of EU and EEA Law in National Courts: Principle of Consistent Application (Intersentia 2018). 7 Case C-897/19 PPU Ruska Federacija, ECLI:EU:C:2020:262; and see the analysis of the case by HH Fredriksen and C Hillion, ‘The “Special Relationship” between the EU and the EEA EFTA States – Free Movement of EEA Citizens in an Extended Area of Freedom, Security and Justice: Ruska Federacija v. I.N.: Case C-897/19 PPU, Ruska Federacija v. I.N., Judgment of the Court (Grand Chamber) of 2 April 2020, EU:C:2020:262’ (2021) 58 CML Rev 851. 8 See Björgvinsson, ch 4 of this volume.

Free Movement of Persons in Nordic States  5 of movement nor the Charter, but, on the other hand, applying Directive 2004/38 (the Citizenship Directive)9 and Regulation 883/200410 and the European Convention of Human Rights,11 where the Nordic legal framework for encouraging free movement of persons might make a tangible difference.12 The discrepancies that occur with regard to EU versus EEA law may, in some respects, and for some persons, be compensated by the Nordic initiatives, such as those aiming to remove barriers to inter-Nordic mobility, as well as various national legislative provisions in each Nordic state that give preferential treatment of Nordic nationals compared to other non-nationals.13 The inter-Nordic Agreements and Conventions that aim to facilitate mobility of Nordic nationals as well as, in some cases, other residents within the Nordic region, are applicable across the region. A non-Nordic Union citizen who is already established in one Nordic state will generally come within the scope of these Nordic Agreements, for example the Nordic Convention on Social Security, if he or she subsequently moves to another Nordic state. This is not the case, however, with regard to the Nordic Convention on Social Assistance and Social Services, where only Nordic nationals can claim equal treatment. Such favourable treatment accorded to other Nordic nationals, but not to other EU/EEA nationals, might be hard to argue for in light of the EU legal principle of non-discrimination.14 This raises the question whether acquiring national citizenship in a Nordic state is more valuable than any other EU/EEA nationality for accessing social rights as part of the enjoyment of free movement rights within the Nordic region. Despite an EU/EEA free movement regime and internal market rules applicable in all five states, and despite the Nordic initiatives, further cross-border integration between the Nordic states seem to be an ambitious vision. Any lack 9 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC, [2004] OJ L158/77. 10 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L166/1. 11 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950). 12 However, as Burke and Ísberg Hannesson remarked some years ago, the legal concept of Union citizenship might be silently entering through ‘the backdoor’ into the EEA-based free movement of persons regime via the interpretations made by the EFTA Court; C Burke and ÓÍ Hannesson, ‘Citizenship by the Back Door? Gunnarsson’ (2015) 52 CML Rev 1111. See also T Bekkedal, ‘Understanding the Nature of the EEA Agreement: On the Direct Applicability of Regulations’ (2020) 57 CML Rev 773. 13 The Nordic initiatives are crucial for free movement of the associated territories of Greenland and the Faroe Islands, as discussed by Neergaard in ch 11 of this volume, However, as Neergaard further analyses, the special legal character of the applicability of EU law through the individual sphere, rather than the territorial sphere, leads to free movement for the associated territories of Greenland and the Faroe Islands as long as it is not challenged before the courts. See also D Kochenov, ‘Regional Citizenships and EU Law: The Case of the Åland Islands and New Caledonia’ (2010) 35 EL Rev 307. 14 See Erhag, ch 7 of this volume, and Neuvonen, ch 8. See also Leino-Sandberg, Leppävirta and Miettinen (n 1) 402.

6  Katarina Hyltén-Cavallius and Jaan Paju of initiative cannot be legally challenged because the nature of the Nordic initiatives is to be the result of legal cooperation rather than legal integration, with no supranational judiciability.15 This characteristic of the Nordic cooperation makes visions of an integrated Nordic region dependent on political will and the challenges of the day. This became painfully obvious during the Covid-19 pandemic, which saw the Nordic states follow starkly unilateral and separate routes for managing the pandemic, periodically leading to hard border closures within the Nordic region.16 III.  A CLOSER LOOK: A NORDIC TAKE ON FREE MOVEMENT OF PERSONS LAW?

By assembling authors from the various Nordic jurisdictions, this edited volume reveals and explains tensions, gaps and overlaps that result from the complex interplay of Union citizenship and EU law with EEA law, and with the initiatives of Nordic legal cooperation that aim to facilitate cross-border mobility of persons within the region. In the concluding chapter, we take stock of the main findings of our authors and ponder whether the multi-layered legal interplay in the Nordic region is creating a special variant of Union citizenship, in the shape of a Nordic citizenship. This volume thus provides analyses of whether the Nordic states, through their regional cooperation, are ‘going beyond’ EU free movement law in providing access to and coordination of social rights for their mobile citizens, and how EU law and EEA law relate to and are compatible with the special Nordic arrangements for freedom of movement, which, nevertheless, at the legal core, are mainly anchored in the EU law regime of free movement of persons and the legal rights associated with the concept of Union citizenship.

15 See Wenander, ch 2 of this volume, and Butler, ch 3. See also Leino-Sandberg, Leppävirta and Miettinen (n 1) 400–01. 16 As discussed by Neergaard, Paju and Raitio, ch 5 of this volume. See also the analysis by S Heinikoski and T Hyttinen, ‘The Impact of Covid-19 on the Free Movement Regime in the North’ [2022] Nordic Journal of International Law 80.

Part II

The Interplay of EU Law, EEA Law and Nordic Cooperation: Various Perspectives

8

2 The Vision and Legal Reality of Regional Integration in the Nordic States HENRIK WENANDER*

I. INTRODUCTION

T

he vision of Nordic cooperation and regional integration is a recurrent topic in Denmark, Finland, Iceland, Norway and Sweden. These states form a distinct region in northern Europe, sharing historical, cultural and linguistic bonds. They are normally referred to as the Nordic states, whereas the term ‘Scandinavia’ refers, strictly speaking, only to Denmark, Norway and Sweden.1 The legal systems of the five states show important similarities in legal traditions and institutional arrangements. Since the 1970s, the most important forms of cooperation take place within the framework of the Nordic Council and the Nordic Council of Ministers as established by agreements under public international law, but with important involvement from the national administrations. The accession of the Nordic states to the EU (Denmark, Finland and Sweden), and the expansion of the internal market through the Agreement on the European Economic Area (EEA) to include the two other Nordic states that are not EU Member States (Iceland and Norway), has changed the scope for formal Nordic cooperation. Over the last century, the status of Nordic regional integration has fluctuated between undeniable successes, such as the common Nordic labour market and the passport union from the 1950s, and clear failures, such as the closure of borders in the Covid-19 crisis of 2020 and 2021. Such developments have a direct impact on the rights to cross-border movement for

* This individual contribution was supported by Riksbankens Jubileumsfond within the project The Constitutional Role of Public Administration in the Nordic Countries: Democracy, Rule of Law and Effectiveness under European Influence under Grant number P18-0532:1. 1 U Bernitz, ‘What is Scandinavian Law?’ (2007) 50 Scandinavian Studies in Law 14, 15 f; H Wenander, ‘Europeanisation of the Proportionality Principle in Denmark, Finland and Sweden’ (2020) 13 Review of European Administrative Law 133, 134 f.

10  Henrik Wenander individuals, and on the work of the national administrations. This chapter aims at shedding light on these developments. The main question for the chapter is how, from a legal perspective, visions of Nordic integration and cooperation have developed and played out in practice in the shadow of EU and EEA law. The chapter highlights the particular role of national public administrations as important actors in Nordic cooperation, including legal arrangements, especially concerning Nordic conventions, aiming at integration between the Nordic states.2 Because the legal developments in focus here are intertwined with political choices and traditions, historical and political developments are also given attention. As background, it should be noted that comparative legal scholarship often describes the Nordic states as a separate group of legal systems (a ‘legal family’), linked to the Continental legal tradition.3 Although the national legal systems are by no means identical, they all display certain basic traits, which may justify treating them as a group. As such, these systems focus on democratically legitimised positive law in the form of written national legislation, as the main source of law, rather than relying on judge-made law emanating from the courts. They may be also said to take a pragmatic approach to solving legal problems, seeking practical solutions rather than developing abstract systems of the kind found in legal thinking seen elsewhere in Europe. Generally speaking, general principles of law have been given less weight than legislation and legislative materials as arguments in Nordic legal discourse.4 Legal similarities, as well as ideas of legal unity and cooperation, have been most pronounced in the field of private law. In contrast, Nordic states vary in important ways when it comes to the field of public law, in terms of organisation of the public sector. Here, the East Nordic states (Finland and Sweden) feature a system where state administrative authorities are organised as free-standing bodies outside the ministry structures, and with constitutional limitations to ministerial interference in decision-making regarding individual matters. By contrast, the West Nordic states (Denmark, Iceland and Norway) show a more traditional European structure for the executive, with a basis in ministerial rule and direct management of public administration within the ministerial hierarchies.5 There are, however, no indications that the differences in the organisation of the public sector in the states have limited Nordic cooperation or legal arrangements to any substantial degree. Furthermore, all the Nordic states

2 See Butler, ch 3 of this volume. 3 See U Kischel, Comparative Law (Oxford University Press 2019) 554 ff; K Zweigert and H Kötz, An Introduction to Comparative Law, 3rd edn (Oxford University Press 1998) 273; M Bogdan, Concise Introduction to Comparative Law (Europa Law Publishing 2013) 76. 4 J Husa, ‘Constitutional Mentality’ in P Letto-Vanamo, D Tamm and BO Mortensen (eds), Nordic Law in European Context (Springer 2019) 58; H Krunke and B Thorarensen, ‘Introduction’ in H Krunke and B Thorarensen (eds), The Nordic Constitutions. A Comparative and Contextual Study (Hart Publishing 2018) 7; Wenander (n 1) 135. 5 Wenander (n 1) 136.

Vision and Legal Reality of Regional Integration  11 share a common understanding of the general principles of administrative procedure.6 These are of importance for the realisation of individual rights of free movement under both Nordic arrangements and EU law. The historical development of the idea of Nordic integration is outlined in section II as a background to the discussion. In section III, the existing structures for formal Nordic cooperation within the Nordic Council, the Nordic Council of Ministers and associated bodies are described. Furthermore, an overview of national legislation based on Nordic cooperation is given. This is followed by a discussion in section IV of the impact of membership of the EU, and the EEA Agreement, on the scope for Nordic integration. In section V, the prospects for Nordic cooperation and integration are discussed, highlighting both proposals to adapt Nordic cooperation to current realities and the recurrent border restrictions between the Nordic states during the last few years. Section VI concludes that the vision of Nordic integration and cooperation faces serious challenges, but that the formal and informal structures for Nordic cooperation may have a future role in complementing EU law for solving problems of cross-border mobility. II.  HISTORICAL DEVELOPMENTS

The shared history of the Nordic states goes back to their foundation in medieval times. Denmark, Iceland, Norway and Sweden (including important parts of today’s Finland) were gradually established as separate realms in the tenth and eleventh centuries. During the Middle Ages, these states arranged occasional alliances among themselves. In 1262, Iceland was joined with Norway, and in 1397 the Kalmar Union joined all the Nordic states under a Danish monarch in a loosely formed union, in which Denmark, Norway and Sweden maintained their legislation and political institutions. Although the relationships between the states within this union were troubled, and the medieval situation is hardly comparable to today’s political and legal world, the Kalmar Union has served in modern times as an example of Nordic cooperation (see section V). In 1523, Sweden left the Kalmar Union, whereas Norway (with Iceland) was to remain in a union with Denmark until 1814 (see below).7 In the following centuries, the Nordic scene was dominated by the two powers of Sweden and Denmark, as they competed for influence in Northern Europe and waged devastating wars with each other. This was clearly not a time for Nordic integration.8 In the 6 O Mäenpää and N Fenger, ‘Public Administration and Good Governance’ in Letto-Vanamo, Tamm and Mortensen (eds) (n 4) 168 ff. 7 M Suksi, ‘Common Roots of Nordic Constitutional Law? Some Observations on Legal Historical Development and Relations between the Constitutional Systems of Five Nordic Countries’ in H Krunke and B Thorarensen (eds), The Nordic Constitutions: A Comparative and Contextual Study (Hart Publishing 2018) 9, 13 f. 8 G Wetterberg, The United Nordic Federation (Nordic Council of Ministers 2010) 67 f.

12  Henrik Wenander turmoil of the early nineteenth century, Sweden lost Finland to Russia in 1809. Finland would retain a special status as a grand duchy under the Czar, and in principle could continue to apply Swedish legislation. As a kind of compensation for this loss, the Swedish Crown received Norway from Denmark in the post-Napoleonic restorations in 1814.9 Sweden and Norway were eventually joined in a personal union under a common king, with the two states maintaining separate constitutions and separate legal systems. Iceland remained a part of the Kingdom of Denmark.10 With Denmark and Sweden no longer striving for domination in the Nordic area, the preconditions for visions of Nordic integration changed. In the nineteenth century, romantic ideas of ‘Scandinavianism’ emerged, which encompassed visions of unity between the three Scandinavian states (Denmark, Norway and Sweden). However, ideas of a political Scandinavian union that would include Denmark faded, as the geopolitical realities eventually stopped Sweden from supporting Denmark against Prussia in the Second Schleswig War of 1864. From that point, Scandinavianism was primarily a phenomenon in academic and cultural circles.11 Nevertheless, certain forms of formal Nordic cooperation took shape in the second half of the nineteenth century. In 1875, the three states joined in a currency union, which was to last until the outbreak of World War I in 1914.12 As a legacy of this union, the name of the currency in all three states is still ‘crown’ (krone/krona). (Neither Denmark nor Sweden as EU states has introduced the euro as their currency.) The late nineteenth century saw the establishment of the Nordic Lawyers’ Meeting (Nordiska Juristmötet) in 1872. Inspired by the German Lawyer’s meeting (Deutscher Juristentag), this recurrent conference, still in existence, offers high-level legal practitioners and academics from the Nordic states a venue for discussing matters of legislation and judicial practice.13 Although informal, these discussions contributed in time to the establishment of common Nordic legislation and Nordic conventions, especially in the field of private law (see section III.B). The cooperation in the legal field may therefore account for important components of the common Nordic legal identity.14 Associations for Nordic contacts and cooperation were also founded in other sectors of society. The most important ones included the national chapters of 9 Suksi (n 7) 18. 10 Kischel (n 3) 554 f. 11 Wetterberg (n 8) 70. 12 I Cameron, ‘Nordic Cooperation’ Max Planck Encyclopedia of Public International Law (November 2020) at opil.ouplaw.com/home/mpil (accessed 17 February 2022), para 2; Wetterberg (n 8) 71. 13 J Husa, K Nuotio and H Pihjalamäki, ‘Nordic Law – between Tradition and Dynamism’ in J Husa, K Nuotio, and H Pihjalamäki (eds), Nordic Law – between Tradition and Dynamism (Intersentia 2007) 20; Kischel (n 3) 562. The proceedings of the meetings are published in print and on the nordiskjurist.org website. 14 P Letto-Vanamo and D Tamm, ‘Cooperation in the field of law’ in J Strang (ed), Nordic Cooperation. A European region in transition (Routledge 2016) 96.

Vision and Legal Reality of Regional Integration  13 the Norden Association (Föreningen Norden), non-governmental organisations aimed at deepening cooperation between the states through study visits, town twinning and similar activities. In addition, other Nordic organisations were formed among associations and trade unions, establishing informal networks for promoting Nordic cooperation in everyday life.15 In 1905, Norway unilaterally left the union with Sweden; despite considerable tensions, the process was eventually peaceful. Legislative cooperation among the Nordic states was intense during the first decades of the twentieth century. Primarily in the field of private law, the states cooperated in drafting legislation, which was then adopted through separate decisions in the national parliaments (see section III.B regarding this form of coordinated legislation). This method – as opposed to entering into agreements under public international law – was widely used in Nordic arrangements at the time. It has been seen as an indication of the importance attached to national sovereignty.16 During World War II, the contacts between the Nordic states were restricted to some degree, but already during the war ideas of Nordic cooperation received renewed interest, now under the label of ‘Nordism’ (as this concept was no longer a matter only for the three Scandinavian states).17 The most far-reaching political ideas included the founding of a Nordic federation after the War. Post-war realities prevented these ideas (which seemingly never were concretised in legal terms) from being pursued.18 Nor were the more specific plans for establishing a Nordic defence union realised: the geopolitical situations of the respective Nordic states were very different, placed as they were between the Western powers and the Soviet Union.19 Still, intra-Nordic political cooperation in the post-war years was fairly intense. It resulted in the establishment of the Nordic Council (Nordiska rådet) in 1952, as a cooperation body for the national parliaments and governments.20 Consisting of delegations from the national parliaments, the Nordic Council functioned primarily as a politically significant venue for discussions. It could not adopt legally binding measures. This is an indication that formal Nordic cooperation already at the outset was primarily of a political, rather than a legal, character and lacked supranational features. The statute of the Nordic Council was adopted by coordinated decisions (see section  III.B) in the five parliaments.21 However, the states also entered certain important agreements 15 H Wenander, Fri rörlighet i Norden (Juristförlaget i Lund 2014) 16 f. 16 JA Andersson, Nordiskt samarbete: Aktörer, idéer och organisering 1919–1953 (Lund University 1984) 193 f. 17 Wenander (n 15) 20 f; Wetterberg (n 8) 73. 18 JA Andersson, ‘1950-talet. Tid att så – tid att skörda’ in B Sundelius and C Wiklund (eds), Norden i sicksack. Tre spårbyten inom nordiskt samarbete (Santérus 2000) 67, 70 ff. 19 WC Archer and P Joenniemi, ‘Nordic Security and Defence Cooperation. Northern Policies in a European Perspective’ in Strang (ed) (n 14) 167. 20 Owing to its relation to the Soviet Union, Finland was not allowed to join until 1955; Wenander (n 15) 17. 21 SV Anderson, ‘The Nordic Council and the 1962 Helsinki Agreement’ (1964) 34 Nordic Journal of International Law 278, 289 ff.

14  Henrik Wenander under public international law, most notably on establishing the common Nordic labour market (1954) and the Nordic passport union (1958).22 These international agreements meant that Nordic nationals were exempted from requirements on work permits and that the passport controls at the intra-Nordic borders were abolished. This scheme was established some 30 years before the Schengen Agreement in Continental Europe. A clear expression of the spirit of cooperation and the high degree of trust that had developed in the post-war era among the states, these realisations of free movement were to remain a central feature of Nordic cooperation.23 In the early 1980s, it was estimated that over one million people had benefitted from the agreements through working for a longer or shorter time in another Nordic state.24 In 1962, Nordic cooperation was codified through an agreement under public international law, the Helsinki Treaty on Nordic cooperation (see section III.A).25 One reason for this was that some Nordic states had shown an interest in cooperating with the newly founded European Economic Community (EEC, later EU). There was therefore a need to be able to present Nordic cooperation in an understandable way to more formally minded Continental Europeans.26 The Helsinki Treaty pointed out areas of cooperation and ambitions, but mostly in the form of broadly phrased political goals and without any supranational mechanisms (see further section  III.A). In the late 1960s, the Nordic governments negotiated to establish the so-called NORDEK plan, a Nordic economic cooperation structure that included a customs union and measures for a common market.27 This would have been a far-reaching and concrete extension of the ambitions of the Helsinki Treaty in the economic field. Owing to political disagreement between the states and concerns over international relations – especially concerning the planned Danish accession to the then EEC – this plan was eventually abandoned.28 22 Överenskommelse om gemensam nordisk arbetsmarknad (Agreement concerning a common Nordic labour market) (Copenhagen, 22 May 1954), later replaced by a new Agreement concerning a common Nordic labour market (Copenhagen, 6 March 1982); Protokoll angående befrielse för nordiska medborgare från att under uppehåll i annat nordiskt land än hemlandet innehava pass och uppehållstillstånd (Protocol concerning the exemption of Nordic nationals from the obligation to have a passport or residence permit while resident in a country other than their own) (Copenhagen, 22 May 1954); Överenskommelse om upphävande av passkontrollen vid de internordiska gränserna (Convention on the abolition of passport controls at Intra-Nordic borders) (Copenhagen, 12 July 1957). Iceland took part in the passport union from 1966. 23 H Wenander, ‘Recognition of Foreign Administrative Decisions’ (2011) 71 Heidelberg Journal of International Law 755, 783. 24 Prop 1982/83:5 Om godkännande av en ny överenskommelse om nordisk gemensam arbetsmarknad (Swedish Government Bill on the approval of a new agreement concerning a common Nordic labour market) 6. 25 Samarbetsöverenskommelsen mellan Danmark, Finland, Island, Norge och Sverige (Treaty of Cooperation between Denmark, Finland, Iceland, Norway and Sweden) (Helsinki, 23 March 1962). 26 Letto-Vanamo and Tamm (n 14) 102. 27 A proposal was presented by an expert inquiry, NU (Nordisk utredningsserie) 1969:11 Utvidet nordisk økonomisk samarbejde. Rapport fra det nordiske embedsmansudvalg. 28 Wenander (n 15) 17; C Wiklund, ‘Nordek-planen och dess föregångare’ in B Sundelius and C Wiklund (eds), Norden i sicksack. Tre spårbyten inom nordiskt samarbete (Santérus 2000) 121 ff.

Vision and Legal Reality of Regional Integration  15 Inspired by the Western European integration and the institutional structure within the EEC, the Helsinki Treaty in 1971 was extended to include a Nordic Council of Ministers, representing the governmental side of Nordic cooperation.29 Still, however, the Helsinki Treaty primarily laid down goals for cooperation, rather than providing binding rules for actual integration, accompanied by rights and enforcement mechanisms. Notably, Nordic cooperation under the Helsinki Treaty did not include a common court for interpreting Nordic coordinated legislation and conventions, as such a body was not deemed necessary. Any diverging interpretations could instead be adjusted by the legislator.30 This reflects the Nordic constitutional legal culture of focusing on written national legislation (adopted by the democratically legitimised parliament) as the main source of law. Notably, neither the Helsinki Treaty nor Nordic conventions on various topics relating to cross-border mobility (see section III.B) are generally designed as awarding individual rights that could be enforced in the courts. The 1970s and the following decades brought serious challenges to the Nordic legislative cooperation that had been important since the early 20th century (see above). In the Nordic lawyers’ meeting of 1972, the Swedish Minister of Justice stated that the contemporary (Social Democratic) policy in vital societal fields was not compatible with the liberal ideals underpinning Nordic cooperation.31 In 1973, Denmark entered the EEC, which was to further limit the scope for Nordic legislative cooperation. These events created unprecedented tensions within Nordic cooperation. When Finland and Sweden joined the EU in 1995 (and with Iceland and Norway being contracting parties to the EEA Agreement coming into effect in 1994), the power of negative integration and positive legislation within the EU took over the former role of Nordic legislative cooperation.32 Although the pan-Nordic institutions continued to exist, with occasional successes and many activities in various fields, it was clear that the cooperation – from both a political and a legal perspective – entered a period of relative stagnation from the 1990s.33 In short, broader Europeanisation brought about a shift of focus – and legislative resources – to the EU level, at the expense of Nordic cooperation.34 As will be seen (section  V) various attempts have

29 Wenander (n 15) 20; Letto-Vanamo and Tamm (n 14) 103. 30 NU 1961:1 Gemensam lagstiftning i rättstillämpningen 5; L Sevón, ‘Tolkning av samnordisk lagstiftning’ in Förhandlingarna vid det 31 nordiska juristmötet i Helsingfors 19–21 augusti 1987, vol I (De nordiska juristmötena 1988) 20. 31 C Lidbom, ‘Den nordiska rättsenhetens problem idag’ [debate point] in Förhandlingarna vid det tjugosjätte nordiska juristmötet i Helsingfors den 24–26 augusti 1972 (De nordiska juristmötena 1975) 56; Letto-Vanamo and Tamm (n 14) 103 f. 32 KÅ Modéer, ‘Harmonization or Separation? Deep Structures in Nordic Legal Cultures’ (2007) 50 Scandinavian Studies in Law 179, 182 f; T Wilhelmsson, ‘Det bristfälliga nordiska lagstiftningssamarbetet och Helsingforsfördraget’ in Lagstiftningspolitik. Nordiskt seminarium om lagstiftningspolitik (Nordic Council of Ministers 2005) 117. 33 Letto-Vanamo and Tamm (n 14) 104. 34 Cameron (n 12) para 25.

16  Henrik Wenander since been made to make Nordic cooperation within the Nordic Council and the Nordic Council of Ministers more politically relevant, notwithstanding the legal challenges involved regarding the relation to EU law (see section IV). III.  INSTITUTIONS AND DECISION-MAKING

From a legal perspective, Nordic cooperation at the governmental and parliamentary level still takes place to a significant degree under the Helsinki Treaty. This international agreement lays down the basic goals of the formal cooperation within the Nordic Council and the Nordic Council of Ministers, and establishes the framework for these bodies and their associated organs. A.  The Helsinki Treaty: Nordic Institutions and Fields of Cooperation Apart from the provisions on certain Nordic institutions (discussed below), the Helsinki Treaty, for the most part, sets out goals for cooperation in various fields.35 Somewhat sarcastically, one view has stated that the focus has been ‘as much cooperation as possible – when possible’.36 As opposed to the EU Treaties and the European Convention on Human Rights (ECHR), the Helsinki Treaty is, as mentioned (section II), not seen as creating rights for individuals. Furthermore, it should be stressed that the Treaty does not constitute a ‘legal basis’ for the Nordic countries to act, for example by entering agreements. The states may enter into international agreements too, without the mentioning of a policy field in the Treaty, for example on tax matters (see section III.B). Since its adoption in 1962, the Helsinki Treaty has been amended several times, most notably in 1971 (with the establishment of the Nordic Council of Ministers, see section II). It was most recently amended in 1995, following the accession of Finland and Sweden to the EU.37 According to the original 1962 preamble to the Helsinki Treaty, the five states want to ‘promote and strengthen the close ties existing between the Nordic peoples’, ‘extend the scale of cooperation between the Nordic countries’ and ‘attain uniformity of regulation throughout the Nordic countries in as many respects as possible’. The preamble to the 1995 amendment added an ambition, to ‘renew and expand cooperation between the Nordic countries in the light of the greater participation by the Nordic countries in the process of European cooperation’. All Nordic legal systems take a shared dualistic point of departure in relation to public international law: to be applicable before national courts and 35 Wenander (n 15) 24. 36 C Wiklund, ‘Quo vadis, Norden?’ (1982) 63 Nordisk Administrativt Tidsskrift 116, 119. 37 A consolidated English version of the Helsinki Treaty has been published as The Helsinki Treaty: Treaty of Co-operation between Denmark, Finland, Iceland, Norway and Sweden (Nordic Council of Ministers 2018).

Vision and Legal Reality of Regional Integration  17 administrative authorities, international agreements must be incorporated into national law.38 This also applies to the provisions of the Helsinki Treaty and other Nordic conventions. The Helsinki Treaty includes provisions on cooperation concerning legal matters, culture, social policy, economic matters, transport and communications, and environmental protection (Article 1). An overview of the provisions of the Treaty is given below. The more specific conventions and other arrangements relating to the provisions are discussed in section III.B. Concerning cooperation in legal matters (meaning cooperation in the field of private and criminal law), the Helsinki Treaty establishes that the legislation of the states shall treat other Nordic nationals on an equal footing with their own citizens (Article 2). This article is one of the few provisions of the Helsinki Treaty requiring more concrete action by the states. Still, owing to the dualistic point of departure just mentioned, this article would in all likelihood not be regarded as directly applicable before national courts and authorities. Previous requirements of country-specific citizenship for individuals to enjoy rights have now for the most part been abolished through legislation of the Nordic states. However, this may also be ascribed in part to the effects of EU and EEA law.39 Cooperation in legal matters also includes efforts to facilitate the acquisition of citizenship in another Nordic state for a Nordic-state citizen (Article 3, see further section III.B). Furthermore, the Nordic states ‘shall continue their cooperation in the field of law with the aim of attaining the greatest possible uniformity in the field of private law’ (Article 5). This provision may be explained by the historical importance of legislative cooperation in the field of private law, going back to the late nineteenth century (see section  II). The states ‘should seek to establish uniform rules relating to criminal offences and the penalties for such offences’ (Article 6). Finally, the states ‘shall seek to achieve a coordination of legislation in such areas, other than the aforementioned, as are considered appropriate’ (Article 7). Notably, the requirements on the states are most clearly pronounced concerning private law. Although the states have entered certain international agreements in the field during the last few decades, legal scholarship has concluded that in practice, politicians and civil servants have not taken the duty of cooperation in this field seriously.40 As to the other fields of cooperation envisaged by the Nordic states, the Helsinki Treaty includes, among other things, provisions on cultural policy relating to strengthening the Nordic dimensions of education and research (Articles 8–12). In the social field, the states shall seek to develop a common Nordic labour market and to make social benefits available to citizens of other Nordic states (Articles 14 and 15). Concerning economic policy, the Helsinki 38 T Ojanen, ‘Human Rights in Nordic Constitutions and the Impact of International Obligations’ in Krunke and Thorarensen (eds) (n 7) 151. 39 Wenander (n 15) 61. 40 Wilhelmsson (n 32) 117.

18  Henrik Wenander Treaty has provisions on joint consultations on economic policy, cooperation concerning ‘production and investments’, measures to ‘ensure the greatest possible freedom of movement of capital’, ‘coordination of technical and administrative customs’ and measures to simplify border trade (Articles 18–24). As the examples in this sector indicate, these provisions have been rendered obsolete to a great extent by EU and EEA law. In relation to transport and communications, the states endeavour to ‘maintain and develop further the cooperation that has made their territories into a single passport-control area’ (Article 28); and in the field of environmental protection, the states shall ‘place the environmental interests of the other High Contracting Parties on an equal footing with their own’ and seek to harmonise environmental protection (Articles 30 and 31). The institutional provisions of the Helsinki Treaty comprise provisions on the Nordic Council, the Nordic Council of Ministers and associated bodies. The Nordic Council consists of representatives from the parliamentary assemblies of the five Nordic states and the three autonomous territories of the Faroe Islands and Greenland (under the Kingdom of Denmark), and the Åland Islands (under Finland) (Article 47). As mentioned (section II), the Nordic Council does not have any formal decision-making power, apart from certain decisions regarding the funding allocated by the five states for the common budget for Nordic cooperation. It primarily serves as a venue for discussions among the participating parliamentarians.41 The Nordic Council convenes yearly and debates issues of Nordic cooperation. It adopts recommendations and issues other statements to the governments (Article 45). Furthermore, the individual members of the Nordic Council may submit questions to a government or the Council of Ministers (Article 57). The proceedings of the Nordic Council are published on the website for Nordic cooperation, which provides a source of information for current matters of Nordic cooperation.42 From time to time, the Nordic Council has been criticised for being politically redundant in today’s Nordic cooperation, with occasional political proposals to abolish the institution.43 The Nordic Council of Ministers consists of governmental ministers of the five states and the three autonomous territories. It is responsible for making decisions under the Helsinki Treaty and other agreements (Article 60). In this way, the Council of Ministers clearly has a central role in formal Nordic cooperation.44 It convenes in different constellations depending on the subject matter. The Helsinki Treaty allocates responsibility for coordinating matters of Nordic cooperation to the Prime Ministers, who shall be assisted by Ministers for Cooperation (Article 61). Thus, the Treaty presupposes that one minister has this portfolio, but the Treaty does not rule out this person’s having other duties in the government. Council of Ministers activities may include discussions on

41 Cameron

(n 12) paras 12 and 13. at www.norden.org/en/information/nordic-council. 43 Wenander (n 15) 27; cf Cameron (n 12) para 24. 44 Wenander (n 15) 27. 42 See

Vision and Legal Reality of Regional Integration  19 current topics, common declarations, political initiatives on deepening cooperation, budgetary decisions, decisions on economic support for various projects, and responses to recommendations and other statements from the Nordic Council. As is clear from the examples, the activities are for the most part political rather than legal in character. Furthermore, the ministers may approve proposals for international agreements between the states, in so far as they do not conflict with obligations from the states arising under EU and EEA law. The Council of Ministers is assisted by Committees of Government Officials, which also convene in various constellations (Article 61). One example from the field of legal cooperation is the Committee of Senior Officials for Justice Affairs.45 These bodies, and associated working groups and expert groups, provide important venues for cross-border administrative contacts, problem solving and knowledge sharing in a variety of fields.46 Indirectly related to the ambition of the Helsinki Treaty to enhance cooperation, the goal of breaking down so-called border obstacles (gränshinder), that is barriers to free movement across Nordic borders, has gained much attention in the Council of Ministers and associated bodies during recent decades. In the political discourse in the Nordic Council and the Nordic Council of Ministers, the concept of free movement has been expanded to include more than just the traditional elements of the passport union and the common labour market. A special Border Obstacle Council (Gränshinderråd), consisting of national politicians, has been established under the Nordic Council of Ministers. This kind of organ does not fit in the institutional arrangements of the Helsinki Treaty and may be regarded as a sui generis body. It has the task of identifying and suggesting measures to the national political representatives for abolishing border obstacles.47 The concept of ‘border obstacle’ is not clearly defined in legal terms and could primarily be seen as a political term.48 It may be understood as a wide term covering various obstacles – legal and non-legal – to mobility across the Nordic borders. In this way, the Nordic institutional structure includes a form of official lobbying group.49 Furthermore, a number of Nordic organisations in various fields have been set up separately from the Council of Ministers, in the legal form of public or private entities under national law, and financed through the common budget for Nordic cooperation. Examples include the Nordregio research centre for regional development and planning, the Nordic Innovation body that supports 45 Letto-Vanamo and Tamm (n 14) 103. 46 H Wenander, ‘A Tool-box for Administrative Law Cooperation beyond the State’ in AS Lind and J Reichel (eds), Administrative Law beyond the State – Nordic Perspectives (Nijhoff/Liber 2013) 55. 47 Mandat för Gränshinderrådet 2022–2024 at www.norden.org/sv/information/mandatgranshinderradet-2022-2024; Wenander (n 15) 44 ff; T Olesen and J Strang, ‘European Challenge to Nordic institutional cooperation – past, present, and future’ in Strang (ed) (n 14) 38. The Border Obstacle Council was preceded by the Border Obstacle Forum with corresponding tasks. 48 Wenander (n 15) 39 f. 49 See further on the activities of the Border Obstacle Council during the Covid-19 pandemic, Neergaard, Paju and Raitio, ch 5 of this volume.

20  Henrik Wenander activities to promote innovation and the Nordic House cultural centre in Reykjavik.50 The Nordic Council of Ministers also supports so-called border committees in border areas, which inform and assist individuals who commute, move or engage in trade across the national borders.51 In the bodies mentioned here, as well as in other forms of formal and informal Nordic cooperation, the working languages are for the most part Danish, Norwegian and Swedish (with the support of Finnish and Icelandic translators and interpreters). The three Scandinavian languages are traditionally considered to be mutually intelligible in writing and speech, and have also been used to communicate with Icelanders and Finnish-speaking Finns, who traditionally have learned Danish or Swedish, respectively, at school.52 However, research suggests that this mutual understanding has deteriorated, at least among younger people.53 This raises some concerns for Nordic cooperation in general, because one of the pillars of the perceived cultural unity among the countries is a shared linguistic foundation. B.  Legislation Based on Nordic Cooperation A rather large number of examples can be given to illustrate legal acts based on Nordic cooperation, in the form either of coordinated legislation or of conventions under public international law. This section examines this kind of integration in various fields. From the very beginning, it should be emphasised that considering such rules as parts of as a ‘Nordic acquis’ of the same legal nature as in EU law would be going too far. Nor has there been any development towards creating any ‘general principles of Nordic law’ either.54 In addition, no central Nordic court exists to identify and establish such principles. This state of affairs relates to the relatively inferior argumentative weight of general principles of law and, historically, the predominant role of the national legislator as the source of legal rights and duties. Over the years, the Nordic states have adopted national legislation based either on Nordic common drafting and adoption of national legislation with the same content (‘coordinated legislation’), or on rules in Nordic conventions. It should be noted that a sizable share of these rules must be seen as obsolete,

50 See at www.nordregio.se; www.nordicinnovation.org; nordichouse.is/en; see further, eg, Planer och budget 2021 (Nordic Council of Ministers 2020). 51 LG Harbo, Nordic Cross-border Cooperation Committees and Cross-border Authority Integration (Nordregio 2010) 11 f. 52 Swedish, spoken by a minority of the citizens of Finland, is one of the two national languages of the country (together with Finnish); the Constitution of Finland 1999 (Suomen perustuslaki/ Finlands grundlag), Art 17. 53 LO Delsing and K Lundin Åkesson, Håller språket ihop i Norden?: En forskningsrapport om ungdomars förståelse av danska, svenska och norska (Nordic Council of Ministers 2005) 142 ff. 54 Letto-Vanamo and Tamm (n 14) 103.

Vision and Legal Reality of Regional Integration  21 because they are either outdated or in conflict with EU or EEA law.55 Examples of national legislation based on Nordic cooperation are presented below. In the field of cooperation on legal matters, the Nordic states have entered an international agreement on citizenship. The provisions give Nordic nationals preferential treatment when they apply for naturalisation in another Nordic state, meaning that a shorter period of residence in the state is accepted than for non-Nordic nationals.56 This clearly indicates a high degree of trust among the Nordic states. As opposed to EU law, the solution has not been to introduce a common ‘Nordic citizenship’ but to simplify naturalisation. This may be seen as a consequence of the lack of supranational elements in Nordic cooperation. Furthermore, the states have entered an agreement on popular registration, aiming at simplifying formalities for persons – not just citizens of the states – moving between Nordic states.57 Furthermore, the Nordic region maintains old traditions of common provisions in private law. Already from the last decades of the nineteenth century, the idea of legislative cooperation was realised in the field of private law (see section  II). After coordinated drafting among the countries, the Scandinavian states adopted more or less identical legislation in the 1880s on bills of exchange (a financial instrument for short-term credit).58 Shortly thereafter, coordinated legislation on commercial registration, registered trademarks, agency and the sale of goods followed. However, there were clearly limits to the spirit of cooperation between the states, and discussions for a common Nordic civil code were never realised.59 In the field of private international law, the countries entered formal agreements in the first half of the twentieth century. Some of these agreements are still in force.60 There have also been examples of coordinated legislation and international agreements in the field of criminal law – today most importantly the Convention on the Nordic Arrest Warrant, which simplifies the surrender of persons between the Nordic states, complementing the European Arrest Warrant (see further section IV).61

55 Modéer (n 32) 182 f; Wilhelmsson (n 32) 117; P Leino and L Leppävirta, ‘Does staying together mean playing together? The influence of EU law on co-operation between EU and non-EU states: the Nordic example’ (2018) 43 EL Rev 295, 304 ff. 56 Avtal mellan Danmark, Finland, Island, Norge och Sverige om genomförande av vissa bestämmelser om medborgarskap (Agreement between Denmark, Finland, Iceland, Norway and Sweden on implementing certain Provisions on citizenship) (Copenhagen, 14 January 2002). 57 Överenskommelse mellan Danmark, Finland, Island, Norge och Sverige om folkbokföring (Agreement between Denmark, Finland, Iceland, Norway and Sweden on Popular Registration) (Stockholm, 1 November 2004). 58 Letto-Vanamo and Tamm (n 14) 100 f. 59 P Letto-Vanamo and D Tamm, ‘Nordic Legal Mind’ in Letto-Vanamo, Tamm and Mortensen (eds) (n 4) 1, 14. 60 M Bogdan, ‘Private International Law’ in M Bogdan (ed), Swedish Legal System, 2nd edn (Norstedts Juridik 2022) 448. 61 Konvention om överlämnande mellan de nordiska staterna på grund av brott (Nordisk arresteringsorder) (Convention on transfer between the Nordic States owing to Crimes (Nordic Arrest Warrant)) (Copenhagen, 15 December 2005); cf C Wong, ‘Nordic cooperation in criminal

22  Henrik Wenander In the field of cultural cooperation, a Nordic convention establishes the general framework.62 More concretely, a Nordic language convention stipulates that the states should aim to make it possible for Nordic nationals to use their languages when making official contact in other states.63 There are also agreements aiming at cross-border access to upper secondary schools and university education, as well as a declaration on mutual recognition of higher education diplomas.64 Concerning social policy, a Nordic international agreement from 1982 on a common labour market aims at making it possible to take employment in other Nordic states.65 This agreement, however, has been superseded to a great extent by EU and EEA law, and it is in all likelihood for the most part obsolete.66 Furthermore, an international agreement on social assistance and social services has been concluded among the Nordic states to complement EU law.67 Given the development of case law, this agreement in part concerns matters now clearly falling under EU law. As some of the provisions may imply possible discrimination against non-Nordic Union citizens, the agreement needs to be updated.68 Finally, a Nordic Convention on Social Security is intended to complement Regulation (EC) No 883/2004 in certain respects (see section IV).69

matters’ in U Andersson, C Wong, and H Hansen, Festskrift till Per Ole Träskman (Norstedts Juridik 2011) 542, 544 f; for a comparison with the European Arrest Warrant, see G Mathisen, ‘Nordic Cooperation and the European Arrest Warrant: Intra-Nordic Extradition, the Nordic Arrest Warrant and Beyond’ (2010) 79 Nordic Journal of International Law 1, 18 ff. 62 Avtal mellan Danmark, Finland, Island, Norge och Sverige om kulturellt samarbete (Agreement between Denmark, Finland, Iceland, Norway, and Sweden concerning cultural co-operation) (Helsinki, 15 March 1971; last amended 1 June 1990). 63 Konvention mellan Danmark, Finland, Island, Norge och Sverige, om nordiska medborgares rätt att använda sitt eget språk i annat nordiskt land (Convention between Denmark, Finland, Iceland, Norway and Sweden, on the Right of Nordic nationals to use their own Language in another Nordic Country) (Svaneke Bornholm, 17 June 1981). 64 Avtal mellan Danmark, Finland, Island, Norge och Sverige om nordisk utbildningsgemenskap på gymnasienivå (teoretiska och yrkesinriktade utbildningar) (Agreement between Denmark, Finland, Iceland, Norway and Sweden on Nordic educational community at upper secondary level (general upper secondary and vocational schools) (Stockholm, 3 November 2004); Överenskommelse mellan Danmark, Finland, Island, Norge och Sverige om tillträde till högre utbildning (Agreement concluded by Denmark, Finland, Iceland, Norway, and Sweden on Admission to Higher Education) (Copenhagen, 3 September 1996; last amended 17 May 2018); Nordisk deklaration om erkännande av bevis avseende högre utbildning (Nordic Declaration on the recognition of qualifications concerning higher education, the Reykjavik Declaration) (Reykjavik, 9 June 2004; revised 2 November 2016). 65 Överenskommelse om gemensam nordisk arbetsmarknad (Agreement concerning a common Nordic labour market) (Copenhagen, 6 March 1982). 66 Wenander (n 15) 78 f. 67 Nordisk konvention om socialt bistånd och sociala tjänster (Nordic convention on social assistance and social services) (Arendal, 14 June 1994). 68 Leino and Leppävirta (n 55) 309; H Stoor, ‘Får Norden vara bättre? – Den nordiska biståndskonventionen och EU-rätten’ (2015) 92 (2) Nordisk Administrativt Tidsskrift 5, 14 f; Wenander (n 15) 93. 69 Nordisk konvention om social trygghet (Nordic Convention on Social Security) (Bergen, 12 June 2012); Regulation (EC) No 883/2004 on the coordination of social security systems [2004] OJ L166/1.

Vision and Legal Reality of Regional Integration  23 Today, cooperation in the economic field is regulated to a great extent by EU law, and there are not many agreements that are relevant today.70 However, a central treaty in the field of tax law (which is not mentioned as a field of cooperation in the Helsinki Treaty) is the Nordic Convention on double taxation.71 Arrangements to avoid double taxation and associated problems are of course of crucial importance when it comes to implementing visions of Nordic crossborder mobility in practice. There are also a few examples concerning transport and communications.72 Here, the aforementioned Nordic passport union was introduced in the form of coordinated legislation, and is still considered extant, as allowed for under the Schengen rules.73 In addition, a Nordic Agreement on recognition of driving permits and vehicle registration exists, although several of its provisions no longer seem to be applicable owing to EU law.74 Lastly, in the field of environmental protection, a Nordic environmental convention aims at harmonisation of national law and establishing crossborder procedures for exchange of information, as well as the right of access for individuals affected by environmental threats to authorities in other Nordic states.75 Today, this convention is outdated in several respects because it relates to matters regulated by EU law. Probably of greater interest is the common ‘Nordic Swan’ environmental labelling scheme, which is widely used in parallel to the EU Ecolabel and similar marking schemes. Applications for use of the label are handled by a body organised under the Nordic Council of Ministers and national secretariats.76 IV.  NORDIC COOPERATION AND EU LAW

Historically, geopolitical aspects have limited the scope for political vision and legal cooperation – today mostly in the form of international agreements – among the Nordic states. Today, the challenges to specific Nordic solutions aiming at regional integration primarily concern the impact of EU law. At the same time, EU law has clearly concretised the Nordic ambitions of simplifying cross-border mobility by providing legally binding rules that are enforceable in court. 70 cf Cameron (n 12) para 22. 71 Avtal mellan de nordiska länderna för att undvika dubbelbeskattning beträffande skatter på inkomst och på förmögenhet (Agreement between the Nordic countries to avoid double taxation with respect to taxes on income and on capital) (Helsinki, 23 September 1996). 72 cf Cameron (n 12) para 22. 73 ibid para 17. 74 Överenskommelse mellan Danmark, Finland, Norge och Sverige om ömsesidigt godkännande av körkort och av registrering av fordon (Agreement on reciprocal recognition of driving permits and vehicle registration certificates) (Mariehamn, 12 November 1985). 75 Miljöskyddskonventionen mellan Danmark, Finland, Norge och Sverige (Nordic environmental protection convention) (Stockholm, 19 February 1974); Cameron (n 12) para 22. 76 Wenander (n 15) 111 f; www.nordic-ecolabel.org (accessed 17 February 2022).

24  Henrik Wenander The Nordic relationship to EU law is fragmented.77 All the Nordic states are attached to the EU, either as members (Denmark, Finland and Sweden) or as parties to the EEA Agreement (Iceland and Norway). It should be added that a limited number of opt-outs apply to Denmark, including defence issues within the Common Foreign and Security Policy, the Area of Freedom, Security and Justice, and the third stage of the European Monetary Union (EMU).78 Sweden has also decided not to introduce the euro currency, but without a legal opt-out akin to that of Denmark.79 The autonomous territories of the Faroe Islands and Greenland under the Kingdom of Denmark do not have EU law ordinarily applied to them, but they have certain special arrangements on their relations with the EU.80 By contrast, EU law also applies in principle to the Åland Islands, but certain special provisions apply. Among other things, this means that the Åland Islands are excluded from the VAT Area.81 As for the Norwegian special territory of Svalbard in the Arctic Ocean, Norway has used an option to exempt it from the scope of the EEA Agreement.82 There are no legally binding provisions on Nordic cooperation in the EU Treaties.83 A Declaration attached to the 1994 Treaty of Accession states: The Contracting Parties record that Sweden, Finland and Norway, as members of the European Union, intend to continue, in full compliance with Community law and the other provisions of the Treaty on European Union, Nordic Cooperation amongst themselves as well as with other countries and territories.84

As is indicated by the wording of the Declaration, it does not provide a legal basis for exceptions from EU law. This was confirmed by the Court of Justice of the European Union (CJEU) in the C case, involving coordinated legislation (see section  III.B) on the recognition and enforcement of administrative decisions on the taking into care and placement of persons that conflicted with the

77 Leino and Leppävirta (n 55) 297; Wenander (n 15) 50 f. 78 Protocol (No 22) on the position of Denmark; H Krunke, ‘From Maastricht to Edinburgh – the Danish Solution’ (2005) 1 European Constitutional Law Review 339. 79 J Nergelius, ‘The Constitution of Sweden and European Influences: The Changing Balance Between Democratic and Judicial Power’ in A Albi and S Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (TMC Asser Press 2019) 315, 327 f. 80 Agreement between the European Community, of the one part, and the Government of Denmark and the Home Government of the Faroe Islands, of the other part [1997] OJ L53/2; Arts 198–204 of the Treaty on the Functioning of the European Union (TFEU); Protocol (No 34) on special arrangements for Greenland. 81 Art 355(4) TFEU; Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland, and the Kingdom of Sweden. 82 Protocol No 40 to the EEA Agreement; Norwegian EEA Act 1992 (lov om gjennomføring i norsk rett av hoveddelen i avtale om Det europeiske økonomiske samarbeidsområde (EØS) m.v. (EØS-loven), 1992-11-27 nr 109), s 6. 83 On Benelux cooperation, cf Art 350 TFEU; Case C-105/83 Pakvries, ECLI:EU:C:1984:178; Leino and Leppävirta (n 55) 300. 84 Declaration (No 28) attached to the 1994 Treaty of Accession of Austria, Finland, and Sweden [1994] OJ C241/392.

Vision and Legal Reality of Regional Integration  25 Brussels  IIa Regulation.85 The Court noted that the Declaration meant that ‘those States which are members of Nordic Cooperation and members of the Union have undertaken to continue that cooperation, in compliance with Community law’ and concluded ‘Accordingly, that cooperation must respect the principles of the Community legal order.’86 By contrast, the EEA Agreement contains a provision on Nordic cooperation. According to Article 121(a), the provisions of the Agreement shall not preclude cooperation within the framework of Nordic cooperation ‘to the extent that such cooperation does not impair the good functioning of this Agreement’. The provision, as far as can be established, has not been discussed in the EFTA Court.87 The wording of the provision could be seen as providing a wider scope for maintaining Nordic cooperation than under the EU Treaties.88 Still, the reference to the good functioning of the EEA Agreement means that Nordic cooperation does not have unlimited precedence; rather, the impact of Nordic agreements or coordinated legislation will have to be assessed in relation to the provisions of the EEA Agreement, notably the central and ubiquitous principles on loyalty and non-discrimination.89 It may be, therefore, that in many situations, EEA law will take precedence over provisions based on Nordic cooperation, just as EU law does over Nordic agreements. Regarding the general relationship between EU law and older Nordic agreements, Article 351 TFEU provides that agreements pre-dating EU membership continue to apply. However, the Member States are required to ‘take all appropriate steps’ to eliminate incompatibilities with EU law.90 Such incompatibilities could relate to preferential treatment of Nordic nationals, which used to be a recurrent feature in Nordic agreements. As of yet, neither the CJEU nor the EFTA Court has ruled on such incompatibilities regarding the free movement of persons.91 Thus, when a dispute arises regarding such less-preferential treatment, given EU law, it will be incumbent upon the relevant national court to make an order for a preliminary reference to the CJEU (or, in Iceland and Norway, a request for an Advisory Opinion to the EFTA Court). Concerning new Nordic agreements, the Nordic states that are EU Member States must act within the limits of EU law concerning the competence to enter international agreements with third states. Given the development of the CJEU case law on the exclusive competence of the EU to enter certain international 85 Case C-435/06 C, ECLI:EU:C:2007:714; Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. 86 C (n 85), paras 63 and 64; see also the Opinion by AG Kokott in the case, ECLI:EU:C:2007:543, paras 59–61. 87 H Ormberg, ‘Article 121’ in F Arnesen et al (eds), Agreement on the European Economic Area: A Commentary (Nomos 2018) 924, para 4. 88 Leino and Leppävirta (n 55) 301. 89 Ormberg (n 87) para 7. 90 Leino and Leppävirta (n 55) 298. 91 Wenander (n 15) 57 f; Leino and Leppävirta (n 55) 304.

26  Henrik Wenander agreements, the scope for Nordic agreements may be limited in many fields of law.92 As regards the EEA Agreement, Iceland and Norway have potential scope for entering agreements with each other (and with Denmark in policy fields where Denmark has exceptions from EU law).93 In some instances, the Nordic states that are EU Member States have been able to overcome the obstacles to Nordic cooperation under EU law by successfully proposing special provisions in secondary law. In this way, the continued applicability of the Nordic convention on succession (which was adjusted) has been secured in relation to the EU legislation in the field.94 Another example is that the Nordic states, as parties to the Schengen acquis, have managed to maintain the passport-free, cross-border freedom of movement provided under the Nordic passport union.95 Furthermore, the Nordic states may use the scope for agreements available under secondary law. The aforementioned Nordic Arrest Warrant is an example of this.96 In the field of social security law, the Nordic Convention on Social Security is intended to complement Regulation (EC) No 883/2004, according to the scope for such agreements under that Regulation.97 The Nordic Convention on Social Security also extends the applicability of the EU coordination rules to the Faroe Islands, Greenland and Svalbard, to which Regulation 883/2004 (or any other EU and EEA provision) does not apply. This extension of the applicability of EU law is problematic in the light of the CJEU case law on the competence to enter international agreements.98 V.  FUTURE PROSPECTS: PROPOSALS FOR DEVELOPING NORDIC INTEGRATION AND CLOSURE OF BORDERS IN TIMES OF CRISIS

In the light of the political difficulties in finding common ground for Nordic integration and political cooperation, and the challenges posed by EU law to specific Nordic legal solutions (see section  IV), the states have made various 92 Leino and Leppävirta (n 55) 299 f, discussing the impact of Opinion 1/13, ECLI:EU:C:2014:2303. 93 Leino and Leppävirta (n 55) 301. 94 Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L201/107, Art 75(3); cf Konvention av den 19 november 1934 mellan Danmark, Finland, Island, Norge och Sverige innehållande internationella privaträttsliga bestämmelser om arv, testamente och boutredning (Convention between Denmark, Finland, Iceland, Norway and Sweden comprising private international law provisions on succession, wills and estate administration) (Copenhagen, 19 November 1934); Wenander (n 15) 59; Leino and Leppävirta (n 55) 310. 95 Protocol (No 19) on the Schengen Acquis Integrated into the Framework of The European Union. 96 Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1, Art 31 (2); Mathisen (n 61) 16 f. 97 Nordic convention on social security (n 69); Regulation 883/2004 (n 69), Art 8(2). 98 Leino and Leppävirta (n 55) 309 f.

Vision and Legal Reality of Regional Integration  27 attempts to adapt Nordic cooperation to current realities. In principle, there seems to be broad popular support for Nordic cooperation.99 The political question, therefore, is rather ‘how’ rather than ‘whether’ Nordic cooperation should continue. These discussions fluctuate between proposals to downscale obsolete structures, and ideas of realising more ‘Nordist’ ambitions of revitalising and even expanding cooperation. At the same time, events in recent years have brought about recurrent temporary border restrictions and even closures between the Nordic states. Among the common arguments against the current model for cooperation is criticism of the role of the Nordic Council. Legal scholarship has concluded that this body has lost much of its former position as an important venue for debate on Nordic matters (see section  II).100 Repeated proposals to shut down the Nordic Council have been suggested, and some of these have also recommended that the Nordic Council of Ministers be dissolved. So far, such proposals have not advanced further in the national parliaments.101 It is clear that the contemporary role of the Nordic Council is very limited, and the institution is by no means parallel to a national parliament or the European Parliament. Concerning the interest of promoting free movement, the discussions in the Nordic Council often highlight limitations to cross-border mobility, which may put political pressure on the Nordic governments.102 Since the 1990s, various political initiatives have been taken to improve Nordic political cooperation.103 This development intensified around 2010, when a report written by a well-known Swedish historian and senior civil servant proposed the establishment of a Nordic federal union in the spirit of the old ‘Nordism’, mentioning the Kalmar Union (see section  II) as a historical parallel.104 Although the proposal did not lead to any formal political initiatives, it spurred public debate on the role of Nordic cooperation and raised awareness of the Nordic dimension of international cooperation.105 The proposal did not go into detail on the complex matters of the relation to national constitutional law or EU law, which would need to be considered carefully to take such a proposal further.106 In spite of these discussions, the 2015 migration crisis prompted Sweden – seemingly without using the framework for cooperation within the Nordic institutions (section  III.A) to any substantive extent – to introduce border controls. These included requirements of identification at the border from Denmark, as allowed for under the Schengen rules through invocation of 99 See, eg, Nordic Council of Ministers, Støtte og skuffelse. Holdninger till nordisk samarbeid (Nordic Council of Ministers Analysis nr 03-2021) 27. 100 Cameron (n 12) para 24; see also from a political perspective Olesen and Strang (n 47) 43. 101 Wenander (n 15) 27; Olesen and Strang (n 47) 27. 102 Wenander (n 15) 125. 103 Olesen and Strang (n 47) 32 ff. 104 Wetterberg (n 8). 105 Olesen and Strang (n 47) 36 f. 106 Wenander (n 15) 21.

28  Henrik Wenander temporary derogations.107 This made the Nordic passport union redundant in practice. At the time of writing, these border controls are still in place. In 2018, the Norwegian emeritus professor of law and senior civil servant Inge Lorange Backer presented an inquiry on how to develop Nordic legal cooperation. The report was written on the initiative of the Nordic Council of Ministers. Backer pointed out that the informality of Nordic legal cooperation may be seen as a strength; while also concluding that in practice, the national public administrations need to prioritise duties under EU law and other international agreements, because time and resources are limited. He proposed a number of measures, which, among other things, aimed at clarifying and developing the procedures for legal cooperation in the Nordic Council and the Nordic Council of Ministers, preventing ‘border obstacles’ between the states and promoting the knowledge of the existing Nordic legal cooperation.108 As far as can be established at the time of writing, these proposals have not yet led to any major initiatives in Nordic legal cooperation. One might wonder whether Backer’s observation, that the development of Nordic legal cooperation often is given lower priority than EU and other duties, is also relevant in relation to his own proposal.109 In 2019, the Nordic governments adopted a ‘Nordic Vision’, aiming to establish the Nordic states as the most integrated region of the world by 2030.110 This vision, however, did not stop the Nordic states from continuing to introduce limitations to cross-border freedom of movement. Seemingly, the traditionally political character of Nordic cooperation has meant that the legal aspects for realising visions of Nordic integration are not given enough attention. After criminals coming from Sweden into Denmark had committed crimes that garnered extensive media coverage in 2019 (a gang shooting and a bomb assault against the Tax Authority, both in Copenhagen), the Danish authorities introduced spot checks for people travelling into Denmark from Sweden. This political package also included measures to reinforce cross-border police cooperation.111 107 Government Decision of 12 November 2015, Ju2015/08659/PO; cf Implementing Decision (EU) 2016/894 of 12 May 2016 setting out a recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk [2016] OJ L151/8: Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1, Art 25. 108 I Lorange Backer, Styrket nordisk lovsamarbeid. Muligheter og utfordringer (Nordic Council of Ministers 2018) 20, 45. 109 cf J Danelius and K Bynander, ‘Det nordiska lagstiftningssamarbetet’ [2018] Svensk Juristtidning 65, 73. 110 The Nordic Prime Ministers and Ministers for Cooperation, ‘Our Vision 2030’ Nordic Cooperation (20 August 2019) at www.norden.org/en/declaration/our-vision-2030 (accessed 17 February 2022); The Nordic Region – towards being the most sustainable and integrated region in the world: Action Plan for 2021 to 2024 (Nordic Council of Ministers 2020). 111 Ministry of Foreign Affairs (Udenrigsministeriet), ‘Orientering samt brev: Forlængelse af den midlertidige grænsekontrol mod Tyskland og indførelse af midlertidig grænsekontrol mod Sverige’

Vision and Legal Reality of Regional Integration  29 Finally, as in other parts of Europe, the Covid-19 pandemic has had consequences for movement between the Nordic states. All Nordic states restricted cross-border travel at some point, with severe consequences for commuters and others.112 Such actions are clearly at odds with the spirit of Nordic cooperation based on mutual trust. They serve as an indication that Nordic cooperation must be improved in order to be relevant for the future. VI. CONCLUSION

Although Nordic integration has been a success in historical terms and a role model for regional cooperation in the post-war years, things have changed. This was made plain by the closed borders and associated lack of mutual trust displayed in the Nordic states’ handling of the Covid-19 pandemic of 2020 and 2021. As clearly shown, the vision of Nordic integration and cooperation now faces serious challenges, owing to the legal reality. Notably, the primarily political character of Nordic cooperation, without supranational features and individual rights that are justiciable before a common court, may account for many of the shortcomings when it comes to realising Nordic visions of crossborder mobility in practice. The relevance of the institutional cooperation within the Nordic Council and the Nordic Council of Ministers has been questioned. In the light of the Europeanisation and internationalisation that Nordic societies have undergone during the last few decades, the added value of regional cooperation is not as evident as it used to be. Changes in the common understanding of Scandinavian languages in the countries – not least in the non-Scandinavian countries of Finland and Iceland – may be seen as an indicator of this development. The failures of the last few years – the inability to cooperate or to avoid border closures in times of crisis – also show that the Nordic cooperation within the Nordic Council and Nordic Council of Ministers of today suffers from serious deficits. As to the impact of EU law, a number of challenges have emerged for Nordic legal cooperation in the form of (now less common) coordinated legislation and Nordic conventions. To continue to aim for specific Nordic legal arrangements would seem to require considerable effort, and the results would still be uncertain in relation to the requirements of EU law, as interpreted by the CJEU. Furthermore, in practice, the crafting and implementation of EU law may (Information to the European Affairs Committee of the Folketing) at www.ft.dk/samling/20191/ almdel/euu/bilag/34/index.htm (10 October 2019) (accessed 17 February 2022). 112 U Neergaard, J Paju and J Raitio, ‘Broken Wings: Closure of Borders in the Three Nordic EU Member States during the COVID-19 Pandemic’ EU Law Live – Weekend edition No 59 (21 May 2021) at https://eulawlive.com/weekend-edition/weekend-edition-no59 (accessed 9 August 2022); HP Graver, ‘Baselining COVID-19. How Do We Assess the Success or Failure of the Responses of Governments to the Pandemic?’ in J Grogan and A Donald, Routledge Handbook of Law and the COVID-19 Pandemic (Routledge 2022) 214, 222.

30  Henrik Wenander require so much time and so many resources from the national civil services that, for practical reasons, Nordic cooperation is not a priority in these terms. However, there are also elements that may point to a future for the Nordic vision. The existing institutional structures could be seen as an asset – an asset that could be developed to meet the demands of today. Indeed, from the legal and administrative perspectives, this is especially relevant at the civil-service level. The Committees of Government Officials, the working groups and expert groups under the Nordic Council of Ministers, and the border committees in border areas are important networks for exchanging information and best practices, and to provide information to citizens. These kinds of information services may have the important task of explaining the combined effects of national legislations and EU law to individuals engaging in cross-border activities. Perhaps it is in these smaller settings, related to everyday life, that the Nordic cooperation of the future has its most important role to play in the legal field. In such contexts, the Nordic legal culture of finding pragmatic solutions could play a vital part.

3 Free Movement of Persons in the Nordic States through EU Law and EEA Law GRAHAM BUTLER*

I. INTRODUCTION

T

he free movement of persons is typically analysed through the prism of the European Union (EU) and its legal order. ‘Free movement’ is less noted as an idea that applies to a particular region of Europe, like Northern Europe. The Nordic region poses a peculiar particularity, given that of the five Nordic states,1 only three are EU Member States (Denmark, Finland, and Sweden), but yet the free movement of persons applies to all five Nordic states. The remaining two Nordic states (Iceland and Norway) that are not EU Member States are members of the European Free Trade Association (EFTA), who in turn have signed the Agreement on the European Economic Area (EEA Agreement) with the EU and its Member States. This means that the EU legal regime on the free movement of persons is extended beyond the EU into two non-EU Member States, thus covering the five Nordic states. Coupled with this legal arrangement, however, are the longstanding arrangements between the five Nordic states, developed in multilateral forums amongst themselves, sometimes referred to as Nordic cooperation, which in this chapter will be referred to as Nordic arrangements, given, as will be demonstrated, the looseness of such

* The author is most grateful to the two editors of this volume for their comments. All views remain those of the author alone. 1 For the purposes of this chapter, ‘the Nordic states’ refers to Denmark, Finland, Iceland, Norway, and Sweden. Any overseas countries and territories, and other related places like the Faroe Islands, Greenland, Svalbard, the Åland Islands are excluded, owing to their own ­respective nuanced relationship with the EU. For informative contributions to understanding Greenland and the Åland Islands, for example, see, respectively, U Neergaard, ‘The Legal Relations between the EU, Greenland and Denmark – A Harmonious Love Triangle?’ [2020] Europarättslig Tidskrift 207; N Jääskinen, ‘The Case of the Åland Islands – Regional Autonomy versus the European Union of States’ in S Weatherill and U Bernitz (eds), The Role of Regions and Sub-national Actors in Europe (Hart Publishing 2005). See also Neergaard, ch 11 of this volume.

32  Graham Butler cooperation as compared to EU law and EEA law. Cumulatively, the legal rules from EU law and EEA law, and such Nordic arrangements, comprise the totality of measures that provide for the free movement of persons in the Nordic states. This chapter explores and analyses the legal rules that provide for the intra-Nordic movement of persons who are nationals of Nordic states, and for nationals of other EU Member States, who move to and within the Nordic states. Section II begins by looking at the place of the Nordic states within broader European integration, before assessing how EU primary law provides (or rather, does not provide) for regional integration within Europe. It concludes with a firmer understanding of what happens when Nordic arrangements come into conflict with EU law and EEA law, in that Nordic arrangements must be set aside, with EU law and EEA law taking precedence. Section III then moves on to assessing the rights of persons moving within the Nordic states, arising from rights derived from Union citizenship, the free movement of workers, as well as EU secondary law in the respective national systems. The chapter continues by analysing the arising case law from the Court of Justice of the European Union (CJEU) and the EFTA Court, and how it has interpreted the regime governing the free movement of persons, notwithstanding the differences that apply between the five Nordic states as regards their relationship to the EU, either as EU Member States, or as non-EU Member States. As will be demonstrated, both the CJEU and the EFTA Court have been quite accommodating towards ensuring that the rights that individuals possess are sufficiently protected, thus enabling persons to exercise free movement. Moreover, quite strikingly, what becomes apparent in light of the analysis is that Nordic arrangements have had little to no value in resolving any disputes that have arisen, given that any Nordic arrangements, if existing at all in given scenarios, have been superseded by EU law and EEA law. In conclusion, section IV offers views, in light of the analysis, on what the future of the legal regime governing the free movement of persons in the Nordic states will be as a result of EU law and EEA law, and not Nordic arrangements. II.  FREE MOVEMENT OF PERSONS AND THE NORDIC STATES

‘Free movement’ can be understood in many ways, from merely short-term visits (tourists), to habitual residence, in both short and permanent form, as well as measures arising from the Schengen acquis, and the issue of third-country nationals and their residence. Therefore, when ‘free movement’ as a term is utilised within legal research, further context or explanation is necessary to understand what it means in given scenarios. For the purposes of this chapter, ‘free movement’ is used to define the establishment and maintenance of residence in a Nordic state, as regards nationals of EU Member States, or nationals of Nordic states. The most striking finding of this chapter is that since the

Free Movement of Persons in the Nordics through EU and EEA Law   33 EU’s legal order is so well ingrained and comprehensive (and providing similar effects through the EEA Agreement), it has overtaken any multilateral Nordic arrangements for the effective exercise of rights derived for the free movement of persons. As a matter of law, it is EU law and its offshoot of the EEA Agreement, that have truly led to the legal integration of the Nordics in this respect. A.  The Nordic States and European Integration The five Nordic states are open market economics and operate across separate legal pillars within the European legal space: three as EU Member States, and two as EFTA states applying the EEA Agreement (EFTA-EEA states). Essentially, however, it can be said that the five Nordic states are part of the EEA, and provide for a single economic space, across two pillars – the EU pillar of the EEA (Denmark, Finland, and Sweden) and the EFTA pillar of the EEA (Iceland and Norway). In other words, there is a Nordic/EU-EEA divide.2 There are undoubtedly differences across the two pillars, despite the aim of homogeneity of the EFTA pillar with the EU pillar. And then there is the added complexity of the intra-Nordic ‘agreements’3 that stand free of the pillars, outside of the EU legal order altogether. In many instances, as will be demonstrated later in this chapter, such Nordic arrangements have been superseded by EU law and EEA law. The five Nordic states are very dependent on both the import and exports of goods throughout the EU and the wider internal market. Yet goods have always been just one part of the internal market. Free movement caters for factors of production, of which labour is one component. But labour is about people – unlike goods, services, and capital. Looking at free movement and just seeing persons as labour – a factor of production – is a one-dimensional economic view of the world, and an unrepresentative view of how Europeans actually wish to go about their lives. People have families,4 and have innately human 2 H Krunke, ‘Impact of the EU/EEA on the Nordic Constitutional Systems’ in H Krunke and B Thorarensen (eds), The Nordic Constitutions: A Comparative and Contextual Study (Hart Publishing 2018) 167, 167–68. 3 On the nuances of the Nordic ‘agreements’, as opposed to Nordic ‘cooperation’ or Nordic ‘arrangements’, see Wenander, ch 2 of this volume. Within a lot of legal literature, interchangeable wording is used – Nordic integration, or Nordic cooperation – despite not being the same concept. For the sake of clarity, as already stated, this chapter will refer to such matters as ‘Nordic arrangements’. 4 As once put by AG Sharpston, ‘when citizens move, they do so as human beings, not as robots. They fall in love, marry and have families. The family unit, depending on circumstances, may be composed solely of EU citizens, or of EU citizens and third country nationals, closely linked to one another. If family members are not treated in the same way as the EU citizen exercising rights of free movement, the concept of freedom of movement becomes devoid of any real meaning.’ Opinion of AG Sharpston, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), ECLI:EU:C:2010:560, para 128. Also, N Nic Shuibhne, ‘“When Citizens Move, They Do So as Human Beings, Not as Robots”: Opinion of Advocate General Sharpston in Ruiz Zambrano’ in G Butler and A Łazowski (eds), Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union (Hart Publishing 2022) 455.

34  Graham Butler characteristics, which the other freedoms in EU law do not. Over time, the EU has become shaped by not just labour and the free movement of workers, but also by the free movement of people or persons5 as a broader legal category of individuals. Across the Nordic states, prior to the taking hold of wider European integration as a matter of EU law, the movement of persons, nationals of Nordic states, was facilitated by intra-Nordic arrangements. These were not ‘rights’, but rather possibilities that were fully dependent on the respective national laws of the individual Nordic states. Thus, there was a resemblance to ‘free movement’ of persons within the Nordic states, albeit under a vague and non-expansive legal regime applied to nationals of Nordic states only, and without any real forms of enforcement for individual rights, given that there was no such ‘right’ to such movement. It was EU law, however, that subsequently saw the coining of ‘free movement’, and codified it, with a strong rights-based regime for individuals, as a matter of both primary and secondary EU law, with enforceability of such rights in national courts and tribunals, and with the demand in some instances that such national courts and tribunals refer questions to the CJEU when interpretation of EU law is needed. For the internal market to function, and for broader European integration through law, the free movement of people has been central to obtaining the stated objectives of the EU. One of the underlying problems concerning the free movement of persons in the Nordic states, however, has been the principle of homogeneity. Between the two pillars, there are two discrepancies, in particular, that deserve attention. First, Union citizenship, which was formally introduced into EU law through the Treaty of Maastricht in the early 1990s, and which is now provided for in Article 20 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 TFEU, does not have a formal equivalence in the EEA Agreement. That said, however, EEA law does have the essence of Directive 2004/386 incorporated within EEA law. Second, Directive 2004/38, which is applicable in both EU Member States and the EFTA-EEA states, has different public enforcers – the European Commission and the EFTA Surveillance Authority (ESA) respectively – and is judicially interpreted by different courts of law – the CJEU and the EFTA Court respectively. Therefore, to resolve the potential for differentiation between the two pillars, there is a principle of homogeneity that applies, in that as far as possible, legal questions should be resolved between the two pillars in a similar or equivalent way. 5 The attentive reader of this chapter will note that the title of this chapter, and the title of this book, concerns persons and not merely workers. 6 Directive 2004/38 is known by a variety of names: the Free Movement Directive, the EU Citizenship Directive, or the Citizens Rights Directive, amongst other variations. Typically, the use of any given name reflects the normative standpoint of the entity using such a title. For the sake of clarity, this chapter will refer to it simply as ‘Directive 2004/38’. For a comprehensive study, see E Guild, S Peers, and J Tomkins, The EU Citizenship Directive: A Commentary, 2nd edn (Oxford University Press 2019).

Free Movement of Persons in the Nordics through EU and EEA Law   35 B.  An Attempt at Legal Harmony in the Nordics: The EU and the EEA Agreement The EEA Agreement does not cover all substantive matters related to the Nordic states’7 relationship with the EU and its Member States. But it is one of the only international agreements of the EU that extends, through a near automatic mechanism, the free movement of workers, as a matter of entry rights, to select third-country nationals, in the sense that it has an analogous Article 45 TFEU in the form of Article 28 EEA. Moreover, there are other international agreements of the EU that complement the regime of the free movement of persons, including, inter alia, the Schengen acquis.8 When the EEA Agreement was put in place, it reflected the state of EU free-movement law at that time, in 1992. Further development of EU secondary law was naturally to follow, with such developments being incorporated into the EEA Agreement. Consequently, the EEA was to be dynamic as regards secondary legislation. Where the EU would legislate, the EFTA-EEA states must incorporate such legislation into EEA law. The issue of coherence of a legal regime for the free movement of persons across the Nordic states is dramatically tested by international agreements of the EU, such as the EEA Agreement. It is no ordinary international agreement of the EU, and the CJEU has long stated that every international agreement must be seen within its own specific context. Indeed, in a series of cases dealing with social security coordination,9 the CJEU understood the legal relations of the EU and its Member States with the EFTA-EEA states and Switzerland together as close third states, and distinguished them from another third state, Turkey. In UK v Council (EEA) and UK v Council (Switzerland), the CJEU came to the conclusion that nationals of EFTA-EEA states and Switzerland ‘benefit from the free movement of persons under the same social conditions as Union citizens’.10 This can be read as meaning that nationals of EFTA-EEA states were not be to considered as mere third-country nationals in EU Member States for the purposes of social security.11 By contrast, in 7 Note, however, in addition to Iceland and Norway, the EEA Agreement also concerns a nonNordic state – Liechtenstein. 8 ‘L 176/36. Agreement Concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway Concerning the Latters’ Association with the Implementation, Application and Development of the Schengen Acquis. Official Journal of the European Communities. 10 July 1999.’ 9 It has long been the situation that national social security schemes are ‘subject in their entirety to the application of the rules of [Union] law’. See, eg, Case C-104/76 Gerda Jansen v Landesversicherungsanstalt Rheinprovinz ECLI:EU:C:1977:72, para 7. 10 Case C-431/11 UK v Council, ECLI:EU:C:2013:589 (EEA), para 58. See T Bekkedal, ‘The Application of EU Internal Competences in an External Context: United Kingdom v Council (EEA)’ in G Butler and RA Wessel (eds), EU External Relations Law: The Cases in Context (Hart Publishing 2022) 701. See also Case C-656/11 UK v Council, ECLI:EU:C:2014:97 (Switzerland). 11 In any event, EU law requires that where social security benefits are conferred on third-country nationals, the same benefits must be extended to EU nationals. See Case C-55/00 Gottardo, ECLI:EU:C:2002:16. See also J Paju, The European Union and Social Security Law (Hart Publishing 2017).

36  Graham Butler UK v Council (EEC-Turkey)12 the Court took quite a different approach, noting that the context, objectives, and content of the international agreement between the EU and Turkey and its nationals were different. Article 28 EEA is the mirror image of Article 45 TFEU, in that it principally concerns workers rather than Union citizenship. For the free movement of persons in the EU, however, both concepts – the free movement of workers and Union citizenship – are valid, although for different reasons.13 As a matter of primary law in the EEA, Article 28 EEA is still regarded as concerning economically active persons, whereas as a matter of primary law in the EU, Article 45 TFEU is just one component examining the movement of persons. Therefore, it might, at first blush, be anticipated that EEA law has much more limited reach concerning the free movement of persons. Indeed, there have been some views expressed within the EFTA pillar of the EEA that the EEA Agreement concerns workers – economically active persons – only. As seen in the subsequent case law, though, this would be a misinformed view. In EU law and EEA law, to understand and view persons as mere workers would be a narrow-minded, and an incorrect view of where the law stands, especially in light of the accompanying secondary law and the jurisprudence. Whilst it is true that Union citizenship is not formally a part of the EEA Agreement, and nationals of the EFTA-EEA states are not Union citizens, the fact is that for the free movement of persons, it might be suggested that the broader EEA acquis does, in fact, give nationals of EFTA-EEA states equivalent rights in the EU; and in comparison, Union citizens are treated the same in EFTA-EEA states as if they were in an EU Member State. C.  EU Primary Law and Regional Arrangements Specific forms of regional cooperation, as regions between states,14 are conceivably possible according to the EU Treaties. For example, Article 350 TFEU15 provides: The provisions of the Treaties shall not preclude the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg 12 Case C-81/13 UK v Council, ECLI:EU:C:2014:2449. See K Hyltén-Cavallius, ‘The Choice of Legal Basis for Coordination of Social Security Systems with Associated Third Countries: United Kingdom v Council (EEC-Turkey)’ in Butler and Wessel (eds) (n 10) 669. 13 See, eg, K Hyltén-Cavallius, EU Citizenship at the Edges of Freedom of Movement (Hart Publishing 2020). 14 A region, for the purposes of this chapter, refers to a geographical region of Europe across two or more Member States. It does not concern sub-national areas or regions of a single Member State. For this latter matter, see Weatherill and Bernitz (eds) (n 1); K Lenaerts and N Cambien, ‘Regions and the European Court: Giving Shape to the Regional Dimension of the Member States’ (2010) 35 EL Rev 609. 15 Previously, Art 306 EC, and then before that, Art 233 EC.

Free Movement of Persons in the Nordics through EU and EEA Law   37 and the Netherlands, to the extent that the objectives of these regional unions are not attained by application of the Treaties.

Article 350 TFEU has been labelled as an enabling clause, ensuring that Benelux cooperation is not automatically qualified as incompatible with superior obligations under EU law.16 But the effects of Article 350 TFEU have to be scrutinised further. According to the CJEU in Pakvries, a now dated judgment from the mid-1980s: [T]he provisions of [Union] law are not to preclude the existence or completion of the union between Belgium, Luxembourg and the Netherlands to the extent to which the objectives of that union are not attained by application of the Treaty.17

That meant that regional cooperation could have effect only insofar as EU law would not be relevant in a given situation. Yet in the same paragraph of its judgment, the CJEU went on to state: The aim of that provision is to prevent the application of [Union] law from causing the disintegration of the regional union established between those … Member States or from hindering its development. It therefore enables … [such] Member States concerned to apply, in derogation from the [Union] rules, the rules in force within their union in so far as it is further advanced than the common market.18

In other words, when there is deeper or more comprehensive integration in regional cooperation in the Benelux region than exists in the Union,19 EU law may indeed give way to regional cooperation in that specific and narrow context. Yet an expansive reading of Pakvries was quickly eliminated in Roders, before any understanding of Benelux superiority got out of hand. In Roders, the CJEU stated that a Member State may not rely on Article [350 TFEU] in order to avoid its obligations under … [other treaty articles] where this is not indispensable for the good functioning of the Benelux system …20

Only in rare instances, where Benelux arrangements would not interfere with the advancement of the internal market, has the CJEU explicitly signed off on

16 J Wouters and M Vidal, ‘Towards a Rebirth of Benelux Studies’ (2007) 40 Revue Belge de Droit International/Belgian Review of International Law 533, 535. 17 Case 105/83 Pakvries BV v Minister van Landbouw en Visserij, ECLI:EU:C:1984:178, para 11 (emphasis added). 18 ibid (emphasis added). See also Case C-473/93 Commission v Luxembourg, ECLI:EU:C:1996:263, para 42. Similarly, AG Lenz stated in Pakvries that there is the ‘principle that [Union] law prevails over Benelux law only in so far as Benelux law does not seek to establish a closer union between the Benelux [states]’; Opinion of AG Lenz, Case 105/83 Pakvries BV v Minister van Landbouw en Visserij, ECLI:EU:C:1984:133, paras 21–22. 19 Similarly, Opinion of AG Tesauro, Joined Cases C-367/93 to C-377/93 FG Roders BV and others v Inspecteur der Invoerrechten en Accijnzen, ECLI:EU:C:1995:261, para 8. 20 ibid, para 40.

38  Graham Butler the use of Article 350 TFEU.21 As more succinctly put by Advocate General Saugmandsgaard Øe in Brite Strike Technologies in more recent case law: I am of the opinion that … it was appropriate, even indispensable, for the three Benelux States to retain … specialised jurisdictional rules which they had previously adopted in order to ensure that the uniform trade mark system which existed between them operated in a harmonised and balanced manner … based on the fact that that system, which entirely replaced the legislation of those States in this area … does not so far have any equivalent in EU law.22

Therefore, the CJEU remains open to Benelux arrangements, but only to the extent that they do not conflict with EU law. Moreover, it is notable that the Benelux Union is not specifically mentioned in Article 350 TFEU because of the existence of another regional union covering two of the three Member States specifically listed – the Belgium–Luxembourg Economic Union (BLEU). In Elz v Commission, the Court stated that Article 350 TFEU, ‘do[es] not preclude the existence or completion of regional unions, such as the Belgo–Luxembourg Economic Union’.23 This implied that EU law could cater for regional unions other than Benelux, insofar as it applied to the three Member States explicitly listed in Article 350 TFEU. In practice, therefore, whatever relevance Article 350 TFEU may hold for the Benelux states and their own regional arrangements, given that ‘is of limited relevance in practice, as the level of integration in the EU has long since exceeded the state of integration in the regional unions of the Benelux’,24 other such regional forms of cooperation in Europe, such as Nordic arrangements, cannot benefit from Article 350 TFEU, given that it is confined to the Benelux states. This is particularly so given that only three of the Nordic states are EU Member States and two remain non-EU Member States. D.  EU Primary Law and the Nordic Arrangements The special place of the Benelux arrangements in the EU Treaties – Article 350 TFEU – is not extended explicitly to the Nordic states, or any other faintly considered region encompassing more than one EU Member State. Instead, tucked away in the Act of Accession of Austria, Finland, and Sweden as Declaration 28 (‘Joint Declaration on Nordic Cooperation’), reference is made to Nordic cooperation. Appended to that Act of Accession, which paved the 21 See, eg, Case C-230/15 Brite Strike Technologies, ECLI:EU:C:2016:560. 22 Opinion of AG Saugmandsgaard Øe, Case C-230/15 Brite Strike Technologies, ECLI:EU:C:2016:366, para 41 (emphasis added). 23 Case 56/75 Raymond Elz v Commission of the European Communities, ECLI:EU:C:1976:98, para 21. 24 M Klamert, ‘Article 350 TFEU’ in M Kellerbauer, M Klamert and J Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights: A Commentary (Oxford University Press 2019) 2063, 2063–64.

Free Movement of Persons in the Nordics through EU and EEA Law   39 way for the second and third Nordic states to become EU Member States, it is noted: The Contracting Parties record that Sweden [and] Finland … as members of the European Union, intend to continue, in full compliance with [Union] law and the other provisions of the Treaty on European Union, Nordic Cooperation amongst themselves as well as with other countries and territories.25

Despite potential hopes to the contrary by the Nordic states when it was first drafted, the effect of this Declaration has been limited. Indeed, it was only to be a matter of time before Nordic arrangements would come into conflict with EU law, particularly when EU law gave additional rights that Nordic arrangements did not. This is precisely what occurred in the C case. There, the CJEU bluntly stated: States which are members of Nordic Cooperation and members of the Union have undertaken to continue that cooperation, in compliance with [Union] law. Accordingly, that cooperation must respect the principles of the [Union] legal order.26

Striking a more conciliatory tone, but ultimately being of the same viewpoint, Advocate General Kokott put that it that the Contracting Parties to the Act of Accession expressly recorded that Sweden and Finland, as EU Member States, ‘intend to continue, in full compliance with [Union] law, Nordic Cooperation amongst themselves as well as with other countries and territories’.27 In turn, she was of the view that notwithstanding arrangements made in an intraNordic context, EU law demanded that the two EU Member States ‘disapply any domestic provisions which derogate from’ the EU legal acts in question.28 For both Advocate General Kokott and the judgment of the CJEU, any Nordic arrangements would always therefore have to cede to EU law, whenever there was any overlap or conflict. III.  FREE MOVEMENT OF PERSONS: THE LAW AND THE CASE LAW

The free movement of persons in the Nordic states is not just about the movement of nationals of Nordic states within the Nordic states, but also concerns 25 See, ‘C 241/07. Act Concerning the Conditions of Accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the Adjustments to the Treaties on Which the European Union Is Founded. Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, The Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Kingdom of Norway, the Republic of Austria, the Republic of Finland the Kingdom of Sweden, Concerning the Accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union. Official Journal of the European Communities. 29 August 1994.’ 26 Case C-435/06 C, ECLI:EU:C:2007:714, paras 64–65 (emphasis added). 27 Opinion of AG Kokott, Case C-435/06 C, ECLI:EU:C:2007:543, para 59 (original emphasis). 28 ibid, para 60.

40  Graham Butler the movement of other EU/EFTA-EEA nationals into and within the Nordic states. This said, the movement of nationals of Nordic states to Nordic states other than those of which they are a national appears to give rise to particular situations of perceived preference, because Nordic states try to give additional rights to such persons, in the form of positive discrimination against nationals of other Nordic states, to the detriment of other EU/EFTA-EEA nationals.29 Therefore, there may be limited instances when a distinction may be drawn between the movement of persons who are nationals of Nordic states, and that of persons into Nordic states who are nationals of other EU (or EFTA-EEA) states. That said, the issue of Union citizenship, and the case law of the two courts, is more pressing for the matters at hand. A.  The Impact of Union Citizenship Union citizenship, as contained in Article 20 of the Treaty on European Union (TEU) and Article 21 TFEU, is without question the main stumbling block to achieving greater harmony for the free movement of persons across the Nordic states. Regionally – as opposed, for example, to the three states of the Benelux region – not all nationals of Nordic states are Union citizens, given that Union citizenship is prima facie confined to those who are nationals of EU Member States. Icelandic and Norwegian nationals do not possess Union citizenship. This poses considerable difficulties in the harmonious application of rights in the Nordic states deriving from EU law and EEA law, given that there is significant interplay between rights derived from both the legal bases of Union citizenship, and the free movement of workers,30 as a matter of EU primary law. Whilst most freedoms legally evolved first through negative integration, today, compared to the other internal market freedoms, the free movement of persons is supported by important positive law. Directive 2004/38 is exceptionally important for the potential and actual enjoyment of personal free movement rights in the Nordic states and the wider EEA across both pillars. Preamble 3 to the Directive specifies that it aims to ‘strengthen the right of free movement and residence’,31 and, moreover, Preamble 5 speaks of the possibility ‘to move and reside freely’. Upon its enactment on the eve of the largest single accession of Member States in 2004, Directive 2004/38 was a mixture of consolidating prior secondary legislation,32 incorporation of established case law of the CJEU and refinement thereof. 29 On this phenomenon, see, KE Sørensen, ‘The Most-Favoured-Nation Principle in the EU’ (2007) 34 Legal Issues of Economic Integration 315. 30 For a comprehensive study on this, see Hyltén-Cavallius (n 13). 31 This is recognised by both the Court and the EFTA Court. See Case C-127/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform, ECLI:EU:C:2008:449, para 59; and Case E-4/11 Arnulf Clauder [2011] EFTA Ct Rep 216, para 33. 32 It amended Regulation 1612/68 and repealed Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96.

Free Movement of Persons in the Nordics through EU and EEA Law   41 As a matter of EEA law, given that Directive 2004/38 involves, inter alia, the free movement of workers, it was incorporated into EEA law by Decision 158/2007 of the EEA Joint Committee,33 without any major substantive changes, thereby extending the objectives of the Directive to the EFTA pillar of the EEA. The wording of the incorporated text, however, did differ slightly, to accommodate the nuances of the EEA Agreement. For example, the incorporation does not refer to Union citizens but to nationals of EU Member States and nationals of EFTA-EEA states. Decision 158/2007 incorporating Directive 2004/38 into the EEA Agreement noted in Preamble 8 that ‘[t]he concept of “Union Citizenship” is not included in the [EEA] Agreement’.34 Furthermore, there was an accompanying Joint Declaration by the Contracting Parties, which bombastically stated: The concept of Union Citizenship as introduced by the Treaty of Maastricht … has no equivalent in the EEA Agreement. The incorporation of Directive 2004/38/EC into the EEA Agreement shall be without prejudice to the evaluation of the EEA relevance of future EU legislation as well as future case law of the European Court of Justice based on the concept of Union Citizenship. The EEA Agreement does not provide a legal basis for political rights of EEA nationals. The Contracting Parties agree that immigration policy is not covered by the EEA Agreement. Residence rights for third country nationals fall outside the scope of the Agreement with the exception of rights granted by the Directive to third country nationals who are family members of an EEA national exercising his or her right to free movement under the EEA Agreement as these rights are corollary to the right of free movement of EEA nationals. The EFTA States recognise that it is of importance to EEA nationals making use of their right of free movement of persons, that their family members within the meaning of the Directive and possessing third country nationality also enjoy certain derived rights …

Despite these attempted caveats, they nevertheless did not provide any affirmative legal grounds for meaning that Directive 2004/38 was to be interpreted differently in EEA law than in EU law. After all, the rationale of the EEA Agreement was (and is) that EEA law is to be dynamic and homogeneous with EU law.35 As will be seen in the case law, Directive 2004/38 arguably has more legal value in the EFTA pillar of the EEA than it does to the EU pillar of the EEA, owing to the formal lack of Union citizenship as a concept in both Iceland

33 ‘L 124/20. Decision of the EEA Joint Committee No 158/2007 of 7 December 2007 Amending Annex V (Free Movement of Workers) and Annex VIII (Right of Establishment) to the EEA Agreement. Official Journal of the European Union. 8 May 2008.’ 34 It also noted in Preamble 9, somewhat unusually, ‘Immigration policy is not part of the [EEA] Agreement’, despite Directive 2004/38 principally being about Union citizens, and nothing to do with third-country nationals’ own rights separate and distinct from Union citizens. 35 For reflections on where the EEA law reaches substantive homogeneity through interpretation by the EFTA Court, see G Butler and M Meling, ‘State Monopolies and the Free Movement of Goods in EEA Law: Ensuring Substantive Homogeneity at the EFTA Court’ (2022) 28 International Trade Law & Regulation 55. For where there have been breaches of procedural homogeneity, see G Butler, ‘Mind the (Homogeneity) Gap: Independence of Referring Bodies Requesting Advisory Opinions from the EFTA Court’ (2020) 44 Fordham International Law Journal 307.

42  Graham Butler and Norway – for EU/EFTA-EEA nationals there, and for their nationals elsewhere in the EU/EEA. Workers in the Nordic states that are EU Member States are protected by Article 45 TFEU, and in the EFTA-EEA states by the analogous Article 28 EEA. The principle of non-discrimination stemming from Article 45 TFEU has direct effect36 and further entrenches the general principle of non-discrimination on grounds of nationality as set out in Article 18 TFEU. Similarly in EEA law, Article 28 EEA entrenches the same principle as a matter of EEA law, building upon Article 4 EEA. Whilst Article 45 TFEU was initially about workers, over time that categorisation has evolved. Early on, even as regards workers, the CJEU was quick to ensure that it was not the place of the Member States to make legal definitions for who is a worker or not. In Hoekstra (née Unger), the CJEU stated that ‘by the very fact of establishing freedom of movement for “workers” … [there is] … [Union] scope to this term’.37 B.  The CJEU’s Case Law As will be demonstrated from the case law of the two courts across both pillars – the CJEU and the EFTA Court – the jurisprudence concerning the free movement of persons in the Nordic states was facilitated and made more possible by EU law (and thus EEA law) than it ever was by Nordic arrangements. Whilst the jurisdictions of the two courts differ, in that the pillars are effectively walled off from one another, cross-pillar issues do arise. Nonetheless, the issues are adjudicated upon by the CJEU or the EFTA Court, depending on the place in which a dispute arises. In Andersson and Andersson, the CJEU confirmed this. There, it stated that the ‘jurisdiction [of the Court] to interpret the EEA Agreement under Article [267 TFEU] applies solely with regard to the [Union]; the Court has no jurisdiction to rule on the interpretation of that agreement as regards its application in the EFTA States’.38 This confirmed the walling-off between the pillars.

36 Case 167/73 Commission v France, ECLI:EU:C:1974:35 (Ship Crew), paras 41–46. 37 The Court went on to state that ‘If the definition of this term were a matter within the competence of national law, it would therefore be possible for each Member State to modify the meaning of the concept of “migrant worker” and to eliminate at will the protection afforded by the Treaty to certain categories of person. Moreover nothing … leads to the conclusion that these provisions have left the definition of the term “worker” to national legislation’. Case 75/63 Mrs MKH Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Administration of the Industrial Board for Retail Trades and Businesses), ECLI:EU:C:1964:19. There has been extensive consideration given in the case law to ‘who’ a worker is. See, eg, J Kenner, ‘The Intrinsic Value of Part-Time Work in the Construction of the Internal Market: Opinion of Advocate General Slynn in Levin’ in G Butler and A Łazowski (eds), Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union (Hart Publishing 2022) 177. 38 Case C-321/97 Ulla-Brith Andersson and Susannne Wåkerås-Andersson v Svenska staten (Swedish State), ECLI:EU:C:1999:307, para 28.

Free Movement of Persons in the Nordics through EU and EEA Law   43 The distinction between the two courts is also of note. For the CJEU, within the EU, is has powers that verge on the side of general jurisdiction,39 whereas the EFTA Court has much more limited jurisdiction that, thus far, only applies to the EEA Agreement itself as regards the EFTA-EEA states. The divide between EU Member States and non-EU Member States, pre-EEA Agreements, was something the CJEU took quite a strong view about, in that third states (and nationals of third states) could not assume accommodative legal arrangements on a par with EU Member States (and nationals of EU Member States). To illustrate, in Balkan Import Export, the Court held that ‘there exists no general principle obliging the [Union], in its external relations, to accord to third countries equal treatment in all respects[,] and in any event[,] traders do not have the right to rely on the existence of such a general principle’.40 That implied that the closeness of the EU Member States (and its people) in the EU Treaties was a deliberate choice, and was thus to exclude others. Moreover, the CJEU has always made a strong distinction between the EU Treaties as an international agreement and subsequent international agreements of the EU that the EU has with third parties. For example, in Polydor41 – a prominent and leading judgment in understanding the objectives of EU international agreements42 – the CJEU held that notwithstanding similar wording used in the EU Treaties and an international agreement of the EU with a third state, ‘such similarity of terms is not a sufficient reason for transposing to the provisions’,43 and instead stated that for the EU Treaties, the scope of the international agreement ‘must … be determined in the light of the [Union]’s objectives and activities’,44 and that ‘[i]t is apparent from an examination of the Agreement [with the third state] that … it does not have the same purpose as the [EU Treaties]’.45 Thus, it was deduced that international agreements of the EU are not automatically interpreted in the same manner, even if they have parallel or indistinguishable provisions. The purpose, objectives, and context of international agreements of the EU would always be relevant. Concerning the EEA Agreement, however, the CJEU has taken a more accommodating stance, departing from its hard line when it comes to EEA matters.

39 In a development that might offer a bit of an insight into what the future might hold, see the more recent judgment in Joined Cases C-202/18 and C-238/18 Ilmārs Rimšēvičs and European Central Bank v Republic of Latvia, ECLI:EU:C:2019:139 (Rimšēvičs I), where the CJEU went as far as to annul a national measure – the first time it has done so, albeit in a quite specific context. 40 Case 55/75 Balkan-Import Export GmbH v Hauptzollamt Berlin-Packhof, ECLI:EU:C:1976:8, para 14. 41 Case 270/80 Polydor Limited and RSO Records Inc v Harlequin Records Shops Limited and Simons Records Limited, ECLI:EU:C:1982:43. 42 See J Klabbers, ‘The Purpose of International Agreements and Their Direct Effect: Polydor’ in Butler and Wessel (eds) (n 10) 145. 43 Polydor (n 41) para 15. 44 ibid para 16. 45 ibid para 18 (emphasis added).

44  Graham Butler First, whilst rejecting the initial draft text creating an EEA in Opinion 1/91,46 it did greenlight what ultimately became the EEA Agreement in Opinion 1/92.47 Later, in Ospelt, the CJEU stated that the EEA Agreement has a principal aim that provides for ‘the fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area, so that the internal market established within the European Union is extended to the EFTA States’.48 Whilst ‘fullest possible’ was still potentially subject to a caveat to account for future developments, since ‘fullest possible’ does not mean ‘fullest’, it was nonetheless the CJEU giving effect to substantive homogeneity within the EU for EFTA-EEA states (and their nationals). In the Ospelt case, the restrictions by a former EFTA-EEA state, that subsequently became an EU Member State, were ‘counter to that objective as to uniformity of application of the rules relating to free movement of … within the EEA’.49 Therefore, in the EU pillar of the EEA, it was assumed that benefits of the free movement for nationals of EFTA-EEA states were analogous to those for nationals of EU Member States. In I.N.,50 a recent and significant case, the CJEU took an even more accommodating perspective as regards the EFTA pillar of the EEA in a case concerning a national of an EFTA-EEA state in an EU Member State. The facts of the case had all the makings of a blockbuster film.51 There, the CJEU, building on its prior case law,52 went further than just the movement of persons in a free movement context. The CJEU stated: It is appropriate to add that not only the fact that the person concerned has the status as a national of an EFTA State, which is a party to the EEA Agreement, but also the fact that that State implements and applies the Schengen acquis, renders the situation of that person objectively comparable with that of an EU citizen to whom, in accordance with Article 3(2) TEU, the Union offers an area of freedom, security 46 Opinion 1/91, ECLI:EU:C:1991:490. See E Paasivirta, ‘The Union’s Participation in Legally Binding International Third-Party Dispute Settlement: Opinion 1/91 (EEA I) and Opinion 1/92 (EEA II)’ in Butler and Wessel (eds) (n 10) 215. 47 Opinion 1/92, ECLI:EU:C:1992:189. 48 Case C-452/01 Margarethe Ospelt and Schlössle Weissenberg Familienstiftung, ECLI:EU:C: 2003:493, para 29 (emphasis added). 49 ibid para 30. 50 Case C-897/19 PPU Russian Federation v I.N., ECLI:EU:C:2020:262. 51 See the facts in the case, but also the Opinion of AG Tanchev, Case C-897/19 PPU Russian Federation v I.N., ECLI:EU:C:2020:128. 52 In addition to the Ospelt case mentioned above, see also, inter alia, Case C-286/02 Bellio F.lli Srl v Prefettura di Treviso, ECLI:EU:C:2004:212, para 34; Case C-471/04 Finanzamt Offenbach am Main-Land v Keller Holding GmbH, ECLI:EU:C:2006:143, para 48; Case C-265/06 Commission v Portugal, ECLI:EU:C:2008:210, para 30; Case C-157/07 Finanzamt für Körperschaften III in Berlin v Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt GmbH, ECLI:EU:C:2008:588, para 24; Case C-540/07 Commission v Italy, ECLI:EU:C:2009:717, para 65; Case C-72/09 Établissements Rimbaud SA v Directeur général des impôts and Directeur des services fiscaux d’Aix-en-Provence, ECLI:EU:C:2010:645, para 20, Case C-284/09 Commission v Germany, ECLI:EU:C:2011:670, para 95; Case C-48/11 Veronsaajien oikeudenvalvontayksikkö v A Oy, ECLI:EU:C:2012:485, para 15; Joined Cases C-204/12 to C-208/12 Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt, ECLI:EU:C:2014:2192, para 72. Only Ospelt, Établissements Rimbaud and A were cited explicitly by the Court in IN.

Free Movement of Persons in the Nordics through EU and EEA Law   45 and justice without internal frontiers, in which the free movement of persons is ensured.53

This was itself a significant enhancement for understanding the closeness of the EEA Agreement and the rights of EFTA-EEA nationals in the EU. Indeed the CJEU’s position in I.N. was to see the nationals of EFTA-EEA states as close to being Union citizens as possible, whilst maintaining, de facto, that they were not Union citizens.54 It did this without necessarily relying on the citizenship provisions in the EU Treaties or, indeed, Directive 2004/38.55 That said, the CJEU appeared at pains to resolve the case before it without delving into the lack of Union citizenship for the naturalised Icelandic national in an EU Member State where he was trying to holiday with his family (but who ended up trying to resist extradition to a third state of which he was originally a national). It has even been claimed that the I.N. judgment ‘enriched the current status of … [EFTA-EEA] States’ … citizens in the EU legal order’,56 and, furthermore, that I.N. is the Grzelczyk57 for nationals of EFTA-EEA states.58 Conversely, theoretically, if proved to be so in light of subsequent jurisprudence, the reverse will also be true of Union citizens in EFTA-EEA states. C.  The EFTA Court’s Case Law The EFTA Court, throughout its 30-year history,59 has proved to be a reliable guarantor, thus far, of ensuring that nationals of EU Member States in EFTA-EEA states have been afforded their rights. In Clauder,60 the EFTA Court

53 I.N. (n 50) para 58 (emphasis added). 54 As the CJEU itself stated, ‘In this case, the Republic of Iceland has a special relationship with the European Union, which goes beyond economic and commercial cooperation. It implements and applies the Schengen acquis, as the referring court observes, but it is also a party to the EEA Agreement, participates in the common European asylum system and has concluded the Agreement on the surrender procedure with the European Union. Therefore, in order to give a useful answer to the referring court, it is necessary to take into consideration, in addition to the European law norms referred to by it, the EEA Agreement to which both the European Union and the Republic of Iceland, in particular, are parties.’ ibid para 44. 55 Yet the CJEU did reiterate there may be ‘possible difference[s] in treatment between nationals of Member States and those of third [s]tates’, but without elaborating on when this might be: ibid para 40. The best way of understanding this caveat would be to note that there is no matching of rights in all instances, but as regards the EEA, there might as well be. 56 C Hillion and HH Fredriksen, ‘The “Special Relationship” between the EU and the EEA EFTA States – Free Movement of EEA Citizens in an Extended Area of Freedom, Security and Justice: Ruska Federacija v. I.N.’ (2021) 58 CML Rev 851, 853. 57 Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458. 58 Hillion and Fredriksen (n 56) 870. 59 On the place of the EFTA Court and giving effect to the EEA Agreement to make an extended internal market, see G Butler (ed), Research Handbook on EEA Internal Market Law (Edward Elgar Publishing 2023). 60 Arnulf Clauder (n 31).

46  Graham Butler was asked to interpret Directive 2004/38 for the first time. It began by citing the CJEU’s case law, noting: Having regard to the context and objectives of [the] Directive … – promoting the right of nationals of [EU] Member States and EFTA States and their family members to move and reside freely within the territory of the EEA States – the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness.61

Thus, the Clauder judgment of the EFTA Court can be understood as an attempt to assimilate the rights under the free movement of persons for EFTA-EEA nationals with those of Union citizens in the EFTA pillar of the EEA. As noted in section III.B, the I.N. judgment of the CJEU, nearly 10 years later, confirmed a de facto similar view in the EU pillar of the EEA. The EFTA Court got off on the right footing. Thereafter, in the Jonsson case,62 a social security matter arose regarding a Swedish national living in Sweden, who had worked frequently in Norway and travelled back to Sweden on a regular basis when off duty. In other words, the facts were purely intra-Nordic, across the two pillars of the EEA. Jonsson was akin to a frontier worker, residing in one Nordic state (Sweden, in the EU pillar of the EEA) and working in another Nordic state (Norway, in the EFTA pillar of the EEA). Whilst perhaps outside of the EEA Agreement because of his employment on Svalbard,63 Jonsson was within the Nordic Convention on Social Security because of his residence in another Nordic state (Sweden). That Convention from 2003 had, however, included a specific provision that had co-opted the applicable EU secondary law if a person resided in a Nordic state. Therefore, what is most interesting about the Jonsson case was that the applicant was clearly within the scope of a Nordic Convention, but was nonetheless adamant about getting recognition that the Norwegian decision regarding social security – essential for his right to exercise the free movement of persons – was incompatible with EEA law. The EFTA Court ruled in favour of Jonsson, finding that the Norwegian rules were indeed incompatible with the secondary law. Later, in Wahl,64 the EFTA Court was asked to interpret Article 27 of Directive 2004/38 on the general principles relating to the right of entry into and the right of residence of persons in Iceland. As in the Jonsson case, Wahl was also an intra-Nordic case, with Iceland banning a national of Norway from entering the state on his arrival at the airport.65 The EFTA Court quickly set aside any

61 ibid para 34 (emphasis added). 62 Case E-3/12 Staten v/Arbeidsdepartementet v Stig Arne Jonsson [2013] EFTA Ct Rep 136. 63 Noting that Protocol 40, para 1, to the EEA Agreement provides ‘When ratifying the EEA Agreement, the Kingdom of Norway shall have the right to exempt the territory of Svalbard from the application of the Agreement.’ Norway did avail itself of this right. 64 Case E-15/12 Jan Anfinn Wahl v the Icelandic State [2013] EFTA Ct Rep 534. 65 Note that Wahl was a person seeking a short stay in Iceland – a right of entry. He was not a resident of Iceland, nor was it his intention to establish residence in Iceland.

Free Movement of Persons in the Nordics through EU and EEA Law   47 delicacies that might apply given the intra-Nordic character of the proceedings. It stated that ‘[a] situation such as that of the applicant …, who seeks to travel from the EEA State of which he is a national to another EEA State, is covered by the right of nationals of EEA States to move and reside freely in the EEA’.66 This thereby implied that entry rights – between two Nordic states – were a matter of EEA law (originating in EU law) and not any Nordic arrangements. A third intra-Nordic case arose in Gunnarsson,67 in which two Icelandic nationals, who were married to each other, had moved from Iceland to Denmark and were in receipt of a disability pension (and benefits from two pension funds), and unemployment benefit respectively. In other words, neither was economically active in the classical sense of the term. The couple wanted to pool their personal tax credits in Iceland, but the national law of Iceland did not provide for this, owing to their residence in Denmark. According to the national law, only if the couple resided in Iceland might this have been possible. Apparently, there was no basis in any Nordic convention to allow for the pooling of tax credits when the couple had exercised the free movement of persons from one Nordic state to another. Instead, the Gunnarssons had to turn to EU law and EEA law for assistance. The EFTA Court found in their favour, noting that it was incompatible with secondary law not to allow spouses the option of pooling personal tax credits when they moved from one state within the EEA to another. No Nordic arrangements of any description came to the assistance of the Gunnarssons, and it was only EU law and EEA law that really mattered in order for the free movers in the Nordic states to seek adequate redress for their conundrum. The Jabbi case was next.68 This time, the matter involved a third-country national accompanying their spouse – an EFTA-EEA national – back to the EFTA-EEA state of which they were a national, having exercised free movement to an EU Member State, and wanting to return. This can be understood as circular free movement. The third-country national spouse of the EFTA-EEA national was not economically active in the EU Member State in which the couple were resident, before trying to return to the EFTA-EEA state of which their spouse was a national. The case law of the CJEU on circular movers/ returning movers had at that time relied principally upon Article 21 TFEU in resolving such matters. There was (and continues to be) no such equivalent in the EEA Agreement. Nevertheless, the EFTA Court in Jabbi utilised Article 7 of Directive 2004/38 alone, and thus broke with the CJEU’s O and B judgment.69 66 Wahl (n 64) para 79. 67 Case E-26/13 Íslenska ríkið v Atli Gunnarsson [2014] EFTA Ct Rep 254. For comprehensive analysis of this case on a stand-alone basis, see C Burke and ÓÍ Hannesson, ‘Citizenship by the Back Door? Gunnarsson’ (2015) 52 CML Rev 1111. 68 Case E-28/15 Yankuba Jabbi v The Norwegian Government, represented by the Immigration Appeals Board [2016] EFTA Ct Rep 575. 69 Case C-456/12 O v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B, ECLI:EU:C:2014:135. See E Spaventa, ‘Family Rights for Circular Migrants and Frontier Workers: O and B, and S and G’ (2015) 52 CML Rev 753.

48  Graham Butler Yet in doing so, the EFTA Court was in effect achieving substantive homogeneity, given it was the actual result that mattered, and the Jabbi family could indeed return to the EFTA-EEA state concerned. For the EFTA Court, this was, rightly, in the name of preserving the overall objectives of the EEA Agreement and Directive 2004/38, which were (and are) to facilitate (and not limit) free movement of persons. Therefore, whilst Jabbi was not an intra-Nordic case, it was EU law and EEA law that ensured that an EFTA-EEA national could exercise free movement, and subsequently return back to their EFTA-EEA state with a third-country national spouse. As before, no Nordic arrangements assisted the applicant with their specific family circumstances. The Campbell case70 followed Jabbi, and was effectively a re-run, given that the factual circumstances had comparable elements, albeit slightly differing on the notion of ‘continuous residence’. The case concerned the movement of an EFTA-EEA national (a Norwegian national) between Norway and Sweden, and back again, along with a spouse, who was a third-country national. This time, therefore, it was the intra-Nordic movement of a Nordic national that was at stake. Entrenching Jabbi – and thus EU law and EEA law as the applicable interpretation – the EFTA Court stated that ‘the EEA legal context remains unaltered since Jabbi, and accordingly, as firmly supported by ESA [EFTA Surveillance Authority] and the Commission, the [EFTA] Court finds no reason to depart from the understanding of homogeneity and effectiveness as expressed in that judgment’.71 As in Jabbi, no sort of Nordic arrangements featured in the Campbell scenario, and would have provided no legal support for the applicant. Last of all is the L case,72 which involved three Nordic states. L was a national of Finland, later moving to Sweden and then later again to Norway. The last state imposed an expulsion decision against him, which included a permanent expulsion order, despite L having lived in Norway for over 10 years, and having a family there. Despite the fact that Norway was dealing with a national of another Nordic state, it nonetheless proceeded with seeking his removal on a permanent basis, thus certainly raising questions about the proportionality of such a measure. The EFTA Court provided the national court, which had made the request, with a very strict standard to apply to the circumstances at hand, deciding the case on the basis of Directive 2004/38. The fact that L was a national of an EU Member State, that was a Nordic state, in an EFTA-EEA state that was also a Nordic state, was completely immaterial. The applicant may as well have been a national of any EU Member State or EFTA-EEA state, for the legal reasoning offered would not have been different. Despite the intra-Nordic movement, no Nordic arrangements were of any benefit to the applicant. 70 Case E-4/19 Campbell v The Norwegian Government, Judgment of the EFTA Court of 13 May 2020. 71 ibid para 58. 72 Case E-2/20 The Norwegian Government v L, Judgment of the EFTA Court of 21 April 2021.

Free Movement of Persons in the Nordics through EU and EEA Law   49 D.  The Subordination of Nordic Arrangements and the Importance of EU Law for Free Movement Cumulatively, these cases from both the CJEU and the EFTA Court demonstrate that Nordic arrangements, as a matter of law, and Nordic arrangements to protect individuals, have done little to nothing to ensure the free movement of persons. Moreover, the Nordic states, be they EU Member States or EFTA-EEA states, certainly do not treat nationals of the other Nordic states in the same way as their own nationals, despite claims to the contrary. Thus, to speak of any status of Nordic citizenship would be incorrect. There is no legal concept of Nordic citizenship, as distinct from Union citizenship, which is very much a legal reality. That said, however, administrative cooperation at ground level between administrative authorities in the Nordic states does exist to, theoretically, smooth out intra-Nordic movement of persons, but without any rights-bearing framework for individuals through Nordic arrangements. The Nordic states have undergone tremendous legal change over the past 70 years, just as all European states have done. But particularly as regards the Nordic states, the rights-based change has been the true transformation.73 The legal landscape in Europe today may be more complex than before, but it is certainly stronger (and better) for individuals than it has ever been. In the modern age, rights for persons in the Nordic states can be derived from human rights treaties such as the European Convention on Human Rights (ECHR) and from the case law of the European Court of Human Rights (ECtHR); European economic and constitutional integration in the form of EU primary law; EU secondary law, and interpretation by the CJEU and the EFTA Court; and, furthermore, reinterpretation of rights derived under national law, for example from national constitutions, in light of the evolving European legal backdrop. Law originating from beyond the state is having an increasingly normative effect, and further aligning the Nordic states with the mainstream European vision of law-making at continental level. Regional integration within Europe, like Nordic integration, within a regional international organisation like the EU is, ideally speaking, to be discouraged, given the possibilities for conflicting legal provisions, and one form of integration eventually having to be subordinate to the other. This is because the legal regime of the latter – the EU – in effect dissuades preferential arrangements of smaller cohorts within an overall European constitutional construct. This is evident in the reality of the free movement of persons in the Nordic states today, given that EU law and EEA law have, by and large, overtaken Nordic arrangements. Indeed prior to wider Nordic-EU/EEA integration, Denmark, as the first Nordic EU Member State, was once conceived of as taking the political 73 See, M Scheinin, ‘Constitutionalism and Approaches to Rights in the Nordic Countries’ in J  Nergelius (ed), Constitutionalism: New Challenges: European Law from a Nordic Perspective (Martinus Nijhoff Publishers 2007) 135.

50  Graham Butler lead for the Nordics as a de facto go-between for the Nordic states and the EU. Nothing came of such ideas,74 and the other four Nordic states either became EU Member States or became EFTA-EEA states, allied to the EU. In fact, rather strangely, it has been the EEA Agreement that has become the effective legal means to settle the legal relations between the Nordic states, by bringing them all together within the prism of European integration. There is no, and has never been any, federative impetus for Nordic integration. With the EU superseding many of the efforts with hard-binding law, Nordic arrangements, multilaterally, have been of decreasing legal value. Before true European legal integration,75 there was once certainly a place for such arrangements and their admiral aims to foster free movement of some kind. As stated in the mid-1950s: Scandinavian workers are free to seek employment in Denmark, Finland, Norway, and Sweden … unimpeded by interference from any authority. The Scandinavian people’s will be encouraged to utilize this undeniable advantage by the large number of mutual arrangements in the social sphere, giving the citizens of one Northern country living in another the same status as that country’s own citizens.76

That age has long since disappeared, with EU law and EEA law now supreme for nationals of the Nordic states, nationals of EU Member States and other EFTA-EEA nationals wanting to exercise the free movement of persons in the Nordic states. One only has to look at the intra-Nordic cases that have reached the two courts in question – the C case at the CJEU and the Jonsson, Gunnarsson, Wahl, Campbell and L cases from the EFTA Court – to recognise the subordination of Nordic arrangements in the modern day, and the mere rhetoric they offer.77 These intra-Nordic cases perfectly demonstrate how EU law and EEA law have superseded the material legal value of the Nordic arrangements. Furthermore, even if there were Nordic arrangements, the case law of the two courts demonstrates how nationals of Nordic states are materially better off relying on their rights conferred under EU law and EEA law, as they provide a stronger regime of rights.

74 S Gstöhl, ‘The Nordic Countries and the European Economic Area (EEA)’ in L Miles (ed), The European Union and the Nordic Countries (Routledge 1996) 47, 49. 75 On the innocence and ups and downs of the intra-Nordic movement throughout the early 20th century, see F Wendt, The Nordic Council and Co-Operation in Scandinavia (Munksgaard 1959) 85–87. 76 F Wendt, The Northern Council: Report on the Work of the Second Session at Oslo, 1954 with A Supplement on the Origins and the Structure of the Council (Danish Secretariat of the Nordic Council 1954). 77 See, eg, the Nordic vision of being the ‘most integrated region in the world’: Norden – En Bæredygtig Og Integreret Region? Baseline Rapport for Vores Vision 2030 (Nordic Council of Ministers 2021). Any follower of Nordic arrangements knows that little will come of it materially, in legal terms, with regard to rights for individuals and their movement between Nordic states. Instead, these will continue to derive from EU law and EEA law.

Free Movement of Persons in the Nordics through EU and EEA Law   51 IV.  CONCLUSION: NORDIC INTEGRATION THROUGH THE EU

This chapter has analysed, as a matter of law, the place of free movement of persons in the Nordic states through EU law and EEA law. Given the development of this field, it is apparent that Nordic arrangements78 have in large part been overtaken and superseded by European law – through EU law and EEA law. The EU legal order (and later the EEA Agreement) has a strong rights-orienting approach, and has ensured that the free movement of persons has become about individual rights in law. This enhanced framework has solidified rights for individuals against the states – EU Member States and the EFTA-EEA states – ensuring that European integration would become a citizens’ project too, and not merely a state project. Nordic cooperation preluded European integration, but now the latter has overtaken the former, and has rendered the former notionally of lesser importance as a matter of law. Where there appears to be conflict between Nordic arrangements, on the one hand, and EU law and EEA law, on the other, the latter will always prevail. This said, despite the obvious legal deficiencies in Nordic arrangements, and the prominent role of the EU in providing free movement rights for persons, exploring the wider legal issues surrounding the free movement of persons in the Nordic states is still an important research endeavour, given that the EU is not the exclusive framework for European cooperation. Moreover, there are Nordic arrangements that do continue to matter, such as naturalisation,79 outside of residence.80 Without a doubt, however, European integration has diminished the importance of Nordic arrangements, despite the Nordic states’ claim to resemble a legal family, with some preferred rights for the others’ nationals in national law. The Nordic framework has been great at identifying problems, commissioning reports, and trying to deliver strategies for individual consideration and possible implementation. However, for concrete results for persons, in which they acquire legal rights against the states, such Nordic efforts have not achieved very much in legal terms. Nordic arrangements are now, largely, of cultural value and ritual. And whilst persons exercising free movement between Nordic states face slightly fewer administrative and practical hurdles than they would in moving between two EU Member States, it must nonetheless be reiterated that for persons wanting to exercise rights across borders in the

78 For further analysis of Nordic arrangements, see Wenander, ch 2 of this volume. 79 It should be noted that the conferral (or removal) of nationality of an EU Member State is not an absolute area of national competence. See, eg, Case C-135/08 Janko Rottman v Freistaat Bayern, ECLI:EU:C:2010:104; and Case C-118/20 JY v Wiener Landesregierung (Revocation of an assurance of naturalisation), ECLI:EU:C:2022:34. See also, K Hyltén-Cavallius, ‘Stateless Union Citizens in a Nationality Conundrum: EU Law Safeguarding Against Broken Promises’ (2022) 18 European Constitutional Law Review. 80 On this point, see also Jacqueson, ch 6, Erhag, ch 7 and Neuvonen, ch 8 of this volume respectively.

52  Graham Butler Nordic states, Nordic arrangements offer little in the form of legal guarantees when compared to those under EU law and EEA law. It is only an integration through law regime – through the EU (and thus, the EEA Agreement) – that has been really able to deliver true results. The Nordic states are not deserving of special treatment as a regional grouping. Neither are the multilateral Baltic state relationships (Estonia, Latvia and Lithuania), the Iberian states arrangements (Portugal and Spain) or the Visegrád Grouping arrangements (Czech Republic, Hungary, Poland and Slovakia). If they were each able to exercise extensive bilateral or multilateral obligations within each other, vis-à-vis the rest of the EU, it would surely be detrimental to the overall status of European integration and the effect of EU law. In any event, the Nordics are not like the Benelux, with the latter being the founding and continuing essence of European legal integration. Legally speaking, the CJEU is never going to permit EU law to give way to Nordic arrangements, as demonstrated in the C case. As the CJEU put it there: States which are members of Nordic Cooperation and members of the Union have undertaken to continue that cooperation, in compliance with [Union] law. Accordingly, that cooperation must respect the principles of the [Union] legal order.81

Instead, taking a different approach, the CJEU will be accommodating to the position of EFTA-EEA states and their nationals within EU Member States, as seen in the I.N. case, which was exemplary. This type of case law from the CJEU will in turn continue to ensure pressure is put on the EFTA Court to maintain a homogeneous line of interpretation, to give nationals of EU Member States, and nationals of EFTA-EEA states, their rights of free movement in EFTA-EEA states too. Given the existence of Union citizenship in EU law, and its absence in the EEA Agreement, it has been succinctly said that, ‘if ever there was an area in which the widening gap between EU law and EEA law was to be exposed and illustrated, then this must surely be it’.82 Furthermore, it has been stated that [a]lthough the free movement of persons in the EEA was initially thought to be largely limited to economically active persons and certain of their family members, the continual development of EU citizenship rights – which find limited resonance in EEA law – has placed the principle of homogeneity under great strain in recent years.83

This latter claim has to be disputed. The EFTA Court has done a handsome job of ensuring that the formal absence of Union citizenship in the EEA

81 C (n 26) paras 64–65. 82 HH Fredriksen and CNK Franklin, ‘Of Pragmatism and Principles: The EEA Agreement 20 Years On’ (2015) 52 CML Rev 629 640. 83 CNK Franklin, ‘Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law’ (2017) 19 Cambridge Yearbook of European Legal Studies 165, 166 (emphasis added).

Free Movement of Persons in the Nordics through EU and EEA Law   53 Agreement has not meant persons have suffered insufficient legal protection, notwithstanding the formal omission of Union citizenship from the EEA Agreement. The fact that Union citizenship is absent for two of the five Nordic states has largely been immaterial to the exercise of free movement, for there is important EU secondary law in place – Directive 2004/38 – which does not set out to limit or deter free movement but rather enhance it, making it more effective and usable for persons, be they Union citizens or nationals of EFTA-EEA states. Regret, however, can certainly be felt in the context of EU law’s superseding intra-Nordic arrangements. As put by Advocate General Kokott in C, it ‘may appear regrettable as regards the obviously well-developed administrative cooperation’,84 such as between the Nordic states in certain areas. But the result – that Nordic arrangements cede to EU law and EEA law – is for the overall betterment of the functioning of European law across Europe as a whole. The future of the legal regime governing the free movement of persons in the Nordic states lies in European law, through EU law and EEA law. And with this, as has been the case in recent times, it will be national courts and tribunals in the Nordic states that will play a crucial role in ensuring that the rights deriving from these regimes are given effect. As ever, the national courts and tribunals in the Nordic states have the right to seek references for a preliminary ruling (in the EU pillar of the EEA) or a request for an advisory opinion (in the EFTA pillar of the EEA) from the applicable court for their jurisdiction – the CJEU and EFTA Court. After all, national courts and tribunals are indeed ‘“European” courts’;85 and as the CJEU stated in Opinion 1/09, national courts and tribunals can be viewed as ‘“ordinary” courts within the European Union legal order’.86 This will be a continuous means of ensuring that free movement of persons is made possible under EU law and EEA law.



84 Opinion

of AG Kokott, Case C-435/06 C, ECLI:EU:C:2007:543, para 61. (n 2) 191. 86 Opinion 1/09, ECLI:EU:C:2011:123, para 80. 85 Krunke

54

4 Fundamental Rights of the Individual in EEA Law: The Tension between the ECHR Standards and the EU Charter DAVÍÐ ÞÓR BJÖRGVINSSON*

I. INTRODUCTION

T

he European Economic Area (EEA) Agreement extends the European Union’s (EU’s) common market to the three non-Member States, Iceland, Norway and Liechtenstein (the EEA states).1 Accordingly, the EU legislation in the fields of the four freedoms and competition (and state aid) is to be made a part of the legal order of these states, including in the field of freedom of persons. Moreover, the EEA Agreement and the Agreement between the EFTA [European Free Trade Association] States on the establishment of a surveillance authority and a Court of Justice of 2 May 1992 (SCA)2 provide for institutions, separate from the EU institutions, the role of which is to ensure that EU legislation in these fields is implemented and enforced in the EFTA states in line with EU standards. In this regard the core concept is ‘homogeneity’, the content of which will be described in section II. The EEA Agreement does not contain specific references to fundamental rights. Moreover, the EU Charter on Fundamental Rights3 (the Charter) is not a part of the EEA legal system and creates no obligations for the EEA states to adhere to it as such, or adopt it into their national systems. Indeed, direct reference to the Charter to support or substantiate a presumption of protection of fundamental rights within the EEA, which is the same as or equivalent to the protection provided within the EU, would be not only legally wrong but also, in the wider political context, inappropriate. * The views expressed in this chapter are personal. 1 The Agreement on the European Economic Area of 2 May 1992 [1994] OJ L1/3. Presently only Iceland, Norway and Liechtenstein are on the EFTA side of the Agreement. 2 Agreement between the EFTA States on the establishment of a surveillance authority and a Court of Justice [1994] OJ L344/1. 3 Charter of Fundamental Rights of the European Union [2012] OJ C326/391.

56  Davíð Þór Björgvinsson The title of this chapter refers to fundamental rights of the individual in EEA law and alleged tension between the standards of the European Convention on Human Rights (ECHR)4 and the EU Charter. In line with that, it offers a general view of the potential problems. However, issues relating to freedom of movement and fundamental rights under the EEA Agreement are given special attention, as well as those caused by Union citizenship rights and Directive 2004/38,5 as they are pertinent to this anthology. It is suggested that academics tend to give too much weight to the possible problems and tensions this difference may create in the long run. It is argued that the EEA institutions, and the national legislator and judges at the national level, will, in most situations, find a way to achieve homogeneity without ever referring to the Charter, as the rights and principles contained therein are either embedded, or can without too many difficulties be incorporated, into the EEA system and the national legal systems of the EFTA states, through either legislation or judicial activity. This may mean that sometimes methods and judicial arguments used to arrive at a decision may differ from those applied by the EU institutions, including the Court of Justice of the European Union (CJEU), as there are differences in the legal nature of the EEA on one hand and the EU on the other. It is asserted, for the purpose of homogeneity and from the point of view of individuals and economic operators, who are the benefactors of the rights afforded, that what matters is the final outcome, not the way it is reached. II.  THE LEGAL CHARACTERISTICS OF THE EEA AGREEMENT

As related in section  I, the participation of the EFTA states requires them to make sure that EU legislation in the fields of the four freedoms and competition is implemented into their national legal order, and, in accordance with the principle of homogeneity, to ensure that this legislation is applied, interpreted and enforced in compliance with EU standards in the field of the four freedoms.6 It is moreover the role of the EEA Joint Committee to decide which secondary legislation shall be a part of the EEA. This would seem to be simple, but nevertheless problems regularly arise as to which EU secondary legislation is relevant for the EEA. One of them relates to Directive 2004/38, further discussed in section IV.

4 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ETS No. 5). 5 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC [2004] OJ L158/3. 6 For a general overview of the EEA Agreement see, eg, S Norberg et al, The European Economic Area. EEA Law. A Commentary on the EEA Agreement (Fritzes AB 1993).

Fundamental Rights of the Individual in EEA Law   57 The legal structure and nature of the EEA Agreement is shaped by characteristics. On the one hand the EU legislation should be implemented in the national legal system to enable individuals and economic operators to rely on it (direct effect). Moreover, this should be achieved without requiring the EFTA states to transfer sovereign powers to common institutions beyond the limits set by their constitutions. It follows that transfer of state powers to common institutions is limited to certain decisions of the EFTA Surveillance Authority (ESA) and the EFTA Court in competition cases. Moreover, the EEA Agreement does not provide for direct applicability of secondary EC legislation in the national legal order of the EFTA states. In addition, as regards the advisory opinion procedure under Article 34, this differs from the preliminary ruling procedure within the EU, in that the national courts in the EFTA states are never obliged to request advisory opinions and such opinions are never binding on the national courts. Due to these differences, there have been problems in always achieving full homogeneity, but such problems have so far been overcome for the most part. In any case, the EEA Agreement has survived for almost 30 years now and served its purpose well without altering its main structure. III.  PROTECTION OF FUNDAMENTAL RIGHTS UNDER THE EEA AGREEMENT

The Charter is not binding upon the EFTA states. This does not mean that the EFTA states are not bound by fundamental rights when implementing and applying EU legislation at home or when the EEA institutions enforce it. The message is already clear in the preamble to the main text of the Agreement, where the Contracting Parties declare that they are convinced that it will contribute to the construction of a Europe based on peace, democracy and human rights. The presumption is therefore that the economic structure set up by the EEA Agreement is based on democratic principles and fundamental rights and principles. The question is only which fundamental rights standards apply when questions arise in practical situations. On this matter the EEA Agreement itself is silent. This will now be explored further.7 A.  Human Rights Protection at the National Level The standards that must be followed at the national level in the EFTA states are to be found first and foremost in the catalogues of human rights in the constitutions of these countries. In the case of Norway, Part E of the Constitution 7 The present author has written on this subject earlier. See DT Björgvinsson ‘Fundamental Rights in EEA Law’ in The EEA and the EFTA Court. Decentered Integration, ed The EFTA Court (Hart Publishing 2014) 263. R Spano, ‘The EFTA Court and Fundamental Rights’ (2017) 13 European Constitutional Law Review 475.

58  Davíð Þór Björgvinsson (Articles 92–113);8 and in case of Iceland, Chapter VII (Articles 65–76) of the Republic of Iceland.9 In both countries the principle of constitutional review is firmly established, giving the general courts the power to strike down, or rather not to apply, legislation that is unconstitutional. It follows that all EEA legislation must in its content and application respect national constitutional standards on fundamental rights. In addition, the ECHR has been implemented as law in these countries, and both countries are committed to follow the case law of the European Court of Human Rights (ECtHR). It follows that when questions arise as to the interpretation and application of the EEA Agreement at the national level, and whether it is in accordance with human rights standards, it should be measured against constitutional provisions on human rights as well as the ECHR as interpreted and applied by the ECtHR. Moreover, these countries are Contracting Parties to numerous human rights instruments on the international level, among others the International Covenant on Civil and Political Rights of 196610 and International Covenant on Economic, Social and Cultural Rights from 1966,11 as well as the European Social Charter of 199612 and the ILO Conventions covering a wide area of social and labour issues, including basic human rights, minimum wages, industrial relations, employment policy and other issues. Overall, the foregoing suggests that the EFTA states are prima facie well tooled to adapt to the Charter without ever referring to it directly, to make sure that implementation and application of EU legislation at the national level is aligned with the fundamental rights obligations stemming from EU legislation as interpreted in light of the Charter, to achieve homogeneity. B.  Fundamental Rights Standards when EU Legislation is Applied by the EEA Institutions The issues relating to the protection of fundamental rights within the Community and on behalf of the Community institutions are well documented and there is no need to repeat them here.13 In addition to the increased case law of the CJEU, where these issues have been addressed previously, the most important 8 The Constitution of the Kingdom of Norway of 17 May 1814. 9 Constitution of Republic of Iceland no 33, 17 June 1944, as amended. 10 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 11 International Covenant on Economic, Social and Cultural Right (adopted 16 December 1966, entered into force 3 January 1966) 993 UNTS 3 (ICESCR). 12 European Social Charter (Revised) Strasbourg, 3 May 1996, ETS 163. 13 See, among others, F Jacobs, ‘Interaction of the case-law of the European Court of Human Rights and the European Court of Justice: Recent developments’ in Dialogue between Judges (European Court of Human Rights, 2005) 65; and A Rosas, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’ in C Baudenbacher, P Tresselt and T Orlygsson (eds), The EFTA Court. Ten Years On (Hart Publishing 2005) 161.

Fundamental Rights of the Individual in EEA Law   59 feature of the present situation is that the approach of the CJEU has been given expression in Article 6 TEU, providing that the Union recognises the rights, freedoms and principles set out in the Charter, which shall have the same legal value as the Treaties. Moreover, it states that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of EU law. As regards the applicable standards for the protection of fundamental rights under the EEA Agreement, the EFTA Court has in numerous judgments referred to the ECHR and the jurisprudence of the ECtHR. The EFTA Court set the stage in 1998 in the case of TV 1000 Sverige.14 There, the Court referred to Article 10 ECHR and the Handyside judgment of the ECtHR15 when interpreting Council Directive 89/552/EEC.16 There have been many judgments since where the EFTA Court has referred to the ECHR and the case law of the ECtHR.17 Of importance is the judgment in the Clauder case,18 where the Court reaffirmed its commitment to the ECHR and the case law of the ECtHR, stating: Finally, it should be recalled that all the EEA States are parties to the ECHR, which enshrines in Article 8(1) the right to respect for private and family life. According to established case-law, provisions of the EEA Agreement are to be interpreted in the light of fundamental rights (see, for example, Case E-2/03 Ásgeirsson [2003] EFTA Ct Rep 18, paragraph 23, and Case E-12/10 EFTA Surveillance Authority v Iceland, judgment of 28 June 2011 … The Court notes that in the European Union the same right is protected by Article 7 of the Charter of Fundamental Rights.19

Another important case is Holship.20 In paragraph 123 of the judgment the EFTA Court states: Fundamental rights form part of the unwritten principles of EEA law. The Court has held that the provisions of the ECHR and the judgments of the ECtHR are important sources for determining the scope of these fundamental rights (see Case E-2/03 Ásgeirsson [2003] EFTA Ct Rep 185, paragraph 23). The fundamental rights guaranteed in the EEA legal order are applicable in all situations governed by EEA law. Where overriding reasons in the public interest are invoked in order to justify 14 Case E-8/97 TV 1000 Sverige [1998] EFTA Ct Rep 68. 15 Handyside v the United Kingdom App no 5493/72 (ECtHR, 7 December 1976). 16 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23 (no longer in force). 17 Case E-2/02 Bellona (Access to Court Article 6 ECHR), [2003] EFTA Ct Rep 52; Case E-3/11 Sigmarsson [2011] EFTA Ct Rep 430; Case E-5/10 Dr Kottke [2009-2010] EFTA Ct Rep 320, para 26; Case E-2/03 Ásgeirsson (length of proceedings under Article 6 ECHR) [2003] EFTA Ct Rep 185; and the judgment of the ECtHR in Pafitis and others v Greece [1998] ECHR (Ser A) 15. 18 Case E-4/11 Clauder [2011] EFTA Ct Rep 216, para 49. 19 This approach is further confirmed in Case E-15/10 Posten Norge AS [2012] EFTA Ct Rep 246, para 86; Case E-18/11 Irish Bank [2012] EFTA Ct Rep 592, para 63; Case E-14/11 Schenker [2012] EFTA Ct Rep 1178, paras 166–167; Joined Cases E-3/13 and E-20/13 Fred Olsen [2014] EFTA Ct Rep 400, para 224; Case E-10/17 Kystlink [2018] EFTA Ct Rep 292; Case E-1/20 Kerim [2021] EFTA Ct Rep 12; and Case E-4/19 Campbell [2020] EFTA Ct. Rep 21. 20 Case E-14/15 Holship [2016] EFTA Ct Rep 240.

60  Davíð Þór Björgvinsson measures which are liable to obstruct the exercise of the right of establishment, such justification, provided for by EEA law, must be interpreted in the light of the general principles of EEA law, in particular fundamental rights. Thus the national measures in question may fall under the exceptions provided for only if they are compatible with fundamental rights (see Olsen and Others, cited above, paragraph 226). It is for the referring court to assess whether certain overriding reasons in the public interest are compatible with fundamental rights in the light of Article 11 ECHR and the case law of the ECtHR (compare, for example, the ECtHR in Sørensen and Rasmussen v Denmark, cited above, paragraphs 54 and 58).

This case will be explored further in section IV.A.iv, as it eventually reached the ECtHR, which gave judgment on 10 June 2021. From these references in the EFTA Court’s case law to the ECHR, and the case law of the ECtHR, it would seem justified to draw at least two conclusions. First, in the implementation and enforcement of the EEA Agreement, fundamental rights will have to be respected. Second, the main legal criterion is the ECHR, as interpreted by the ECtHR. Finally, as to the significance of the Charter in this regard, and the purpose and meaning of the tangible reference to the Charter in the Clauder case, one may perhaps draw the inference that the Charter carries importance in defining standards for the protection of fundamental rights within the EEA system, and even that, to some extent, the Charter is imported into the EEA by the jurisprudence of the EFTA Court. Before drawing such inferences, the judgment of the EFTA Court in Enes Deveci should be considered.21 In that case, the defendant claimed inter alia that the respective EU provisions in dispute should be interpreted in accordance with the Charter, in particular Article 16 on the freedom to conduct a business. It was argued that even though the Charter had not been incorporated into the EEA Agreement, it would be consistent with the principle of homogeneity to give it interpretive effect. The Norwegian Government claimed that an automatic application of the Charter without its being incorporated in the EEA Agreement would challenge state sovereignty and the principle of consent as the source of international legal obligations. The Government contended that the Charter provided, in some respects, for fundamental rights beyond those common to the EEA states, and that this would be the case regarding Article 16 of the Charter. The Government went on to state that the right to conduct business is not, at least not in such a general manner, reflected in other international legal instruments by which the EEA states are bound, and argued that it warranted caution in equalling the scope of Article 16 of the Charter with fundamental rights common to the EEA States. The ESA, on the other hand, argued that the right to conduct a business is safeguarded in the EEA irrespective of the Charter’s provisions, and submitted that one of the main objectives of the EEA Agreement is to contribute to trade liberalisation and to the fullest possible realisation of

21 Case

E-10/14 Enes Deveci [2014] EFTA Ct Rep 1364.

Fundamental Rights of the Individual in EEA Law   61 the four freedoms, for which the right to conduct a business is an indispensable prerequisite. The European Commission noted that that the CJEU found in the case of Alemo-Herron and Others22 that Article 3 of the Directive must be interpreted in accordance with Article 16 of the Charter. In response to these arguments, the EFTA Court stated in paragraph 64 of the Enes Deveci judgment: The Court finds no reason to address the question of Article 16 of the Charter. The EEA Agreement has linked the markets of the EEA/EFTA States to the single market of the European Union. The actors of a market are, inter alia, undertakings. The freedom to conduct a business lies therefore at the heart of the EEA Agreement and must be recognised in accordance with EEA law and national law and practices.

The arguments of the parties described above, and the response of the EFTA Court, range from overpowering the interpretive effect of the Charter for the purpose of fulfilling the principle of homogeneity, to almost ignoring it altogether as the EEA states have not consented to it and automatic application of it would challenge state sovereignty. The view the EFTA Court would seem to endorse is that, in all important respects, fundamental rights are sufficiently protected under the EEA Agreement and that the courts at the national level are sufficiently equipped to fulfil any commitment to fundamental rights and principles that are protected by the Charter without referring or relying on it directly. IV.  THE TENSION BETWEEN THE ECHR STANDARDS AND THE CHARTER

As noted in section III.B, the EFTA Court took the view in the Enes Deveci case that there was no reason to address the question of Article 16 of the Charter. One may still contest if this approach is sufficient in the long run to achieve homogeneity. After the entering into force of the Charter, the decisions of the CJEU increasingly refer to the Charter in cases relating to the interpretation and application of EU legislation on the four freedoms.23 In that regard, Article 6 of the EEA Agreement and Article 3 of the SCA are important, as they commit the EEA institutions and the national courts of the EFTA states to have regard to the case law of the CJEU. The EFTA Court must therefore consider interpretative outcomes based on Charter provisions in rulings of the CJEU concerning interpretation and application of legislation that is also a part of the EEA Agreement. The matter is further complicated by the fact that the EU evolves while the EEA Agreement is relatively static, and will likely remain so, as it seems that neither the EEA states nor the EU is interested in either extending it or developing it any 22 Case C-426/11 Alemo-Herron and Others, ECLI:EU:C:2013:521. 23 See, eg, Spano (n 7). See also G de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 168; and S O’Leary, ‘Courts, Charters and Conventions: Making Sense of Fundamental Rights in the EU’ (2016) 56 The Irish Jurist 4.

62  Davíð Þór Björgvinsson further, or using it as a steppingstone for future Member States on their way to full membership of the EU. A.  Content of the Charter and the ECHR A brief account of the issue will have to suffice for the purpose of supporting the argument that the differences between the national constitutions of the EFTA states and the ECHR, on one hand, and the Charter, on the other hand, are not such that they cannot be overcome, and there is, for the purpose of homogeneity, no need for the EFTA states to incorporate the Charter, either as a part of the EEA Agreement or at the national level. The Charter contains rights, freedoms and principles under six titles, namely: dignity, freedoms, equality, solidarity, citizens’ rights and justice. The ECHR is more limited, in the sense that it is mostly confined to rights that have been termed civil and political rights. In this regard, Article 52 of the Charter is relevant. As regards rights, it is stated in Article 52(1) of the Charter that any limitation on the exercise of the rights and freedoms recognised must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. Similar limitation clauses are found in Articles 8(2), 9(2), 10(2) and 11(2) ECHR, and in Article 1 of Protocol 1 to the Convention. Moreover, it is stated in Article 52(3) of the Charter that, in so far as this Charter contains rights that correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by that Convention. It is added that this provision shall not prevent Union law from providing more extensive protection. Lastly, Article 52(4) stipulates that where the Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. Also important for the purpose of comparison between the Charter and the ECHR is the distinction the Charter makes between rights and principles. Rights are directly enforceable, but as regards principles, it is stated in Article 52(5) that the provisions of this Charter that contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. These principles are judicially cognisable only in the interpretation of such acts and in ruling on their legality. The distinction between rights and principle is not always clear. Examples of principles are Articles 25 (the rights of the elderly), 26 (integration of people with disabilities) and 37 (environmental protection). In some cases, a provision in the Charter may contain elements of both a right and of a principle, for

Fundamental Rights of the Individual in EEA Law   63 example Articles 23 (equality between women and men), 33 (family and professional life) and 34 (social security and social assistance). i. Dignity Title I (Articles 1–5) of the Charter contains provisions on dignity. The first to mention is protection of human dignity in Article 1, followed by the right to integrity of the person in Article 3. The ECHR contains no similar provisions. These principles or rights are implied automatically in any meaningful and sustainable concept of fundamental rights and principles. As such, they are firmly embedded in numerous international instruments to which the EFTA states adhere, including the ECHR, and in the jurisprudence of the ECtHR, as well as in the national constitutions and legislation. Any adjustment needed for the purpose of honouring commitments under the EEA Agreement flowing from these provisions of the Charter are easily accommodated within the ECHR framework as well as the national constitutions of the EFTA states. Other rights in this title of the Charter have clear counterparts in the ECHR. The right to life under Article 2 the Charter and Article 2 ECHR are in all important respects identical. The same goes for the prohibition of torture and inhuman or degrading treatment or punishment in Article of 4 the Charter and Article 3 ECHR, and the prohibition of slavery and forced labour in Article 5 the Charter and Article 4 ECHR. ii. Freedoms Title II of the Charter sets out the protected freedoms. The right to liberty and security under Article 6 of the Charter has a clear counterpart in Article 5 ECHR, although the latter is much more detailed. The same goes for protection of private and family life under Article 7 of the Charter and Article 8 ECHR. As regards protection of private life, the Charter contains a provision in Article 8 on the protection of personal data not found in the ECHR. Nevertheless, protection of personal data is a part of the ECHR under Article 8 thereof,24 as well as under the national constitutions and legislation that is largely based on EU law through the EEA Agreement. As regards the right to marry and right to found a family in Article 9 of the Charter, this right is set out in Article 12 ECHR.25 Article 10 of the Charter on freedom of thought, conscience and religion, and Article 11 on freedom of expression and information are reflected in Articles 9 and 10 ECHR. The same goes for freedom of assembly and of association in

24 See, eg, Big Brother Watch and Others v the United Kingdom, 25 of May 2021 (GC) in Cases 58170/13, 62322/14 and 24960/15 and Ben Faiza v France, 8 of February 2018 in Case 31446/12. 25 On this right the Charter is somewhat wider in scope, as the wording in the ECHR refers in particular to ‘men and women’, meaning that the right of individuals of the same sex to marry is not directly protected under Art 12 ECHR.

64  Davíð Þór Björgvinsson Article 12 of the Charter and Article 11 ECHR. The freedom of the arts and sciences in Article 14 of the Charter has no counterpart in the ECHR, but for the most part they would be protected under Articles 9 and 10 of the Convention. The right to education in Article 14 of the Charter and Article 2 of Protocol 1 to the ECHR are mostly identical. As concerns Article 15 of the Charter on freedom to choose an occupation and the right to engage in work, the ECHR is silent. Nevertheless, the ECHR has in several judgments recognised to some extent the right to access to work.26 The same applies to the right to conduct a business under Article 16 of the Charter. The right to property under Article 17 of the Charter is similar to Article 1 of Protocol 1 to the ECHR. As to the right to asylum under Article 18 of the Charter, the EFTA states are contracting parties to the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and have implemented legislation to fulfil the obligations to honour their duties. As regards protection in the event of removal, expulsion or extradition in line with Article 19 of the Charter, it is provided for in Article 3 ECHR and in Article 3 of Protocol 4 (collective expulsion) to the ECHR. iii. Equality Title III of the Charter contains provisions on equality. Article 20 states that everyone is equal before the law. This provision has no counterpart in the ECHR. However, equality is of course a part of the general principles upon which the Convention rests, and finds expression, inter alia, in Article 14 and in Article 2 of Protocol 12, as well as in the national constitutions of the EFTA states. As regards non-discrimination under Article 21 of the Charter, there is an identical provision in Article 14 ECHR, as well as in Article 1 of Protocol 12. Article 22 of the Charter protects cultural, religious and linguistic diversity, and stipulates that the Union shall respect all such diversity. There is no similar provision in the ECHR. However, it can safely be assumed that this is accommodated in various provisions of the ECHR, in particular Article 9 on freedom of thought, conscience and religion, Article 10 on freedom of expression, Article 2 of Protocol  1 on the right to education, and Article 14 and Article 2 of Protocol  12. Article 23 of the Charter on equality between men and women has no counterpart in the ECHR but finds expression in Article 14 of the Convention and in Article 2 of Protocol 12, as well as in the national constitutions of the EFTA States. The same goes for the possibility to maintain and adopt measures providing for specific advantages in favour of the underrepresented sex. The next provision to mention is Article 24 of the Charter on the rights of the child, plus the rights of the elderly in Article 25 of the Charter and integration



26 See,

eg, Thlimmenos v Greece App no 34369/97 (ECtHR, Grand Chamber, 6 April 2000).

Fundamental Rights of the Individual in EEA Law   65 of persons with disabilities in Article 26.27 Many of these rights or principles are also already part of the ECHR through the jurisprudence of the ECtHR. These principles are also protected in various international instruments to which the EFTA states are contracting parties, as well as under the national constitutions and legislation. The general framework for the protection of these rights or principles based on the ECHR and national constitutions, to fulfil obligations under the EEA Agreement, is in place. It leaves plenty of leeway for any adjustments or changes needed to fulfil obligations under the EEA Agreement flowing from EU law, including the Charter. iv. Solidarity Title IV of the Charter is entitled ‘Solidarity’. It contains provisions on social rights, labour or workers’ rights, environmental rights and consumer rights. The ECHR is primarily concerned with civil and political rights, and most of the provisions in Title IV of the Charter have no direct counterparts in the Convention. Nevertheless, even though these rights or principles are not specifically stipulated in the ECHR, they are to a great extent protected in the jurisprudence of the ECtHR. For assessing whether this is a potential source of tensions or discrepancies for the purpose of equivalent protection under the EEA Agreement to that offered in EU law, the following should be borne in mind. Article 28 of the Charter protects the right of collective bargaining and action. There is no direct counterpart in the ECHR. However, there is clear case law on Article 11 (freedom of association and assembly) confirming that these rights are protected under the Convention.28 These rights are also protected under national law in the EFTA states and in Iceland by the Constitution as interpreted in light of Article 11 as interpreted by the ECtHR, as well as in the ILO Conventions. The Holship judgment29 of the ECtHR is interesting in this context. It concerned the legality of a boycott as a trade union action under Article 11 ECHR against Article 31 EEA (freedom of establishment). One aspect of this judgment is whether it can be interpreted as a retreat from the Bosphorus case,30 or for that 27 See, eg, DT Björgvinsson, ‘The Protection of the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights’ in OM Arnardóttir and G Quinn (eds), The UN Convention on the Rights of Persons with Disabilities. European and Scandinavian Perspective (Martinus Nijhoff Publishers 2009) 141. 28 See Demir and Baykara v Turkey App no 34503/97 (ECtHR, 12 November 2008); and Enerji Yapi-Yol Sen v Turkey App no 68959/01 (ECtHR, 21 April 2009). See also DT Björgvinsson, ‘The European Convention on Human Rights and Trade Union Rights’ in S Borelli, A Guazzarotti and S Lorenzon (eds), I diritti dei lavoratori nelle carte Europee deil diritti fondamentali – Conference Proceedings (Jovene editore 2012) 27. 29 Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v Norway App no 45487/17 (ECtHR, 10 June 2021). 30 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland App no 45036/98 (ECtHR, 30 June 2005).

66  Davíð Þór Björgvinsson matter from the decision of the ECtHR in Konkurrenten.no AS,31 in which the ECtHR had found that the presumption of Convention compliance created in Bosphorus did not apply to the EEA as claimed by the Norwegian Government. In the context of the EEA Agreement, a retreat from the Konkurrenten decision is possibly indicated by giving the references of the EFTA Court to fundamental rights more weight than before. Graver goes further in arguing that the judgment may signal a more assertive ECtHR towards the EU, for example, moving from the Bosphorus case. It may also indicate that the ECtHR does not regard the protection of labour rights and other rights covered by the ECHR as at least ‘equivalent’ to that for which the Convention provides, with implications for the application of the Bosphorus doctrine.32 Another way to interpret the judgment is that the ECtHR is moving closer to some kind of acceptance of presuming equivalent protection of fundamental rights based on the EEA Agreement. This is done by emphasising that fundamental rights form part of the unwritten principles of EEA law according to the case law of the EFTA Court. Moreover, it is stressed that this reflects the position that previously pertained under EU law, prior to successive EU Treaty amendments, according to which fundamental rights were first recognised as general principles of EU law. It is further added in Konkurrenten.no, that the fact that the EEA agreement does not include the EU Charter is not determinative of the question whether the Bosphorus presumption could apply when it comes to the implementation of EEA law, or certain parts thereof. Despite this, the ECtHR nonetheless decided in this case that it would proceed on the basis that the presumption does not apply. It is indicated, moreover, that this issue might be reviewed further in another case if necessary. As regards the balancing exercise under Article 11(2) ECHR against Article 31 EEA, the ECtHR considered that the Supreme Court of Norway had engaged in an extensive assessment of the conflicting fundamental right to collective action relied on by the applicant unions and the fundamental economic freedom under EEA law on which the employer had relied. It had indicated that the boycott had, among other things, to be reconciled with the rights that followed from the EEA Agreement, and that in consideration of proportionality a fair balance had to be struck between those rights. Given the characteristics of the collective action, the breadth of the margin of appreciation was considered wide. Following the Supreme Court judgment, the relevant social partners had negotiated and concluded a new collective agreement: the restriction of the applicant unions’ Article 11 rights had not as such prevented them from engaging in further collective bargaining. Against that background, the Court did not consider that sufficiently ‘strong reasons’ existed for it to substitute its views for that of the Supreme Court in the case.

31 Konkurrenten.no AS v Norway App no 47341/15 (ECtHR, 5 November 2019). 32 HP Graver, ‘The Holship ruling of the ECtHR and the protection of fundamental rights in Europe’ (2022) ERA Forum at https://doi.org/10.1007/s12027-022-00701-0.

Fundamental Rights of the Individual in EEA Law   67 The Holship saga offers interesting points relevant for the purpose of this chapter. The first is that in its Advisory Opinion, the EFTA Court relied to a great extent on the judgments of the CJEU in the Viking and Laval cases.33 In these judgments, the collective actions by the trade unions were found to be unjustifiable restrictions on the freedom of establishment and the freedom to provide services. In addition, the Supreme Court of Norway relied on the Advisory Opinion to find that the blockade was unlawful. A further interesting point is the fact that the ECtHR gave a considerable weight to the fact that Norway was a Contracting Party to the EEA Agreement and that the boycott had, among other things, to be reconciled with the rights that flowed from the EEA Agreement. The inference to be drawn from this saga is that the national constitutions are the point of departure without any reference to the Charter. The rights and obligations stemming from the EEA Agreement are then weighed against the national constitutions for the purpose of defining the width of the protection under the national constitutions, striving to find a fair balance from the point of view of Article 11 of the ECHR. What matters from the point of view both of the EEA Agreement and the ECtHR is the outcome, not the legal instruments directly referred to. As regards environmental protection, provided for in Article 37 of the Charter, the ECHR does not refer directly to a right to a clean environment. However, there is plenty of case law from the ECtHR where environmental rights have been incorporated into the Convention through interpretation mainly of Article 834 and Article 1 of Protocol 1 on property rights.35 From the point of view of the EFTA states, there are also numerous international instruments to work with in this field at the national level. As for the rest of the provisions in Title IV of the Charter, the ECHR does not contain direct counterparts. These are: Article 27 of the Charter on workers’ right to information and consultation within the undertaking; Article 29 on the right of access to placement services; Article 31 on fair and just working conditions; Article 32 on the prohibition of child labour and the protection of young people at work; Article 33 on reconciliation of family and professional life; Article 34 on social security and social assistance; Article 35 on health care; Article 36 on access to services of general economic interest; and Article 38 on consumer protection. A thorough account of how these rights and principles are, in one way or another, already sufficiently protected under the EEA Agreement and the national legislation of the EFTA states, including based on the EU legislation that has already been implemented, requires more space than is available here.

33 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union, ECLI:EU:C:2007:772; and Case C-341/05 Laval un Partneri, ECLI:EU:C:2007:809. 34 See Guerra and Others v Italy App no 14967/89 (ECtHR, 19 February 1998). 35 See Öneryıldız v Turkey App no 48939/99 (ECtHR, Grand Chamber, 30 November 2004).

68  Davíð Þór Björgvinsson In any event, they contain nothing that cannot be easily accommodated within the general framework upon which the EEA Agreement rests, and integrated into the national systems of the EFTA states if necessary to achieve homogeneity. v. Justice Title V of the Charter contains provisions on citizen’s rights that are of central importance for the purpose of this chapter, and they will be dealt with in the next section. Title VI, however, contains provisions on ‘justice’, which relate to criminal proceedings and the criminal law. Article 47 protects the rights to an effective remedy and to a fair trial. They are equivalent to Article 13 and Article 6, respectively, of the ECHR. As regards the presumption of innocence and the right of defence in Article 48 of the Charter, these are also protected in Article 6 ECHR, as well as in the constitutions of the EFTA states. In the field of criminal law, the principle of legality is provided for in Article 49(1) and (2) of the Charter, and in Article 7 ECHR. As for the ne bis in idem principle in Article 50 of the Charter, it is to be found Article 4 of Protocol 7 to the ECHR.36 As regards criminal law, it is stated in Article 49(3) of the Charter that the severity of penalties must not be disproportionate to the criminal offence. This is not provided for in the ECHR, nor directly in the national constitutions. Nevertheless, it is hard so see how this fact can stand in the way of achieving homogeneity or create a tension between the Charter and the ECHR. B.  Citizens’ Rights Title V of the Charter contains provisions on the rights of Union citizens. They relate to the basic political rights, such as in Article 39 on the right to vote and to stand as a candidate at elections to the European Parliament, and in Article 40 on the right to vote and to stand as a candidate at municipal elections. Moreover, there is the right to good administration in Article 41 and to access to documents in Article 42, and the right to refer to the European Ombudsman, as well as the right to petition and the right to diplomatic and consular protection, in Articles 42–46. These rights relating to Union citizenship are mostly irrelevant for the citizens of the EFTA states, who are not Union citizens. An exception is the right to freedom of movement and of residence. This right is enshrined in Article 45 of the Charter, which provides in Article 45(1) that every citizen of the Union has the right to move and reside freely within the territory of the Member States. Moreover, it is stated in that paragraph that freedom of movement and residence may be granted, in accordance with 36 In Art 2 and Art 3 of Protocol 7 ECHR there are further ‘criminal law’ rights that are not to be found in the Charter.

Fundamental Rights of the Individual in EEA Law   69 the Treaties, to nationals of third countries legally resident in the territory of a Member State. Problems have arisen in this field, mainly related to incorporation of Directive 2004/38 into the EEA Agreement, as the Directive repeatedly refers to Union citizens.37 From the outset, since the concept of Union citizenship does not apply in the EEA/EFTA states, those states were hesitant incorporate it. On the other hand, the EU rejected an approach whereby the provisions of the Directive linked to Union citizenship would have been excluded from incorporation into EEA law. To resolve the problem, a Joint Declaration was annexed to Decision 158/2007 of the EEA Joint Committee, stating: The concept of Union Citizenship as introduced by the Treaty of Maastricht (now Articles 17 seq EC Treaty) has no equivalent in the EEA Agreement. The incorporation of Directive 2004/38/EC into the EEA Agreement shall be without prejudice to the evaluation of the EEA relevance of future EU legislation as well as future case law of the European Court of Justice based on the concept of Union Citizenship. The EEA Agreement does not provide a legal basis for political rights of EEA nationals. The Contracting Parties agree that immigration policy is not covered by the EEA Agreement. Residence rights for third country nationals fall outside the scope of the Agreement with the exception of rights granted by the Directive to third country nationals who are family members of an EEA national exercising his or her right to free movement under the EEA Agreement as these rights are corollary to the right of free movement of EEA nationals. The EFTA States recognise that it is of importance to EEA nationals making use of their right of free movement of persons, that their family members within the meaning of the Directive and possessing third country nationality also enjoy certain derived rights such as foreseen in Articles 12(2), 13(2) and 18. This is without prejudice to Article 118 of the EEA Agreement and the future development of independent rights of third country nationals which do not fall within the scope of the EEA Agreement.38

For the purpose of incorporation of the Directive 2004/38, the geographical scope of it was expanded to include the EEA/EFTA states. Moreover, through the Decision of the EEA Joint Committee, the Directive was incorporated into the EEA Agreement as a whole with, inter alia, the amendment that the words ‘Union citizen[s]’ should be replaced by the words ‘national[s] of EC Member States and EFTA States’. In addition, the Decision outlines the fields in which the incorporation takes effect. According to Articles 1 and 2 of the Decision, the Directive shall apply, as appropriate, in the fields covered by Annex VIII and Annex V to the Agreement. It is to be noted that these Annexes concern not 37 The Directive was incorporated into Annex V to the EEA Agreement, concerning the free movement for workers, and into Annex VIII, concerning freedom of establishment, by Decision of the EEA Joint Committee 158/2007 (JCD). 38 Joint Declaration by the Contracting Parties to Decision of the EEA Joint Committee No 158/2007 incorporating Directive 2004/38/EC of the European Parliament and of the Council into the Agreement.

70  Davíð Þór Björgvinsson only nationals of an EFTA state having the legal position of migrant workers or the self-employed, but also their family members, as defined in the Directive. Moreover, Annex VIII also relates to services and includes rules on the movement and residence of non-economic agents. Overall, this means that not only in the framework of EU law but also in that of EEA law, Directive 2004/38 applies to the movement of natural persons in a rather broad sense (workers, the self-employed, service providers and recipients, and non-economically active persons under certain conditions), though according to the Decision only ‘as appropriate’.39 Scholars have noted that, as a result of its incorporation into EEA law, Directive 2004/38 now applies in two different legal contexts, namely, EU law and EEA law.40 The problem lies in the fact that while the EEA Joint Committee limits the application of the Directive to the scope of the two Annexes, at the same time, it states that Union citizenship and immigration policy are not part of EEA law. It could be argued that this political compromise made in relation to Directive 2004/38 does not sit well with the principle of homogeneity, as it creates a certain discrepancy with regard to the scope of the Directive within the EU, on one hand, and the EFTA states, on the other. In a series of judgments, the EFTA Court has been confronted with interpretation of the Directive in the context of the EEA Agreement.41 We shall first look at the Wahl judgment. The facts of the case are that in February 2010, the Icelandic authorities denied the plaintiff, a Norwegian national and member of the Hells Angels, entry into Iceland on the basis of an ‘open danger assessment’ because of the plaintiff’s presumed role in the final accession stage of an Icelandic motorcycle club as a new chapter of Hells Angels. The plaintiff’s administrative appeal against the decision was rejected, as was the appeal before a district court. The plaintiff appealed the district court’s decision to the Supreme Court, which made a request for an Advisory Opinion and referred questions, inter alia, on Article 27 of the Directive. In paragraph 74 in its judgment the EFTA Court referred to Joint Committee Decision 158/2007 (‘the Decision’) and to the Joint Declaration, and went on, stating obiter with regard to Article 24 of Directive 2004/38 on equal treatment: [T]hese exclusions have no material impact on the present case. Nevertheless, the impact of the exclusions must be assessed on a case-by-case basis and may vary accordingly. In this regard, it must be noted that, as is apparent from Article 1(a) and recital 3 in its preamble, the Directive aims in particular to strengthen the right of 39 See in more detail C Tobler, ‘Free Movement of Persons in the EU v. in the EEA: of Effect-Related Homogeneity and a Reversed Polydor Principle’ in N Cambien, D Kochenov and E Muir (eds), European Citizenship under Stress. Social Justice, Brexit and Other Challenges (Brill 2020) 482. 40 C Burke, ÓÍ Hannesson and K Bangsund, ‘Schrödinger’s Cake? Territorial Truths for Post-Brexit Britain’ in M Kuyer, and W Werner (eds), Netherlands Yearbook of International Law 2016: The Changing Nature of Territoriality in International Law (Springer 2017) 287, 309. 41 See Case E-15/12 Wahl [2013] EFTA Ct.Rep 534; Case E-26/13 Gunnarsson [2014] EFTA Ct Rep 254; and Case E-28/15 Jabbi [2016] EFTA Ct Rep 575.

Fundamental Rights of the Individual in EEA Law   71 free movement and residence of EEA nationals … To this end, it lays down the conditions governing the exercise of the right of free movement and residence within the territory of the EEA. The impact of the exclusion of the concept of citizenship has to be determined, in particular, in cases concerning Article 24 of the Directive which essentially deals with the equal treatment of family members who are not nationals of a Member State and who have the right of residence or permanent residence.

Tobler interprets this statement with regard to Article 24 in the EEA context as possibly being the point where the Polydor principle enters EEA law, referring to the judgment of the European Court of Justice in Van Duyn.42 Under this principle, the provisions of agreements concluded by the EU with non-Member States are not automatically to be interpreted in the same manner, even if they are very similar or even identical; rather, relevant differences in the context may lead to a different interpretation. The cited statement in the judgment is somewhat unclear as to its meaning. However, this is developed further in subsequent case law. The next case to mention is the judgment of the EFTA Court in Clauder, cited in section III.B. The case related to the interpretation of Directive 2004/38, in particular its Article 16 on the right of residence for family members of EEA nationals holding a right of permanent residence in Liechtenstein and the condition of sufficient resources. The Liechtenstein authorities had based their refusal of the plaintiff’s reunification with his second wife (a German citizen) on the argument that Mr Clauder could not prove that he had sufficient financial resources for himself and his wife without having recourse to social welfare benefits. From the wording of Article 16 of the Directive, whether such persons must also fulfil the residence condition (which Ms Clauder did not) relates specifically and exclusively to ‘family members who are not nationals of a Member State’. Mr Clauder, the ESA and the Commission asserted that the Directive, in particular Article 16(1) in conjunction with Article 7(1), should be interpreted as meaning that an EEA national with a right of permanent residence, who is a pensioner and in receipt of social welfare benefits in the host state, may claim the right to family reunification even if the family member will also be claiming social welfare benefits. In its judgment, the EFTA Court found, relying on the right to protection of family life under Article 8 ECHR and the aim of strengthening free movement rights, that no such conditions relating to sufficient resources applied to EEA nationals. It follows from the judgment of the EFTA Court that there is a right to immediate permanent residence, even where the family member will be claiming social welfare benefits (see paragraphs 44–50). It has been argued that the EFTA Court, based on the concept of homogeneity, has integrated the main features of Union citizenship rights into its interpretation of it for the purpose of the EEA Agreement. According to Fløistad, the EFTA Court in the Clauder case took an innovative step towards free movement

42 Case

C-41/74 Van Duyn v Home Office, ECLI:EU:C:1974:133. See also Tobler (n 39).

72  Davíð Þór Björgvinsson rights for economically inactive citizens in the EEA Agreement, in fact comparable to the CJEU citizenship case law in the EU legal order.43 Similarly, Jay writes about the active, pro-integrationist stance of the EFTA Court, and suggests that in the Clauder case the Court essentially assimilated the nationality of an EEA/EFTA state with Union citizenship for the purposes of free movement and residence.44 Hannesson and Burke talk about citizenship by the back door.45 Tobler argues that the Clauder case is special, in that the EFTA Court was faced with the gap in Article 16 of Directive 2004/38 with respect to family members with EU nationality. It was, moreover, a gap that had not yet been filled by the CJEU. Rather, the situation was one of ‘first go’ for the EFTA Court, which gave it the chance to shape the interpretation of EEA law, at least for the time being.46 On the Clauder case, the present writer sides with Tobler when she asserts that it represents a sensible approach to filling the gap in Article 16 of the Directive 2004/38. After all, in a situation where the Directive clearly states certain conditions for third-country family members only, it is quite legitimate to assume that the legislator did not wish the same conditions to apply to EU nationals, and it would be unreasonable to assume that EU family members would not enjoy permanent residence at all.47 Many other have expressed themselves on the issue.48 These will not be identified further here. The next judgments to consider are the Gunnarsson case49 and Jabbi.50 They are different from Clauder in the sense that there is previous case law of the CJEU to take note of. In the Gunnarsson case, the applicant was an Icelandic citizen. He and his wife were resident in Denmark from 24 January 2004 to 3 September 2009. Mr Gunnarsson paid tax in Iceland on his income. However, he was prevented from utilising his wife’s personal tax credit while they resided in Denmark. Under the Icelandic tax legislation applicable at the time, they had to reside in Iceland in order to pool their personal tax credits. The EFTA Court found that such less favourable tax treatment of a pensioner and his wife, who had exercised the right to move freely within the EEA, was not compatible with Article 7(1)(b) and (d) of Directive 2004/38. To support this, the EFTA Court pointed out that Article 1(1) and (2) of the former Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have 43 A Fløistad, ‘Article 28 Free Movement of Workers’ in F Arnesen et al (eds), Agreement on the European Economic Area: A Commentary (Bloomsbury 2018) 369, para 15. 44 MA Jay, ‘Homogeneity, the Free Movement of Persons and Integration Without Membership: Mission Impossible?’ (2012) 8 Croatian Yearbook of European Law and Policy 77, 87. 45 C Burke and ÓÍ Hannesson, ‘Citizenship by the Back Door? Gunnarsson’ (2015) 52(4) CML Rev 1111. 46 Tobler (n 39) 491. 47 ibid 492. 48 See, for a further account of different opinions on the matter, ibid. 49 Case E-26/13 Gunnarsson [2014] EFTA Ct Rep 254. 50 Case E-28/15 Jabbi [2016] EFTA Ct Rep 575.

Fundamental Rights of the Individual in EEA Law   73 ceased their occupational activity51 applied in the EEA before Directive 2004/38. It found that the substance of Article 1(1) and (2) of Directive 90/365 had been maintained in Article 7(1)(b) and (d) of Directive 2004/38. Moreover, the Court found that it was of no consequence that the rights of economically inactive persons according to Directive 2004/38 were adopted by the Union legislature on the basis of Article 21 of the Treaty on the Functioning of the European Union on Union Citizenship, introduced in the EU pillar through the Maastricht Treaty. It noted, however, that the rights of economically inactive persons in Directive 90/365 were adopted on the basis of Article 235 EEC prior to the introduction of the concept of Union citizenship. This provision conferred on the EU legislature a general power to take the appropriate measures necessary for the operation of the common market where no specific legal basis existed in the Treaty, and that when Directive 90/365 was made part of the EEA Agreement in 1994, it conferred rights on economically inactive persons. Furthermore, when Directive 2004/38 was incorporated into the EEA Agreement, the EEA Joint Committee and the Contracting Parties underlined that the concept of Union citizenship had no equivalence in the EEA Agreement, and the EEA Agreement did not provide a legal basis for political rights of EEA nationals. Therefore, the Court held that the incorporation of Directive 2004/38 could not introduce rights into the EEA Agreement based on the concept of Union Citizenship. However, individuals could not be deprived of rights that they had already acquired under the EEA Agreement before the introduction of Union Citizenship in the EU, and which were maintained in Directive 2004/38. Scholars have commented on this approach of the EFTA Court and criticised it for different reasons.52 Burke and Hannesson, for example, criticise the EFTA Court for, among other things, the ‘complete absence of a convincing and explicit methodology’, including the fact that the Court relied on selected CJEU case law only, to the exclusion of other, more recent case law.53 They note that as a result of the judgment, there is now a significant cleavage between the EU and the EEA regime in relation to the interpretation of an identical norm. At the same time, they note that had the EFTA Court transposed CJEU case law, EFTA nationals would not have been afforded equal protection in their home states on the basis of EEA law when compared to their counterparts in EU Member States relying on EU law. Therefore, the judgment could be justified, regardless of the legally rather stretched teleology, as it is termed, used to underpin it. Tobler notes that in this lies the key to the EFTA Court’s approach. Rather than opting for a homogeneous interpretation of Article 7 of Directive 2004/38, in the sense

51 Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and selfemployed persons who have ceased their occupational activity [1990] OJ L180/28. 52 A thorough analysis of the reasoning in the opinion and discussion of different scholarly views is to be found in Tobler (n 39) 492–503. 53 Burke and Hannesson (n 45).

74  Davíð Þór Björgvinsson of following the interpretation in the relevant CJEU case law, ‘the EFTA Court consciously deviates from that interpretation in order to arrive, not at the same interpretation, but rather, through different interpretation, at the same overall level of protection under EU law and under EEA’.54 It should be added that the Supreme Court of Iceland did not follow the Advisory Opinion in judgment 92/2013. This has nothing do with the overall approach of the EFTA Court and its methodology in reaching its conclusion; rather, it was not possible to set aside clear provisions of national legislation.55 The facts in Jabbi were that the plaintiff was a Gambian national. In 2012 he married a Norwegian citizen, in Spain. They stayed together in Spain from September 2011 to October 2012, after which his wife returned to Norway. In November 2012, the plaintiff applied for residence in Norway as the spouse of Norwegian citizen. The application was dismissed by the immigration authorities. The plaintiff then instigated proceedings before Oslo District Court. He claimed that he had a derived right of residence in Norway as a result of his wife’s stay in Spain and subsequent return to Norway. The District Court decided to refer to the EFTA Court the question whether Article 7(1)(b) in conjunction with Article 7(2) of the Directive conferred a derived right of residence to a third-country national, a family member of an EEA national who, upon returning from another EEA state, is residing in the EEA State of which the EEA national is a citizen. Referring to its Gunnarsson judgment, the Court held that the home EEA state may not deter its nationals from moving to another EEA state in the exercise of the freedom of movement under EEA law. A right to move freely from the home EEA state to another EEA state pursuant to Article 7(1)(b) of the Directive cannot be fully achieved if the EEA national may be deterred from exercising the freedom by obstacles raised by the home state to the right of residence for a third-country national spouse. Therefore, it found the provisions of the Directive to apply by analogy where the EEA national returns to his home state with a third-country national family member. However, a derived right of residence for a third-country national in the spouse’s home state is conditional. In addition to the requirements of sufficient resources and health insurance, the EEA national must have resided in the host state for a continuous period exceeding three months before returning to the home state. Moreover, EEA states may deny a derived right in cases of abuse of rights or fraud, such as marriages of convenience. Finally, restrictions on rights granted by the Directive may be justified by reasons of public policy, public security or public health. Here again, Tobler remarks that the EFTA Court’s approach could be seen to reflect a new, reversed version of the Polydor principle, where different contexts of the same provision must lead to different interpretations,



54 Tobler 55 See

(n 39). the judgment of the Supreme Court of Iceland of 2 October 2013 in Case no 92/2013.

Fundamental Rights of the Individual in EEA Law   75 where that is necessary in order to achieve the same overall result in terms of the level of people’s protection.56 The last case to mention is Campbell (cited in section III.B). In its judgment, the EFTA Court found that the EEA legal context had remained unaltered since Jabbi, and accordingly found no reason to depart from the understanding in that judgment of homogeneity and effectiveness. With regard to an EEA national who has not pursued an economic activity, the Court found that Article 7(1)(b) and (2) of the Directive were applicable to the situation where that EEA national returns to the EEA state of origin together with a family member, such as a spouse who is a national of a third country. Finally, a few words on whether the Nordic cooperation model creates specific problems to the rights granted by EEA law. This is discussed by Hannesson and Burke in chapter 10 of this volume. They offer an analysis of issues related to the implementation of Directive 2004/38 in Iceland. They note that certain frictions between EEA law and the Nordic welfare states have been brought to light in connection with their residence-based welfare rights, and add that this certainly is the case in Iceland, where significant adaptations to Directive 2004/38/EC in particular have been necessary. Their final conclusion is that with respect to the vast majority of other rights, and particularly social security, however, the practice of the Icelandic authorities in giving effect to the EEA Agreement’s provisions in circumstances in which there is a conflict between these and the Nordic Convention, entails that as a general rule there is little distinction between Nordic nationals and nationals of other EEA states in how they are treated. What this discussion shows is that the concept of Union citizenship may cause some discrepancies. The decision of the Supreme Court of Iceland not to follow the Advisory Opinion, as it could not have been accommodated within the Icelandic legal framework, admittedly further confirms this point. However, the findings of the Supreme Court relate more to a question of limits of judicial power, as nothing prevents the Icelandic legislator from aligning the national legislation with the EFTA Court’s opinion, only depending on a political willingness to do so. This issue relates to the interpretation of Article 3 of the EEA Agreement, and whether a clear provision of national law could be set aside on the basis of the EFTA Court’s opinion. The preceding discussion indicates that problems stemming from Title V of the Charter can be overcome by political compromises, as well as through legislative, administrative and judicial activity on the basis of the principle of homogeneity and by taking the rights of individuals and their equal rights seriously, regardless of their status as EFTA state nationals or Union citizens. This is not to say that all problems are necessarily over, rather that the EFTA Court and the national legislator, and national courts, for that matter, in the EFTA states, are well equipped to reach the end results that participation in the internal market requires of them.

56 See

a detailed analysis of the Court’s reasoning in Tobler (n 39) 500 et seq.

76  Davíð Þór Björgvinsson V.  SUMMARY AND CONCLUSIONS

Tensions between the EEA Agreement, national constitutions and the Charter have arisen and may arise in the future. This is mainly due to two factors. The first is the difference in the legal nature of the EEA Agreement compared to the EU legal system. Second, the reach of the Charter is wider, compared to the ECHR and national constitutions, in terms of the rights and principles specifically listed. On the first point, it should be reiterated that, despite the differences in legal nature of the EEA Agreement on the one hand and the EU on the other, it has survived and served its purpose well in most respects. There have been difficulties due to these differences, as the examples given in this chapter show, and it is to be expected that these difficulties will continue. So far, they have been overcome without any major long-lasting problems, through political compromises, as in the case of incorporation of Directive 2004/38, and judicial activity and interpretations at the national level and by the EFTA Court, albeit being somewhat stretched at times, with the aim of achieving homogeneity between the two systems. What matters from the point of view of individuals and economic operators is the outcome and whether rights are equally protected, not the way in which it is reached. As to the second point, it is argued, moreover, that on the basis of the national constitutions, various international instruments, and in particular by their commitment to the ECHR and the case law of the ECtHR, the EFTA states have the right tools to adjust, for the purpose of honouring any commitment under the EEA Agreement, to any obligations flowing from the provisions of the Charter, in the field of the four freedoms, as interpreted by the CJEU.

5 Closure of Borders in the Three Nordic EU Member States During the Covid-19 Pandemic ULLA NEERGAARD, JAAN PAJU AND JUHA RAITIO*

I. INTRODUCTION

‘T

o travel is to live’ is probably one of the best-known quotations from the famous Danish author, Hans Christian Andersen. If true, then the European Union (EU), by continuously having made it easier to travel and live abroad, makes us all more alive. However, the many Covid-19 restrictions that have been launched over the past couple of years have obviously had the opposite effect, making it almost impossible to cross borders and thereby ‘breaking the wings’1 of many. The Nordic states have long strived for open borders. In fact, institutionalised cooperation with the vision of making the Nordic region the most sustainable and integrated region in the world constitutes a fundamental part of identity in this part of Europe.2 This cooperation is considered to be the world’s oldest regional partnership, and is seen to have deep roots in politics, economics and culture, as discussed in detail by Henrik Wenander in chapter 2. For a long time, open borders between the Nordic states have been a top priority, and this was already the case back in 1954 when the Nordic Passport Union was launched. In 1962, the Helsinki Treaty – often referred to as the Nordic Constitution – was signed by Denmark, Finland, Iceland, Norway and Sweden. This should

* The contribution covers the three Nordic EU Member States during the critical phase of the pandemic, March 2020 to March 2021. The aim of the contribution is to illustrate the challenges the EU as well as the Nordic cooperation faced, rather than trying to analyse in detail the five Nordic states’ border closures. 1 Inspiration was taken from the line ‘Take these broken wings and learn to fly again’, which originates from the song ‘Broken Wings’ released in 1985 by Mr Mister; see, eg, at en.wikipedia.org/ wiki/Broken_Wings_(Mr._Mister_song). 2 See at www.norden.org/en/information/action-plan-vision-2030 (accessed 22 February 2022).

78  Ulla Neergaard, Jaan Paju and Juha Raitio be contrasted with the fact that Denmark became a member of the EU much later, in 1973, and Sweden and Finland even later still, in 1995 (whereas Iceland and Norway are only associated through the European Free Trade Association (EFTA)). Today, the Nordic Passport Union – in ‘normal’ times – allows citizens of the Nordic states to travel to other Nordic states without any travel documentation. However, throughout the first year under the yoke of the pandemic, not only fundamental principles of EU law, but also the essential spirit of cooperation among the Nordic states were challenged by the many border-related restrictions laid down.3 Although in many other respects having pursued rather different approaches to the handling of the pandemic internally within their states, the Nordic EU Member States have in common that they all developed rather strict, yet not identical, approaches regarding their respective borders. As an example, Danes were, from just before Christmas 2020 until Easter 2021 – and with a few exceptions – not permitted to enter Sweden across the Danish/Swedish border, but could do so if entering Sweden from, for example, Germany (which would then extend the length of a car journey from Copenhagen by about 10 hours). Thereby, the development of the so-called ‘Øresunds-region’, with the bridge between the Danish capital Copenhagen and the Swedish city Malmö as its central anchor, was put on hold. As is the case with many neighbouring states, which in earlier times may have been at war with one another, such measures can be the cause of reintroducing otherwise historical, nationalistic competitions and myths that previously had been nearly buried and kept only slightly alive, for instance for the purpose of football matches. The pandemic may have led to a strengthening of the nation state at the cost of the EU and good neighbourly relations, a problem that is, in fact, not limited to the Nordic Member States alone. Before the pandemic, open borders and free movement in the Nordic states and in the EU had become such a common reality that today it appears nearly unnatural to have had these suspended. Thus, it gave rise to wonder that the European Commission did not react to the numerous kinds of border mea­sures enacted by Member States throughout the first year of the pandemic. Eventually, even citizens started to complain, begging the Commission to take action. Then, on 22 February 2021, the Commission finally took some initiative, as it sent administrative letters to six out of 27 Member States, namely Belgium, Denmark, Finland, Germany, Hungary and Sweden, putting them on notice over curbs to free movement of persons.4 The three Nordic EU Member 3 See, eg, www.theguardian.com/world/2021/oct/07/we-were-like-family-how-covid-strained-bondsbetween-nordic-neighbours and dn.se/varlden/nordenforskare-stangda-granser-kan-fa-langsiktigakonsekvenser/ (accessed 22 February 2022). 4 See, eg, D Boffey, ‘EU tells six countries to lift Covid border restrictions’ The Guardian (23 February 2021) at theguardian.com/world/2021/feb/23/eu-tells-six-countries-to-lift-covidborder-restrictions; and H Cokelaere and H von der Burchard, ‘Brussels battles capitals over border restrictions’ Politico (23 February 2021) at politico.eu/article/eu-border-restrictions-coronavirusbrussels-versus-capitals/. The letters and the responses are not all publicly available, but in some

Closure of Borders During the Pandemic  79 States – slightly absurdly given the above-mentioned historical background – were considered to have been particularly restrictive. It is of interest to analyse what exactly has taken place, and contrast the choices made with EU law as well as with the Nordic cooperation. Given the long-standing Nordic Passport Union and the close Nordic cooperation, it is somewhat surprising that the border closures were not discussed in detail by either the Nordic Council or the Nordic Council of Ministers.5 No coordinated actions were taken, sending the message that the Nordic institutionalised cooperation is not a crisis-handling organisation. The Nordic Freedom of Movement Council at the Nordic Council of Ministers, however, reacted to the border closures by issuing numerous appeals to open up the borders, as will be discussed further in section IV. Taking into account the Nordic Freedom of Movement Council’s limited mandate,6 the appeals can only be understood as appeals in their true sense. They are not backed up by legal obligations, as the case is, by contrast, with the Commission’s letters to Denmark, Sweden and Finland. Against that background, the overall aim of this contribution is to analyse the border-related measures enacted in the three Nordic EU Member States in a broad sense – with the main emphasis on border closures –in light of the letters from the Commission to them and EU law more generally. Furthermore, the Nordic Freedom of Movement Council’s appeals will be discussed. On the basis of these ‘case studies’, certain points of concern will be put forward with regard to both the action at the EU level and the Nordic regional cooperation. It is also claimed, inter alia, that the theoretical foundation of the EU free-movement principles has come to appear rather fragile after having been confronted with the stress-test of Covid-19. Another claim put forward is that there is an urgent need to repair the ‘broken wings’ of Europe to enable the Europeans to fly again, if only a little, while at the same time protecting the health, as long as this is done reasonably through necessary measures. This contribution serves as a snapshot rather than as a comprehensive contribution covering all legal aspects as well as the political turns and u-turns up to this day. The structure pursued is, first, to sketch the main content of the Covid-19 approach generally taken and the main lines of the border strategies

instances, through applications for public access, it has been possible for the authors to access all of the documents related to the three Nordic states in question. 5 Discussions on border closures have instead been informal and bilateral, cf at https://svenska.yle. fi/artikel/2020/04/03/regeringen-har-inte-fattat-beslut-om-gransstangningar-inom-norden-det-ar-i and www.dn.se/varlden/nordenministern-granssamarbetet-kraver-dialog/ (accessed 13 February 2022). Despite no official standpoint, the President of the Nordic Council has been critical and urged Sweden to dismantle the border closures; see at https://sverigesradio.se/artikel/nordic-co-operationcelebrated-in-times-of-division (accessed 22 February 2022). 6 The Freedom of Movement Council’s mandate is to collect information, inform and discuss, and encourage action directed towards the competent Nordic authorities at the central, regional and local levels; see at https://www.norden.org/en/node/5026 (accessed 22 February 2022).

80  Ulla Neergaard, Jaan Paju and Juha Raitio pursued in Sweden, Denmark and Finland from March 2020 to March 2021. Second, the main content of the letters from the Commission to these three Nordic EU Member States and their responses will be outlined. Third, the letter from the Nordic Council of Ministers’ Border Obstacle Council (the Nordic Border Obstacle Council) will be discussed in the same vein. Fourth, on the basis thereof and with reference to the EU Coordinated Approach and the (lack of) Nordic Council’s reaction, the focus will shift to bringing various points of concern to the fore. II.  THE DIVERGENT NORDIC COVID-19 ‘MODELS’ AND STRATEGIES

Sweden, Denmark and Finland have much in common, and it is in particular noteworthy that they are all rather wealthy states and have populations that consider themselves amongst the happiest in the world.7 Also, they generally have sophisticated welfare states as well as thoroughly digitalised societies and – in ‘normal’ times – they score highly in relation to rule-of-law parameters. In the latter regard, they are three EU Member States that are usually known to adhere loyally to EU law. But of course there are at the same time also significant demographic, geographical, historical and cultural differences.8 With regard to the pandemic, major differences in patterns of reaction are easily detectable, and these will, in general terms, be outlined in what follows.9 A.  The Swedish Covid-19 Approach During the first year of the pandemic, much attention was given to the Swedish Covid-19 ‘model’, as it was generally perceived to be the ‘odd one out’ among those established in Western states.10 In essence, it might be described as 7 See Happiness Research Institute, World Happiness Report 2021 at happinessresearchinstitute. com/whr2021?utm_campaign=14d55ea0-f505-420f-b233-06f2dd6ad7aa&utm_source=so&utm_ medium=mail&cid=6ade6e8a-416a-4610-a06d-ed944e9c68c2, according to which Finland, Denmark and Sweden occupy the first, second and seventh positions, respectively. 8 See further, eg, H Krunke and B Thorarensen (eds), The Nordic Constitutions. A Comparative and Contextual Study (Hart Publishing 2018); P Letto-Vanamo and D Tamm, ‘Nordic Legal Mind’ in P Letto-Vanamo, D Tamm and BO Gram Mortensen (eds), Nordic Law in European Context (Springer 2019) 1; U Neergaard, ‘Denmark’, J Nergelius and E Kristoffersen, ‘Sweden’ and T Ojanen, ‘Finland’ in S Griller and E Lentsch (eds), EMU Integration and Member States’ Constitutions (Hart Publishing 2021) 23, 46, 75 respectively; and M Stegmann McCallion and A Brianson (eds), Nordic State and European Integration (Palgrave 2018). 9 See also J Rask, Why do the Nordic countries react differently to the covid-19 crisis? At https:// nordics.info/show/artikel/the-nordic-countries-react-differently-to-the-covid-19-crisis (accessed 22 February 2022). cf Byttebier, who argues that the reason the course of the pandemic varied greatly from one country to another was largely determined by socio-economic factors, K Byttebier, Covid-19 and Capitalism – Success and Failure of the Legal Methods for Dealing with a Pandemic (Springer 2022). 10 See H Wenander, ‘Sweden: Non-Binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism’ (2021) 12 European Journal of Risk Regulation 127; and I Cameron and A Jonsson Cornell, ‘Sweden and COVID 19: A Constitutional Perspective’ Verfassungsblog

Closure of Borders During the Pandemic  81 extremely ‘liberal’, as it built on fairly few restrictions compared to most other EU Member States. Essentially, it was constructed on a notion of mutual trust between the state and its citizens, respecting the Public Health Authority’s nonbinding guidelines and recommendations.11 Also, it operated with authorities acting transparently, through frequent public press conferences and updates on the Covid-19 situation. The independent authorities played a huge role and they, rather than the Government, pretty much took the lead during 2020 and 2021.12 The Corona Commission, appointed by the Swedish Government to assess the Swedish strategy, has been very critical of this fact in its findings, and has called, in 2022, for more government-driven crisis management with appropriate laws at hand.13 Extraordinarily, there was no lockdown of society, neither fully nor partially. On the contrary, life was pretty much, from a legal point of view, as before the outbreak of the pandemic. Still, the public to a large extent respected the nonbinding guidelines and recommendations. The overall picture is that Sweden was fighting Covid-19 in its own (open) way. Therefore, Sweden’s approach, initiated at the end of 2020 towards its neighbouring state, Denmark (as well as Norway and the United Kingdom (UK) in order to fight a new Covid variant, named B.1.1.7, that was associated with an increased risk of death compared with other variants), was all the more striking. Just before Christmas 2020, a Governmental Ordinance was introduced, restricting entry for EU/EEA nationals.14 The Ordinance required an EU Digital Covid Certificate prior to entering Sweden. The wording of the Ordinance, as of 21 December 2020, applied restrictions resembling a ban as regards entry to Sweden from Denmark (as well as from Norway and the UK). Article 4 of the Ordinance stated that foreigners travelling to Sweden from Denmark, Norway and the UK were to be denied entrance.15

(7 May 2020) at verfassungsblog.de/sweden-and-covid-19-a-constitutional-perspective/. For a critical view, see eg, R Milne, ‘Anders Tegnell and the Swedish Covid experiment’ Financial Time (11 September 2020) at ft.com/content/5cc92d45-fbdb-43b7-9c66-26501693a371; and K Bjorklund and A Ewing, ‘The Swedish COVID-19 Response Is a Disaster. It Shouldn’t Be a Model for the Rest of the World’ Time (14 October 2020) at time.com/5899432/sweden-coronovirus-disaster/. For a more nuanced view, see eg, ‘COVID-19 Special: Has Sweden’s strategy succeeded?’ at dw.com/en/ covid-19-special-has-swedens-strategy-succeeded/av-56820662. 11 See folkhalsomyndigheten.se/the-public-health-agency-of-sweden/communicable-disease-control/ covid-19/; and see Wenander (n 10). This model is significant for an all-Nordic Legal tradition; see further H Krunke and B Thorarensen, ‘Introduction’ in H Krunke and B Thorarensen (eds), The Nordic Constitutions – A Comparative and Contextual Study (Springer 2019) 7 et seq. 12 On the Swedish Administrative Model, see P Hall, ‘The Swedish Administrative Model’ in J Pierre (ed), The Oxford Handbook of Swedish Politics (Oxford University Press 2015) 299. Also see C Edwards, ‘Who’s actually responsible for Sweden’s coronavirus strategy?’ The Local at thelocal. se/20200330/whos-actually-in-charge-of-swedens-coronavirus-strategy/. 13 See a summary in English at https://coronakommissionen.com/wp-content/uploads/2022/02/ summary_20220225.pdf. 14 Förordning (2020:1258) om tillfälligt inreseförbud vid resor från EES-stater och vissa andra stater till Sverige. 15 Thereby treating Denmark and Norway in a different way than the other EU/EEA states.

82  Ulla Neergaard, Jaan Paju and Juha Raitio However, there were 18 exceptions to the general rule, whereby, among others, frontier workers, as well as Danes residing in Sweden, were permitted entry upon presentation of a fresh, negative coronavirus test. Furthermore, parents could visit their children and Danes resident on the island of Bornholm could travel to other parts of Denmark via Sweden. Still, the majority of foreigners wishing to enter Sweden from Denmark were for three months effectively hindered from doing so. As of 1 April 2021, people entering from Denmark again fell under the general Ordinance, and the same restrictions as for other EU/EEA nationals were applied. As for outward-bound travel, the Swedish Ministry of Foreign Affairs issued a recommendation discouraging Swedish citizens from travelling abroad from 14 March 2020 onwards. As the pandemic’s first wave ebbed away, the Ministry changed its recommendations and amended that recommendation for travel with regard to Denmark on 29 July 2020, and to Finland on 21 September 2020. B.  The Danish Covid-19 Approach In a way the Danish ‘model’, both internally and externally, has become odd too, just in a different manner from the Swedish model. It was at first described as being ‘precautionary’, but today it is characterised by many as ‘extremely precautionary’. It was of the utmost priority to avoid the infection of too many persons, in fact preferably none, simultaneously, thereby overwhelming the capacity of the hospitals, and ultimately limiting deaths as a cause of Covid-19. Also, the overall strategy continuously involved direct communication to the population, based on a combination of fear, patience and hope, all at the same time. Appeals to the population have been sent on a regular basis, requesting them to demonstrate so-called ‘community spirit’, thereby expecting a high degree of loyalty and support regarding the Covid-19 decisions. Overall, the population’s acceptance of the national handling of the pandemic has been high throughout. Belonging to the group of ‘first-movers’, the Prime Minister, Mette Frederiksen, declared society to be in lockdown as early as 11 March 2020 at a historic press conference.16 Noteworthily, at the same press conference the head of the Danish Health Authority, somewhat in conflict with the political choices made, stated that there was no scientific evidence suggesting that closing the borders would be effective in limiting the spread of the virus.17 Nevertheless, at a subsequent press conference held on 13 March 2020, it was declared that the borders would more or less be closed from the following day onwards.18 16 See, eg, stm.dk/presse/pressemoedearkiv/pressemoede-om-covid-19-den-11-marts-2020/. 17 See, eg, information.dk/indland/2020/03/sundhedsstyrelsen-anbefalet-lukning-graenserne-politiskbeslutning. 18 See, eg, stm.dk/presse/pressemoedearkiv/pressemoede-den-13-marts-2020/.

Closure of Borders During the Pandemic  83 Crucially, already at this early stage, the Danish Parliament decided to significantly alter the so-called Act of Epidemics19 to, among other things, make it possible to forbid larger associations, to require self-isolation and social distancing, to close shops and restaurants, to introduce sanctions, and so on. Generally, this Act in particular – but not only – has been subject to much criticism from the perspective of the rule of law.20 In connection with the very first Covid-19-based temporary reintroduction of border controls in Denmark, which was combined with an entry ban, the Ministry of Justice published a note arguing that the measures were to be perceived as being in conformity with EU law.21 Although the note is not very long, thorough or systematically argued, it explains the thinking behind the steps taken at the time. Among other things, it holds that persons who wish to enter Denmark but are not Danish citizens or residents must expect to be turned back at the Danish borders, including at Danish airports, unless they are persons travelling for a ‘worthy purpose’ of entry and do not have any visible symptoms that may be due to Covid-19. As for EU law, the note states that the justification for preventing entry is primarily found with reference to Article 29 of Directive 2004/38 (the Citizenship Directive) on public health and to the so-called precautionary principle.22 The principle of proportionality is also argued as being fulfilled. The Ministry stresses that since there are no comparable precedents, the assessment is associated with a certain uncertainty. As for the advice to Danish citizens not to travel to certain states unless necessary, the note argues that travel guidance is not an EU matter but is subject to the national

19 Lov om epidemier m.v. (epidemiloven), Lov nr 285 af 27/02/2021. 20 See, eg, JE Rytter, ‘Har Folketinget givet sundhedsministeren hjemmel til at indføre udgangsforbud?’ Information (4 July 2020). In addition, somehow by the same token there has been criticism in other respects, such as at times misleading the population communication-wise and at times acting without legal basis; see further, eg, JE Rytter and K Lauta, ‘Corona-året har tryktestet retsstaten’ (podcast) at jura.ku.dk/Forskning/juristeriet/. 21 See Danish Ministry of Justice, ‘Notat om den EU-retlige vurdering af grænsekontrol og afvisning som led i indsatsen vedrørende COVID-19’ (15 March 2020) at ft.dk/samling/20191/almdel/ REU/bilag/306/2163445/index.htm. See also the letter of 13 March 2020 from the Danish Minister of Justice to EU Commissioner Johansson, ‘Europaudvalget 2019-20 EUU Alm.del – Bilag 463’ at eu.dk/samling/20191/almdel/EUU/bilag/463/2163322.pdf, notifying about the border controls in light of Covid-19 as follows: ‘In light of the current situation with COVID-19, please be informed that the temporary border controls will be extended at all Danish internal borders effective as of 14 March 2020. As such, the controls will be carried out at all internal borders, including land-, sea-, and air borders, in order to prevent the spread of COVID-19 in Denmark. The serious and immediate threat caused by the COVID-19 outbreak is a grave concern for the Danish Government and is handled with the utmost caution. The Danish Government considers the extension of the internal border control as a necessary and effective measure to address this threat. Please rest assured that the scope and duration of the internal border checks will continue to be limited to what is strictly necessary.’ 22 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC [2004] OJ L158/77.

84  Ulla Neergaard, Jaan Paju and Juha Raitio competence of the EU Member States, which is why the travel guidance may differ between states. The decision to extend the temporary border control to all Danish borders was stated to have been carried out in line with Articles 25 and 27 of the Schengen Borders Code.23 From March 2020, generally an intensification of the majority of the abovementioned measures took place until Covid-19 ebbed, and Denmark lifted the restrictions on 1 February 2022.24 Importantly, stringent bans on entry and border controls and documentation of negative Covid-19 tests were important tools in relation to border (re-)entry. Travelling out of Denmark was generally not recommended. Upon (re-)entry into Denmark, requirements for testing and self-isolation played an important role and could, if not fulfilled, be followed by the use of fines. C.  The Finnish Covid-19 Approach The cornerstone of the Finnish ‘model’ of coping with the Covid-19 pandemic may be described as a hybrid strategy based on ‘testing, tracing, isolating and treating’, having the ultimate aim of curbing the epidemic while minimising the adverse impact on people, businesses, society and the exercise of fundamental rights.25 Already in March 2020, the Government introduced self-isolation as a measure, restricted traffic from the capital Helsinki to other parts of the state, closed down shops (apart from groceries and pharmacies), cinemas, libraries, and so on. Furthermore, schools and universities taught through digital means during the most serious phases of the pandemic. The Finnish Government decided on 11 March 2020 to introduce border controls along the internal borders of the EU, initially from 19 March 2020 until 17 April 2020. Despite the Schengen rules, the adoption of border controls along the internal borders has been prolonged several times since then, far longer than the period of six months foreseen by Article 25(4) of the EU Borders Code. According to the Finnish restrictions, the Finnish border could be crossed only if based on ‘imperative reasons’, if coming from states where the Covid-19 pandemic was considered to be causing a severe threat to the citizen’s life and

23 For an overview of the many Covid-19-based temporary reintroductions of border controls in Europe, see at ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/ reintroduction-border-control_en, from which it may be understood that in relation to Denmark there have been subsequent periods of control, as the periods 12 November 2020–11 May 2021 and 12 May–11 November 2021 are listed. cf the recent ruling in Joined Cases C-368/20 and 369/20 Landespolizeidirektion Steiermark respectively Landespolizeidirektion Leibnitz, ECLI:EU:C:2022:298, where the Court states that subsequent periods of control can only be introduced if there are new threats that would justify a fresh application. 24 cf at www.bbc.com/news/world-europe-60215200. 25 See Finland’s reply of 4 March 2021 to the European Commission’s administrative letter of 22 February 2021.

Closure of Borders During the Pandemic  85 health. The list of such states was continuously updated by the Finnish Institute for Health and Welfare. Some checkpoints were completely closed for entry with the exception of lorries with cargo. In this context, it is important to note that the Finnish citizens’ right to return to Finland was not restricted, but in such cases restrictions in the shape of quarantine were in force. Not until the Spring of 2021 did the regional state administrative agency in Southern Finland adopt compulsory Covid-19 test requirements in the harbours of Helsinki, at Helsinki-Vantaa airport and at the check-point Vaalimaa on the South-Eastern Finnish–Russian border, due to the ever-growing concern regarding the rising infection rates. In other parts of Finland, more stringent measures were introduced earlier on. For example, at the Northern Tornio-Haparanda checkpoint, additional restrictions to cross-border commuting between Sweden and Finland were adopted. Only commuting necessary for the security of supply and the full functioning of society (for example healthcare- or rescue servicerelated reasons) was allowed. At some other checkpoints, only voluntary testing was deemed proportionate. The background to these divergent local approaches is that the regional health authorities were, at first, not considered to have legal competence to introduce border-control measures such as Covid-19 tests at the borders. However, at the beginning of 2021, the Finnish Institute for Health and Welfare changed its view, as the Constitutional Law Committee declared in early March 2021 that the Finnish Law on Contagious Diseases enables these kinds of measures.26 D. Comparison In many respects, the Swedish and Danish Covid-19 ‘models’ are opposite extremes, whereas the Finnish ‘model’ may be viewed as falling somewhere in between. Anyone with just a minor understanding of the interrelationships of the Nordic societies – in ‘normal’ times – would understand that this is rather extraordinary.27 The various border-related measures appear, at least on the surface, to be based on a rationale of preventing travellers from other states from passing on the virus to inhabitants. Some might rather claim, however, that the ­measures were put into force to fulfil a symbolic role, serving as a demonstration of political determination and giving the population an impression of security in otherwise frightening times.28 In all the circumstances, all three Nordic states have, at times, been quite strict in their approaches, although Denmark, both

26 See PeVL 7/2021 vp. 27 See Wenander (n 10). 28 See D Thym, ‘The Unexpected Resurgence of the Schengen Area’ in D Utrilla and A Shabbir (eds), EU Law in Times of Pandemic. The EU’s Legal Response to Covid-19 (e-book) (EU Law Press SA 2020) 276.

86  Ulla Neergaard, Jaan Paju and Juha Raitio internally and externally, has undoubtedly and continuously been the strictest of all. Also, it appears that each of the three Nordic EU Member States has acted somewhat unilaterally, which has the potential to cause significant disruptions of, inter alia, the internal market, but also of Nordic cooperation. The border-related measures implemented during the first six months in 2021 by the three Nordic EU Member States meant that businesses and citizens were confronted with a wide array of diverging and rapidly changing borderrelated measures. These could be grouped into at least the following four main categories:29 (i) partial or nearly full closure of borders; (ii) border controls; (iii) requirements for tests and self-isolation on (re-)entry; and (iv) (non-)travel recommendations to own citizens. Crucially, both own and other citizens’ freedom of movement was restricted by such means, even though the free movement of workers was still possible to a certain extent. III.  THE ADMINISTRATIVE LETTERS FROM THE COMMISSION AND THE RESPONSES

The administrative letters from the Commission to the three Nordic Member States (dated 22 February 2021) identify the acting Director-General, Salla Saastamoinen, as sender. Although the first part of all of these letters is completely identical, they do contain certain differences regarding the second part. In the first part, the point of the departure is Council Recommendation 2020/1475 on a coordinated approach to the restriction of free movement in response to the Covid-19 pandemic (as amended).30 It is stressed that it allows Member States the flexibility to take the measures deemed necessary, taking into account the specific epidemiological situation and national strategies, but also that it aims to preserve free movement within the EU, even if subject to restrictions such as testing and quarantine. In addition, it is a focal point in all three letters that the bans on non-essential

29 See further P de Bruycker, ‘The COVID Virus Crisis Resurrects the Public Health Exception in EU Migration Law’ (2021) 2 Frontiers in Political Science 4, who points out that ‘The nature of the measures taken by Member States at their borders has not been questioned. Almost all observers consider implicitly that they consist of “controls”, while more precisely they also consist of border closures sometimes called travel bans. The difference is that a border closure implies logically that people are not at all allowed to cross it. In other words, there is no place for a control and more precisely for a check as defined by article 2, points 10 and 11 SBC, because people are rejected if they try to cross unless exceptional cases. Border closures that took place were however not absolute, but selective as they foresaw exceptions in relation with a certain number of categories of persons like workers in critical occupations … [who were] allowed to cross. It is also crucial to underline as Vincent Chetail reminds us, that border closures can never be absolute as the principle of nonrefoulement, the right to access asylum procedures, the prohibition of collective expulsion, the best interests of the child and the principle of non-discrimination must always be respected, and this requires always at least an examination of any request to cross a border on the basis of those basic rights.’ 30 Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the Covid-19 pandemic [2020] OJ L337/3.

Closure of Borders During the Pandemic  87 travel restrict Union citizens’ fundamental right of free movement as provided for in Article 21 of the Treaty on the Functioning of the European Union (TFEU). Such restrictions, the Commission states, may be justified based on public-health grounds. However, any such measures must be non-discriminatory and comply with the principle of proportionality. The Commission then continues and specifically questions each of the three States’ bans individually. In its letter to Sweden, the Commission questions the Swedish Governmental Ordinance of 21 December 2020, which bans non-essential travel to Sweden from Denmark (and Norway). It stresses that bans on non-essential travel to and from a Member State restrict Union citizens’ fundamental right of free movement as provided for under Article 21 TFEU. On the surface, the Commission, in essence, does not question the justification of the Swedish restrictions on public-health grounds. However, it points at the fact that there are less restrictive measures available to attain the objective of protecting health, such as quarantine and/or testing requirements. Still, one does not have to read between the lines to understand that the Commission does not find the Swedish publichealth argument for introducing these discriminatory restrictions convincing, as it emphasises that the epidemiological situation in Denmark and Norway is significantly better than in Sweden. From the Commission’s letter to Denmark, it may be understood that it finds it problematic that Union citizens – who are neither Danish nationals, resident in Denmark nor travelling for essential functions or needs (persons travelling for a ‘worthy purpose’) – are currently not permitted to enter Denmark, and that this entry ban applies for an indefinite period. Again, it argues that bans on non-essential travel to and from a Member State restrict Union citizens’ fundamental right of free movement as provided for in Article 21 TFEU, and that although such restrictions may be justified based on public-health grounds, they must nevertheless be non-discriminatory and comply with the principle of proportionality. It stresses that it considers that less restrictive measures (such as quarantine or testing requirements) would be available to the authorities to attain the objective of protecting public health. On that basis, it invites the Danish authorities to align the national measures with the provisions of the Council Recommendation, notably by phasing out the ban on non-essential travel and replacing it with more targeted measures. In the Commission’s letter to Finland, several points are made in relation to the measures introduced by the state. The first of these concerns the general entry ban on non-essential travel to Finland’s territory, whereby Union citizens, who are not Finnish nationals, resident in Finland or persons travelling for essential reasons, are not permitted to enter Finland until 18 March 2021. According to the Commission, this entry ban ‘… takes into account epidemiological criteria similar to (but not fully matching) those used in the Council Recommendation. This means that only persons travelling from EU/EEA States with a 14-day cumulative COVID-19 case notification rate of no more than 25 … are permitted entry. Currently, only Iceland fulfils this requirement.’

88  Ulla Neergaard, Jaan Paju and Juha Raitio The second point concerns a recent tightening of the restrictions on crossborder commuters. More precisely, only cross-border workers exercising critical functions and a limited list of other essential travellers are exempted from the ban. The Commission explains in that regard that restrictions to travel in crossborder areas are particularly disruptive for individuals who cross them daily or frequently for essential purposes other than work, such as for family reasons, medical care or caregiving, and that such persons should not be required to undergo quarantine when crossing borders for such essential purposes. The Commission emphasises that the epidemiological situation in parts of the EU/EEA is comparable to the situation in Finland. Therefore, it invites the Finnish authorities to align the measures taken with the Council Recommendation, notably by phasing out the ban on non-essential travel and replacing it with more targeted measures such as quarantine and testing, and by extending the exemptions for cross-border commuters. The tone behind the arguments of the Commission could perhaps have been stronger, and a greater variety of national restrictions could have been included for assessment. Thus, it is clear that the Commission is fairly selective and minimalistic as to which measures it criticises. Among the four main categories identified, it is only the first category ((i) partial or nearly full closure of borders) that the Commission has put forward, although all four categories potentially may be harmful to free movement. Also, the Commission is very general as to the exact designs of testing and quarantine requirements in order for them to be considered as proportionate, which is important, as such requirements in themselves may constitute restrictions. Significantly, the replies of Sweden and Denmark gave the impression that the two states simply dismissed the criticism without any attempt to give qualified reasons why they did so. The reply by Finland, in contrast, was much more detailed and balanced. In all instances, none of the three Member States – as ‘naughty school children’ – accepted the criticism put forward by the Commission at all. At the time of writing, to our knowledge the Commission has not taken any further steps in a potential infringement procedure towards Sweden, Denmark or Finland. IV. THE NORDIC BORDER OBSTACLE COUNCIL LETTERS TO THE NORDIC STATES

Given the social, economic and political impact in the Nordic border regions due to the closures of the borders, the Nordic Border Obstacle Council31 acted in a similar way to the Commission, addressing letters to the Nordic Ministers in charge of border matters as well as the Ministers of Labour.



31 cf

Wenander, ch 2 of this volume, section III.A.

Closure of Borders During the Pandemic  89 In late January 2021, a letter was sent to the Swedish Minister of Interior Affairs, in which the Council expressed its concern that the border closures had hindered cross-border families in celebrating Christmas and New Year.32 At the same time the Council welcomed the subsequent amendments introduced by the Swedish Government, allowing children living in Denmark to visit their families in Sweden, and called for a more precise definition of ‘urgent family matters’ in the Ordinance, its being the key to travel into Sweden. On a final note, the Council gave prominence to its close dialogue with the border-region committees and pointed to the 12 reports of the Council that could be of help to Sweden when assessing the further need and scale of border closures. The Swedish response to the Council’s letter33 differs from its response to the Commission in two respects. First, the response is signed by the Minister himself and not by a civil servant. This can be understood as taking the Council’s letter more seriously. True, the Commission did not address its letters to the Nordic Member States or any designated minister, but rather to the highest administrative level. Still, the Minister responds to the Council despite the custom that a response by a high-ranking civil servant would do. Second, the tone of the letter is more informal when explaining the proportionality assessment that the Government has undertaken in tackling the pandemic. The Minister assures the Council in detail how important Nordic cooperation is. However, the response is of a more informative nature compared to the response to the Commission, which addresses legally binding measures (largely by ignoring them). On 23 February 2021 similar letters, emphasising the importance of free movement between the Nordic states, were sent to the Nordic Ministers of Labour.34 These letters differ on an important point from the letter to the Swedish Minister of Interior Affairs, as the Council states that it firmly believes that it would be possible to address the closure of borders on a Nordic level. This appeal is ignored by Finland in its publicly made response, whereas the Danish Minister of Labour states in his reply that he will invite discussion of the matter at a civil-service level as well as between the Ministers at the Nordic Council of Ministers.35 V.  APPROACHES AND ACTIONS

A.  The EU Coordinated Approach Free movement has, beyond all doubt, been heavily challenged during the Covid-19 crisis, as the ‘case studies’ discussed in this chapter have revealed.

32 See

at http://norden.diva-portal.org/smash/get/diva2:1560794/FULLTEXT02.pdf.

33 ibid. 34 ibid. 35 ibid.

90  Ulla Neergaard, Jaan Paju and Juha Raitio During the pandemic, Member States have – in an attempt to limit the spread of the virus – adopted various border-related measures, which have had an impact on Union citizens’ rights to move and reside freely. However, the Member States have, almost to an extreme degree, behaved unilaterally in that regard, which has already been illustrated by the three ‘case studies’ examined in section II, where the three Member States in question also took heterogeneous approaches despite their common roots in the Nordic cooperation. Therefore, it is not at all surprising that the EU has felt a need to come up with a coordinated approach, as manifested in Council Recommendation 2020/1475,36 enacted about half a year after the outbreak of the pandemic.37 It was subsequently – at the beginning of 2021 – amended.38 Although attributed huge importance by the Commission, it must be stressed that, according to Article 288 TFEU, recommendations are not legally binding instruments.39 Clearly, they may rather be classified as ‘soft law’, but may nevertheless have some impact in certain situations. Generally, the coordinated approach may be understood as aiming to seek a balance between two crucial elements, namely, between the preservation of free movement and general health. The original Council Recommendation 2020/1475 had the aim of ensuring increased coordination among Member States considering the adoption of measures restricting free movement on grounds of public health. This included, according to Recital 13, joint efforts on the following three key points: (i) the application of common criteria and thresholds, when deciding whether to introduce restrictions to free movement; (ii) a mapping of the risk of Covid-19 transmission based on an agreed colour code; and (iii) a coordinated approach as to the measures, if any, that may appropriately be applied to persons moving between areas, depending on the level of risk of transmission in those areas. In Recital 9, reference is made to Article 168(7) TFEU, where it is stated that the definition of national health policies, including the organisation and

36 See Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic [2020] OJ L337/3 It is noteworthy that, additionally, since March 2020, the European Commission has adopted a number of Guidelines and Communications with the aim of supporting coordination efforts of Member States and safeguarding free movement within the Union in times of the Covid-19 pandemic. Some of these concern, for example, travel into the EU rather than travel within the EU. 37 See E Guild, ‘Covid-19 Using Border Controls to Fight a Pandemic? Reflections from the European Union’ (2020) 2 Frontiers in Human Dynamics. 38 Council Recommendation (EU) 2021/119 of 1 February 2021 amending Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic [2021] OJ L36I/1. Council Recommendation (EU) 2021/119 was itself, in June 2021, replaced with a subsequent recommendation, Council Recommendation (EU) 2021/961 of 14 June 2021 amending Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic [2021] OJ L213I/1. 39 Also see further, eg, the judgment in Case C-501/18 Balgarska Narodna Banka, ECLI: EU:C:2021:249.

Closure of Borders During the Pandemic  91 delivery of health services and medical care, is the responsibility of Member States and may therefore vary from one Member State to another. Nevertheless, while Member States are competent to decide on the most appropriate ­measures to safeguard public health, including, for instance, quarantine or testing requirements, it is in the Recommendation held to be appropriate to ensure the coordination of such measures, with a view to safeguarding the exercise of the right of free movement and combatting a serious cross-border threat to health such as Covid-19. Unsurprisingly, it is also emphasised in Recital 10 that, when adopting and applying restrictions to free movement, Member States should respect principles of EU law, in particular proportionality and nondiscrimination. According to Recital 17, restrictions on free movement should only be considered when Member States have sufficient evidence to justify such restrictions in terms of their benefit for public health and they have reasonable grounds to believe that the restrictions would be effective. These considerations are, in more precise terms, expressed in the first general principle stated in the Recommendation. The reasoning behind the adoption of Council Recommendation 2021/119 amending Recommendation 2020/1475 appears, first and foremost, to be the, at the time, recent emergence of new variants of the virus, which was seen as a serious cause for concern. Therefore, in order to slow down the importation and spread of the new variants, non-essential travel should be avoided until the epidemiological situation had considerably improved. Yet concern was expressed for the need of borders to stay open to ensure the functioning of the single market, including the flow of essential goods and services. Despite navigating in a politically delicate field characterised by a not completely clear distribution of competences, it seems safe to assume that the EU-coordinated approach did not completely give up on the fundamental principles of internal market law and Union citizenship. Thus, it is continuously emphasised that, when adopting and applying restrictions to free movement, Member States should respect principles of EU law, in particular proportionality and non-discrimination, and that as much coordination as needed is called for. B.  The Nordic Council Action (Or Lack Thereof) We have seen a re-centralisation of power and unilateral decision-making during the pandemic, which shows that Nordic cooperation is apparently hollow as there was no legal competence for the Nordic Council to act when borders were closed and the Nordic Passport Union was being ignored. In the beginning of November 2021, the Nordic Council’s 73rd Session was held in Copenhagen.40 In conjunction with the meeting, the Nordic



40 See

at www.norden.org/sv/session2021 (accessed 22 February 2022).

92  Ulla Neergaard, Jaan Paju and Juha Raitio Prime Ministers issued a Joint Statement on deepening cooperation in the field of security of supply and preparedness. The Statement refers briefly to the importance of mobility, with a non-obliging paragraph stating ‘the importance of striving to ensure the availability of critical professional labor force, recognizing that in particular for our border regions cross-border mobility is crucial in this respect’. Despite the Danish Minister’s assurance to the Nordic Border Obstacle Council, the Joint Statement of the Nordic Prime Ministers is the only substantial outcome of the discussion held at the Nordic Council’s 73rd Session. Irrespective of a common view amongst the Ministers of Nordic Cooperation on the importance of open borders,41 the Council session did not issue an official statement of the importance of getting back to the previous Nordic freedom of movement.42 VI.  CONCLUSIONS: LESSONS LEARNED AND THE IMPORTANCE OF REBUILDING TRUST

During the first year of the pandemic, each of the three Nordic EU Member States in many respects pursued its own border-related strategy. This implied that they, in different ways, deviated from the essence of the EU’s Coordinated Approach and the fundamental principles of EU law. Nevertheless, all three states, but especially Sweden and Denmark, were extremely dismissive of the criticism from the Commission in its administrative letters to them. These developments already appear to be rather remarkable, and may give rise to concern as to the (real) motivation behind them and the eventual consequences. Although recommendations are not legally binding instruments, the degree to which these three Member States seem to have chosen to leave the coordinated approach (and the fundamental principles it relies upon) somehow ineffective is indeed rather surprising. Also, one might note that Nordic close cooperation and mutual trust have been very much set aside. Generally, it is not surprising – considering that there has never been a pandemic like the present one in the lifetime of the EU – that there are no clear precedents as to the room for manoeuvre available for the Member States to limit free movement in the name of Covid-19. The pandemic has strongly influenced not only our lives, our thinking, our national legislation, but also the perceptions of fundamental EU law. In addition, Nordic cooperation has faced a stress-test, and it is abundantly clear that it has not withstood it. The Nordic

41 For the discussion at the Council Session, see at www.norden.org/da/node/53956 (accessed 22 February 2022). 42 See at www.norden.org/sites/default/files/2021-10/Samarbetsministrarnas%20rdog%C3%B6relse %20om%20mobilitet%20och%20gr%C3%A4nshinder%20till%20Nordiska%20r%C3% A5dets%20session%202021%20.pdf (accessed 22 February 2022).

Closure of Borders During the Pandemic  93 self-image of unity and common understanding has been set aside by unilateral closures followed by bilateral informal discussions rather than a common Nordic approach. The 73rd Nordic Council Session saw no common understanding on the way forward (or rather the way back to the Nordic Passport Union). With the outbreak of the Covid-19 pandemic, disorder arose. On an unprece­ dented scale, EU Member States drastically applied different responses with respect to travel bans and limitations, border closures and controls, requirements for testing and quarantine, and so on; actions claimed to have been taken to possibly limit the spread of the virus,43 but which were presumably also implemented due to their symbolic nature. The three Nordic EU Member States examined in this contribution clearly pursued the same kind of pattern of unilateral behaviour, introducing border-related measures – often seemingly to a much stronger degree compared with most other EU Member States. By doing so, they moved away from the Nordic Council vision of becoming the most integrated region in the world. Such action, however, has at the same time been taken at the cost of severely disrupting the fundamentals of the EU free movement of persons. Thus, the viability of the internal market has been strongly challenged.44 Indeed, many of the steps taken by the EU Member States have been contrary to what EU law has traditionally been conceived to allow; and significantly, the Commission has appeared much more tolerant than would have been expected, perhaps made less proactive by the seriousness of the situation and of what could appear to be an untamed herd of wild horses no one has really felt tempted to rein in. Along with that, the pandemic has also served as a kind of stress-test for the foundational principles of free movement of persons, which has revealed a fragility in the theoretical underpinnings of the EU free movement principles and of the willingness to seek to have them upheld. The Commission, by having sent the above-mentioned administrative letters, demonstrated its willingness to take some action; however, there would seem to have been a need for much more from that side, considering that the Commission is the principal guardian of the EU Treaties. In all circumstances, there was a profound need for coordination and cooperation, intentions that were expressed in Council Recommendation 2021/119 amending Recommendation 2020/1475. The price of diversity was simply becoming too high, and action was needed, even if only in the shape of recommendations.45 The Nordic Border Obstacle Council acted in a similar way to the Commission by addressing letters to the Nordic Ministers in charge of border 43 See I Goldner Lang, ‘“Laws of Fear” in the EU: The Precautionary Principle and Public Health Restrictions to Free Movement of Persons in the Time of COVID-19’ (2021) 12 European Journal of Risk Regulation 1, 3. 44 See A Shabbir, ‘How the Pandemic Rocked the Core of the EU. An Overview of the Internal Market and COVID-19’ in Utrilla and Shabbir (eds) (n 28) 72. 45 See in the same direction, eg, AM Pacces and M Weimer, ‘From Diversity to Coordination: A European Approach to COVID-19’ (2020) 11 European Journal of Risk Regulation 283.

94  Ulla Neergaard, Jaan Paju and Juha Raitio matters, as well as to the Ministers of Labour. However, merely being an official lobby group, as the Council is classified by Wenander in chapter 2, the letters to the Nordic Ministers resemble pleas rather than calls for a return to the Nordic Passport Union. The illusion of close Nordic cooperation is further illustrated by the ignorance by the Ministers of Nordic Affairs at the Nordic Council Session in 2021, where the Council session did not even issue a non-binding statement on the importance of returning to the previous Nordic freedom of movement of persons. However, while the Nordic Council ended up with empty words, the EU acted and adopted secondary legislation. In June 2021 the recommendations were replaced by Regulation 2021/953 and Regulation 2021/954, giving more impact to the EU coordinated approach. The EU has made a legislative move, a move that it is not possible for the Nordic Council to make as Nordic cooperation remain cooperation ‘in good times’ and nothing more. There is an urgent need to encourage the ‘broken wings’ of Europe, but also those between the Nordic States, to fly freely again, at least to some extent, in an atmosphere imbued with a genuine spirit of cooperation and mutual – but definitely not blind – trust; and of course, at the same time, to protect the health and lives of the EU’s populations, as long as this is done reasonably and proportionately.

Part III

The Individual’s Access to Free Movement Rights in the Nordic Region

96

6 Free Movement Rights in Denmark CATHERINE JACQUESON

I. INTRODUCTION

N

ordic cooperation for the benefit of Nordic nationals has deep roots. They go back at least to 1888, when Denmark and Sweden negotiated an agreement on the protection of the poor and their repatriation.1 Nordic cooperation was strengthened after World War II, when the intention was to grant individual rights to Nordic citizens, making it resemble the idea behind Union citizenship introduced by the Maastricht Treaty of 1993.2 Already in the 1950s, the five Nordic countries secured equal treatment in social-security and social matters for all Nordic nationals regardless of economic status. They also aimed at harmonising their nationality laws, thus going beyond what the European Union (EU) is currently doing. In 1954, a joint labour market was initiated, preceding the internal market of the EU. All the Nordic countries became members of the European Economic Agreement (EEA) at the beginning of the 1960s, but formalised at the same time their Nordic cooperation with the Helsinki Agreement of 1962. In the 1970s the Nordic countries abandoned the idea of creating a Nordic economic community (NORDEK) when Denmark, as the first Nordic country, joined the EEC in 1973. Denmark’s accession to the EEC might have acted as a brake on the development of Nordic cooperation. But, on the other hand, it also led to the creation of the Nordic Council of Ministers to keep Nordic cooperation alive and on-going. When Denmark joined the EEC, public-financed welfare was booming: social rights for the weakest were extended to everyone and the level of benefits was increased.3 Even if the benefits were subsequently made subject to strict conditions, the Danish welfare system is still famous for being one of the most generous in Europe. Roughly speaking, it builds on universal coverage in respect

1 E Ersbøll,‘Statsborgerskab – medborgarskap europæisk konvergens – nordisk divergens?’ (2003) 21 International Journal of Nordic Law 149. See Wenander, ch 2 of this volume, who also refers to the vision of a Nordic federation, which was nevertheless abandoned due to post-war realities. 2 Ersbøll (n 1) 151. 3 GV Mogensen, Det danske velfærdssamfundshistorie – Tiden efter 1970 (Gyldendal 2010).

98  Catherine Jacqueson of most benefits, such as social assistance, healthcare and state retirement pension. Another characteristic feature of the Danish welfare system, which distinguishes it from its Nordic counterparts, is that most welfare benefits and services are financed mainly through general taxes and therefore do not impose much of a burden on employers. In principle, all citizens who lawfully reside in Denmark are entitled to non-contributory benefits. The main research question of this chapter is whether Nordic nationals are better protected under the Nordic Conventions as implemented in Denmark compared to the protection granted under the EU/EEA rules, and thus whether they are better protected than other EU nationals. Nordic nationals are covered by both sets of rules and can in principle choose the most favourable. After a brief presentation of the legal arrangements for Nordic nationals and Union citizens in Denmark in section II, I will demonstrate in section III that Nordic nationals have an unconditional right to reside whereas the EU/ EEA rules require worker status or self-sufficiency. Such privileged status under the Nordic Conventions is further illustrated in section IV, which deals with the equal access to non-contributory benefits under the Nordic Convention on Social Help and Services compared to the EU/EEA rules. In section V, I look at the broader picture of how free movement and immigration are addressed in Denmark. In section VI, I demonstrate that access to Danish nationality is facilitated for Nordic nationals compared to (other) EU nationals, before summarising my findings in section VII. II.  THE LEGAL ARRANGEMENTS FOR EU, EEA AND NORDIC NATIONALS IN DENMARK

The Helsinki Treaty of 1962, which formalises Nordic cooperation, enshrines the principle of equal treatment of Nordic nationals in the drafting of laws and regulations falling within the scope of the Treaty (Article 2), the wish to facilitate Nordic nationals’ acquisition of the citizenship of another Nordic country (Article 3), provides for the export of study grants (Article 9)4 and the ambition towards a common Nordic labour market and making social benefits available to citizens of other Nordic states (Articles 14 and 15).5 In the 1950s the Nordic

4 There are a number of Nordic agreements and programmes on education that fall outside the scope of this chapter. It is interesting to note that the Nordic Convention on Further Education of 1996 provides for a share of the costs of education. Indeed, it specifies that with the exception of Iceland, the Nordic countries shall compensate for the educational costs of their students who take up education in another Nordic country, and specifies the mechanisms for calculation of the compensation: see at www.norden.org/en/declaration/agreement-concluded-denmark-finlandiceland-norway-and-sweden-admission-higher. For further details, see S Jørgensen, ‘The Right to Cross-Border Education in the European Union’ (2009) 46(5) CML Rev 1567. 5 The Helsinki Treaty is a traditional Treaty under public international law and does contain any supranational mechanisms; see further Wenander, ch 2 of this volume.

Free Movement Rights in Denmark  99 countries entered a number of agreements, which secured privileged treatment for their respective citizens: (i) agreements creating a passport union, lifting administrative procedures for Nordic nationals; (ii) an agreement on social security issues; and (iii) an agreement on social help and services. In a way these agreements preceded the initiatives taken at EEC level, and still ensure better treatment of Nordic nationals than they receive under the EU/EEA rules and better treatment of Nordic nationals compared to other EU nationals. It is clear that Nordic nationals are considered more as fellows than as migrants, and this indicates ‘a high degree of trust among the Nordic countries’.6 Nordic nationals have a free right to settle in Denmark and do not need to comply with any immigration procedures or conditions. In contrast, under the EU/EEA rules, citizens are treated as migrants who need to obtain a registration certificate before the Danish Agency for International Recruitment and Integration (SIRI). Nordic nationals enjoy equal treatment in the host state as regards social security issues and in respect of matters concerning social help. Indeed, the Social Security Agreement of 1955 is still in place, with the last amendment dating back to 2014.7 In the preamble to the 1992 amendment, the countries acknowledged that since they were now all part of the EU or the EEA, the EC Regulation on social security coordination should apply to their citizens.8 Yet they found that there was still a need to maintain certain Nordic rules to cover citizens who fall outside the scope of the EC Regulation, for example third-country citizens moving within the Nordic States, and to maintain better protection in some respects for Nordic nationals.9 More importantly for the purpose of this contribution, in 1955 the Nordic states also signed a Convention on Social Help and Services. It was last amended in 1994 and is still in force.10 The parties emphasised that there was still a need for specific Nordic rules on social help and services going beyond the right to social advantages for workers enshrined in EU law (now Regulation 492/201111). This Convention grants equal access to social help to all Nordic nationals (see section IV). The preferential treatment of Nordic nationals briefly outlined above stems from agreements that precede the Nordic countries’ membership of the EU/EEA. On the one hand, it follows from Article 351 of the Treaty on the Functioning

6 See Wenander, ch 2 of this volume. 7 The Convention of 1992 on social security was implemented in Denmark on 8 September 1994 (BKI No 83); see at www.retsinformation.dk/eli/ltc/1994/83. 8 Regulation (EC) No 883/2004 on the coordination of social security systems [2004] OJ L166/1. 9 For example, the Convention contains a five-year rule on the right of returning migrants from another Nordic country to unemployment benefits, counting work in another Nordic state as work undertaken in the Nordic state where the claim for benefits is made: Art 17 of the Nordic Convention. Furthermore, the Convention also applies to Greenland and the Faroe Islands; see Neergaard, ch 11 of this volume. 10 Implemented in Danish law on 21 November 1996 (BKI no 150); see at www.retsinformation.dk/ eli/ltc/1996/150. 11 Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union [2011] OJ 141/1.

100  Catherine Jacqueson of the European Union (TFEU) that agreements concluded before membership are not affected by the provisions of the Treaty. On the other hand, the same provision also specifies that Member States are under an obligation to eliminate rules that are incompatible with EU law.12 It can thus be discussed whether more favourable treatment on grounds of nationality is compatible with EU law such as the principle of non-discrimination on grounds of nationality (Article 18 TFEU) and the principle of free movement of Union citizens (Article 21 TFEU).13 There is so far not much case law and discussion on this issue.14 Yet the Court of Justice of the European Union (CJEU) has previously found that preferential treatment that had its source in a bilateral agreement between Member States should benefit all EU/EEA nationals when it would otherwise compromise their Treaty rights. Thus in Matteucci, an agreement on cultural cooperation between Belgium and Germany granting scholarships to their respective nationals had to cover EU workers regardless of their nationality.15 In Gottardo, the Court confirmed this case law and applied it to a cooperation agreement on social security between Italy and Switzerland, a third country.16 Finally and more generally, it follows from the Court’s case law that Article 18 TFEU applies when the situation falls within the scope of EU law. This will usually be the case when the EU national has made use of her fundamental right of free movement under Article 21 TFEU.17 For example, in Petruhhin, concerning the European Arrest Warrant (EAW), the host Member State had to extend the protection granted to its own nationals to all EU nationals subject to an EAW in their country. Thus, the question on the compatibility of a preferential treatment of Nordic nationals with the obligations flowing from EU law cannot be answered in a general way. I will therefore briefly address the issue, when I discuss the specific ­situations of preferential treatment on grounds of Nordic nationality. III.  LEGAL BASIS FOR ESTABLISHING RESIDENCE IN DENMARK

In this section, I discuss the right of residence of Nordic nationals under the Nordic Conventions before addressing the right of residence under EU/EEA law

12 A similar provision exists in respect of the EEA agreement, see Art 121(a) and Wenander, ch 2 of this volume. 13 See also P Leino and L Leppävirta, ‘Does staying together mean playing together? The influence of EU law on co-operation between EU and non-EU states: the Nordic example’ (2018) 43 European Law Review 295; Wenander, ch 2 of this volume; Erhag, ch 7 of this volume. It is interesting to note that the Nordic Conventions examined were renegotiated after the Nordic states acceded the EU/ EEA, but the preferential treatment remained mostly intact. 14 Leino and Lappävirta (n 13) 300. 15 Case C-235/87 Matteucci v Communauté française of Belgium. ECLI:EU:C:1988:460, paras 16 and 22–23. 16 Case C-55/00 Gottarrdo, ECLI:EU:C:2002:16, paras 31–34. 17 Case C-182/15 Petruhhin, ECLI:EU:C:2016:630, paras 28–34. See also Case C-897/19 PPU Ruska Federacija, ECLI:EU:C:2020:262, for similar reasoning in respect of EEA nationals.

Free Movement Rights in Denmark  101 in Denmark. As I will demonstrate, Nordic nationals enjoy easier access to the country than citizens relying on the EU/EEA rules. In turn, residence gives access to most non-contributory social benefits (see section IV). A.  Nordic Nationals Establishing Residence It follows from various Nordic Conventions of the 1950s and the Danish Act on Aliens that nationals of the five Nordic countries have a right to enter and reside in Denmark.18 Nordic nationals can thus freely enter, live, study and work in Denmark. They do not need to fulfil the conditions of residence, such as selfsufficiency, enrolment at a recognised study institution and the like, applicable under the EU/EEA rules.19 Likewise, Nordic nationals do not need proof of residence, as there is no requirement to register their residence and be issued with an EU registration certificate. The same is true for their family members who are Nordic nationals. Family members of other nationalities should either apply for proof of registration or a residence card under the EU rules. To sum up, access and residence are facilitated for Nordic nationals compared to those who can only rely on the EU/EEA rules. On the other hand, like all citizens who intend to settle in Denmark, including Danes, Nordic nationals need to obtain a personal registration number (CPR No) at the municipality/citizens’ office.20 Such registration number is in practice the key to accessing social rights and services in the country. It is only accessible for citizens who intend to stay for more than three months and upon proof of an address in the country. It is not known whether Nordic nationals encounter problems in this respect. B.  EU/EEA Nationals Establishing Residence In contrast, under the EU/EEA rules, citizens who intend to stay in another country for more than three months shall document that they fulfil the conditions enshrined in the Citizenship Directive as implemented in Denmark.21 For that purpose, they must register with SIRI. They shall then present the registration

18 Nordic Conventions of 1952 and 1958 creating a passport union and Protocol of 22 May 1954 exempting Nordic nationals from being in possession of a passport and residence permit when staying in another Nordic state. See also the Nordic agreement on registration of the population of 2004 signed in Stockholm 1 November 2004. 19 Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 (‘the Citizenship Directive’). 20 Consolidated Act on a Personal Registration Number of 3 September 2020 (LBK No 1297). 21 The six months’ extension concerns those coming to Denmark to look for a job.

102  Catherine Jacqueson certificate to the municipality, which will grant them a CPR No, which in turn gives access to a myriad of rights and services. The requirement to secure a personal number is problematic in the light of EU law, as it imposes an additional condition over and above those set out in the Citizenship Directive and might, in certain situations, constitute an unjustified barrier to the free movement of Union citizens. The need to obtain a CPR No can, for example, be problematic for Union citizens when the authorities delay granting such a number. It might also be problematic for workers who stay for less than three months, as they cannot obtain a registration certificate and thus cannot obtain a CPR No. At the same time, they are entitled to equal treatment in Denmark under EU law. Nor can jobseekers obtain an EU registration certificate and thus a CPR No. Consequently, they face problems accessing the facilities to find employment in the country.22 Likewise, SIRI might delay registration for workers and inactive Union citizens and request proof of an address in the country.23 In turn, the municipality might refuse to issue them with the requested personal number as they do not have a registration certificate from SIRI. Some Union citizens might thus find themselves in a catch-22.24 Thus the system of personal numbers, especially when combined with the registration certificate, may unduly restrict access to social and health services contrary to the free movement of workers and Union citizens.25 Furthermore, under the EU/EEA rules, citizens shall prove that they fall within one of the protected categories and fulfil the conditions thereof. Thus, they must document their status either as a worker or as self-employed, proof of self-sufficiency and health cover, enrolment as a student at a recognised study institution, or being a family member of an Union citizen with lawful residence.26 It is well known that the CJEU has a broad definition of the concept of ‘worker’, which also includes atypical work such as part-time work and work with a small income. Likewise, it is equally well known that national authorities

22 Jobcentres were granted the competence to issue an administrative CPR No to EU/EEA jobseekers, but it only gives access to register as a jobseeker and access the job bank, not to other services: see at www.kl.dk/media/29790/udstedelse-af-administrative-personnumre-til-brug-for-oprettelseaf-udenlandske-jobsoegere-paa-jobnet.pdf. The Nordic Agreement on a common labour market, last amended in 1982, does not really provide better treatment for Nordic jobseekers compared to the protection available under the EU/EEA rules. 23 Indeed, SIRI has lately changed its practice and introduced a requirement to show proof of an address in the country, see K Hyltén-Cavallius, ‘Bopæl, CPR-nummer og EU-opholdsbevis: når husdrømme går i stå for unionsborgere i Danmark’ (2020) 27 EU og menneskeret 51. 24 Similarly, homeless Union citizens do not fulfil the condition of domicile and thus experience difficulties obtaining a personal number, which restricts their access to public help; see C Jacqueson,‘From Negligence to Resistance: Danish Welfare in light of Free-Movement Law’ (2016) 18(2) European Journal of Social Security 197. 25 See Hyltén-Cavallius (n 23). 26 Art 7 of the Citizenship Directive.

Free Movement Rights in Denmark  103 might not be as broad-minded as the CJEU and might in practice employ a restrictive reading of EU case law. Denmark is no exception in this respect. In the past the country has had a tense relationship with EU law, as the authorities denied the status of worker to those who came for the purpose of studying and subsequently found work.27 Following the CJEU’s ruling of 2013 in the LN case, Denmark was forced to abandon this practice but closely monitored the area. At times, this has resulted in a restrictive practice by the Danish Agency for Educational Grants (Styrelsen for Uddannelsesstøtte), refusing to acknowledge the status of worker/the self-employed and/or claiming its money back. It follows from its guidelines that a worker is in principle a person who performs work for 10–12 hours a week.28 The guidelines also mention that in any event the decision is based on a concrete assessment of each situation. Yet in practice the authorities seem to apply a more black-letter interpretation, requiring EU/EEA citizens to fulfil the requirement of 10–12 hours’ work per week every week (see below). Likewise, it is reported that the practice of the Agency makes it hard, if not impossible, for EU/EEA citizens providing services for digital platforms (so-called ‘gig workers’) to be considered as workers or self-employed and thus derive a right of residence therefrom.29 Indeed, according to a report of 2018, the Agency refused to recognise a cleaner for the Happy Helper platform as a worker as the person was not employed by the platform, which was perceived as a facilitator. Furthermore, the person was not considered to be a self-employed, not being registered with the Central Business Register or conducting business on a fairly regular basis. This case is evidence of a restrictive approach to the concept of self-employment. In contrast, in line with the EU concept of ‘worker’, it should be interpreted broadly, including persons on a low income and with low production working on their own account, provided the work is not marginal.30 Yet the Board of Appeals for Study Grants and Loans has recently annulled a number of decisions on reclaiming payment of undue grants. Thus, the Study Appeals Board endorsed the broad and inclusive definition of the status of worker of the CJEU. For example, the Board found that the authorities could not require that the salary should correspond to the level set in collective agreements, as a low hourly wage cannot in itself exclude an Union citizen from the status of worker.31 Likewise, the Board ruled that a courier, who was taskremunerated over a period of two months, was a worker, relying more on the

27 Case C-46/12 LN, ECLI:EU:C:2014:2463. 28 See at www.ft.dk/samling/20131/almdel/fiv/bilag/132/1344006/index.htm. 29 A Ilsøe and LW Madsen,‘Industrial relations and social dialogue in the age of the collaborative economy’ (2018) FAOS Research paper no 163, 18 at https://faos.ku.dk/publikationer/ forskningsnotater/fnotater-2018/Fnotat_163_-_Industrial_Relations_and_Social_Dialogue_in_ the_Age_of_Collaborative_Economy__IRSDACE_.pdf. 30 See, eg, Case C-442/16 Gusa, ECLI:EU:C:2017:1004. 31 Decision of 21/12/2020 (KEN no 10017) at www.retsinformation.dk/eli/accn/W20201001725.

104  Catherine Jacqueson salary received than on the number of hours worked.32 Likewise, the Board found that a Union citizen who had quit his job as a driver kept his status as a worker, as the employer did not assign him any tasks and had de facto dismissed him. Thus the citizen retained his worker status and the Danish authority could not ask for repayment of the study grant.33 As a consequence, he also kept his right to reside in the country under Article 45 TFEU. In contrast, the Appeals Board found, in a case concerning a Lithuanian student who worked for three different employers over a period of eight months, that the work was only marginal and the recipient could therefore not qualify as a worker and enjoy the protection thereof.34 Thus, the status of worker under EU/EEA law is not always that easy to access in practice. Yet it is key for accessing rights on an equal treatment basis, including social advantages such as a study grant. It is true that EU/EEA citizens have a right to reside if they are non-economically active or study in the host state. Yet their right to equal treatment is much more limited, if it exists at all (see section IV.B). Economically inactive EU/EEA citizens must provide documentation of their self-sufficiency though a fresh bank statement, a potential employer, a statement on pension funds or a declaration of financial support from another person.35 Self-sufficiency should at least be documented to cover the first 12 months, but has to last for the whole stay, which the authorities might check. According to the Aliens’ Act, it is possible to terminate the right of residence on grounds of unlawful residence, which might include the lack of sufficient resources. No cases have so far been reported on that ground, but there has previously been a practice of expelling people with a lack of resources on the grounds of public security and policy.36 To sum up, Nordic nationals can settle freely in Denmark under the Nordic Conventions. In contrast, under EU/EEA law, the right of residence is conditional and subject to a registration procedure. Yet all residents are obliged to obtain a personal registry number, which in turn is key for accessing social rights. All residents might encounter problems in this respect, but non-Nordic Union citizens are worst off. Is a preferential right of residence on grounds of Nordic nationality compatible with the Member States’ obligations under

32 Decision of 21 December 2018 (KEN no 10098) at www.retsinformation.dk/eli/accn/ W20181009825. See also the decision of 15 December 2014 (KEN No 10426) at www.retsinformation. dk/eli/accn/W20141042625. 33 Decision of 5 August 2021 (KEN No 9601). 34 Decision of 26 September 2019 (KEN No 9824) at www.retsinformation.dk/eli/accn/ W20190982425. 35 See at www.nyidanmark.dk/en-GB/You-want-to-apply/Residence-as-a-Nordic-citizen-or-EU-orEEA-citizen/EU-Self-support?anchor=howtoapply. 36 See C Jacqueson, ‘Union citizenship in Denmark’ in U Neergaard, C Jacqueson and N Holst-Christensen (eds), Union Citizenship: Development, Impact and Challenges, vol 2 (FIDE Congress Publications 2014) 453, 456–57. See also the ruling of the Danish Supreme Court confirming the expulsion of a Lithuanian national condemned for begging, in Case 91/2020 Anklagemyndigheden mod T of 2 February 2022.

Free Movement Rights in Denmark  105 EU law? Does it compromise the right of Union citizens and/or constitute discrimination on grounds of nationality prohibited by EU law? The CJEU has issued a few rulings on a right of residence of EU nationals granted under national law, which are relevant in this respect. The Court did not rule out the possibility for the Member States to be more generous than the rules set up in the Citizenship Directive.37 Thus, in CG of 2021, the Court noted that Member States are free under Article 37 of the Directive to adopt more favourable rules of residence. But such a ‘national’ right of residence does not trigger a right to equal treatment under the Directive, and it is up to the national Member State to specify the consequences of such a right.38 Thus, preferential treatment in respect of the right of residence is acceptable under EU law, but does not have legal implications for the purpose of equal treatment under the Directive.39 I will now address the specific issue of equal access to residence-based benefits in Denmark under the Nordic Conventions and EU/EEA law. IV.  ACCESS TO SOCIAL RIGHTS/INCLUSION IN RESIDENCE-BASED SOCIAL SYSTEMS IN DENMARK

The Danish welfare system is famous for being one of the most generous in Europe. It builds on universal coverage in respect of most benefits, such as health, the state pension and social assistance.40 A characteristic that distinguishes the Danish model from its Nordic counterparts is that most welfare benefits and services are financed mainly through general taxes and therefore do not impose much of a burden on employers. Contribution-based entitlement first played a significant role with the introduction of work pensions financed by employers and employees in the 1990s. It also plays a certain role in respect of unemployment benefits, requiring one year of contribution by the worker to an unemployment fund, which is heavily subsidised by the state.41 37 See, eg, Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja, ECLI: EU:C:2011:866; and Case C-709/20 The Department for Communities in Northern Ireland, ECLI:EU:C:2021:602 (CG). 38 CG (n 37) paras 82–83. 39 But such right of residence would trigger the application of the provisions of the EU Charter, such as a right to live in dignity. This was laid down in CG (n 37), which to some extent overruled Case C-333/13 Dano, ECLI:EU:C:2014:2358 in this respect. 40 The Constitution (§ 75) still reserves the right of social assistance to Danish nationals, but this does not apply to short-time help, and the nationality requirement is lifted in respect of EU/EEA nationals and long-term residents – see the Act on Social Assistance. Likewise, the state retirement pension (still) refers to Danish nationality, but the requirement is not applicable to Union citizens. A final example of a non-contributory benefit that requires Danish nationality is the study grant and loan provided by the state. The nationality requirement is waived under EU/EEA law if the person is a worker or self-employed, or has a permanent right to reside, see the Act on Study Grants of 30 August 2017 (LBK No 1037). Access to study grants and loans is not addressed by the Nordic Conventions, with the exception of the export of study grants when studying in another Nordic country. 41 Students are also entitled to benefits after they have graduated, if they do not find work and are enrolled in an unemployment fund.

106  Catherine Jacqueson In the following, I will specifically discuss access to social assistance/ educational help under the Act on an Active Social Policy.42 Social assistance is conditional upon needs and lack of assets. It might work as an unemployment benefit for those who fulfil the conditions and have not contributed to an unemployment fund. Furthermore, it is usually dependent upon a person’s actively seeking employment and accepting offers of education and/or work. All residents in the country are entitled to it, but for obtaining continuous help there is a requirement of nationality. This is lifted for EU/EEA nationals under certain conditions. At the outset, the Nordic Convention on Social Help and Services provides better protection of Nordic nationals than they would enjoy under EU/EEA law. Yet in practice this is qualified by the possibility of sending back Nordic nationals who have stayed in the country for less than three years. In the following, I address the preferential treatment of Nordic nationals and then compare it to the protection that flows from EU/EEA law. A.  Nordic Nationals’ Access to Rights Nordic nationals enjoy privileged access to residence-based social rights and benefits, such as social assistance, as they can freely reside in the country. Furthermore, the Nordic Social Convention enshrines the principle of equal treatment of Nordic nationals (Article 4). It further stipulates that a person covered by the Convention shall during a temporary stay be entitled to the necessary help under the law applicable (Article 6).43 Finally, Article 7 regulates the issue of deportation, and excludes deportation of a Nordic national who has been lawfully resident in the country for the last three years. The right to social assistance for Nordic nationals has been addressed in a few cases by a quasi-judicial body competent in the areas of social and employment law. Thus, in a decision of principle of 2013, the Social Appeals Board ruled that Nordic nationals who lawfully reside in the country have a right to social help under the law on equal terms with Danish citizens if they fulfil the conditions laid down in the law.44 Thus in principle, Nordic nationals enjoy

42 Consolidated Act on an Active Social Policy (LBK No 241 of 12 February 2021) esp § 3; see at www.retsinformation.dk/eli/lta/2021/241. See also the guidelines of the Ministry of Employment to the municipalities on access by Union citizens to educational help, social assistance and other help under the Act on an Active Social Policy of 30 June 2014 (VEJ No 9468) at www.retsinformation.dk/ eli/retsinfo/2014/9468. 43 The Convention also contains several other obligations in respect of the persons covered: an obligation of cooperation on a move to another Nordic country (Art 8); an obligation of cooperation regarding persons in need of treatment or long-term care who wish to move to another Nordic country with which they have a particular link and that will increase their life situation (Art 9); transport support for the handicapped and the elderly to move to a neighbouring municipality in frontier regions (Art 10); the right to an advanced allowance for children on an equal treatment basis. 44 Decision of principle 37-13 of 4 December 2013 at https://ast.dk/afgorelser/principafgorelser/ find-principafgorelse#/a/8ff0db7c-1ccc-4b14-bd6e-7d94ba75c5b4.

Free Movement Rights in Denmark  107 the same social rights as Danish nationals. But their right to equal access is not absolute, as both Danish law and the Nordic Social Convention limit it. Indeed, it follows from the Act on an Active Social Policy that Nordic nationals can be sent back to their own country if they have resided in Denmark for less than three years.45 Likewise, the Nordic Convention contains a clause that allows the host country to send back Nordic nationals because of their need for social assistance, provided that their family situation, the link to the host state or other circumstances do not lead to a right to stay. In any event, it is not possible to terminate their right of residence after three years of lawful stay in the host Nordic country, whereas five years are required under EU/EEA law. In principle, non-economically active Nordic nationals have easier access to social assistance under the Nordic Conventions than under EU/EEA law. On the other hand, receipt of social assistance for more than six months might lead to the termination of their right of residence, provided that it is in line with EU law. The issue of termination of the right of residence has been tried before the courts and quasi-judicial bodies. So far, in most cases the judiciary has upheld repatriation orders against Nordic nationals. Thus in 2001, the Danish Supreme Court found in favour of the authorities in a case concerning the repatriation of an Icelandic citizen. The Court emphasised that the Icelandic citizen needed long-term help and did not have a specific link to Denmark. The ruling was thus in compliance with the Nordic Convention. It was also in line with the EEA rules as the person could not be considered a worker. Repatriation was therefore allowed, and consequently the right of residence no longer existed.46 In contrast, a dissenting judge found that Nordic nationals do not need a residence permit, and there was no legal basis in the Act on Social Policy to terminate the right of residence. Between 2015 and 2016, the Immigration Appeals Board ruled in a series of cases on the expulsion of Nordic nationals who had received social assistance for more than six months – usually between one year and two and a half years.47 In five out of the six cases, the Appeals Board found that the expulsion did not breach the Nordic Convention or EU/EEA law. The reasoning was that the assistance was not temporary as it lasted for more than six months. Therefore, the social authorities could rely on the provision in the Act on an Active Social Policy to send back citizens in need of long-term help. The fact that the Nordic national had briefly been in work and was looking for work had no impact,48 nor could the fact the family was well-integrated and the children were

45 Act on an Active Social Policy, § 3(5). 46 H.D. 31. maj 2001 i sag II 248/1999, U 2001.1875 H. 47 See at www.udln.dk/da/Praksis/Hjemsendelse_af_nordisk_statsborger. There seems to have been an obligation on the municipality to alert the Immigration Board in cases where the Nordic citizen had been in receipt of social assistance, see the guidelines of the Ministry of Employment of 2014 (n 42). This obligation is no longer in the law/Act. 48 Decision of principle 16 September 2015 (FAM/2015/66).

108  Catherine Jacqueson enrolled in school in Denmark.49 Similarly, the fact that the Nordic national had lawfully resided in the country for two years and 11 and a half months, had received help because of illness and was nearly cured at the time of the repatriation decision could not lead to another conclusion.50 The Board emphasised that only urgent and serious illness would alter the decision. In one of the six cases, the Immigration Appeals Board found in favour of the Nordic national, as the Swedish national no longer received social assistance at the time of the decision regarding repatriation. Furthermore, the Board emphasised that the authorities had not considered his health situation, which could have an impact on the decision.51 To conclude, Nordic nationals are entitled to social assistance on an equal treatment basis. But their right of residence might be terminated if the assistance lasts for more than six months and the particular citizen has been resident in the country for less than three years. It follows from the case law that it is nearly impossible to prove sufficient ties and connection with the country within the first three years of stay. After three years’ stay, Nordic nationals can no longer be sent back to another Nordic state. In contrast, under EU/EEA law, non-economically active citizens might not be entitled to social help at all before proving five years of lawful residence. I now turn to the protection under EU/EEA law. B.  EU/EEA Nationals’ Access to Rights Like Nordic nationals, under the Act of an Active Social Policy EU/EEA nationals have equal access to social assistance, provided they have lawful residence in the country. Thus, lawful residence is cardinal, and in practice the status of ‘worker’ is key in this respect. Unlike for Nordic nationals, lawful residence is dependent on evidence of a person’s being economically active, having sufficient resources or being a family member of a lawfully residing EU/EEA citizen. As argued in section III.B, the authorities’ at times restrictive interpretation of who is economically active under EU law can deprive EU/EEA nationals of their right to equal access to social benefits in the country, including study grants. In a case specifically concerning a claim to social assistance, the Social Appeals Board ruled that the municipality must assess whether the competent authority (SIRI since 2019) would consider the claimant as lawfully resident in Denmark under EU law at the time of the claim. In the case in question, it was not sufficiently proved that the Union citizen was lawfully resident when he applied for social assistance.52 The Board acknowledged that the authorities had issued him with

49 Decision

of of 51 Decision of 52 Decision of 50 Decision

6 December 2016 (FAM/2016/121) and 15 October 2015 (FAM/2015/167). 15 October 2015 (FAM/2015/167). 21 March 2016 (FAM/2016/9). principle 191-11 of 10 July 2013.

Free Movement Rights in Denmark  109 an EU registration certificate as a worker, but it also noted that the Union citizen was dismissed from his job because of serious breach of the rules on personnel policy. The Board considered that he had not retained his status as an EU worker as he was not involuntarily unemployed. Therefore, he was not entitled to social assistance under EU law.53 Furthermore, lawful residence might be difficult to document in practice for non-economically active Union citizens and their families. Indeed, it follows from the guidelines of the Ministry of Employment of 2014 that lawful residence is in general conditional upon self-sufficiency if the Union citizen is not considered a worker or self-employed. It is difficult to assess whether ‘economically inactive’ Union citizens are in practice entitled to social assistance in Denmark, as there is very limited case law and practice on this.54 Yet it follows from the nyidanmark portal that a claim of social assistance might terminate their right of residence and that public benefits received by foreigners are reported to SIRI.55 The CJEU’s latest ruling in the CG case might further close the door to social assistance to non-economically active citizens under EU free movement law.56 To sum up, Nordic nationals are entitled to equal treatment in respect of most public benefits regardless of status. In contrast, equal treatment under the EU/EEA rules is reserved to citizens with lawful residence in the country, meaning those who are economically active. Others might lose their right of residence when applying for public benefits.57 It is true that Nordic nationals might be sent back if they receive public benefits, but only after more than six months and provided that it does not conflict with EU/EEA law. Thus, Nordic nationals enjoy some kind of social protection regardless of economic status, but the status of worker and self-employed under EU/EEA law still offers the best cover. Finally, it might be discussed whether the better treatment received by Nordic nationals in respect of claims to social benefits, especially social assistance, is compatible with EU law and the principle of non-discrimination on grounds

53 See also decision of principle 103-11 of 10 July 2013 at https://ast.dk/afgorelser/principafgorelser/ find-principafgorelse#/a/aaf28bea-7810-4e2f-9549-454f6b83a860. 54 Jacqueson (n 36) 458. 55 See New to Denmark at nyidanmark.dk. 56 CG (n 37). For a comment on this case, see J Paju, ‘The Charter and Social Security Rights: Time to Stand and Deliver?’ (2022) 24(1) European Journal of Social Security 21; F Pennings, ‘Does the EU Charter of Fundamental Rights have Added Value for Social Security?’ (2022) 24(2) European Journal of Social Security 117; C O’Brien, ‘The Great EU Citizenship Illusion Exposed: Equal Treatment Rights Evaporate for the Vulnerable (CG v The Department for Communities in Northern Ireland)’ (2021) EL Rev. 57 Claims of ‘social assistance’ under Art 24(2) of Directive 2004/38, which might indicate that the person is not self-sufficient, are defined as ‘all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs and those of his family and who by reason of that fact may, during his period of residence, become a burden on the public finances of the host Member State which could have consequences for the overall level of assistance which may be granted by that State’; see Dano (n 39) para 63 and Case C-67/14 Alimanovic, ECLI:EU:C:2015:597, para 44.

110  Catherine Jacqueson of nationality. Would Denmark and the other Nordic countries be forced to change their laws in this respect or extend the preferential treatment of Nordic nationals to other EU nationals? The Court’s latest restrictive stance on access to social benefits for economically inactive Union citizens does not point in that direction. Both Dano and CG indicate that equal treatment should be assessed under the Citizenship Directive (and not Article 18 TFEU) and that protection is limited to Union citizens who have a right of residence under the Directive.58 It thus follows from this latest case law that equal treatment of non-economically active Union citizens is not required under EU law when the right of residence stems from national law or bilateral/multilateral agreements. Thus, in principle, the rights of Union citizens are not compromised by a multilateral agreement as they do not exist in the first place. V.  DENMARK’S TENSE RELATIONSHIP WITH FREE MOVEMENT AND MIGRATION

The analysis has made it clear that Denmark has at times taken a restrictive approach to EU law and immigration, meant to shield the welfare state from migration and movement across EU borders. Since enlargement in 2004, there has been a palpable fear of benefit tourism. Furthermore, since 2001 Denmark has adopted a more restrictive line towards immigrants in general, which also affects Danes who have stayed abroad. Finally, nationality rules on the retention of Danish citizenship might also badly affect Danish nationals using their free movement rights. I will argue that the restrictive approach is principally targeted at EU and third-country nationals, while Nordic nationals and free movement within the Nordic regions is to some extent shielded from it. A.  The Fear of Benefit Tourism and Close Monitoring While the Danish position has long been that EU law does not affect the Danish welfare model, public discourse has changed within the last 15 years, with claims that EU free movement law has led to social dumping and benefit tourism. The specific characteristics of the Danish welfare system, universality and tax-financed welfare, render it particularly sensitive to migration.59 The challenge arises because migrants can in principle access tax-financed welfare benefits to which they have not contributed, or to which they have contributed only for a limited period of time compared to Danes. One way of protecting non-contributory benefits from migration is to make their access and level



58 CG

59 The

(n 37) paras 65–66. following draws to a certain extent on Jacqueson (n 24).

Free Movement Rights in Denmark  111 conditional on a close link with the Danish state, for example by imposing a certain length of residence. Yet such a requirement is difficult to reconcile with the principle of free movement, enshrined in EU law, which prohibits Member States from discriminating against Union citizens or hindering their free movement by other means. So far, EU free movement law has not led to major legal and policy changes in Denmark, but Denmark has been quick to pick up on EU limitations and is closely monitoring interference by EU law with its residencebased welfare system. For example, after joining what was then the EEC in 1973, the Pension Act was amended, imposing a 40-year residence requirement for the payment of a full pension. Later on, a change was made to the social assistance scheme in the wake of EU enlargement, excluding short-term residents and jobseekers from being entitled to social assistance other than financial help to get back home.60 These amendments are evidence that ‘restrictive’ provisions of EU law are usually picked up on quickly by the Danish Government, in order to protect the welfare system from migration flows. Furthermore, equal treatment of Union citizens residing in Denmark has been under attack on several fronts within the last 15 years. The debate was especially salient in the run up to the elections for the European Parliament in 2014, and the tone was often harsh. Since the enlargement of the EU in 2004 and due to pressure from the Danish People’s Party, the Danish authorities have been more aware and more concerned about the effects of free movement on the welfare system. The Government has tried to erect safeguards in the form of various residence requirements that aim to protect welfare benefits from migration flows, especially from Eastern Europe. For example, the law on family benefits was amended in 2010 and required two years of residence on Danish territory for payment of the benefits in full.61 The European Commission argued that this was contrary to EU law, especially Regulation 883/2004 on the coordination of social security systems. Practice was subsequently changed and periods of residence in another Member State count to fulfil the two years’ residence requirement, which was increased to six years in 2018. Yet such a requirement might impose an unnecessary administrative burden on the citizen and thus amount to a restriction. In March 2011, a ministerial group was established to enquire into how the social rights of Union citizens could be further circumscribed. It concluded that the possibilities for restricting social rights while respecting EU law were very few.62 Furthermore, in the Autumn of 2015, Denmark attempted, together with the United Kingdom, to lobby the EU Commission to restrict the social

60 Act on an Active Social Policy of 26 June 2004 (Lov no 282). 61 Act of 22 December 2010 on family benefits (Lov no 1609). 62 Report of the Committee on foreigners’ right to social benefits of March 2011. See also answer of 23 December 2020 of the Ministry of Employment to a question from Parliament on the conditions for accessing social benefits in Denmark and their financial impact at BEU Alm.del – endeligt svar på spørgsmål 319 : Svar på BEU 319.docx (ft.dk).

112  Catherine Jacqueson rights of migrants, especially the right to family and unemployment benefits. In contrast, several studies have demonstrated that Union citizens are not a burden on the Danish welfare state.63 Yet the issue of study grants might stand out in this respect, as Denmark has one of the most generous schemes in Europe and also in the Nordic region. The LN ruling of 2013, which confirmed that students could also have the status of workers, and thus be entitled to the study grant on an equal footing, generated much criticism among politicians. This ruling reactivated fears of benefit tourism by EU students coming to Denmark to access the study grant.64 Thus, the Government entered into an agreement with most political parties, closely monitoring the issue of study grants. For example, the authorities should ensure through an e-income registry that EU and EEA citizens keep their status as workers during the whole benefit period in order to prevent abuse of the system.65 As argued in section III.B, this monitoring has at times led to a restrictive practice of the Danish Agency for Educational Grants, refusing to grant the status of worker/self-employed and/or claiming its money back. In the same vein, in 2019 the Ministry of Employment announced a more restrictive practice concerning the worker status of applicants for social benefits.66 For example, municipalities should ensure to a greater degree that the EU claimant has lawful residence, and the status of worker should be based on several criteria besides the number of hours worked, such as the length of the working period, the level of salary and language skills. Yet the control practice used in respect of the length of residence in the country was criticised by the Parliamentary Ombudsman, who found that in most cases the information from the CPR Registry should be sufficient, even if the citizen does not have any registered income over a longer period.67 The Social Appeals Board subsequently changed its practice accordingly. To sum up, Denmark has always been quick to pick up on the limitations enshrined in EU free-movement law, and has over the last 10 years closely monitored free movement and its impact on the welfare state. Yet the focus has been on EU nationals and third-country nationals, and has been targeted at EU rules. So far, Nordic nationals and the Nordic Conventions have not been the explicit

63 See, eg, S Martinsen, P Rotger and S Thierry, ‘Free Movement of People and Cross-Border Welfare in the European Union: Dynamic Rules, Limited Outcomes’ (2019) 29(1) Journal of European Social Policy 84. 64 Jacqueson (n 36) 460–61. 65 See at www.ft.dk/ripdf/samling/20121/lovforslag/l225/20121_l225_som_fremsat.pdf. 66 Press release of the Ministry of Employment of April 2019 on a tightening of practice concerning the status of worker and access to social benefits at https://bm.dk/nyheder-presse/pressemeddelelser/ 2019/04/regeringen-strammer-kontrol-med-eu-borgere-paa-offentlig-forsoergelse/. 67 See at 2020-7. Krav til dokumentation for ophold i riget i uddannelses- og kontanthjælpssager​ (retsinformation.dk), endorsed by the Social Appeals Board; cf note of principle 32-20 of 16 October 2021 at Ankestyrelsens principmeddelelse 32-20 om kontanthjælp – uddannelseshjælp – selvforsørgelses- og hjemrejseydelse eller overgangsydelse – opholdskravet – særlige grunde – manglende indtægt – krav til dokumentation – udtalelse fra Folketingets Ombudsmand (retsinformation.dk).

Free Movement Rights in Denmark  113 subject of criticism. Indeed, Nordic nationals do not seem to be perceived as immigrants, and their impact on the welfare state has not been specifically addressed. Yet, as demonstrated in section IV.A, the Danish authorities have at times made use of the possibility of repatriating Nordic nationals on financial grounds. B.  Shielding the Welfare State from Migration Apart from the situations and benefits mentioned so far, changes to other residence-based schemes, such as that of social assistance, are essentially the result of purely national political choice and have no connection with EU law.68 The 2002 amendment to social assistance was openly triggered by migration concerns and initiated by the right-wing Danish People’s Party (Dansk Folkeparti), which had demanded a number of restrictions on immigrants’ rights in return for supporting the Finance Act. The amendment inserted a residence requirement of seven out of the last eight years for eligibility to social assistance, which has now been increased to nine years’ residence within the last 10 years.69 Should these requirements not be met, citizens might instead be eligible for a reduced level of help. These amendments to the Act on Active Social Policy applied to everyone regardless of nationality, with the exception of EU/EEA citizens, provided they were entitled to benefits under EU/EEA law, meaning that they had the status of worker or the self-employed. But the law had the side-effect of affecting Danes who had left Denmark to work or reside in other Member States, and who were not workers or self-employed in Denmark following their return. The argument was that neutrality had to be respected on pain of breaching Denmark’s international obligations. The Government was also insensitive to the fact that the amendment breached EU law and the European Court’s case law on the free movement of persons. Indeed as a result of d’Hoop and subsequent cases, Member States cannot sanction their own nationals for making use of their right of free movement, unless this can be justified on objective grounds and respects the principle of proportionality.70 In response to pressure from the media and politicians, the Social Appeals Board was forced to soften its practice concerning Danish citizens. Thus, it ruled that

68 This section is partly based on Jacqueson (n 24). 69 The residence requirement was abolished in 2011 but reintroduced in August 2015. In 2019, the Danish legislator also introduced an equivalent residence requirement in respect of the right to contributory unemployment benefits. The requirement was removed in February 2020 as the Social-Democratic Government found that it sanctioned Danish citizens who had worked abroad and reduced membership of unemployment funds, which form part of the Danish social protection system. 70 Case C-224/98 D’Hoop, ECLI:EU:C:2002:432; and Joined Casse C-523/11 and C-585/11 Prinz and Seeberger, ECLI:EU:C:2013:524.

114  Catherine Jacqueson Danish citizens who return from another Member State might upon a concrete assessment have a right to full benefits even if they are not workers under EU law.71 The determining factor is the strength of their links with the country. This real-link approach has in principle also benefited other Nordic nationals who should be assimilated to Danes. In a case of 2017 concerning a claim for full social assistance by a Norwegian national, the Social Appeals Board found that Nordic nationals should be treated as Danish citizens under the Convention on Social Help.72 But it found that the Norwegian citizen’s link with Denmark was not sufficient to entitle him to full benefits. On the other hand, he was entitled to reduced benefits, just as a Danish national in a similar situation would be. Thus, it follows from the ruling that Nordic nationals are in principle better protected than other EU nationals, who will under the current practice not be entitled to any benefits at all, except if they are workers or self-employed. But it could also be argued that Nordic nationals do not enjoy the same protection as Danes. Indeed, the real-link test is usually much easier to fulfil for Danes than other (Nordic) nationals, and thus amounts to indirect discrimination on the ground of nationality, which is prohibited by the Nordic Conventions (and EU law). C.  Danish Nationality Rules, Free Movement and Union Citizenship Denmark has strict rules on the loss of Danish citizenship, which can negatively impact Danes who make use of their right of free movement.73 Thus, Danish nationals who are born abroad and who have never lived or stayed in Denmark, in circumstances indicating no association with the country, will automatically lose their citizenship at the age of 22 unless this would make them stateless.74 Loss of Danish nationality is also imposed on their children unless they would become stateless. In order to be eligible to retain Danish citizenship, applicants must either be resident in Denmark when applying, and document a stay of a minimum of three months, or have spent at least one year in Denmark before the age of 22 and be able to document a working knowledge of Danish. It is interesting to note in this respect that a stay in another Nordic country counts for the purpose of documenting residence or a stay in Denmark. It requires seven years of residence in one of the four Nordic countries, but it is still more advantageous than as regards a stay in another EU country, which does not count at all. Such favourable treatment of free movement in the Nordic countries, compared to free movement in the other EU Member States, might be seen as a restriction on

71 Decision of principle 103-16 of 19 January 2017 at PA afgørelse vedr. integrationsydelse.pdf (sandudvalg.dk). 72 Decision of principle 19-17 of 6 April 2017 at www.retsinformation.dk/eli/retsinfo/2017/9342. 73 Also restrictive in respect of voting rights, as Danes living abroad have no right to vote in Denmark and thus de facto Danes might be deprived of their right to vote at the national level. 74 § 8 of the Act on Danish nationality (indfødsretsloven).

Free Movement Rights in Denmark  115 the Treaty right of free movement in Article 21 TFEU, which might be difficult to justify.75 Danish nationals born abroad who do not fulfil the residence requirement might apply to retain their nationality between the ages of 21–22 years. The Ministry then has the discretion to decide whether their ties with the country are sufficient, looking, for example, at the individual’s knowledge of the Danish language, family ties and visits to Denmark. The Government has acknowledged that the CJEU’s ruling in Tjebbes in 2019 will lead to a slight change to this procedure in practice.76 The Ministry will also assess the impact on EU law when a person is deprived of his or her Union citizenship as a consequence of the loss of Danish citizenship. It follows from the brief of the Ministry and the travaux préparatoires of the amended Act that applicants should not be restricted in maintaining their family or working situation in one or more Member States.77 A case is currently pending before the CJEU in which a Danish regional court has enquired into the compatibility of the cut-off nationality rule at age 22 with Union citizenship.78 To sum up, Denmark has over a long period had a tense relationship with free movement and immigrants. This has especially affected EU nationals and thirdcountry nationals, and to a lesser extent migrant Danes and Nordic nationals. I now turn to the last aspect of the comparison between Nordic nationals and other EU/EEA nationals, which concerns the acquisition of Danish nationality. VI.  NATIONALITY AND NATURALISATION IN DENMARK

Denmark has one of the most restrictive legislative regimes on naturalisation in Europe, and employs a special procedure whereby only Parliament can grant Danish nationality by naturalisation. Yet there is a fast-track procedure for Nordic nationals, who can in some situations become Danish nationals by way of declaration. Furthermore, the conditions for naturalisation are more relaxed for Nordic nationals. I will first look into the situation of Nordic nationals before turning to the rules applicable to all other foreigners, including EU nationals. I conclude that Nordic nationals are much better off than EU nationals in becoming Danish citizens.

75 On the issue of justification, see Erhag, ch 7 of this volume. 76 Case C-221/17 Tjebbes and Others, ECLI:EU:C:2019:189. The Nationality Act was amended by Law No L 63 of 28 January 2020. 77 Briefing note of 11 October 2019 of the Ministry of Immigration and Integration to the Parliamentary Committee on nationality issues at orienteringsbrev-til-ifu-om-eud-dommen-tjebbes. pdf (uim.dk); and Act No L 63 of 28 January 2020. 78 Case C-689/21 X v Udlændinge- og Integrationsministeriet. Reference of Østre Landsret of 16 November 2022 at https://curia.europa.eu/juris/showPdf.jsf?text=&docid=251801&pageIndex= 0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2622971.

116  Catherine Jacqueson A.  Nordic Nationals Obtaining Danish Nationality In the nineteenth century, Sweden and Denmark pushed for the harmonisation of their nationality rules. Initially their main motivation was a desire to avoid cases of statelessness, while at the same time attempting to avoid double citizenship.79 In August 1945, Sweden proposed to introduce a common ‘Nordic citizenship’. Following the 1962 Treaty of Helsinki, Denmark enabled certain Nordic nationals to obtain Danish citizenship by declaration upon fulfiling a number of conditions. The declaration procedure is an alternative and simplified procedure for acquiring nationality other than via the main route of naturalisation. Granting nationality through declaration by way of an administrative decision is compatible with the Constitution, which grants an exclusive right to Parliament on nationality issues upon application of crystal-clear criteria.80 This administrative procedure is only open to Nordic nationals and former Danish nationals.81 Nordic nationals are entitled to Danish nationality by declaration when they are between the ages of 18 and 23, have lived in Denmark for a total period of 10 years and have no convictions or pending criminal charges. A stay in another Nordic country is assimilated to residence in Denmark, provided it takes place a minimum five years before the application and before the applicant turns 16 years old. Furthermore, Nordic nationals who have attained the nationality of a Nordic country other than by naturalisation are entitled to citizenship by declaration when they have reached the age of 18, have lived in Denmark for at least seven years and during this time have not been sentenced to imprisonment.82 Children whose parent acquires Danish citizenship by declaration automatically acquire it by way of filial extension, provided that they reside in Denmark. Currently, it is the Ministry of Immigration and Integration that is competent to grant citizenship by this route, and the declaration is subject to a fee. From 2001 to 2015, Danish citizenship was granted to 62,595 Nordic/former Danish citizens via this procedure, with a tripling of applications from 2013 to 2015, plausibly as a result of Denmark’s accepting dual citizenship in 2015.83 Nordic nationals can also opt to become Danish nationals through the main route of naturalisation, which is subject to stricter conditions and involves a more burdensome procedure than that mentioned above. Yet it is interesting to

79 AH Midtbøen, SR Birkvad and M Bivand Erdal, Report to the Nordic Council of Ministers (hereinafter ‘Nordic Report’) (2018) 28 at Citizenship in the Nordic Countries (diva-portal.org). 80 Ersbøll (n 1) 160. 81 It concerns only two situations: (i) Danish nationals who have lived in Denmark until they are 18 years old and who lose their Danish nationality can recover it after two years’ residence in Denmark (residence in another Nordic country up until the age of 12 is assimilated to residence in Denmark); and (ii) nationals who have lost their Danish nationality and have been national of another Nordic country recover their Danish nationality when taking up residence in the country. 82 § 3 of the (consolidated) Act on Nationality of 5 August 2020 (LBK No 1191): Indfødsretsloven (retsinformation.dk). 83 Nordic Report (n 79) 74.

Free Movement Rights in Denmark  117 note that the residence requirement is reduced to two years in respect of Nordic nationals applying for Danish nationality through naturalisation. B.  EU/EEA Nationals Naturalising It follows from the Danish Constitution that no foreigner can acquire Danish nationality unless by an Act adopted by Parliament (§ 44). In short, the granting of Danish citizenship by application is conditional upon nine years’ residence, good conduct, no public debt, financial self-support, Danish language skills and knowledge of Danish culture and society, and an oath of allegiance.84 Overall, Denmark has the highest barriers to naturalisation among the Nordic countries and the most stringent language requirement in Europe.85 Foreign citizens, except for Nordic nationals who fulfil the conditions of the declaration procedure mentioned in section VI.A, can only acquire Danish citizenship by statute. After having fulfilled the strict conditions laid down in the law, foreign nationals must be listed in a naturalisation bill, which is then passed by the Danish Parliament. In contrast to other Nordic countries, the naturalisation requirements are not spelled out in the nationality Act but are defined in guidelines issued by the Ministry of Immigration and Integration. Guidelines are subject to negotiation and are decided by the political parties that represent the majority in Parliament. This makes naturalisation requirements much more subject to politicisation than in other countries.86 The applicant must be resident in Denmark and should have been continuously so for at least nine years. The applicant must not owe certain types of debt to public authorities. This includes repayable benefits under the Law on Social Service or the Law on Active Social Policy, nursery payments and taxes or duties. In addition, the applicant cannot have received assistance under the Law on Active Social Policy or the Law on Integration over the last two years. Likewise, the applicant cannot have received assistance under these laws for a total period of more than four months over the last five years. The benefits covered are, for example, cash assistance, educational benefit, rehabilitation benefit, out-ofwork benefit and the integration benefit. In 2005, Denmark further raised the bar with the introduction of a test (indfødsretsprøven) aimed at providing evidence

84 Conditions for naturalisation in Denmark are laid down in the Citizenship Act Section 6 and the Circular of the Ministry of Immigration and Integration on naturalisation of 17 June 2021 (CIS No 9461); see Cirkulæreskrivelse om naturalisation at retsinformation.dk. 85 Nordic Report (n 79) 53. 86 ibid 34. The Ministry of Immigration and Integration is responsible for examining whether or not applicants fulfil the criteria for acquiring Danish citizenship, and cannot exercise any discretion in this respect. Applications subject to possible dispensation must be handed over from the Ministry of Justice to the Naturalisation Committee in Parliament. There is in principle no right to an administrative review.

118  Catherine Jacqueson of the applicant’s knowledge of Danish society, culture and history. Finally, the applicant must declare allegiance and loyalty to Denmark and Danish society, including the Constitution, and the acquisition of nationality is celebrated by a compulsory ceremony in the home municipality. Foreign citizens who are included in a bill on naturalisation are, since 2015, no longer required to renounce their previous nationality.87 Interestingly, one of the key arguments for accepting dual citizenship was to enable the revocation of Danish nationality of dual citizens who engage in or support acts of terror.88 At the same time, the ius soli entitlement to Danish citizenship of descendants of immigrants was reinstated, which represented considerable liberalisation, but this was removed again in 2016.89 To sum up, on the acquisition of Danish nationality, Nordic nationals are much better off than fellow EU nationals as their access is facilitated and easier. In contrast, EU and third-country nationals can only become Danish nationals through nationalisation, and Denmark has some of the toughest rules in Europe. Such preferential treatment constitutes discrimination on the ground of nationality, which might be difficult to justify. Yet it concerns a field in which Member States are still sovereign, and the question is whether the situation falls within the scope of EU law.90 Is it sufficient to trigger the application of the principle of equal treatment that unequal treatment is claimed by an EU national using her right of free movement under Article 21 TFEU?91 If this is the case, the rules would in principle not escape the constraints of EU law and would need to be justified. VII.  CONCLUSION FOR DENMARK

The analysis in this chapter has demonstrated that Nordic nationals are better protected under the Nordic Conventions as implemented in Denmark than citizens protected under the EU/EEA rules. They are in many respects assimilated to

87 Act of 23 December 2014 (LOV No 1496) amending the Act on Nationality introducing multiple nationality, which came into force on 1 January 2015. 88 Nordic Report (n 79) 35. 89 ibid 35. 90 See Case C-135/08 Rottmann, ECLI:EU:C:2010:104 and Tjebbes (n 76), where the Court ruled that nationality was the exclusive domain of the Member States. Yet it also found that when nationals lost their Union citizenship at the same time, the situation fell under the scope of Art 20 TFEU. Accordingly, the CJEU was competent to examine whether the Member State acted in compliance with the principle of proportionality and in accordance with the principle of free movement of Union citizens. 91 See, eg, Case C-591/17 Austria v Germany, ECLI:EU:C:2019:504 on unequal treatment in respect of the German road toll, where Art 18 TFEU was applicable. In contrast, Art 18 TFEU was not applicable in Case C-581/18 TÜV Rheinland LGA Products and Allianz IARD, ECLI:EU:C:2020:453 concerning a territorial clause of an insurance contract covering breast implants.

Free Movement Rights in Denmark  119 Danes and are not perceived as immigrants. This is especially true in respect of the right of residence, which is not subject to conditions or procedures. Furthermore, Nordic nationals who are not economically active have better access to social protection under the Convention than under the EU/EEA rules. Thus, the Nordic states have achieved a form of ‘Nordic citizenship’, with a right to equal treatment for all their citizens in most fields and a fast-track procedure to acquire citizenship of the host state. Yet the right of Nordic nationals to equal treatment in Denmark is qualified in two ways: (i) they might only be entitled to a reduced social assistance benefit as a result of the tightening of the rules from 2002; and (ii) more importantly, they might be sent home after six months on public assistance. The analysis also shows that having the status of worker/self-employed under EU/EEA rules is still the main and easiest route to social protection in Denmark. Thus, the EU stands strong on the right to free movement and equal treatment for those who deserve it – workers and the self-employed – even though not much ‘economic activity’ is in theory needed. Practice might show a slightly different picture. Finally, Nordic nationals have favourable access to Danish nationality, which is evidence that there is the political will to treat them more as members of a community of fellows than as immigrants.

120

7 Free Movement Rights in Sweden THOMAS ERHAG

I. INTRODUCTION

T

he Nordic states have practised old and extensive cooperation that facilitates personal mobility and the opportunity for their nationals to commute across borders and settle in another Nordic state. The partnership is based on a view of a Nordic cultural community where the countries share specific fundamental values, forming the basis for extensive mutual trust between Nordic governments and authorities. We find it difficult to regard the citizens of the other Nordic countries as foreigners other than in a purely formal sense.1 For the ​​ free movement of persons, this cooperation is often regulated in multilateral Nordic conventions. Even though there is a perception that the social conditions in the Nordic countries are similar and thus based on a cultural and legal community, personal mobility can still lead to legal and practical difficulties. The legal problems that arise when moving from a Member State of the European Union (EU) to Sweden do not differ from those arising when moving from a Nordic country. Free movement across national borders is otherwise primarily associated with the EU and the internal market. The EU is not based in the same way on such a community of values but primarily on judicial cooperation. After Sweden became a member of the EU in 1995, the conditions for Nordic cooperation also changed. The legal difficulties associated with moving across borders are dealt with primarily in an EU legal context, and the requirements for dealing with such challenges in Nordic cooperation are to a large extent affected by obligations under EU law.2 This applies to whether existing Nordic cooperation, which treats Nordic nationals more favourably than Union citizens, is compatible with EU law. According to Article 351 of the Treaty on the Functioning of the European Union (TFEU), EU law should not affect international agreements 1 O Abrahamsson, ‘Det nordiska lagstiftningssamarbetets framtid i ett EU-perspektiv’ [2001] Svensk juristtidning 1. 2 U Bernitz, ‘Nordic Legislative Cooperation in the New Europe – a Challenge for the Nordic countries in the EU Perspective’ (2000) 39 Scandinavian Studies in Law 29.

122  Thomas Erhag concluded before EU membership. Still, at the same time, there is an obligation in the same article to eliminate rules that are incompatible with EU law. Of particular importance in this context is the prohibition of discrimination on grounds of nationality in Article 18 TFEU. New Nordic agreements cannot provide for only Nordic and Swedish citizens to receive special treatment unless there is objective justification for the difference in treatment.3 In addition, parts of EU law may seem difficult to reconcile with the Nordic legal tradition developed in a particular area. This applies not least to whether the Nordic legislative tradition on social rights and social security works well with EU law;4 the Nordic and Swedish welfare state, for example, has traditionally made greater use of residence-based solidarity benefits. These features have also caused practical problems when moving to and from Sweden. Solidarity-based benefits are only paid to those who are resident in Sweden. In this respect, the welfare state has been developed with a direct reference to territoriality, and has combined demands for being a lawful resident with being registered in the population register (folkbokföring) as preconditions for having access to welfare benefits. Registration does not carry any direct legal consequences but is of the utmost practical importance, and has an indirect legal impact since many other statutes refer to the residence concept in the Population Registration Act.5 Such references to the residence of a person are found in all parts of the welfare system, defining the right to access social benefits; the Social Insurance Code6 and the Social Services Act7 have their independent definitions of residence, while the Health and Medical Services Act8 uses the same definition of residence as the population register. People also pay their taxes and vote where they are registered as residents. Since becoming a member of the EU in 1995, Sweden has adopted various modifications to national welfare legislation to adapt to EU law. Welfare is a field of policy of mainly national competence. The same applies to immigration law and citizenship. European integration has had a broad impact on interpreting and understanding the Swedish legal concept(s) of residence in various fields.9 The 3 Case C-55/00 Gottardo, ECLI:EU:C:2002:16. The objective justification would be ‘[not] disturbing the balance and reciprocity of a bilateral international convention’: ibid 36. H Wenander, Fri rörlighet i Norden – Nordiska gränshinder i rättslig belysning (Juristförlaget i Lund 2014) 53 ff. 4 M Sakslin, ‘Samordning av sociala trygghetssystem inom Norden, EU och EES’ (1995) 70 Retfaerd 34; M Sakslin, ‘Can the Principles of the Nordic Conventions on Social Protection Contribute to the Modernisation and Simplification of Regulation (EEC) No. 1408/71?’ in RFV/ Europeiska kommissionen, 25 years of regulation (EEC) No 1408/71 on Social Security for Migrant Workers – a conference report (RFV 1997). 5 Sw Folkbokföringslagen (1991:481), FBL. See also K Hyltén-Cavallius, ‘The need of residence registration for enjoyment of EU citizenship in Sweden’ in F Pennings and M Seeleib-Kaiser (eds), EU Citizenship and Social Rights (Edward Elgar Publishing 2018) 127. 6 Sw Socialtjänstlag (2001:453), SOL. 7 Sw Socialförsäkringsbalk (2010:110), SFB. 8 Sw Hälso- och sjukvårdslag (2017:30), HSL. 9 T Erhag, ‘Under pressure? – Swedish residence-based social security and EU-citizenship’ (2016) 18(2) European Journal of Social Security 207.

Free Movement Rights in Sweden  123 implementation and application of Directive 2004/3810 and Regulation 883/200411 have also revealed inevitable friction between EU law and the Nordic welfare states with their residence-based welfare rights.12 The implementation of the Directive created a new right to residence (uppehållsrätt) for Union citizens in the Swedish Aliens Act13 but left social security and social assistance law untouched. However, applying the non-discrimination principle in EU law has revealed difficulties using Swedish law on access to social benefits. One example is provided by the problematic approach adopted by public authorities towards the legal status of EU/EEA nationals coming to Sweden,14 and the question of how to, in conformity with EU law, limit the scope of Swedish welfare law.15 The situation is different concerning Nordic nationals; successful regional de-bordering has a long history in the Nordic states. There have been no actual attempts to limit free movement and equal access to welfare rights.16 This chapter will highlight that Nordic nationals, as a result of Nordic cooperation parallel to EU law, are treated differently than other Union citizens as regards free movement, access to social rights and, ultimately, naturalisation and access to Swedish citizenship. The understanding of the residence concept in various fields of law is a key element for access to these rights and will be at the centre of the description and analysis. II.  THE LEGAL ARRANGEMENTS FOR EU, EEA AND NORDIC NATIONALS IN SWEDEN

The legal basis for a legal stay or residence in Sweden is found in the Aliens Act.17 For EU/EEA nationals, Chapter 3a is applicable, a part of the Aliens 10 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC (Text with EEA relevance) [2004] OJ L158/77. 11 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) [2004] OJ L166/1. 12 C Jacqueson, ‘From negligence to resistance: Danish Welfare in the light of Free Movement Law’ (2016) 18(2) European Journal of Social Security 183; T Kotkas, ‘Independent Choices and Extrinsic Pressures: EU Membership and the Development of Residence-based Social Security Schemes in Finland’ (2016) 18(2) European Journal of Social Security 164; Erhag (n 9). 13 Sw Utlänningslagen (2005:716), UL. 14 A governmental report has described variations in treatment of EU citizens and difficulties in finding a concise application of welfare law in Swedish municipalities and regions. SOU 2016:6, Framtid sökes – slutredovisning från den nationella samordnaren för utsatta EU-medborgare. 15 Hylten-Cavallius (n 5); Erhag (n 9). See also SOU 2017:05 Svensk social trygghet i en globaliserad värld. 16 M Tervonen, ‘The Nordic passport union and its discontents’ in J Strang (ed), Nordic Cooperation. A European region in transition (Routledge 2015) 131. PJ Pedersen, M Roed and E Wadensjö, The Common Nordic Labour Market at 50 (Nordic Council of Ministers, 2008). 17 Sw Utlänningslag (2005:716) UL.

124  Thomas Erhag Act that constituted the most crucial element of the Swedish implementation of Directive 2004/38. A person who does not meet the requirements for a right of residence may need to apply for a residence permit. The Swedish Migration Agency is the authority responsible for checking migration status, the need for a residence permit or the validity of the right of residence. Swedish law differs for citizens in Nordic countries and EU/EEA countries, as Nordic nationals are free to travel to Sweden to work and live there (legal space). Citizens of the EU/EEA need to meet the requirements set out in Directive 2004/38 and implemented in the Aliens Act for stays longer than three months. If a person moves to Sweden and plans to stay for more than a year, that person should be registered in the population register.18 Registration takes place by a decision of the Swedish Tax Agency, which makes an independent assessment of the conditions for the right of residence. For population registration, it is required by law that an EU/EEA national has their own right of residence or right of residence as a family member. Alternatively, if the EU legal requirements are not met, there are requirements for a residence permit like other foreigners. However, Nordic nationals do not have to meet these requirements to be registered in Sweden; the legal residence of Nordic nationals is not conditional upon holding a residence permit or the conditions imposed by Directive 2004/38.19 The concept of residence in the Population Registration Act and decisions on residence and registration are also crucial for the enjoyment of rights. The personal registration number is a central instrument for enjoying rights, assigned to registered persons by the Swedish Tax Agency.20 The concepts of residence in the Social Insurance Code and of residence (or stay) in the Social Services Act are formally independent of the concept of residence in the population register. However, there is a relatively strong connection between the residence concepts in the population register and social insurance. When someone applies for a benefit, it is the social insurance office that tests whether a person is insured in Sweden through residence or work. Legal residence in Sweden is also a prerequisite for social security benefits. However, the Social Insurance Agency makes no special examination of whether a person has a right of residence. In Sweden, there is no register of people who are insured. In a situation where a person moves from another EU/EEA state, Regulation 883/2004 is relevant, and the relationship between the Regulation and the internal social security legislation has at times proved complicated.21 There is no special regulation for Nordic nationals in the Social Insurance Code, but the Nordic Convention on Social Security22 puts people who move between 18 FBL 3 §. 19 FBL 4 § and UL 2 kap 8 b §. 20 Hyltén-Cavallius (n 5). Kommerskollegium, Moving to Sweden – Obstacles to the Free Movement of EU Citizens (Swedish National Board of Trade 2014) 8 ff. 21 See section IV.B. 22 Nordisk konvention om social trygghet, Bergen den 12 juni 2012, SÖ 2014:5. Implemented by lag (2013:134) om nordisk konvention om social trygghet.

Free Movement Rights in Sweden  125 Nordic states in a more advantageous position than other persons, both Union citizens and other foreigners. In this way, the Nordic Convention complements the coordination of social security that takes place within the framework of EU law by adding certain advantages. An example of an advantage is that the Nordic Convention extends coordination to all persons, third-country nationals included, who have been resident in a Nordic country before moving (Article 4). The Convention also covers costs for journeys home in case of sickness (Article 7) and provides for the establishment of bilateral cooperation in cases of rehabilitation (Article 9). In this context, one should also mention Article 5 of the Nordic Convention on Social Security, which defines the residence concept for coordination purposes for persons moving between Nordic states by referring to the population register. The article means that when deciding on which legislation applies to a person moving to Sweden, Chapter 5 of the Social Insurance Code is decisive. However, if there is a conflict with another Nordic country, this person is to be considered as resident (for social security purposes) in the country where the person is registered in the population register. This mechanism is available as a result of the Nordic cooperation on population registration, which finds no equivalence in EU law.23 It is the Swedish regions that are responsible for health and medical care in Sweden, and the right to health care is formulated as a duty under which the regions are obliged to provide good health and medical care to those who are residents of the region.24 Persons covered by Swedish social security in accordance with EU Regulation 883/2004 are handled in a special order through the Swedish Social Insurance Agency.25 The Nordic Convention on Social Security provides for waiving payment between the Nordic countries for health care provided to a person insured in the Nordic countries within the framework of Regulation 883/2004. Unemployment insurance is regulated outside the Social Insurance Code in the Unemployment Insurance Act.26 It is optional to be a member of an unemployment fund in Sweden, and thus to have access to the income-related part of the insurance. A person who moves to Sweden must apply for membership of a Swedish unemployment fund if according to Regulation 883/2004 the person is covered by Swedish social security. A basic benefit is available for all persons who are unemployed. In the social services, responsibility for a person’s social situation is primarily limited by the concept of residence, but this concept goes beyond that of residence in the population register (bosatt) and social insurance. ‘Stay’ (vistelse) is the term used for defining the outer limits of responsibilities in the Social

23 Prop

2004/05:67, Överenskommelse mellan de nordiska länderna om folkbokföring. 8 kap 1 §. 25 HSL 8 kap 2 §. 26 Sw Lag (1997:238) om arbetslöshetsförsäkring, ALF. 24 HSL

126  Thomas Erhag Services Act. Decisions on residence or, when relevant, stay are made in the relevant municipality. The concept of residence in tax law is broader than that used in the population register.27 III.  LEGAL BASIS FOR ESTABLISHING RESIDENCE IN SWEDEN

In this section, I will describe in greater detail the procedure for establishing residence by means of registration in the population register. The Swedish residence registration system is important for many purposes, and without residence registration and the personal registration number that comes with it, all contact with the national administration, banks and employers will be rather difficult.28 The information in the population register is also used by administrations at different levels when they take decisions concerning, for example, residence-based social benefits and taxation. In this regard, the decision on registration serves as proof of fulfilment of residence criteria, and creates an important interconnection with other statutes and their definitions of residence. As will be shown, residence registration is closely related to the concept of legal residence in immigration law; but as indicated in the previous section, the interaction between the various residence concepts is not always obvious. It is thus possible that a person not eligible for registration in the population register can be seen as resident for social security purposes.29 The effects of registration in the population register, in relation to establishing residence in relation to decisions on residence for social protection purposes, will be dealt with further in section IV. A person born in Sweden will normally be registered from birth. When moving to Sweden from another country, a person needs to qualify for registration in line with different criteria. The general rule stipulates that this person shall be registered if they are considered to be resident in Sweden. This legal concept of residence is further defined as referring to the place where a person is assumed to rest regularly at night or the daytime equivalent (daily rest) in the country for at least one year.30 This one-year rule is a prediction of intent for future residence, and a person will be registered when they have demonstrated an intention to stay for more than a year. If a person regularly spends time and ‘sleeps at night’ in Sweden and in other countries, the habitual residence of the person must be established. Registration is determined with reference to all circumstances that need to be considered. Persons, and even workers having their legal residence in Sweden under Directive 2004/38, will not be registered in

27 E Sevelin, ‘Är du bosatt lille vän? Om bosättningsbegreppet i skatte-, socialförsäkrings- och folkbokföringsrätten’ (2021) 4 Förvaltningsrättslig tidskrift 723; K Cejie, Inkomstskatter och socialavgifter – två metoder att beskatta löneinkomster (Norstedts juridik 2020). 28 Hyltén-Cavallius (n 5) 133 f. 29 Sevelin (n 27). 30 FBL 3 § 1 st.

Free Movement Rights in Sweden  127 the population register if their intended stay is shorter than one year. This will cause practical problems for the non-registered categories. In 2014 an important change was made regarding the conditions for registration, as it introduced the precondition of lawful residence to be registered as resident. This means that a Union citizen moving to Sweden must have a right of residence in accordance with Directive 2004/38 as implemented in the Aliens Act, or be a holder of a residence permit. A foreign citizen may thus only be registered if one of these conditions are met, unless there are special reasons for that person to still be registered.31 This approach means that when taking a decision on population registration, the Swedish Tax Agency needs to consider both the conditions for lawful residence in the Aliens Act, as well as the conditions for habitual residence in the Population Registration Act. The conditions in the Aliens Act flow from Directive 2004/38. According to EU law, there is an initial three-month period of unconditional stay. From day 91, a Union citizen must provide proof of meeting the conditions for lawful residence, that is, being economically active as a worker, a service provider or self-employed, or being a jobseeker with a realistic chance of finding employment.32 Students with sufficient means and sickness insurance will also fulfil the conditions for lawful residence. Other non-economically active persons must show that they fulfil the requirements regarding sufficient means to provide for themselves and comprehensive sickness insurance in order to be considered as lawfully residing in Sweden. From a practical perspective, one observation is that the control of Union citizens has partly moved away from migration law to meeting the demands of population registration. After the legislative changes in 2014, the Tax Agency, being the administrative agency for population registration, has acted as gatekeeper in relation to Union citizens not fulfilling the criteria for lawful residence.33 A second observation is that it is still difficult to expel Union citizens, as this is not a matter for the Swedish Tax Agency. A.  Nordic Nationals Establishing Residence Nordic nationals will be treated equally to EU/EEA nationals in relation to fulfilment of the conditions for legal residence, as all Nordic countries fall within this category of persons. However, there are also some specific rules applicable to Nordic nationals.34 The need for a passport is, like the situation for Schengen nationals, waived for Nordic nationals. This is a result of the cooperation within the framework

31 FBL

4 §. 3a kap 3 §. 33 Prop 2012/13:120, 40 f. Erhag (n 9) 223, Hyltén-Cavallius (n 5) 131. Sevelin (n 27) 728. 34 Wenander (n 3) 106 f. 32 UL

128  Thomas Erhag of the Nordic Passport Union from 1954 being implemented in the Aliens Act.35 There is, at least formally, not even a demand for the carrying of identification for Nordic nationals. In a similar manner, the general condition of a residence permit for lawful residence is not upheld against Nordic nationals as the Aliens Act waives the condition.36 This puts Nordic nationals in a more favourable position when compared to an EU/EEA national, as even non-economically Nordic nationals will have an unconditional right of lawful residence. The right to residence under EU law stipulates conditions regarding sufficient means and sickness insurance that are not applied in relation to Nordic nationals. Another way of expressing this is that there is a more extensive, almost unconditional, right to residence for Nordic nationals, as no conditions are applied by migration law.37 To a high degree, nationals of the other Nordic countries have been given the same rights as Swedish citizens. However, family members being citizens of a country outside the Nordic states will have to meet the condition of having either a residence permit or a right of residence under the implemented EU law. In relation to residence registration, this means that Nordic nationals, whether economically or non-economically active, will fulfil the condition of lawful residence. If a migrating Nordic person intends to stay in Sweden for more than one year, that person shall be registered in the population register if they can be assumed to regularly spend their night’s rest in Sweden. B.  EU/EEA Nationals Establishing Residence Directive 2004/38 has been introduced into Swedish law through Proposition 2005/06:7738 and amendments mainly to the Aliens Act and the Aliens Ordinance.39 The implementation means that the system of residence permits for Union citizens and their families was partially abolished and replaced with EU rules on the right to stay and reside. For stays during the first three months, EU/EEA nationals are covered by the general rule in the Aliens Act that stipulates that no residence permit is required to stay in Sweden for that period.40 When entering 35 SÖ 2001:11, Överenskommelse med Danmark, Finland, Island och Norge om tillägg till den nordiska överenskommelsen av den 12 juli 1957 om upphävande av passkontrollen vid de internordiska gränserna, ändrad genom överenskommelsen den 27 juli 1979 samt tilläggsöverenskommelsen av den 2 april 1973 (The Nordic Passport Control Agreement) (SÖ 1958: 24, SÖ 1979: 26, SÖ 1973: 43) Köpenhamn den 18 september 2000. 36 UL 2 kap 5 § and 8b §. 37 H Sandesjö and G Wikrén, Utlänningslagen med kommentarer, JUNO version 12B, comment to 1 kap 1 §. The legal basis for treating Nordic nationals more favourably is described by Wenander (n 3) 53 ff. The effects of this are seen in the access to both social rights and naturalisation, see sections IV.A and V.A. 38 Prop 2005/06:77, Genomförande av EG-direktiven om unionsmedborgares rörlighet inom EU och om varaktigt bosatta tredjelandsmedborgares ställning. 39 Sw Utlänningsförordningen (2006:97) UF. 40 UL 2 kap 5 §.

Free Movement Rights in Sweden  129 Sweden, EU/EEA nationals and their family members need to have a valid passport or identity card stating their citizenship. Rules on the right of residence for EU/EEA nationals have been implemented through Chapter 3a of the Aliens Act. It should be noted that the definition of the concept of the right of residence in the Aliens Act is narrower than the definition given in Directive 2004/38. The Aliens Act limits it by referring to the right of EU/EEA nationals and their family members to stay in Sweden for more than three months without a residence permit. The definition according to the Directive means that the concept also applies to the basic right to stay for three months without any other conditions being met. As mentioned previously, lawful residence for economically active persons is unconditional, while non-economically active persons must meet the conditions of proving sufficient financial means and being covered by comprehensive sickness insurance. In contrast to Nordic nationals, EU/EEA nationals do not by default fulfil the conditions of lawful residence in migration law in Chapter 3a of the Aliens Act. They have a right to enter, stay and reside in Sweden derived directly from Articles  20 and 21 TFEU, and this right has been further regulated in Directive  2004/38 and implemented in the Aliens Act. Economically active EU/EEA nationals have an almost unconditional right to residence, and for non-economically active persons the right is conditional upon showing proof of sufficient resources as well as having comprehensive sickness insurance for themselves and their family members. A non-economically active EU/EEA national could, if the conditions for lawful residence under EU law were not met, apply for a residence permit under the same conditions as a third-country national. An example of this category is provided by non-economically active family members of Swedish or Nordic nationals. The conditions for registration of residence in the Population Registration Act are that a person is exercising free movement and is lawfully residing in Sweden. Lawful residence means that the person must fulfil the right-toresidence conditions as implemented in the Aliens Act, as well as having the intention of residing in Sweden for more than one year.41 Registration in the population register is thus dependent on the fulfilment of the conditions of both lawful (Aliens Act) and habitual (Population Registration Act) residence. The one-year rule has proved problematic for persons staying for a period shorter than 12 months. It means that persons moving to Sweden from another EU/EEA country, even workers, cannot be registered in the population register, and there is proof of difficulties for this category of persons, for example when it comes to the practical enjoyment of social rights.42



41 FBL

3 §.

42 Kommerskollegium

(n 20).

130  Thomas Erhag IV.  ACCESS TO SOCIAL RIGHTS/INCLUSION IN RESIDENCE-BASED SOCIAL SYSTEMS IN SWEDEN

The Swedish welfare system includes work-based and residence-based rights, as well as the right to social assistance. The system is universal, with the ambition of including everyone lawfully residing in Sweden in a solidaristic community and safeguarding a certain level of subsistence. Residence-based schemes are those where the fulfilment of a residence criterion is an essential requirement for insurance coverage. Sweden has a long tradition of using residence as the legal condition for access to social benefits. This is especially relevant in relation to tax-financed solidarity benefits of a universal character, which are typical of the Nordic welfare state.43 The social security system administered by the Social Insurance Agency gives the right to work-based and residence-based benefits. There are various residence-based social security benefits, the common factor for them being that they aim at providing basic level of economic security for persons residing in Sweden.44 The regions are responsible for providing good health care for all their residents,45 and the municipality is responsible for the right to social assistance for all persons staying in the municipality (vistelsekommun).46 To access rights from the Swedish social security system, it is required that the person in question fulfil a basic condition of being insured. The condition of connection to social security historically consisted of a citizenship condition, supplemented by a rule stating that persons who were not citizens but who were resident in Sweden were also included within the personal scope. In the current regulation on the personal scope of social security in the Social Insurance Code, there is no citizen condition. According to the Social Insurance Code,47 the insured are those persons who meet the requirements in respect of residence, work or other circumstances set out in the the Social Insurance Code.48 For international conditions, the Social Insurance Code provides for an exception.49 Deviations from the Code can be made based on agreements with other states or EU law. The rule underlines that EU law, or, where applicable, a social security convention, has primacy over national social security law, and the same principle applies to bilateral or multilateral agreements such as the Nordic Convention on Social Security. In the EU legal context, this means that a person who according to EU Regulation 883/2004 belongs to the Swedish system, may be insured in Sweden even though the conditions for insurance according 43 Erhag (n 9) 211. 44 A Christensen, ‘Normativa grundmönster i socialrätten’ (1997) 78 Retfaerd 69; T Erhag, Fri rörlighet och finansiering av social trygghet (Santérus förlag 2002) 31 f. 45 HSL 8 kap 1 §, 46 SOL 2a kap 1 § and 4 kap 1 §. 47 SFB 4 kap 3 §. 48 Prop 1998/99:119, Socialförsäkringens personkrets, 77. 49 SFB 2 kap 5 §.

Free Movement Rights in Sweden  131 to Swedish legislation are not met. A Union citizen who works in Sweden but who does not reside there has access to both work-based and residence-based benefits. In the same way, a person who is covered by foreign legislation may be excluded from the personal scope according to Swedish law, in terms both of the right to benefits and the obligation to pay contributions. For the legislator, it has been a natural precondition that the persons who are part of the personal scope protected by Swedish social security according to the Social Insurance Code, must also have a lawful right to residence.50 Thus, the intention has been that only a person who has resided in Sweden lawfully through citizenship51 or residence permit can also be considered a resident. The issue of lawful residence is in turn primarily regulated in the Aliens Act and administered by the Migration Agency. The Social Insurance Agency has not had to assess the legality of a person’s residence. In the Social Insurance Code it is clarified that benefits may not be paid to persons who should have but do not have a residence permit.52 The rule is not aimed at excluding these people from the personal scope of social security but means that the benefit cannot be paid out. A corresponding rule that prevents payment to a person who has no right to residence (uppehållsrätt) according to Chapter 3a of the Aliens Act, that is an EU/EEA national, does not exist. There is a reference to exceptions for ‘special reasons’, meaning that persons may in certain circumstances receive benefits even without a residence permit.53 The preparatory works first and foremost mention children, for example children adopted by persons residing in the country, or minor children who are reunited with parents living in Sweden with a residence permit.54 Residence-based social security aims to protect all residents against social risks at a basic level. The concept of residence in the Social Insurance Code is intended to reflect the actual circumstances, and of decisive importance for determining residence is the individual’s normal place of residence.55 There is an additional rule to assist in determining residence for persons who come to or leave Sweden.56 A person who comes to Sweden is resident in Sweden if their stay is assumed to be longer than one year. The latter rule finds a certain equivalent expression in the Population Registration Act,57 even if the design of the conditions is not the same, and residence according to the Code should be assessed with guidance from the Population Registration Act and the decision on registration.

50 SOU 1997:72, En lag om socialförsäkringar, 254. 51 A Swedish citizen has a constitutional right to reside in the country, Instrument of Government (Regeringsformen) Ch 2, 7 §. 52 SFB 5 kap 12 §. 53 SFB 5 kap 12 §. 54 Prop 1998/99:119, 183. 55 SFB 5 kap 2 §; Prop 1998/99:199, 89. 56 SFB 5 kap 3 §. 57 FBL 3 §.

132  Thomas Erhag The Health and Medical Services Act sets conditions for the obligation of the relevant region to offer health care and medical care.58 Residence is the basic condition for having access to health care,59 but persons who are not residents of the region must also be offered immediate health care. This access to emergency care can be compared with the provisions of Regulation 883/2004.60 The concept of residence in the Health and Medical Services Act corresponds to that in the Population Registration Act.61 The preparatory works show that the population register is indicative in terms of residence and access to health care. By caregivers’ checking whether a person is registered as resident, they can usually assess what access to health care they should have (fully subsidised care, only necessary care, etc). Access to health care is thus linked to habitual residence. However, it should be mentioned here that there are people who are not residents according to the Population Registration Act who can still have access to Swedish health care, for example by being assigned to Swedish social security in accordance with Regulation 883/2004.62 The Swedish municipalities have responsibility for giving individuals staying in their territory the support and help they need.63 The individual right to social assistance is further defined in Chapter 4 of the Social Services Act and is an entitlement, as a right, to support when the person cannot provide for their basic needs by any other means.64 In Chapter 2a there is a division of responsibilities between different municipalities. The law divides responsibilities between the municipality of habitual residence and the municipality of temporary residence. According to the legislation, the municipality of habitual residence is always responsible for help and support, even when a person stays somewhere else. The municipality of temporary residence is, however, responsible in emergency situations. The definition of residence (habitual residence) is normally closely connected to the residence concept used for population registration.65 A.  Nordic Nationals’ Access to Rights There is a long history of Nordic cooperation in social security and social assistance too, and this cooperation has persisted throughout Sweden’s membership of the EU. The Nordic Convention on Social Security is expressly 58 With reference to the construction of an obligation, it is doubtful whether we can, according to Swedish law, speak of a statutory right to health care to the extent that a person can assert their right to patient status; compare L Westerhäll, Den svenska socialrätten (Norstedts juridik 1990) 316. 59 HSL 8 kap 1 §. 60 L Vahlne-Westerhäll, Kommentar till Hälso- och sjukvårdslagen (2017:30) 8 kap 4 § (Karnov JUNO, Web-resource). 61 Prop 1981/82:97, Hälso och sjukvårdslag, 115. 62 See section IV.B. 63 SOL 2 kap 1 § and kap 2a 1 §. 64 SOL 4 kap 1 §. 65 Prop 2010/11:49, Ansvarsfördelning mellan bosättningskommun och vistelsekommun, 86.

Free Movement Rights in Sweden  133 seen as a complement to the EU-level coordination of social security and Regulation  883/2004, giving further rights to persons moving between the Nordic countries with the intention of resolving specific hindrances to free movement.66 The Convention on Social Assistance and Social Services of 14 June 1994 is a developed cooperation, with no real equivalent in EU law apart from the non-discrimination articles of the TFEU, Regulation 492/2011 and Directive 2004/38.67 However, the conditions for legal residence, especially for non-economically active EU/EEA nationals, are not applied in the same way to Nordic nationals due to the specific rules in the Nordic conventions. For issues on social security, residence is important for deciding the applicable legislation. According to Article 5 of the Nordic Convention, questions on residence should be decided with reference to national legislation. If there is a conflict between residence concepts, population registration will be decisive. This is a practical solution referring to the Nordic cooperation on issues regarding population registration, which states that a person can only be registered in one state. In this way the Nordic states coordinate their decisions on residence in accordance with EU Regulation 883/2004.68 The Convention on Social Security also contains specific rules for the coordination of certain benefits. Nordic nationals will have access to necessary health care during a temporary stay without needing to show the European Health Insurance card. The Convention also elaborates the coordination of family benefits and the difficult area of workfocused rehabilitation. It is hard to say that these rules are discriminatory in relation to other Union citizens, but they do put Nordic nationals in a different and more advantageous position as they provide for better cooperation between administrative authorities. Wenander describes this as an administrative cooperation in the spirit of EU Regulation 883/2004.69 The Nordic Convention on Social Assistance and Social Services is of central importance for access to social rights.70 The Convention is applicable to all persons residing in a Nordic state and to all Nordic nationals regardless of country of residence. It regulates, among other things, the situation when a person who is moving to another Nordic state is in need of long-term treatment or care. The starting point is that the term equality applies to Nordic nationals who are temporarily staying in a municipality in Sweden, no matter how long this stay may be, thus even making it applicable to a holiday stay. The municipality of residence and the municipality of stay are obliged to cooperate as regards the social support and social care (needs) that the individual requires. If a Nordic national wishes to move to Sweden and settle there permanently, they 66 Nordic Convention on Social Security (n 22); Wenander (n 3) 80. 67 Nordisk konvention om socialt bistånd och sociala tjänster, Arendal den 14 juni 1994, SÖ 1996:21. Implemented by lag (1995:749) om nordisk konvention om socialt bistånd och sociala tjänster. 68 SOU 2017:5, 403. 69 Wenander (n 3) 81. 70 Nordisk konvention om socialt bistånd och sociala tjänster (n 67).

134  Thomas Erhag must report this to the Swedish Tax Agency to be registered in the population register. If a citizen of a Nordic state plans to stay in Sweden for more than 12 months, population registration must take place in Sweden. If registered in Sweden, that citizen will also get access to health care and medical care. Article 7 of the Nordic Convention on Social Assistance and Social Services of 14 June 1994 contains protection for Nordic nationals against being sent (to a) home (state). The wording of the article explicitly claims that it is not possible to deport a Nordic national due to the person’s need for social assistance, if that person’s family circumstances, connection to the country of residence or other circumstances indicates that they should remain in the country of residence. The right to stay is even stronger if the person has been legally resident in the country for the last three years. According to the commentary to the Convention, repatriation could be necessary if a person’s need for assistance has more of a permanent character, while occasional assistance should not lead to any consequences.71 In each individual case, the immigration authorities make a concrete assessment of whether the person in question is covered by the EU/EEA rules on free movement. Sweden is of the opinion that Article 7 of the Nordic Convention on Social Assistance and Social Services in practice constitutes an obstacle to the repatriation of Nordic nationals who have also stayed for a short time in the country where they are seeking assistance. The Swedish interpretation of this rule means that Nordic nationals who are covered by the EU/EEA rules on free movement cannot be sent home, thus indirectly awarding them status as legal residents and possible claimants of both social assistance and residence-based social security benefits, as well as, potentially, status as registered residents, giving them access to health care and medical care.72 B.  EU/EEA Nationals’ Access to Rights i.  Residence-Based Social Security Benefits An EU/EEA-national using the right to free movement and moving to Sweden will also have the right to be treated equally to Swedish nationals when trying to access social benefits. The widening of the material scope for free movement and equal treatment of persons to include those who are not economically active will therefore put pressure on the Swedish welfare system and its residence-based benefits.73 However, Directive 2004/38 allows Member States to refuse access

71 Nordiska ministerrådet, Vägledande kommentar till den nordiska konventionen om socialt bistånd och sociala tjänster (TemaNord 1996:620) 13 f. 72 Nordiska ministerrådet, Gränshinder i Norden på social- och arbetsmarknadsområdet (Nord 2012:002) 21 f. 73 Erhag (n 9).

Free Movement Rights in Sweden  135 to certain residence-based benefits on equal terms if certain conditions are not met.74 If beneficiaries are at risk of becoming an unreasonable burden on the welfare system of the host state, they can even lose their right to residence. The legal method of hindering excessive use of host-state residence-based benefits would be to make them conditional on lawful residence, according to the possibility that follows from Article 7 of Directive 2004/38. The residence concept in the Swedish Social Insurance Code is closely connected to that of the Population Registration Act,75 but registration of residence with the Tax Agency will not automatically mean that a person will be seen as resident for social security purposes. Instead, the Social Insurance Agency will make its own independent assessment of whether a person is resident according to the Social Insurance Code and thus have the possibility of accessing residence-based benefits. In doing this, the Social Insurance Agency will, for EU/EEA nationals, apply an understanding of residence in line with Regulation 883/04. When the Regulation is applicable and a person is habitually residing in Sweden in accordance with Article 1(j), no further assessment of the conditions in Swedish law will be made.76 This means that there will be no active assessment of whether the person is lawfully residing in Sweden in line with the implemented Directive 2004/38.77 Suggestions of using EU law and limiting access to certain residence-based benefits have been rejected, with reference to doubts as to whether it would be both efficient and compatible with EU law.78 ii.  Health Care Each region has a legal obligation to deliver good health care to persons residing in the region. Good health care is to be provided to those who are residents of the region according to the Population Registration Act. The connection to the population register makes it possible to distribute and allocate costs to the region responsible. Regions both finance (by levying taxes) and provide health care and medical care. Persons moving to Sweden from other EU/EEA states who will be working in Sweden for a period of less than 12 months cannot be registered as residents, but they will usually be known to the social insurance administration and access health care based on Regulation 883/04.79 The Social Insurance Agency will then

74 See case law on this matter in Cases C-140/12 Brey, ECLI:EU:C:2013:565; C-333/13 Dano, ECLI:EU:C:2014:2358; C-67/14 Alimanovic, ECLI:EU:C:2015:597; C-308/14 Commission v UK, ECLI:EU:C:2016:436. 75 See section IV.A. 76 See also Art 11 of Regulation 987/2009. 77 Försäkringskassan, Informationsmeddelande 2013:141, SOU 2017:5, 44 and 606. 78 SOU 2017:5, 46. Compare SOU 2019:53, Grundpension, 331 ff. 79 There is proof of difficulties regarding access to health care for both workers staying less than one year and non-workers, because they are not registered in the population register (National Board of Trade 2014).

136  Thomas Erhag pay the regions for access to health care in the same way as for other residents in the region. If the person intends to stay for a period longer than 12 months, they will be registered as a resident and thus receive access to health care at the expense of the region. Family members of the above categories will also have access to health care in the same region. If the family members reside in and are registered in Sweden, they will have the same access to health care as other residents in the region. A person who stays in the region temporarily without being resident and who needs urgent care will be offered such services by the region. This duty applies to all persons staying in the region, independent of citizenship. A non-economically active Union citizen without access to health care from another EU Member State does not have immediate access to more than emergency health care. To receive full access, the person needs to be lawfully residing under Directive 2004/38. This means that on arrival in Sweden, the person must have proof of access to comprehensive sickness insurance. This demand was introduced into the Population Registration Act on 1 January 2014, and into the Health and Medical Services Act, and changed a prior situation where all Union citizens who asked for it were registered and thus immediately received full access to health care.80 The demand for comprehensive sickness insurance could then be fulfilled with reference to the healthcare system of the host country, Sweden. This is no longer the case, implying that non-economically active Union citizens have been denied registration in the population register and clearly have the status of non-legal residents. From a practical perspective, one observation is that control of EU migrants has partly moved away from migration law to meeting the demands of population registration. In Swedish appeal courts, there have been several cases where EU students have been denied registration as residents as they have failed to prove their legal status as residents under the implemented Directive 2004/38. As a result, they have failed to obtain comprehensive sickness insurance cover. The failure to obtain comprehensive sickness insurance cover has also been used to deport persons in cases where they are not a burden on social assistance but merely fail to show proof of comprehensive sickness insurance cover.81 iii.  Social Assistance In Chapter 2a of the Social Services Act, there is a division of responsibilities between different municipalities. The Act allocates responsibilities between the municipality of habitual residence and the municipality of temporary residence or stay. According to the legislation, the municipality of habitual residence is always responsible for help and support, even when a person stays somewhere else. The municipality of temporary residence is, however, responsible in emergencies. This division has a bearing on situations where Union citizens visit

80 Prop

2012/13:120, 37 ff. Court of Appeal, MIG 2012:15.

81 Migration

Free Movement Rights in Sweden  137 Sweden. Help and support will be judged in the individual case, and the municipality where the person is staying will always have some degree of responsibility. Union citizens are treated in the same way as persons from Sweden in this respect. There is not much case law supporting decision-making on what kind of social assistance should be provided for foreign persons who are not habitually resident in Sweden but instead are only visiting. These persons might also be staying in Sweden without the necessary permits, or might not be fulfilling the conditions for lawful residence according to Directive 2004/38. The solution for this group of persons, which includes non-economically active Union citizens, is normally to offer emergency assistance.82 A municipality will always have the duty to assist, and there is always a responsibility to provide for emergency needs, but whether a person requires more support than at an emergency level is a question for the discretionary judgement of the municipality. To conclude, the difficulty is to set a ‘reasonable standard’ in relation to a person staying in Sweden, when this person does not fulfil the requirements for legal residence in accordance with Directive 2004/38. There is no reference in the Social Services Act to the implemented Directive, although this was suggested during the implementation procedure. V.  NATIONALITY AND NATURALISATION IN SWEDEN

Naturalisation means achieving the legal status of citizenship, a status that has partly lost its position as a demarcation line for enjoying certain rights since Sweden joined the EU in 1995. An example is provided for in social security law, where the legal prerequisite of citizenship was abolished in preparing for EU membership in the 1990s, being potentially discriminatory in various ways. Still, citizenship is important for securing certain political rights, and is also the ultimate basis for the constitutional right to stay on Swedish territory.83 The Swedish Act on Citizenship84 is mainly based on jus sanguinis, but jus soli has increased in importance, especially for children and Union citizens.85 Crucial in this context has been Sweden’s membership of the EU and adaptation to international conventions. It should be mentioned here that previous citizenship legislation was adopted after international and especially Nordic cooperation. There is also a long history of introducing provisions through

82 Socialstyrelsen, Vägledning för socialtjänsten i arbetet med EU/EES-medborgare (Socialstyrelsen 2020). 83 Instrument of Government (Regeringsformen) RF Ch. 2, 7 §. 84 Sw Medborgarskapslag (2001:82) MedbL. 85 Prop 2013/14:143, Ett medborgarskap som grundas på samhörighet, 43 ff. See especially ibid ch 7 for children and ch 8 for Union citizens. Children’s right to citizenship has accordingly been made stronger if they are born in Sweden; for Union citizens the right to residence is placed on an equal footing with a permanent residence permit.

138  Thomas Erhag agreements that are more advantageous for Nordic nationals than for other foreigners as regards acquiring Swedish citizenship.86 The Citizenship Act of 2001 reflects the basic principles expressed in Article 4 of the 1997 European Convention on Nationality, which are that: everyone should have the right to citizenship; statelessness should be avoided; no one should be arbitrarily deprived of their citizenship; and neither marriage nor a spouse’s changed citizenship during the marriage shall automatically affect the other spouse’s citizenship. A result of EU membership is that the legislation on citizenship has been further internationalised, with less specific influence from Nordic cooperation.87 The starting point for the acquisition of Swedish citizenship is, since 1 April 2015, that citizenship always will be transferred from parent to child.88 A child will always become a Swedish citizen if one parent is a Swedish citizen. Swedish citizenship can also be acquired through registration; this applies to stateless children or children without Swedish citizenship. In these cases, requirements are imposed, depending on the circumstances, on residence in Sweden during a qualifying period. Acquisition of citizenship through registration is also possible for a person over the age of 18 who has lost or been released from his Swedish citizenship, if he has a permanent residence permit, has resided in Sweden for a total period of 10 years and has resided in the country for the last two years. Adults can also acquire Swedish citizenship upon application (naturalisation). There is an important difference here compared to the situation for children, because adults do not have an absolute right to citizenship even if the conditions of naturalisation are met.89 It is thus more a matter of discretionary examination of the application by the state within the framework of an interpretation of the applicable conditions, which also means that the requirements are not without exceptions. The Act on Citizenship, 11 §, stipulates that a foreign national may, upon application, be granted citizenship if that person has: (i) proven identity; (ii) reached the age of 18; (iii) a permanent residence permit in Sweden; (iv) domicile in this country, with various demands depending on whether the person is a Nordic (two years), stateless or refugee (four years), other foreigner (five years); and (vi) led and can be expected to lead an honest way of life. There are also explicit exceptions stating that a person can be naturalised, even if the demands in § 11 are not fulfilled, if the person has been a Swedish citizen, is married to or a cohabitant (sambo) of a Swedish citizen, or if there are special reasons (särskilda skäl).90 The decision-making authority is the Swedish

86 H Sandesjö and K Björk, Medborgarskapslagen, 3rd edn (Norstedts juridik 2015) 32; Prop 1999/2000:147, Lag om svenskt medborgarskap, 65 f. 87 Prop 1999/2000:147, 65. 88 MedbL 2 §, prop 2013/14:143, 17 ff. 89 Prop 1997/98: 178, Medborgarskap och identitet, 15. 90 MedbL 12 §.

Free Movement Rights in Sweden  139 Migration Agency and the decision can be reviewed in administrative court (Migration Court, Migration Court of Appeals). There are some special remarks to make here in relation to citizens of other states in the EU and the Nordic countries. A general remark is that until 2001, Swedish citizenship legislation was based on avoiding dual citizenship. The reasons for this were several, but most often the right to vote and the right to stand for election were put forward in several countries, along with the obligation to do military service and security issues.91 However, increased internationalisation and mobility between countries led to people’s being able to feel a real and deep connection to more than one country, and thus to have a desire to retain citizenship in another country.92 In the preparatory works, it is also reported that the real disadvantages of dual citizenship appeared to be relatively limited. A normative expression of this change, frequently referred to by the legislator, is the fact that the European Convention on Nationality from 1997, contrary to the 1963 Convention, was silent on the issue of double citizenship. There is also a clear Nordic heritage visible in the modernised legislation, with more favourable treatment of Nordic nationals.93 Nordic nationals can be credited residence years in a special way, and also acquire citizenship through a special registration procedure instead of the application procedure that applies to other foreigners and EU/EEA nationals. The requirement for a permanent residence permit for naturalisation is also not applied in relation to Nordic nationals.94 This favourable treatment has its legal origins in the Nordic Convention on Citizenship.95 The implementation of Directive 2004/38 led to necessary changes in relation to EU/EEA nationals. The Directive meant that the previous system of residence permits was abolished and the concept of right of residence was introduced instead. For citizenship, a permanent right to residence according to the Directive is now equalised with the demand for a permanent residence permit to acquire Swedish citizenship.96 Residence, in this context, should be understood as legal or lawful residence, implying that all the conditions attached to the right to residence should be fulfilled during the relevant time period.

91 Sandesjö and Björk (n 86) 22; SOU 1999:34, Svenskt medborgarskap, 202; prop 1999/2000:147, 18 ff. 92 Prop 1999/2000: 147, 19. 93 MedbL 16-19 §§. 94 MedbL 18 §. 95 SÖ 2004:30, Avtal mellan Danmark, Finland, Island, Norge och Sverige om genomförande av vissa bestämmelser om medborgarskap [Agreement between Denmark, Finland, Iceland, Norway and Sweden on the implementation of certain provisions on citizenship], Köpenhamn den 14 januari 2002; SÖ 2012:6, Avtal mellan Danmark, Finland, Island, Norge och Sverige om medborgarskap ([Agreement between Denmark, Finland, Iceland, Norway and Sweden on citizenship], Köpenhamn den 13 september 2010. 96 MedbL 20 §.

140  Thomas Erhag A.  Nordic Nationals Naturalising Nordic cooperation on issues relating to citizenship and nationality was initiated as early as the 1880s when a committee started working on a proposal to achieve harmonised legislation in Denmark, Norway and Sweden. The proposal delivered in 1890 was also the model for new legislation on citizenship in Denmark (1898) and Sweden (1894), while Norway had already fulfilled the intention in its legislation from 1888. The Swedish revisions during the 1900s were all results of further Nordic cooperation. Important steps were also taken in the 1950s for further integration between the Nordic states, including the passport union from 1954, waiving the need for passports and residence permits when moving between the Nordic countries, and revised legislation on citizenship in 1950. Although the Nordic rules have been replaced by EU rules under the Schengen Agreement and by rules on free movement, Nordic nationals are still treated more favourably.97 Parliament has also by delegation made it possible for the Government, by ordinance, after agreement with Denmark, Finland, Iceland and Norway, to regulate certain conditions for becoming a Swedish citizen.98 For becoming a Swedish national, this means that there are two different procedures available to Nordic nationals. In all circumstances it is possible, according to current legislation, for the person to keep their original nationality after acquiring Swedish nationality. However, the Nordic agreement contains a provision that enables a Nordic State to decide that the acquisition of citizenship of the State may be made conditional on the person’s proving that they will thereby lose their second membership.99 As for minors under the age of 18, Nordic nationals can register for Swedish citizenship through the regional administrative board (Länsstyrelsen). The registration procedure, which is a result of the 2002 Nordic agreement, is rather simple and is open for those aged 18 or over fulfilling two additional conditions: (i) has been resident in Sweden for five years; and (ii) during this time has not been sentenced to imprisonment.100 An application according to § 18 of the Swedish Citizenship Act is a unilateral declaration of intent that gives an unconditional right to Swedish citizenship. This marks a clear difference from the naturalisation procedure, which involves the migration board in conducting an examination of the person’s qualifications in relation to the relevant conditions. If the conditions for the registration procedure are not fulfilled, a Nordic national can use the application procedure. The application is sent to the Swedish Migration Board, which processes applications to become a Swedish citizen. When a Nordic national applies to become a Swedish citizen, the general 97 Agreement between Sweden, Denmark, Finland, and Norway on the abolition of passport control at the intra-Nordic borders (n 35). 98 The latest agreement on nationality was concluded in 2010 and entered into force on 5 September 2012, SÖ 2012:6. 99 ibid. 100 MedbL 18 §.

Free Movement Rights in Sweden  141 conditions for naturalisation are to be considered.101 However, these conditions – (i) proof of identity; (ii) 18 years of age; (iii) permanent residence permit in Sweden; (iv) domicile in Sweden, accompanied by various demands depending on whether the person is a Nordic national (two years), stateless or a refugee (four years), from another country (five years); and (v) has led and can be expected to lead an honest lifestyle – are more relaxed in relation to Nordic nationals. The permanent residence permit condition is expressly waived for Nordic nationals,102 which is obvious as passports and residence permits are not necessary for Nordic nationals to qualify for legal entry and residence.103 Naturalisation also demands a certain period of domicile or residence in Sweden that for Nordic nationals is two years instead of five years for other foreigners. This favourable treatment had been settled already in 1924, and the explicit twoyear condition of residence was introduced in 1976, its being stated that ‘The community in terms of culture and social conditions in the Nordic countries should lead to the residence requirements being significantly reduced for Nordic nationals.’104 The starting point of the calculation of residence time is the date of entry, or moving to Sweden if there is an intention of staying permanently.105 In cases where the person is married to or cohabiting with a Swedish citizen, there are further possibilities to relax the conditions for naturalisation.106 B.  EU/EEA Nationals Naturalising As mentioned, one of the preconditions for naturalisation is that the person concerned is the holder of a permanent residence permit. Another condition relevant for Union citizens is that of residence in the country for five years, a condition that is meant to secure a strong connection to Swedish society.107 According to the provisions in § 11 of the Swedish Citizenship Act, a foreign national can apply for and will normally have their Swedish citizenship granted if they fulfil the basic conditions (proof of identity; has turned 18; has a permanent residence permit in Sweden; has been domiciled in this country for five years; and has led and can be expected to lead an honest lifestyle). Nordic nationals do not have to apply for residence permits to stay in Sweden and are thus exempted from this condition.108 In a similar manner, this section of the statute previously stated that a temporary residence permit for at least

101 MedbL

11 §. 20 §. 103 UL 2 kap 8, 8 a-c §. 104 Prop 1975/76:136, om ändringar i lagen (1950: 382) om svenskt medborgarskap, 29 f. 105 Sandesjö and Björk (n 86) 114. 106 MedbL 11, 12 §§. 107 MedbL 11 §. 108 MedbL 20 §. 102 MedbL

142  Thomas Erhag five years for citizens of other EU/EEA states would be equated with permanent residence. After the adoption of Directive 2004/38, there was no longer any legal basis for demanding residence permits for Union citizens. The introduction of the right to reside meant that there was no need for a permit to have the right to enter, stay and reside in another EU Member State, and accordingly this demand was expressly waived by changes in the Aliens Act Chapter 3a. Consequently, the general condition for a permanent residence permit for naturalisation was also waived, even if the Act on Swedish Citizenship was not seen as within the reach of EU law.109 There is still a possibility for Union citizens to apply for a residence permit, which can be seen as more solid proof of the right to residence.110 But for naturalisation purposes, a right to residence (uppehållsrätt), as introduced in the Aliens Act when implementing Directive 2004/38, is equal to a permanent residence permit. In accordance with the implemented Directive, a person who has had the right to residence in Sweden for five years will acquire a permanent right to residence.111 The period of five years was also seen as appropriate for establishing the strong connection to Sweden needed for citizenship.112 For a Union citizen, there is no longer a demand for a permanent right to residence or residence permit in order to be eligible for the naturalisation process.113 However, the general condition of five years’ (legal) residence is Sweden is applied equally to other foreigners. VI.  CONCLUSION: SWEDEN

Using the legal concept of residence as a precondition for obtaining legal status has the potential to be discriminatory in relation to EU nationals, and thus be in conflict with the prohibition of discrimination on grounds of nationality in EU law. Residence clauses in, say, social security law are for this reason waived by Article 7 of Regulation 883/2004. Still, residence is an important tool for deciding who belongs within the scope of a legal system and who does not. The unconditional right to reside in Sweden is reserved for persons of Swedish nationality.114 For persons of other nationalities, EU and Nordic, there are limits when it comes to the rights to enter, stay, reside, have access to social benefits and, ultimately, the possibility of becoming a Swedish citizen. The standard procedure for foreign nationals is that their lawful residence is conditional upon applying for a residence permit. After Sweden became a member of the EU in 1995, the situation for EU/EEA nationals and their rights 109 Prop 2005/06:77, Genomförande av EG-direktiven om unionsmedborgares rörlighet inom EU och om varaktigt bosatta tredjelandsmedborgares ställning, 128. 110 SOU 2005:34, Socialtjänsten och den fria rörligheten, 246. 111 UL 3a kap 6 §. 112 SOU 2005:34, 247. 113 Prop 2013/24:143, 25 f. 114 RF 2 kap 7 §.

Free Movement Rights in Sweden  143 to free movement, residence and equal treatment has been strengthened. The need for a residence permit is normally waived for EU/EEA nationals; but even if Union citizens do not need a residence permit to lawfully reside in Sweden, their status of lawful residence is not without conditions. Economically active Union citizens have gained a stronger position through the introduction of Directive  2004/38, but for non-economically active persons, residence, lawful residence and registration of residence in Sweden depend on a person’s having sufficient means of subsistence and comprehensive health insurance. Nordic nationals have a special status and a right to residence like that of Swedish citizens. This special treatment of Nordic nationals has a history that precedes EU membership, but it can still be problematic in relation to Article 351 TFEU if not seen as serving the objective reason of creating ‘balance and reciprocity’ in a relevant Nordic convention. A central element for the enjoyment of rights connected to residence is being registered as resident in the population register. Registration is conditional upon an intent to stay for longer than one year. An EU/EEA citizen will not be able to register without fulfilling the conditions of having sufficient means and sickness insurance cover. For Nordic nationals these conditions are not imposed, but the requirement for registration persists if a person is predicted to stay in the country for longer than one year. The possibility for non-economically active EU/ EEA nationals to benefit from residence-based benefits in Sweden has changed and been limited over time. Their access to social benefits is today dependent on lawful residence in a way that is not (anymore) relevant for Nordic nationals. Actions regarding rejection and repatriation that may be relevant for an EU/EEA citizen, after legislative changes in 2014, can in principle not be taken in relation to a Nordic national. It is possible that this situation of positive action in relation to Nordic nationals could conflict with non-discrimination in EU law, but one might also argue that there is no favourable treatment of Swedish citizens.115 The one-year rule for population registration has proved to be problematic for both Nordic nationals and Union citizens who stay in Sweden for less than a year, even when they work in Sweden. Failure to register means that the right to basic social security and healthcare benefits must be accessed with reference to exceptional rules in the Social Insurance Code and the Health and Medical Services Act. Persons for whom Sweden is the competent state according to Regulation 883/2004 cannot simply be denied residence-based social security benefits in Sweden without such a position’s ending up in conflict with the prohibition on discrimination in EU law. The main rule is thus that persons registered as residents in the region should be offered health care and medical care. The modification of the concept of residence that applies in social security law regarding persons who are not resident and registered in Sweden, but who according to EU law must still be covered by Swedish legislation, also applies to the right to health care and medical care.

115 See

Wenander (n 3) 93.

144  Thomas Erhag In this respect, EU law has helped to strengthen the view of the right to health care as a legal right, where EU law on the free movement of services serves as a legal possibility for claiming this right, for example, in court. It may be recalled that the right to basic social assistance and the right to health care, the two conditions that Member States may require under Directive 2004/38 for legal residence, that is the right of residence, were in fact previously granted to persons over 65 years of age based on their residence in Sweden. A person can/ could fulfil the conditions for legal residence by being resident according to the Social Insurance Code and the Health and Medical Services Act, and through their residence fulfil the conditions for sufficient means and sickness insurance by reference to the residence-based benefits offered through the Swedish social security system.116 Perhaps the most important change that has made it more difficult for EU/ EEA nationals to settle in Sweden stems from the concept of residence in the Population Registration Act; registration is no longer possible for persons who do not have a right of lawful residence according to the implemented Directive 2004/38. The lawful right of residence thus presupposes that the person in question meets the requirements for sufficient funds and comprehensive health insurance already on arrival in Sweden. A similar claim cannot be used against Nordic nationals, making them (more or less) immune to repatriation and giving them access to welfare benefits like Swedish nationals. This consequence of the more recent Swedish legal changes for Union citizens is according to my mind difficult to reconcile with the somewhat preferential treatment of Nordic nationals. Cases where Nordic nationals, in need of social assistance, have been sent home from Denmark have been criticised as being in breach of the Nordic Convention on Social Assistance and Social Services.117 It is also clear that the wording of Article 7 of the Nordic Convention is more generous than the equivalent rules in Article 7 of Directive 2004/38. Sweden has made effective use of the possibility of denying a Union citizen the right of residence for not having sufficient resources and comprehensive sickness insurance. For the right to health care, the change in conditions was implemented through an adjustment of the Population Registration Act through an amendment that came into force in 2014.118 According to the previous order, if population registration took place despite the person in question’s not having a right of lawful residence, the person was granted access to several benefits, as the status of population registration and residence is the basic condition for the right to basic protection in the Swedish welfare state. Legal residence and a residence permit have long been considered necessary for registration.119 116 Compare, from the Migration Court of Appeals, MIG 2011:19. 117 Nordiska ministerrådet. Gränshinder i Norden på social- och arbetsmarknadsområdet, 23 f. 118 FBL 4 §, SFS 2013:380. 119 The requirement for a residence permit has been justified by the fact that a foreign national staying in Sweden without the necessary residence permit should not have access to such benefits only because of being registered in the population register. SOU 2009:75, Folkbokföringen, 21. See also

Free Movement Rights in Sweden  145 The consequence of these adjustments to those people who are entitled to health care in Sweden is, however, that people who may not have lawful residence but still reside in the country do not have access to basic social rights. For this reason, the legislator has introduced a right to limited health care for people staying in the country without the necessary permits.120 However, level of care available in accordance with the above-mentioned legislation is more limited than the care provided under the Health and Medical Services Act, and the result for particularly vulnerable people has been criticised given that basic social rights (human rights) are (unproportionately) made conditional on a person’s legal status.121 Since 1995 we have also seen changes in the legislation on citizenship in line with international cooperation. The possibility of dual citizenship was introduced in 2001. Full integration into Swedish society and, ultimately, the possibility of applying for Swedish citizenship follow a period of lawful residence of five years, which also corresponds to the period needed for the right to permanent residence in Directive 2004/38. However, we also see a clear Nordic advantage here, in both material and procedural conditions for Swedish citizenship. The residence condition is two years instead of five, and it is possible to acquire citizenship through a special registration procedure instead of the application procedure that applies to other foreigners and EU/EEA nationals. From the perspective of Article 351 TFEU and non-discrimination, it is more difficult to see how the more generous treatment of Nordic nationals would conflict with EU law; Nordic cooperation around citizenship clearly pre-dates Swedish membership of the EU. Still, one might of course question the reasons for not extending this treatment to Union citizens in general. The explanation for this special treatment of Nordic nationals, in all areas mentioned in this chapter, is found in the long cooperation between the Nordic countries in trying to establish a common labour market and free movement for all persons, even stretching to equal treatment in access to all types of welfare benefits. This Nordic juridical collaborative effort, in all types of legal fields, has for Sweden since 1995 been firmly integrated within the framework of the EU and the EEA. From this perspective, it is rather difficult to see why Union citizens should be treated differently compared to Nordic nationals also being EU or EEA nationals. Unless, of course, there is no equivalent cooperation within the EU, as in the case of, for example, personal registration. It has proved difficult to use arguments of non-discrimination in this context. Article 351 TFEU states that agreements pre-dating accession should not be affected, thus allowing preferential treatment, and one might also argue that there is no discrimination in HFD 2016 ref 43. A person whose residence permit had expired could not receive residence-based benefits. 120 Lag (2013:407) om hälso- och sjukvård till vissa utlänningar som vistas i Sverige utan nödvändiga tillstånd [Law on healthcare for certain foreigners who are staying in Sweden without the necessary permits]. 121 P Leviner et al, Vilka rättigheter har barn som är EU-medborgare och lever i utsatthet i Sverige? (UNICEF 2015).

146  Thomas Erhag relation to Swedish citizens. Still, the spirit of Article 351 TFEU is to aim for equal treatment, also expressed in the Gottardo judgment, which makes it difficult to find arguments against extending special regulation of the situation for Nordic nationals to Union citizens too. The only explanation that remains is that there is a higher degree of trust and solidarity in relation to Nordic nationals, although the legal basis for upholding this enhanced cooperation is withering. This would lead me to the conclusion that the mutual recognition is simply not in place in relation to other EU/EEA nationals to the same extent as for Nordic nationals, a suggestion made all too plausible by the following words taken from preparatory works in the mid-1970s: The community in terms of culture and social conditions in the Nordic countries should lead to the residence requirements being significantly reduced for Nordic nationals.122



122 Prop

1975/76:136, 29 f.

8 Free Movement Rights in Finland PÄIVI J NEUVONEN

I. INTRODUCTION

F

innish citizens and foreigners legally resident in Finland enjoy the constitutional right ‘to freely move within the country and to choose their place of residence’.1 The Constitution of Finland stipulates that ‘[t]he right of foreigners to enter Finland and to remain in the country is regulated by an Act’.2 This chapter examines how the right to free movement is enforced in regard to two specific groups of foreigners: Nordic nationals, on the one hand, and EU/EEA nationals, on the other hand. Section II will briefly introduce the existing legal framework for free movement rights in Finland. Section III will take a closer look at the conditions for lawful residence. Section IV will explain when Nordic and EU/EEA nationals can access social rights based on their lawful residence in Finland. Section V provides an overview of how Nordic and EU/EEA nationals can become Finnish citizens. This study will pay particular attention to how the free movement rights of Nordic nationals differ from the rights enjoyed by non-Nordic EU/EEA nationals. In some instances, Nordic nationals enjoy rights that are not available to other EU/EEA nationals. While highlighting the salience of Nordic cooperation,3 the special treatment

1 Section 9 of the Constitution of Finland (Suomen perustuslaki) 731/1999. For the Ministry of Justice’s legally non-binding translation of the Constitution of Finland (with amendments up to 817/2018 included), see at https://finlex.fi/en/laki/kaannokset/1999/en19990731.pdf. For more discussion, see eg J Husa, The Constitution of Finland: A Contextual Analysis (Hart Publishing 2011) 178. 2 Section 9 of the Constitution of Finland. It is also a constitutional requirement that ‘[a] foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity’, ibid. 3 Finland became a member of the Nordic Council in 1955. The key Nordic agreements include the Protocol concerning the exemption of nationals of Denmark, Finland, Norway and Sweden from the obligation to have a passport or residence permit while resident in a Scandinavian country other than their own (SopS 17/1954), with its amendments; the Agreement between Denmark, Finland, Norway and Sweden to remove passport control at the internal Nordic borders, with its amendments (SopS 10/1958); the 1962 Helsinki Treaty of Cooperation between Denmark, Finland, Iceland, Norway and Sweden (SopS 28/1962), with its amendments; and the Nordic Agreement on Social Security (SopS 54-55/2014).

148  Päivi J Neuvonen of Nordic nationals raises difficult questions from the perspective of EU law – revealing a potentially strained relationship between European integration and other regional integration projects within the Union’s territory.4 Section VI will conclude the chapter by considering whether, and if so how far, the fact that the special treatment of Nordic nationals avails non-nationals could reconcile it with the objectives of EU free movement law. II.  THE LEGAL ARRANGEMENTS FOR NORDIC, EU AND EEA NATIONALS IN FINLAND

The Aliens Act (Ulkomaalaislaki) 301/2004, together with its amendments, lays down the legislative framework for foreigners’ entry into, residence in and the right to work in Finland. The general objectives of the Aliens Act include promoting ‘good governance and protection under the law in migration affairs’, as well as ‘managed migration and provision of international protection with respect for fundamental and human rights and in consideration of international treaties binding on Finland’.5 Finland implemented Directive 2004/386 on Union citizens’ and their family members’ right to free movement by adding a new Chapter 10 to the existing Aliens Act.7 These provisions apply to Union citizens and comparable persons, as well as to their family members and other relatives.8 The term ‘Union citizen and comparable person’ refers to ‘a citizen of a Member State of the European Union (EU) or a citizen of Iceland, Liechtenstein, Norway or Switzerland’.9 Nordic nationals fall within the personal scope of these provisions either as Union citizens (Sweden and Denmark) or as EEA nationals, understood as persons in a comparable situation (Norway and Iceland). Chapter 10 of the Aliens Act also includes provisions that only apply to Nordic nationals. These special provisions, which will be discussed in more detail in sections III.A and IV.A, use the term ‘citizen of a Nordic state’ (‘Pohjoismaan kansalainen’), indicating that other lawfully resident persons in Nordic states are not automatically covered by them. 4 Joint Declaration No 28 on Nordic Cooperation in the ACT concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden [1994] OJ C241/392 outlines that this cooperation must happen ‘in full compliance with Community law and the other provisions of the Treaty on European Union’. 5 Aliens Act (‘Ulkomaalaislaki’) 301/2004, s 1. For the Ministry of the Interior’s unofficial translation of the Aliens Act (with amendments up to 1163/2019 included), see at https://finlex.fi/en/laki/ kaannokset/2004/en20040301.pdf. 6 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC (Text with EEA relevance) [2004] OJ L158/77. 7 Acts 360/2007 and 432/2010 amending the Aliens Act 301/2004. 8 Aliens Act, s 153(1). 9 Aliens Act, s 3(2).

Free Movement Rights in Finland  149 Chapter 10 of the Aliens Act includes provisions on (i) Nordic and EU/EAA nationals’ lawful residence; (ii) their right of permanent residence; and (iii) the accepted restrictions on these rights.10 These provisions apply to Nordic and EU/EAA nationals who move to Finland, as well as to their family members who accompany them or join them later.11 They also apply to family members of Finnish citizens if these family members arrive in Finland after the Finnish citizen has exercised his or her right to free movement under EU law (the so-called returning Union citizens).12 The definition of a ‘family member’ that applies to Nordic and EU/EEA nationals and those Finnish citizens who have exercised their right to free movement is broader than the definition of a family member that applies to other Finnish citizens and non-Union citizens who apply for family reunification in Finland.13 The question of lawful residence is important because Finland has a residence-based social security system.14 In addition to this, access to services that are provided by municipalities requires a registered municipality of residence.15 These municipal services include healthcare services and various social services (eg children’s day care and elderly care services).16 The Municipality of Residence Act (Kotikuntalaki) 201/1994 defines who can have a registered municipality of residence in Finland.17 Lastly, the Nationality Act (Kansalaisuuslaki) 359/2003 regulates the acquisition and loss of Finnish citizenship. As will be seen in section V, this Act also contains special provisions on Nordic nationals. The Finnish Immigration Service (Maahanmuuttovirasto (hereinafter ‘Migri’)), an agency subordinate to the Ministry of the Interior, is the key

10 Aliens Act, s 153(2). 11 Aliens Act, s 153(3). 12 Aliens Act, s 153(4). The relevant Government Proposal states that the family relation with the Finnish citizen must have been established while the Finnish citizen was residing in another Member State. Government Proposal HE 77/2009 vp for Act 432/2010 amending the Aliens Act, 8. This is also in line with Case C-456/12 O v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B, ECLI:EU:C:2014:135, para 63. 13 For the general definition of a family member, see s 37 of the Aliens Act. For the definition of Nordic nationals’ and EU/EEA nationals’ family member, see s 154 of the Aliens Act. However, s 50 of the Aliens Act includes a special provision on the residence permits of Finnish citizens’ family members. Under this provision, relatives other than ‘family members’ of Finnish citizens can be granted a continuous residence permit ‘if refusing a residence permit would be unreasonable because the persons concerned intend to resume their close family life in Finland or because the relative is fully dependent on the Finnish citizen living in Finland’ (Aliens Act, s 50(2)). 14 For more on the Finnish social security system, see eg P Arajärvi, Social Security Law in Finland (Wolters Kluwer 2018) 19 and 26. See also, eg, T Kaarlo and T Kotkas, Sosiaalioikeus (Talentum 2016). 15 For more on the role of municipalities, see the Local Government Act (Kuntalaki) 410/2015. For an overview of municipal self-government in Finland, see eg A Hannus, P Hallberg and AE Niemi, Kuntalaki (Talentum 2009) 1–23 and 39. 16 Basic minimum subsistence benefits (perustoimeentulotuki) have been paid through the Social Insurance Institution of Finland (Kansaneläkelaitos, KELA) since 2017, but complementary and preventive minimum subsistence benefits (täydentävä ja ehkäisevä toimeentulotuki) are still paid through the municipalities. 17 Municipality of Residence Act (‘Kotikuntalaki’) 201/1994, ss 2 and 4.

150  Päivi J Neuvonen actor in implementing the Aliens Act. It makes decisions on matters concerning immigration, residence and Finnish nationality.18 Since 2017, Migri has also been responsible for processing and deciding on applications made by EU/EEA nationals to register their right of residence, or to obtain a certificate on the right of permanent residence. It is possible to appeal against Migri’s decisions to a regional Administrative Court (hallinto-oikeus).19 If the Administrative Court overturns the decision, the matter will be sent back to Migri for a new decision. Further appeal to the Supreme Administrative Court (Korkein hallinto-oikeus (KHO))20 is subject to leave.21 In matters concerning the Aliens Act, the KHO can grant leave to appeal (i) if the application of the law to other similar cases or the unity of case law requires it; (ii) for the sake of consistency in legal practice; or (iii) if there are other very serious reasons for granting leave to appeal.22 The relevant Government Proposal clarifies that, in cases that have no precedent value, leave to appeal should only be granted if the case concerns a violation of the principle of non-refoulement or another relatively clear infringement of the human rights of the individual.23 The KHO is the highest national court in administrative matters and has the obligation to refer cases for a preliminary ruling, as requested in Article 267 of the Treaty on the Functioning of the European Union (TFEU). Unlike other EU/EEA nationals, Nordic nationals do not need to register their right of residence with Migri.24 They are only required to notify the population registry of their temporary or permanent move to Finland.25 As will be seen in sections III and IV, a notification of permanent move will entitle Nordic nationals to apply for residence-based social security benefits. In Finland, the relevant registration authority for these notifications is the Digital and Population Data Services Agency (Digi- ja väestötietovirasto).26 In Åland, the relevant authority for population registration is the State Department of Åland (Statens ämbetsverk på Åland). The Åland Islands constitute an autonomous,

18 For more information about the Finnish Immigration Service, see at https://migri.fi/en/home. 19 Aliens Act (Amendment 850/2019), s 190(1). 20 Finland has a two-instance system of administrative courts, which consists of the regional Administrative Courts, the Administrative Court of Åland, the Market Court and the Insurance Court, and the Supreme Administrative Court (KHO). 21 Aliens Act (Amendment 1022/2018), s 196(1). 22 Aliens Act, s 196(4). 23 See the Government Proposal HE 32/2016 vp; also discussed in KHO 2020:12. 24 For more on this, see section III.A. 25 This is in line with Arts 1 and 2 of the 2004 Agreement Between Denmark, Finland, Iceland, Norway and Sweden on Population Registration, which was incorporated into the Finnish Legal System by Act 955/2005 and Decree 96/2006. However, unlike the Finnish Aliens Act, this Agreement does not speak of ‘citizens of Nordic States’ but refers to persons who are registered in one of the contracting states and intend to move between these states. 26 For more information about the Digital and Population Data Services Agency, see at https://dvv. fi/en/individuals.

Free Movement Rights in Finland  151 Swedish-speaking region of Finland.27 The right of domicile (hembygdsrätt) in Åland can only be granted to Finnish citizens.28 The demilitarised and neutralised status of Åland29 means that Finnish citizens who have the right of domicile in Åland are exempted from the normal military conscription.30 Moreover, only persons who have the right of domicile have the full rights to purchase real estate and conduct business in Åland.31 The relationship between Åland and the EU is regulated by a separate protocol that entails provisions for the purchasing of real estate and the right to conduct business in Åland.32 The parliament of Åland adopts laws in areas relating to the internal affairs of the region and exercises its own budgetary powers.33 Finnish state laws apply in those areas in which the parliament of Åland has no legislative powers.34 The Act on the Autonomy of Åland explicitly states that ‘the right to reside in the country, to choose a place of residence, and to move from one place to another’ belong to the legislative authority of the state.35 In general, the same rules on population registration apply both in Finland and in Åland. III.  THE LEGAL BASIS FOR ESTABLISHING RESIDENCE IN FINLAND

A.  Nordic Nationals Establishing Residence The Aliens Act includes a specific provision on Nordic nationals’ right to reside in Finland. Nordic nationals ‘have the right to enter the country directly from any of these States without a passport and to reside in Finland without registering their right of residence’ with Migri.36 The only requirement for Nordic nationals’ residence is that they ‘shall be able to prove their identity and citizenship in a reliable way’.37 When Nordic nationals enter into Finland for purposes

27 For more on the position of Åland Islands, see eg M Suksi, Sub-State Governance through Territorial Autonomy: A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (Springer 2011) 141–71, 295–311, 396–409 and 508–18. 28 Act on the Autonomy of Åland 1144/1991, ss 6–7. For further discussion, see H Öst, ‘The Concept of the Åland Islands’ Regional Citizenship and Its Impact on the Inclusion of Migrants’ (2016) 13(1) European Yearbook of Minority Issues Online 2211. 29 For more on this, see the Convention relating to the Non-Fortification and Neutralisation of the Åland Islands (1922) 9 League of Nations Treaty Series 211. 30 Act on the Autonomy of Åland, ss 6–7 and 12. 31 Act on the Autonomy of Åland, ss 10 and 11. 32 Protocol No 2 on the Åland Islands in the ACT concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded [1994] OJ C241/352. 33 Act on the Autonomy of Åland, s 18. 34 Act on the Autonomy of Åland, s 27. 35 Act on the Autonomy of Åland, s 27(2). 36 Aliens Act, s 157(1). This is in line with the Nordic Passport Control Agreement and its Supplementary Agreements. 37 Aliens Act, s 157(2).

152  Päivi J Neuvonen other than short-term residence, they ‘shall register their residence as agreed between the Nordic Countries on population registration’.38 Nordic nationals who stay in Finland for more than three months but less than a year will need to make a notification of temporary move at the Digital and Population Data Services Agency. This is different from non-Nordic EU/EEA nationals, who will need to register their right of residence with Migri if they stay in Finland for more than three months. Nordic nationals who stay in Finland for longer than 12 moths are required to make notification of a permanent move at the Digital and Population Data Services Agency. A permanent move to Finland will allow them to obtain a registered municipality of residence (kotikunta) under the Municipality of Residence Act.39 When Nordic nationals make notification of a permanent move, they will need to prove their identity in a manner that indicates their citizenship of a Nordic country. This is important, because non-Nordic EU/EEA nationals will need to possess a certificate of the registration of their right of residence by Migri before they can make notification of a permanent move and obtain a registered municipality of residence in Finland. The Aliens Act explicitly states that family members of Nordic nationals have the right of residence ‘even if they do not have sufficient financial resources’.40 Although they do not need to prove sufficient financial resources, the Aliens Act does not free non-Nordic family members of Nordic nationals from registering their residence (Union citizens) or from applying for a residence permit (third-country nationals).41 The exemption from proving sufficient financial resources places non-economically active Nordic nationals and their family members in a better position than non-economically active EU/EEA nationals, who will need to demonstrate the possession of sufficient financial resources both for themselves and for their family members if they want to stay in Finland for longer than three months, as explained further in section III.B. This difference is further reflected in the fact that the Aliens Act includes a separate, more limited provision on the deportation of Nordic nationals.42 Nordic nationals whose permanent move has not been registered in the population register by the Digital and Population Data Services Agency can be denied residence in Finland ‘if they are considered a danger to public order or 38 Aliens Act, s 157(3). See also the 2004 Agreement Between Denmark, Finland, Iceland, Norway and Sweden on Population Registration, which was incorporated into the Finnish Legal System by Act 955/2005 and Decree 96/2006. 39 This is important, because the municipalities are responsible for offering healthcare services and various social services to their own residents, as discussed in sections II and IV. 40 Aliens Act, s 158(a)(3). 41 However, the Aliens Act clarifies that family members of Union citizens and similar persons can be issued ‘a continuous residence permit on the basis of family ties’, even if their residence cannot be ‘registered or approved under chapter 10’ (Aliens Act, s 50a(1)), and that, in such situations, issuing a residence permit to Nordic nationals’ family members ‘is not conditional on the alien having sufficient financial resources’ (Aliens Act, s 50a(2)). 42 Aliens Act, s 169.

Free Movement Rights in Finland  153 security subject to the conditions laid down in section 156 or to public health subject to the conditions laid down in section 156a’.43 Nordic nationals who are registered in the population register can be deported ‘if they are considered a danger to public order or security or to public health’.44 If a Nordic national has resided in Finland for more than five years, deportation is only possible ‘on serious grounds of public order and security’, and after 10 years of residence Nordic nationals can only be deported ‘on imperative grounds of public security’.45 The incremental logic and the time-limits for deportation are identical to the provision that concerns the deportation of EU/EEA nationals (ie section 168 of the Aliens Act). However, unlike non-Nordic EU/EEA nationals, Nordic nationals cannot be deported on grounds that they have become a burden on the social security system, because their right of residence is not conditional on the possession of sufficient financial resources.46 This special provision on the deportation of Nordic nationals may appear problematic if it generates differential treatment between Nordic and non-Nordic Union citizens.47 B.  EU/EEA Nationals Establishing Residence If they have a valid identity card or passport, EU/EEA nationals can freely enter Finland.48 If an EU/EEA national or his or her family member does not have the required travel document with them when entering Finland, he or she shall be offered ‘an opportunity to obtain the necessary documents or to have them delivered to him or her, or prove by other means that he or she has a right to move and reside freely in the country’.49 Family members of EU/EEA nationals are required to have a valid passport, and may also be required to have a visa if the Regulation establishing a Community Code on visas requires visas from citizens of that country.50 However, such a family member does not need a visa if he or she can present a valid residence card, referred to in Directive 2004/38.51 Nationals of the EU/EEA countries and their family members can reside in Finland for three months without registering their right of residence and ‘without any conditions and any formalities other than the requirement to hold a

43 Aliens Act, s 169(1). 44 Aliens Act, s 169(2). 45 Aliens Act, s 169(3). 46 cf s 169 (Deportation of Nordic nationals) of the Aliens Act with s 168 (Deportation of Union citizens). 47 For more on this, see section VI. 48 Aliens Act, s 155(1). 49 Aliens Act, s 155(2). 50 Aliens Act, s 155a(1). Under s 155a(3) of the Aliens Act, ‘[v]isa applications filed by Union citizens’ family members are processed as soon as possible and free of charge under an accelerated procedure’. 51 Aliens Act, s 155a(2).

154  Päivi J Neuvonen valid identity card or passport’.52 They enjoy this short-term right to residence insofar as ‘they do not, by resorting repeatedly to social assistance provided in the Act on Social Assistance or other equivalent benefits or in other similar manner, become an unreasonable burden on the Finnish social security system during their residence’.53 If they meet one of the following conditions, EU/EEA nationals have the right of residence in Finland for more than three months: (i) they are ‘engaged in economic activity either as paid employees or self-employed persons’; (ii) they have, for themselves and for their family members, ‘sufficient financial resources and, if necessary, health insurance’ that prevent them from becoming a ‘burden’ on the social security system by ‘resorting repeatedly to social assistance provided in the Act on Social Assistance or other equivalent benefits or in some other similar manner’; or (iii) they follow a course of study at an accredited educational institution and have, for themselves and for their family members, ‘sufficient financial resources and, if necessary, health insurance’ that prevent them from becoming a ‘burden’ on the social security system by ‘resorting repeatedly to social assistance provided in the Act on Social Assistance or other equivalent benefits or in some other similar manner’.54 Family members of EU/EEA nationals have the right to residence for more than three months if the EU/EEA national meets the above conditions for residence.55 Family members of those EU/EEA nationals who are also Nordic nationals have the right of residence ‘even if they do not have sufficient financial resources’.56 The fulfilment of these conditions may be ‘reviewed’ in specific cases if there are ‘reasonable grounds’ to suspect that an EU/EEA national or his or her family members no longer meet these conditions.57 Non-Nordic EU and EEA nationals need to register their right of residence with Migri within three months of the date of their entry into Finland.58 However, EU/EEA nationals who reside in Finland as work-seekers are not required to register their residence ‘for a reasonable time beyond the threemonth time limit’ if they continue to seek employment and have ‘a genuine chance of being employed’ in Finland.59 An EU/EEA national who proves that 52 Aliens Act, s 158(1)–(2). 53 Aliens Act, s 161f(1). 54 Aliens Act, s 158a(1). 55 Aliens Act, ss 158a(1)(4) and 158(2). Section 161f(2) of the Aliens Act confirms that EU/EEA nationals and their family members have the right to reside in Finland for more than three months if they meet these conditions or, also, if they meet the conditions laid down in s 161d (concerning the residence of a family member after the death of an EU/EEA national) and s 161e (concerning the residence of a family member after a divorce) of the Aliens Act. Section 50a(1) of the Aliens Act further clarifies that the family members of a Union citizen who has registered his or her residence in Finland will be issued ‘a continuous residence permit on the basis of family ties’ if his or her ‘right of residence cannot be registered or approved under chapter 10’. 56 Aliens Act, s 158a(3). 57 Aliens Act, s 161f(3). 58 Aliens Act, s 159(1). 59 Aliens Act, s 158(3).

Free Movement Rights in Finland  155 he or she meets the requirements of registration must be issued a certificate of registration ‘immediately’.60 This certificate will include the person’s name, address and the date of registration. The fact of registration does not constitute any legal right in itself.61 The application for registering the EU/EEA national’s right of residence can be completed via the Enter Finland e-service, or by submitting a paper form at one of Migri’s service points.62 The application is subject to a processing fee and cannot be processed before the applicant has proved his or her identity and showed the required documents as originals at one of the service points. The application for registering Union citizens’ right of residence must include a proof of meeting the conditions for residence for more than three months, as laid down in section 158a of the Aliens Act. Economically active EU/EEA nationals need to attach a confirmation of engagement from the employer, or a certificate of employment or a proof of self-employment.63 Non-economically active EU/EEA nationals are required to provide a proof of sufficient resources and, if necessary, a proof of health insurance.64 Those EU/EEA nationals who stay in Finland as students must provide ‘personal assurance or any other sufficient proof that [they have] sufficient financial resources’, but they cannot be required to ‘refer to any specific amount of resources in [their] personal assurance’.65 Students who are EU/EEA nationals must also prove that they are enrolled at an accredited educational institution in Finland and that they have sufficient health insurance coverage. The registration is valid until further notice. However, after five years of continuous residence in Finland, EU/EEA nationals have the right of permanent residence, as discussed in section III.C. The KHO 2015:28 judgment concerned the requirement of ‘sufficient funds’ as a condition for registering the Union citizen’s right of residence. The applicant, a Dutch national, was living with his Finnish partner, and the partner’s mother had provided a statement that the applicant’s accommodation and living expenses would be covered by the partner’s family. The District Police66 had rejected the application for registration because the applicant had not provided proof of sufficient funds. The regional Administrative Court had rejected the applicant’s appeal against the decision of the District Police. The KHO granted

60 Aliens Act, s 159(2). 61 eg KHO 2020:166. 62 Access to Enter Finland e-service at https://migri.fi/enter-finland; Access to the paper form at https://migri.fi/documents/5202425/5824159/Euroopan+unionin+kansalaisen+oleskeluoikeuden+ rekister%C3%B6inti,+EU_REK+(en)/dc80d46a-c81a-47ed-93bb-529e97b210d6/Euroopan+union in+kansalaisen+oleskeluoikeuden+rekister%C3%B6inti,+EU_REK+(en).pdf?t=1649336500215. 63 Aliens Act, s 159a(1)–(2). 64 Aliens Act, s 159a(3). 65 Aliens Act, s 159a(4). 66 Migri has processed the applications for registration only since 2017. Until then, the District Police were the authority responsible for processing these applications.

156  Päivi J Neuvonen the applicant leave to appeal and examined the case. As part of this process, the applicant provided a statement that he had an European Health Insurance Card (EHIC) and that his partner’s family would cover his normal living expenses, and his father would provide him with money for clothes and other expenses. The KHO referred to Article 8(4) of Directive 2004/38, according to which Member States may not lay down a fixed amount of ‘sufficient resources’ but must take into account the applicant’s personal situation. The KHO also noted that the Aliens Act specifies neither the amount and source of sufficient funds, nor what kind of proof the applicant must present. The central criterion for assessing ‘sufficient funds’ is that the applicant does not repeatedly rely on subsistence benefits and, thus, does not become a burden on the social security system. The KHO decided, in favour of the applicant, that ‘overly formalistic requirements’ (‘liian muodollisia vaatimuksia’) for proving sufficient funds could not be accepted when the applicant had otherwise reliably proved that he would not become an unreasonable burden on the social assistance system in Finland. Thus the national authorities must not apply an ‘overly formalistic’ approach to what constitute sufficient financial resources for the purposes of EU/EEA nationals’ residence in Finland. In addition, an EU/EEA national who does not meet the requirements for residence under section 158a of the Aliens Act, and whose right of residence cannot be registered under section 159 of the same Act, may in exceptional situations be issued a residence permit on the basis of Chapter 4 of the Act, which includes general provisions on residence in Finland.67 Similarly, a family member of an EU/EEA national can be issued a residence permit on the basis of Chapter 4 of the Aliens Act in exceptional situations.68 Issuing a residence permit under Chapter 4 of the Aliens Act is normally conditional on a strict income requirement.69 However, in individual cases, exemptions from the income requirement are possible on grounds of exceptionally weighty reasons, or if the child’s best interests so require.70 Therefore, it is in theory possible that an EU/EEA national could be issued a residence permit even without meeting the requirements of sufficient resources if, for instance, the child’s best interests require it. In practice, however, this scenario is unlikely because the KHO’s interpretation of the child’s best interests does not always seem very forward-looking.71 The KHO 2020:166 judgment also concerned the registration of Union citizens’ right of residence. Migri had refused to register the applicant’s right

67 Aliens Act, s 153a(1). 68 Aliens Act, s 153a(2). See also s 50a of the Aliens Act (as discussed n 56). 69 According to s 39(1) of the Aliens Act, issuing a residence permit requires that the alien has secure means of support. 70 Aliens Act, s 39(1). 71 For discussion of the child’s best interests, see eg KHO 2013:97. For a more general overview of how the KHO approaches the ‘best interests of the child’, see M Sormunen, ‘“In All Actions Concerning Children”? Best Interests of the Child in the Case Law of the Supreme Administrative Court of Finland’ (2016) 24(1) International Journal of Children’s Rights 155.

Free Movement Rights in Finland  157 of residence because the applicant, who was a citizen of Estonia, could not be viewed as being under the care of her daughter who lived in Finland. The applicant had several health problems and the daughter had become her guardian (by an order of an Estonian court) during the Finnish court process. The KHO pointed out that, in light of both the order for guardianship and the evidence concerning the applicant’s health, the applicant was dependent on her daughter genuinely, economically and socially.72 On that basis, the applicant was viewed as a family member within the meaning of section 154(1)(3) of the Aliens Act. The KHO also referred to the fact that Union citizens enjoy the right to free movement and residence under the EU Treaties and that the registration of the right of residence is a supervisory (‘valvonnallinen’) rather than a constitutive (‘perustava’) measure. According to the KHO, the applicant had exercised her right to free movement as a Union citizen when she had travelled to Finland. The KHO overturned the earlier decision and returned the case to Migri. In the KHO 2013:88 judgment, the KHO had to decide whether a refusal to register the Union citizen’s right of residence was possible on grounds that the Union citizen had repeatedly threatened public order and security in Finland. The KHO pointed out that the registration of the right of residence is meant to be a ‘quick administrative measure’ and that the Aliens Act does not state that the registration of Union citizens’ right of residence could be denied on grounds relating to public order and security. The KHO referred to Articles 20, 21 and 45(1) TFEU, as well as to the ruling of the Court of Justice of the European Union (CJEU) in Oulane,73 in stating that the principle of free movement belongs to the foundations of the EU and should be interpreted broadly. The KHO concluded on this basis that when registering an EU/EEA national’s right of residence, the domestic authorities should not examine the grounds for residence more broadly than is required under section 159a of the Aliens Act. The KHO also pointed out that if a Union citizen does not meet the conditions for residence on grounds of public order and security, it is possible to issue a deportation order, in which case the registration of residence can also be denied. The procedure for deportation would nevertheless include more comprehensive guarantees for due process and protection under the law. To sum up, the KHO actively invokes different sources of EU law when interpreting the national provisions that implemented Directive 2004/38 on the free movement of Union citizens into the Finnish legal system. In addition to Directive 2004/38, the KHO directly refers to the Treaty provisions on free movement and relies on the broad interpretation of the freedom of movement by the CJEU. This positive attitude towards Union citizens’ fundamental right to free

72 The KHO referred to the relevant Government’s Proposal 205/2006 vp, according to which being under the care of a Union citizen requires that there is a genuine economic need for care and that the citizen’s personal circumstances and needs are taken into account in the assessment. 73 Case C-215/03 Salah Oulane v Minister voor Vreemdelingenzaken en Integratie, ECLI: EU:C:2005:95. The KHO refers to paras 16, 17, 18, 24 and 26 of the CJEU’s ruling.

158  Päivi J Neuvonen movement is arguably also reflected in the KHO’s finding that the requirement for sufficient resources cannot be interpreted in an overly formalistic manner. C.  EU/EEA Nationals’ Right of Permanent Residence Once they have legally resided in Finland for a continuous period of five years, EU/EEA nationals and their family members have the right of permanent residence.74 Temporary absences up to six months within a year, or longer absences to undertake compulsory military service, or one absence of a maximum of 12 months for important reasons, do not affect the continuity of residence.75 The conditions for EU/EEA nationals’ residence for more than three months no longer apply to those EU/EEA nationals who have obtained the right of permanent residence in Finland.76 Employees and self-employed persons, as well as their family members, may obtain the right of permanent residence before completing a continuous period of five years of residence if they have become entitled to an old-age pension, have worked in Finland for the preceding 12 months and have resided in Finland for a continuous period of three years, or if they have stopped working as a result of permanent incapacity to work and have lived in Finland for a continuous period of two years, or if they have worked and lived in Finland for a continuous period of three years before moving to work in the territory of another Member State and still live in Finland and return to Finland on a regular basis at least once a week.77 Employment within the territory of another EU Member State, as well as periods of involuntary unemployment and absences due to illness, are considered as periods of employment in this context.78 An EU/EEA national who has the right of permanent residence can be issued a document certifying the right of permanent residence on application.79 The document certifying the right of permanent residence must be issued immediately after the length of residence has been checked.80 However, the right of permanent residence does not depend on this certificate and applying for the certificate is voluntary. An application for certifying the permanent right of residence can be made via the Enter Finland e-service, or by submitting a paper

74 Aliens Act, s 161g(1)–(2). 75 Aliens Act, s 161g(3). 76 Aliens Act, s 161g(1). 77 Aliens Act, ss 163(1)(1)–(3) and 163(1)(5). A self-employed person who is not entitled to an oldage pension will obtain the right of permanent residence after having reached the age of 60: Aliens Act, s 163(1)(1). Section 163(1)(6) of the Aliens Act also includes a provision on the permanent right of residence of family members of employed and self-employed EU/EEA nationals, if that EU/EEA national dies while still working but before obtaining a permanent right of residence. 78 Aliens Act, s. 163(1)(3). 79 Aliens Act, s 161h(1). 80 Aliens Act, s 161h(2).

Free Movement Rights in Finland  159 form at one of the service points of the Finnish Immigration Service.81 The applicant does not need to attach any documents to the application. Migri will check the applicant’s length of stay in Finland from the Population Information System. However, the application is subject to a processing fee.82 The applicant must also make an appointment to prove his or her identity at one of the service points of the Finnish Immigration Service before the application can be processed. Family members of EU/EEA nationals who have the right of permanent residence under section 161g(2) of the Aliens Act can be issued a permanent residence card on application.83 An application for a permanent residence card by a family member of an EU/EEA national can be made via the Enter Finland e-service, or by submitting a paper application form at one of the service points of the Finnish Immigration Service. This application is also subject to a processing fee, and the applicant must prove his or her identity before the application can be processed. In the KHO 2011:64 judgment, the applicant, a citizen of Italy, had resided in Finland for more than five years and had held a residence permit between 27 October 2002 and 27 October 2007. The applicant had not registered his right of residence after the residence permit had expired and had resided in Finland without registration for 11 months. The KHO referred to the Government Proposal HE 205/2006vp, according to which it is not possible to place any conditions for residence (including the requirement of registration) after a Union citizen’s residence has become permanent within the meaning of section 161(1)(g) of the Aliens Act and Article 16(1) of Directive 2004/38. Thus, the requirement for registration could not apply to Union citizens who had resided in Finland for more than five years and who had initially registered their right of residence. The Finnish authorities could not require the applicant, who had continuously resided in Finland since in 1997, to register his residence after the expiry of the five-year residence permit in 2007. This judgment highlights the unconditional nature of Union citizens’ right of permanent residence. D.  EU/EEA Nationals’ Deportation and Entry Bans The right of EU/EEA nationals and their family members to enter into or reside in Finland can be denied if their right of residence has not been registered and if the person (i) no longer meets the conditions for entry, as laid down in sections 155, 156 and 156a of the Aliens Act;84 (ii) resorts repeatedly 81 This is the same application form as used when an EU/EEA national applies for the registration of his or her right of residence after three months (see n 62). 82 For more on Migri’s processing fees, see at https://migri.fi/en/processing-fees-and-paymentmethods. 83 Aliens Act, s 162(1). 84 Aliens Act, s 155 on Union citizens’ entry into and residence in the country; s 156 on public order and security; s 156a on public health.

160  Päivi J Neuvonen to social assistance or other equivalent benefits, or in another similar manner, during their short-term stay, becomes an unreasonable burden on Finland’s social security system; (iii) is obliged to have his or her right of residence registered but does not meet the conditions for registering the right of residence; or (iv) has an entry ban on grounds of public order or security.85 A further provision concerning EU/EEA nationals’ deportation was added to the Aliens Act by amendment 565/2019. According to this new provision, EU/EEA nationals and their family members can be deported even when their right of residence is registered, if they fail to meet the requirements of residence, as laid down in sections 158a, 161d or 161e,86 or if they constitute a danger to public order or security, subject to the conditions laid down in section 156, or to public health, subject to the conditions laid down in section 156a.87 Even those EU/EEA nationals and their family members who have already been granted a permanent right of residence can be deported ‘on serious grounds of public order or security’.88 A further qualification concerns EU/EEA nationals who have resided in Finland for 10 years or longer, because they can only be deported ‘on imperative grounds of public security’.89 Similarly, a minor EU/EEA national can only be deported ‘on imperative grounds of public security, unless the deportation is in the best interest of the child’.90 Those EU/EEA nationals who are employed or self-employed persons or work-seekers can only be deported on grounds of public order and security, as laid down in section 156 of the Aliens Act, or on grounds of public health, as laid down in section 156a of the Act.91 Under section 156 of the Aliens Act, EU/EEA nationals’ right to residence can be terminated if the person becomes a danger to public order and security.92 Removal from the country on grounds of public order or security must be ‘based exclusively on the [EU/EEA national’s] personal conduct’ and ‘not merely on any previous criminal convictions’.93 The key criterion for deportation is that ‘[t]he personal conduct of the alien shall represent a genuine, immediate and sufficiently serious threat affecting a fundamental interest of society’.94 This means that ‘[j]ustifications that are isolated from the 85 Aliens Act, s 167. 86 Aliens Act, s 158a on the right to reside in the country for more than three months; s 161d on retention of the right of residence by family members in the event of death or departure from Finland; s 161e on retention of the right of residence of family members in the event of divorce. 87 Aliens Act, s 168(1). 88 Aliens Act, s 168(2). 89 Aliens Act, s 168(3). Under s 168(5) of the Aliens Act, the term ‘imperative grounds’ refers to situations in which an EU/EEA national ‘is guilty of an act which is punishable by no less than one year of imprisonment, and where he or she, on grounds of the seriousness of the crime or of continued criminal activity, is considered a danger to public security, or where there are grounds for suspecting that he or she is seriously endangering the national security of Finland or another State’. 90 Aliens Act, s 168(4). 91 Aliens Act, s 168a. 92 Aliens Act, s 156(1). 93 Aliens Act, s 156(2). 94 ibid.

Free Movement Rights in Finland  161 particulars of the case or that rely on considerations of general prevention will not be accepted’.95 Under section 156a of the Aliens Act, EU/EEA nationals’ right to entry and residence can be restricted on grounds of public health within three months of their arrival in Finland – but not after that.96 Migri decides on deportations ‘upon a proposal by the local police department or the border control authority or on its own initiative’.97 When an EU/ EEA national is deported on grounds of public order and security or public health, Migri can issue an entry ban for a maximum of 15 years.98 An entry ban can later be withdrawn on the basis of changed circumstances, or on the basis of important personal reasons.99 It is the task of the Finnish Non-discrimination Ombudsman (Yhdenvertaisuusvaltuutettu) to oversee the enforcement of deportation orders ‘at all their stages’.100 Issuing a deportation order or an entry ban on grounds of public order or security must be based on an ‘overall assessment’, which takes into account the duration of residence, the person’s age, state of health, family and economic situation, as well as how well the person has integrated into Finnish society and culture and what his or her links to the country of origin are.101 The requirement for an overall assessment is further explained in section 146 of the Aliens Act, according to which ‘account shall be taken of the facts on which the decision is based and the facts and circumstances otherwise affecting the matter as a whole’.102 The best interests of the child and the protection of family life are considerations that should receive ‘particular attention’ in the overall assessment.103 When a deportation order or an entry ban is based on the person’s criminal activity, the overall assessment should also consider ‘the seriousness of the act and the detriment, damage or danger caused to public or private security’.104 The relevant Government Proposal clarifies that criminal convictions do not provide a sufficient ground for deportation, but certain criminal convictions can be viewed as an expression of personal behaviour that constitutes a threat to public order and security. However, it is necessary to assess how likely it is that the person will continue criminal behaviour in the future.105 In the case of entry bans, ‘account shall also be taken of whether the alien has any such family or work ties to Finland or to another Schengen State that would suffer unreasonably from the entry ban’.106

95 ibid.

96 Aliens

Act, s 156a(1)–(2). Act, ss 152(3) and 171(4). 98 Aliens Act, ss 170(1) and 171(3). 99 Aliens Act, s 170(2). 100 Aliens Act, s 152b. 101 Aliens Act, s 168b. 102 Aliens Act, s 146(1). 103 ibid. 104 ibid. 105 HE 205/2006 vp; also discussed in KHO 2016:12. 106 Aliens Act, s 146(2). 97 Aliens

162  Päivi J Neuvonen In the KHO 2006:83 judgment, a Union citizen had resided in Finland for 11 years and had family relations and a part-time job in Finland. The applicant was a guardian of two children together with his spouse, although the children did not live with the applicant. With reference to Orfanopoulos and Others,107 the KHO noted that, in principle, the person’s behaviour and other post-decision factors could show that the threat to public order and security had ceased to exist or had significantly decreased. Yet it was possible to deport the applicant and to issue a five-year entry ban in spite of the applicant’s family ties and the long residence in Finland. This was so because the applicant’s drug offences arguably showed negligence towards the law and caused a danger to society and the safety of other individuals. This judgment pre-dates Act 360/2007, which implemented Directive 2004/38 into the Finnish legal system. Therefore, it needs to be compared with the KHO’s more recent case law on the deportation of Union citizens. The KHO 2016:12 judgment also concerned deportation and the issuance of an entry ban. The applicant, a citizen of Romania, was married to a Finnish citizen. The couple had a child who was in their shared custody. The applicant had a permanent employment contract and his right of residence was registered. The applicant had committed several criminal offences, some of which were aggravated. The KHO referred to the CJEU’s rulings in Bouchereau, Orfanopoulos and Oliveri, and European Commission v the Netherlands.108 The KHO also highlighted that the assessment must take into account the applicant’s family situation, economic situation, and his degree of integration into Finnish society and culture. However, the KHO held that the applicant’s criminal activity created a genuine, direct and sufficiently serious threat to the fundamental interests of society. The applicant’s short stay in Finland and his repeated commission of crimes meant that the reasons for deportation weighed more heavily than the reasons against it in the overall assessment. The fact that the sentence in question was probationary could not alone be a decisive factor. In the KHO 2016:11 judgment, the applicant, a citizen of Estonia, had occasionally resided in Finland since 2009 and had had a permanent employment relationship in Finland since 2012. The applicant had not registered their right of residence as a Union citizen. The applicant had been convicted of aggravated drunken driving and driving without permission several times. The KHO concluded that road safety falls within the scope of the public interests that are protected under section 156(1) of the Aliens Act. The applicant’s behaviour accordingly constituted a genuine, direct and sufficiently serious threat

107 Joined Cases C-482/01 and C-493/01 Georgios Orfanopoulos and Others and Raffaele Oliveri v Land Baden-Württemberg, ECLI:EU:C:2004:262. 108 Case C-30/77 Regina v Pierre Bouchereau, ECLI:EU:C:1977:172; Ofranopoulous and Oliveri (n 107); and Case C-50/06 Commission of the European Communities v Kingdom of the Netherlands, ECLI:EU:C:2007:325.

Free Movement Rights in Finland  163 to the fundamental interests of society. The applicant had not resided permanently in Finland, had no family members in Finland and lived in a caravan. It was possible to deport the applicant to Estonia and issue a three-year entry ban. As in KHO 2016:12, the KHO referred to Bouchereau, Orfanopoulos and Oliveri, and European Commission v The Netherlands in support of this reasoning.109 Unlike these earlier cases, the more recent KHO 2021:160 judgment overturned Migri’s decision. Migri had decided to deport a Union citizen from Finland to Estonia based on his criminal behaviour, which included two burglaries in March 2018. The applicant had submitted an application for registering his right of residence in 2019 and held a permanent employment contract as of 2020. The applicant’s two brothers also resided in Finland. The KHO observed that the Administrative Court had based its decision solely on the applicant’s criminal conviction and that, therefore, the legal assessment had been defective (‘puutteellinen’). The KHO highlighted that deportation must be based solely on the individual’s behaviour and that deportation on grounds of public order and security constitutes a restriction on Union citizens’ right to free movement, meaning that it must be interpreted restrictively.110 The KHO also pointed out, with reference to the CJEU’s case law, that it would need to assess whether the threat to public order or security had ceased to exist or had significantly decreased after the decision on deportation was made. The applicant’s criminal activities had taken place three years ago and the applicant had not committed any new criminal offences. The applicant had also provided proof of his employment in Finland and, according to the KHO, the applicant’s situation had become stable. On the basis of these factors, and taking into account the nature of the applicant’s criminal offences and the interpretative effect of EU law, the KHO concluded that the applicant’s behaviour no longer constituted a genuine, direct and sufficiently serious threat to the essential interests of society. To sum up, deportation orders and entry bans on grounds of public order and security form a central theme in the KHO’s case law on EU/EAA nationals’ right of residence. The KHO actively draws on the CJEU’s relevant case law when interpreting the provisions of the Aliens Act on the deportation of Union citizens. It is also worth noting that, in the recent KHO 2021:160 judgment, the KHO relied on the interpretative effect of EU law as a key factor in deciding that the applicant could not be deported from Finland.

109 ibid. 110 The KHO referred to Joined Cases C-331/16 and C-366/16 K v Staatssecretaris van Veiligheid en Justitie and HF v Belgische Staat, ECLI:EU:C:2018:296, paras 40, 41, 52, 54 and 56; Case C-430/10 Hristo Gaydarov v Director na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti, ECLI:EU:C:2011:749, paras 37–38; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri (n 107), paras 64–65 and 79.

164  Päivi J Neuvonen IV.  ACCESS TO SOCIAL RIGHTS/INCLUSION IN THE RESIDENCE-BASED SOCIAL SYSTEM IN FINLAND

A.  Nordic Nationals’ Access to Social Rights Nordic nationals’ right to residence is not conditional on economic activity or the possession of sufficient financial resources. This means that their right of residence in Finland cannot be terminated on grounds that they have become an unreasonable ‘burden’ on the social security system. As explained in section III, family members of Nordic nationals also have the right to residence irrespective of whether they have sufficient financial resources.111 Nordic nationals who stay in Finland only temporarily do not normally obtain a registered municipality of residence. This is important because municipalities offer many public services, including healthcare services, to persons who are registered in that municipality. The right to a registered municipality of residence in Finland is determined by the Act on the Municipality of Residence.112 Nordic nationals obtain a registered municipality of residence when they make notification of a permanent move to the Digital and Population Data Services Agency. After notification of a permanent move, Nordic nationals can also apply for different KELA (Social Insurance Institution of Finland) benefits. However, the notification of a permanent move does not grant automatic access to the KELA benefits; the KELA decides on entitlement to these benefits upon application.113 B.  EU/EEA Nationals’ Access to Social Rights The right of residence of EU/EEA nationals is not unconditional. The application for registering the right of residence after three months must include proof of meeting the conditions for residence, as laid down in section 158a of the Aliens Act. For EU/EEA nationals who are not employed or self-employed persons or work-seekers, these conditions include the requirement of sufficient financial resources and, if necessary, health insurance.114 If the applicant is a student, he or she must assure or prove that he or she has sufficient financial resources and, if necessary, health insurance, but cannot be required to ‘refer to any specific amount of resources in his or her personal assurance’.115 These requirements for residence determine the extent to which EU/EEA nationals have

111 Aliens Act, s 158a(3). 112 Act on the Municipality of Residence, ss 2, 4 and 6. 113 The only exceptions to this concern hospital expenses, medicine expenses and travel expenses, which can usually be reimbursed directly. For more information (in Finnish), see at www.kela.fi/ etuuden-hakeminen (accessed 15 March 2022). 114 Aliens Act, s 158a(1)(2). 115 Aliens Act, ss 158a(1)(3) and 159a(4).

Free Movement Rights in Finland  165 access to social rights in Finland. Namely, section 158a of the Aliens Act outlines that non-economically active EU/EEA nationals must not become a burden on the social security system in the sense that they would be ‘resorting repeatedly to social assistance provided by the Act on Social Assistance or other equivalent benefits’.116 The central criterion for access to social assistance and equivalent benefits is that resort to these benefits must not happen repeatedly. The phrase ‘resorting repeatedly’ leaves some room for interpretation, for it implies that recourse to social assistance cannot automatically result in the termination of the right of residence. What this requirement means in practice is clarified by the relevant Government Proposal as follows: first, a non-economically active Union citizen can choose how to prove the existence of sufficient resources;117 second, recourse to social assistance must be recurring and, moreover, regular before it can constitute an unreasonable burden on the social security system.118 Temporary difficulties cannot be regarded as constituting an unreasonable burden in this sense.119 Each case must be assessed individually and the length of residence, personal circumstances and the amount of assistance applied for must be taken into account.120 The requirement that non-economically active Union citizens have health insurance for themselves and for their family members ‘if necessary’ points to the fact that the need for health insurance is unusual, because most non-economically active Union citizens who reside in Finland for more than three months have a registered municipality of residence, in which they can access public healthcare services.121 Similarly, their entitlement to compensation for pharmaceutical expenses and certain benefits by the central government depends on being residents of a municipality. In practice, any person who is permanently resident and spends most of his or her time in Finland is covered by the National Health Insurance (NHI) scheme and can be issued a national health insurance card.122 The requirement for necessary health insurance may arise, for example, if an EU/EEA national who has moved to Finland as a job-seeker resides in Finland for more than three months and his or her health insurance in the Member State of nationality ends before he or she has obtained a registered municipality of residence in Finland.123 Students who hold the EHIC do not need health insurance in Finland. These

116 Aliens Act, ss 158(1)(2)–(3). As has been seen in section III.B, s 168 of the Aliens Act also allows the deportation of Union citizens who fail to meet the conditions for residence under s 158 of the Aliens Act. 117 Government Proposal HE 205/2006, 34. 118 ibid. 119 ibid. 120 ibid. 121 EU/EAA nationals, as well as citizens of Switzerland, can normally obtain a municipality of residence (kotikunta) once they have registered their right of residence in Finland. 122 For more information on the National Health Insurance Scheme, see at http://kela.fi/web/en/ national-health-insurance. 123 Government Proposal HE 205/2006, 34.

166  Päivi J Neuvonen students have access to necessary healthcare services at the same cost and under the same conditions as people living permanently in Finland, including medical treatment for a chronic illness and medical treatment during pregnancy and childbirth. Moreover, students who stay in Finland for more than two years may usually obtain a KELA card, although they will not have access to all KELA benefits.124 The KHO has reviewed non-economically active EU/EEA nationals’ access to social benefits in two key cases. The KHO 2015:173 judgment concerned the right of a non-economically active Union citizen to receive subsistence benefits in Finland. The applicant was a retired Union citizen who had moved to Finland in 2012. When the applicant’s right of residence as a Union citizen was registered, his daughter, who also lived in Finland, had made a commitment to look after him. The applicant applied for minimum subsistence benefits to cover his rent in June and July 2013, although his daughter had already paid the rent. The application was rejected and the Board of Social and Health Affairs (sosiaali- ja teveyslautakunta) rejected the applicant’s request for administrative review on the ground that the applicant had resided in Finland for less than five years. The Board held that in accessing minimum subsistence benefits, only those Union citizens who have the right of permanent residence would be in a comparable position with permanent residents who have a registered municipality of residence in Finland. The Administrative Court repealed the Board’s decision and ruled that the applicant would have the equal right to minimum subsistence with Finnish citizens because his right of residence as a Union citizen had been registered. The Administrative Court also held that the daughter’s commitment to cover the applicant’s living expenses would have no legal relevance. The KHO granted the local authority leave to appeal and repealed the decision of the Administrative Court. The central question in KHO 2015:173 was whether the applicant was permanently residing in Finland within the meaning of section 14(1) of the Social Assistance Act (Toimeentulolaki) 1412/1997, which held that ‘[s]ocial assistance is granted on application by the body in the municipality where the person or family lives regularly’.125 The definition of residence in the Social Assistance Act is not directly linked to how residence is defined in the Aliens Act. However, as part of its reasoning, the KHO referred to the CJEU’s judgments in Brey, Dano and Alimanovic.126 The KHO pointed out that, according to Recital 10 to Directive 2004/38, migrant Union citizens must not become an unreasonable

124 For more on this, see at www.kela.fi/web/en/from-other-countries-to-finland-students-andresearchers. 125 Note that the current wording of ss 14 and 14a of the Social Assistance Act (amended by Act 815/2015) is different because basic supplementary benefits are now administered by the KELA. 126 Case C-140/12 Pensionsversicherungsanstalt v Peter Brey, ECLI:EU:C:2013:565; Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358; Case C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others, ECLI:EU:C:2015:597.

Free Movement Rights in Finland  167 burden on the social assistance system in the host Member State during the initial period of residence, and that their right to free movement for more than three months is subject to conditions. The Court also explicitly mentioned the CJEU’s conclusion in Dano that non-economically active Union citizens must have sufficient resources for themselves and for their family members to meet the conditions for lawful residence under Article 7(1)(b) of Directive 2004/38, and that the objective of these conditions is to prevent non-economically active migrant Union citizens from using social assistance to fund their stay in the host Member State. The economic situation of the applicant was assessed without taking into account the applied minimum subsistence benefits. The KHO concluded that the local authority would need to examine the application for subsistence benefits in light of section 14 of the Social Assistance Act, irrespective of whether the applicant’s right to residence as a Union citizen had been registered and also irrespective of whether he had a right of permanent residence as a Union citizen. Here the Court referred to its finding in the earlier KHO 2015:28 judgment that registration of EU/EEA nationals’ right to residence is a supervisory act, which does not establish the right of residence in itself. The KHO ruled on this basis that the registration of the right of residence in itself could not have implications for the right to equal treatment. Thus, the applicant would not have the equal right to minimum subsistence benefits on the ground that his right of residence as a Union citizen was registered. Instead, non-economically active Union citizens who have resided in Finland for more than three months, but less than five years, would primarily need to support themselves without recourse to minimum subsistence benefits, and the applicant’s own income and funds were given priority over such benefits. Because the applicant’s daughter had in fact paid his rent, this payment was taken into account in assessing his need for minimum subsistence benefits. The local authority had the right to reject the application for minimum subsistence benefits in this case. In KHO 2015:173, the applicant’s right to residence was not contested. This was different in the KHO 2016:75 judgment, in which the KHO needed to decide whether two Union citizens, both German nationals, could be deported from Finland on grounds that they burdened the social security system. Migri had decided to expel A and B, who were spouses, to Germany. They had arrived in Finland in March 2011. A had registered her right of residence as an employed person. She had worked in Finland for less than two months and had submitted an application for minimum subsistence benefits in June 2011. From June 2011 onwards, social assistance had been the only source of income for A and her family, including B and their four children. B had registered his right of residence as A’s family member. He had been registered as a work-seeker in June 2011 and had received unemployment benefits from July 2011 onwards. By January 2012, the family had received €11,310.95 of subsistence benefits and had also accessed other available KELA benefits. Migri had decided to expel A and B to their state of origin because they did not meet the requirements for residence under

168  Päivi J Neuvonen section 158a of the Aliens Act. The Administrative Court had rejected the applicants’ appeal against Migri’s decision. The KHO granted leave to appeal but upheld the decision of the local Administrative Court. A and B argued that they had become unemployed involuntarily and that A had serious health problems, which had made it impossible for her to continue working in Finland. They also stated that they had no connections to Germany because they had moved to Finland from the United Kingdom. Migri argued that, in light of the applicants’ personal circumstances and the amount of social assistance they had already received in Finland, their economic difficulties could not be regarded as temporary and that they constituted an unreasonable burden on the social security system. The KHO noted that deportation under section 168a of the Aliens Act could not automatically follow from recourse to social assistance. According to Article 14(4)(b) of Directive 2004/38 and section 168a of the Aliens Act, a non-economically active Union citizen who has been registered as a work-seeker cannot be expelled as long as he or she has a genuine chance to become employed. The Court also referred to the relevant Government Proposal,127 according to which temporary difficulties could not constitute an unreasonable burden, but each case must be assessed individually. The KHO mentioned the CJEU’s judgments in Trojani, Commission v Belgium, Brey, Dano, and Alimanovic.128 With reference to Dano, the KHO noted that Article 7(1)(b) of Directive 2004/38 seeks to prevent non-economically active Union citizens from using social assistance to fund their stay in the host Member State. Whether a non-economically active Union citizens has ‘sufficient funds’ needs to be examined concretely (‘konkreettisesti’), without taking into account the applied social assistance. Because A and B had resided in Finland for less than five years, it was permissible to assess whether they placed an unreasonable burden on the social security system. In the KHO’s view, neither of the applicants had provided evidence that they would have a genuine chance of becoming employed in Finland.129 Because A and B had received social assistance repeatedly and regularly, the ground for their deportation existed. The KHO’s overall assessment of the applicants’ situation established that the length of A and B’s residence in Finland was not long in comparison to their previous residence in other countries. Although A had health problems, they would not raise an obstacle to her expulsion to Germany. The KHO also held that the applicants’ integration into the Finnish society was not very strong

127 Government Proposal HE 205/2006 vp. 128 Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS), ECLI:EU:C:2004:488; Case (C-408/03 Commission of the European Communities v Kingdom of Belgium, ECLI:EU:C:2006:192; Case C-140/12 Pensionsversicherungsanstalt v Peter Brey, ECLIEU:C:2013:565; Case C-333/13 Dano (n 126); Case C-67/14 Alimanovic (n 126). 129 In the case of B, this conclusion was based on the fact that he had received unemployment benefits for most of his stay in Finland and had not shown that his chance to find employment in the future would have improved.

Free Movement Rights in Finland  169 because they had not been economically active in Finland. How the expulsion of A and B would affect the interests of their four children was one of the factors that was taken into account as part of this overall assessment. In the KHO’s view, however, the provision concerning the child’s best interests could not prevent the deportation of the child’s parents on grounds that the child could not be deported. Although the children were at school and had made friends in Finland, the Court concluded that they could reasonably be expected to adjust to their new life in Germany.130 Here the KHO seems to invoke a primarily economic view of relevant integration and gives a narrow interpretation to the best interests of the child. To sum up, the KHO actively relies on the CJEU’s case law when it interprets Union citizens’ right to access social benefits in Finland. In this context, the CJEU’s more recent case law has allowed the KHO to prioritise Union citizens’ own resources over their equal access to social assistance, and even to deport non-economically active Union citizens to their country of origin when these individuals have become an unreasonable burden on the social security system in Finland. Although the KHO’s case law recognises the fundamental nature of Union citizens’ right to free movement under EU law, it clearly does not want to adopt a more favourable interpretation of these rights than is generally expected by the CJEU. V.  NATIONALITY AND NATURALISATION IN FINLAND

Finnish citizenship is primarily obtained through the parentage principle (ius sanguinis). In certain situations, Finnish citizenship can also be acquired through the birthplace principle (ius soli), legitimation (through parents’ marriage), declaration and naturalisation by application. According to the Constitution of Finland, ‘[a] child acquires Finnish citizenship at birth and through the citizenship of its parents’, but ‘[c]itizenship may also be granted upon notification or application, subject to the criteria determined by an Act’.131 The more detailed requirements for acquiring, retaining and losing Finnish citizenship are provided by the Nationality Act (Kansalaisuuslaki) 359/2003 and its amendments.132 The 2003 Nationality Act accepts dual citizenship both for Finnish citizens who obtain a citizenship of another country and for naturalised Finnish citizens. The general conditions for naturalisation require that the person: (i) is at least 18 years old or has married before that; (ii) is permanently resident and

130 For more discussion on this aspect of the KHO’s case law, see section VI. 131 Constitution of Finland, s 5(1). 132 Nationality Act 359/2003, s 1. For an overview of the Finnish nationality legislation and for the intentions behind the 2003 Nationality Act, see the Government Proposal HE 235/2002 vp and J Fagerlund, ‘Finland’ in R Bauböck et al (eds), Acquisition and Loss of Nationality, vol 2: Country Analyses (Amsterdam University Press 2006) 152.

170  Päivi J Neuvonen domiciled in Finland and has resided in Finland for at least six years without interruption, or for at least eight years after reaching the age of 15, of which two years have been without interruption; (iii) meets the integrity requirement (ie has not committed any punishable act); (iv) has not failed to provide maintenance or to meet his or her payment obligations under public law; (v) can provide a reliable account of his or her livelihood; and (vi) has satisfactory oral and written skills either in Finnish or in Swedish, or, alternatively, has similar skills in the Finnish sign language.133 It has been noted that under the now repealed 1968 Nationality Act, an administrative practice had developed whereby no strict language requirement was applied to Danish and Norwegian citizens because they could understand Swedish.134 However, the previous Nationality Act did not include a language requirement similar to that in the current 2003 Nationality Act.135 A further limitation on naturalisation concerns situations in which a person’s acquisition of Finnish citizenship would conflict with the interests of the state.136 Exceptions to the general requirements for naturalisation are only possible as explicitly laid down in sections 18–23 of the Nationality Act. These provisions include exceptions concerning the period of residence (sections 18–18a) and the language skills requirement (section 18b), the integrity requirement (section 19), refugees and involuntarily stateless persons (section 20), former Finnish citizens and Nordic nationals (section 21), the spouses of Finnish citizens (section 22), and coapplicants (section 23). Non-Nordic EU/EEA nationals will need to comply with the general requirements for naturalisation if they wish to acquire Finnish citizenship. This is different for Nordic nationals. First, a Nordic national may obtain Finnish citizenship by application ‘if he or she is and has been permanently resident and domiciled in Finland for the last two years without interruption’.137 Second, Nordic nationals form one of the groups that can obtain Finnish citizenship by declaration.138 The declaration procedure is both faster and cheaper than the standard application procedure.139 A Nordic national who has reached the

133 Nationality Act, s 13(1). 134 Fagerlund (n 132) 167–68. For earlier discussion (before the adoption of the current Nationality Act), see also A Rosas and M Suksi, ‘Finnish Nationality Law’ in B Nascimbene (ed), Nationality Laws in the European Union (Butterworths 1996) 267. 135 Section 18b of the Nationality Act on the exceptions to the language requirement does not mention Nordic nationals, but exceptions to the general language requirement are also possible on ‘other very weighty grounds’ (s 18b(4)). 136 Nationality Act, s 13(3). 137 Nationality Act, s 21. However, this exception only concerns the residence requirement (s 13(1)(2) of the Nationality Act) and not the other requirements for naturalisation. See also s 24(4) of the Nationality Act on the required period of residence when a child who is a Nordic national applies for naturalisation. 138 Migri can in certain situations grant Finnish citizenship by declaration. 139 According to the Migri website (as of 11 February 2022), the expected processing time for citizenship applications is 9–23 months and for declarations is 3 months. The current processing fee for electronic citizenship applications is €460 and for declarations is €120.

Free Movement Rights in Finland  171 age of 18 years can acquire Finnish citizenship by declaration if that person has acquired his or her citizenship in another Nordic country ‘through a procedure other than naturalisation’, is and has been permanently resident and domiciled in Finland for the last five years, and has not been sentenced to a penalty involving deprivation of liberty during that period.140 These requirements must be met at the time of submitting the declaration. Nordic nationals who do not meet these requirements for acquiring Finnish citizenship by declaration can nevertheless apply for naturalisation, as previously explained. The Nationality Act also includes a specific provision on persons who have lost their Finnish citizenship and have obtained citizenship of another Nordic country after that. These persons can acquire Finnish citizenship by declaration if they are permanently resident and domiciled in Finland.141 VI.  THE SPECIAL TREATMENT OF NORDIC NATIONALS: A PROBLEM OR NOT?

The free movement rights of both Nordic nationals and other EU/EEA nationals are included in Chapter 10 of the Aliens Act, which implemented Directive 2004/38 into the Finnish legal system. In practice, however, several provisions explicitly distinguish the rights of Nordic nationals from the rights of non-Nordic EU/EEA nationals. First, Nordic nationals do not need to register their right of residence with Migri but can make notification of either a temporary or a permanent move directly at the Digital and Population Data Services Agency or at the State Department of Åland. Second, the right of residence of Nordic nationals and their family members is not conditional on the possession of sufficient financial resources when they do not engage in economic activity in Finland. Third, because Nordic nationals’ right of residence is not conditional on the possession of sufficient financial resources, they can only be deported on grounds of public order and security or public health. This is different for noneconomically active EU/EEA nationals, who can be deported if they become an unreasonable burden on the social security system in Finland by repeatedly having recourse to the social assistance or equivalent benefits before they have obtained the right of permanent residence. Lastly, Nordic nationals are treated more beneficially under the Nationality Act. Both the reduced residence requirement and the possibility to obtain Finnish citizenship by declaration in certain situations place Nordic nationals in a more beneficial position than other EU/ EEA nationals who want to become Finnish citizens. From one perspective, the special treatment of Nordic nationals simply reflects Finland’s commitment to Nordic cooperation. The strategic vision of the Nordic Council of Ministers postulates that ‘the Nordic region will become

140 Nationality 141 Nationality

Act, s 30(1). Act, s 30(2).

172  Päivi J Neuvonen the most sustainable and integrated region in the world by 2030’.142 Similarly, the website of the Ministry for Foreign Affairs for Finland states that ‘The Nordic countries are Finland’s most natural partners. The Nordic countries share similar values concerning democracy and openness and values concerning the welfare state. The Nordic countries have a long history of cooperation.’143 Nordic cooperation dates back further than Finland’s membership of the EU. This was affirmed by the Joint Declaration on Nordic Cooperation in the Accession Treaty, by which Finland and Sweden joined the EU in 1995.144 However, such cooperation is meant to happen ‘in full compliance with Community law and the other provisions of the Treaty on European Union’.145 From another perspective, the special treatment of Nordic nationals constitutes differential treatment in comparison to non-Nordic nationals, including non-Nordic Union citizens.146 This raises the question of whether the special treatment of Nordic nationals undermines Finland’s obligations under EU law either by generating direct or indirect nationality discrimination, or by placing non-discriminatory obstacles to the free movement of non-Nordic Union citizens who do not fall within the personal scope of these special provisions. If the answer to either of these questions is affirmative, it is important also to consider whether the special treatment of Nordic nationals could nevertheless be justified under EU free movement law. The special treatment of Nordic nationals does not benefit Finnish nationals. Therefore, it differs from classic discrimination cases where an EU Member State would favour its own nationals at the expense of nationals of other Member States either directly or indirectly. It is also difficult to argue that the special treatment of Nordic nationals would prevent other Union citizens from effectively exercising their fundamental right to free movement, since Finland has fully implemented Directive 2004/38 into national legislation and the KHO, with reference both to the EU Treaties and the CJEU’s case law, seems to interpret Union citizens’ fundamental right to free movement broadly. However, even if the objectives of EU free movement law are not directly compromised, it can be argued that treating Nordic and non-Nordic Union citizens differently will undermine the idea of Union citizenship as a ‘fundamental status of nationals

142 See at www.norden.org/en/declaration/our-vision-2030 (accessed 11 February 2022). 143 See at https://um.fi/nordic-cooperation (accessed 9 February 2022). 144 Joint Declaration 28 on Nordic Cooperation (n 4). The key Nordic agreements are listed in n 3. 145 Joint Declaration 28 on Nordic Cooperation (n 4). P Leino and L Leppävirta, ‘Does Staying Together Mean Playing Together? The influence of EU law on co-operation between EU and non-EU states: the Nordic example’, (2018) 43(3) EL Rev 295, 303 and 304 point out that ‘the EU States must apply EU rules in their mutual relations and are prevented from making national arrangements with regard to other Nordic countries, should the Nordic Agreement somehow influence the application of EU law’. 146 For example, M Tervonen, ‘The Nordic Passport Union and Its Discontents: Unintended Consequences of Free Movement’ in J Strang (ed), Nordic Cooperation: A European Region in Transition (Routledge 2017) 131, 135 observes that ‘a de facto merger of two areas of free mobility did not mean full symmetry of rights for all their citizens’.

Free Movement Rights in Finland  173 of the Member States’.147 But Union citizenship is still in the process of becoming the status that it arguably is ‘destined to be’.148 From this perspective, it would seem short-sighted to dismiss successful attempts at treating economically inactive non-nationals more equally than is currently required under EU free movement law. On the contrary, it may be more fruitful to ask what Union citizenship could learn from the project of Nordic cooperation in this context. These observations suggest that the special treatment of Nordic nationals does not necessarily conflict with the ‘spirit’ of EU free movement law, even if a discomforting lacuna currently appears between the rights of Nordic and nonNordic Union citizens. However, it is also true that ‘the compatibility of several Nordic arrangements with EU law remains formally unaddressed’.149 The advancement of Nordic cooperation opens up a whole set of difficult questions about under what conditions regional cooperation that goes beyond the current requirements of EU free movement law should be possible within the EU.150 A related question is whether the EU can tolerate other integration projects within its territory – or whether its legal framework, including the principle of primacy, necessarily sweeps them out of existence. From the perspective of European integration, the ultimate red line may be that such cooperation should always be open for any willing Member State on the basis of reciprocity, meaning that geopolitical or historical loyalties cannot alone dictate the ‘inner circle’ of beneficiaries. Conversely, however, if EU law does prevent the present forms of cooperation between Nordic countries, it will also need to more directly address the now-common charge that EU free movement law has the effect of ‘levelling down’ rights within those Member States that strive for more extensive social protection. This effect would come across as particularly paradoxical if it is spearheaded against protection that Member States are willing to offer to nonnationals in their territory – as is the case with the special treatment of Nordic nationals in Finland. VII. CONCLUSION

This chapter compared the free movement rights of Nordic nationals and nonNordic EU/EEA nationals in Finland, with a particular focus on the right of

147 eg Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, para 31. 148 ibid. 149 Leino and Leppävirta (n 145) 304. Leino and Leppävirta also observe that ‘[t]o the extent that conflicts between Nordic arrangements and EU obligations exist, they have not ranked high on the Commission’s order of priorities’: ibid 304. 150 For instance, the cooperation between Benelux countries under what is now Art 350 TFEU can derogate from the existing EU rules only to the extent that it goes further than the existing forms of cooperation between EU Member States. See, eg, Case C-105/83 Pakvries BV v Minister van Landbouw en Visserij, ECLI:EU:C:1984:178, para 11.

174  Päivi J Neuvonen residence and access to social rights in the residence-based social security system. This analysis highlighted that Nordic nationals enjoy stronger rights than other EU/EEA nationals in regard to both residence and naturalisation. Based on these findings, the chapter considered whether the special treatment of Nordic nationals can be reconciled with the objectives and the ‘spirit’ of EU free movement and citizenship law. This discussion exposed a potentially strained relationship between overlapping integration projects within the territory of the Union.

9 Free Movement Rights in Norway CHRISTIAN NK FRANKLIN

I. INTRODUCTION

T

his chapter will look to explain and compare the conditions for European Union/European Economic Area (EU/EEA), Nordic and European Free Trade Association (EFTA, ie Swiss) nationals’ right to residence, access to social rights and naturalisation when moving to Norway. After briefly describing the legal, administrative and judicial arrangements generally applicable at national level in these fields (section II), we shall then proceed to look at how Norwegian law interacts more specifically with Union citizenship and free movement law through EEA (and EFTA) law, as well as the free movement rights created through various Nordic initiatives, on various issues: first, concerning rights of residence in Norway (section III); second, with regard to access to the Norwegian social security system (section IV); and, third, concerning acquisition of Norwegian nationality (section V). The final section will be devoted to two brief discussions, concerning the Norwegian rules on deportation and potential differences in the treatment of Nordic and other EU/ EEA nationals regarding refusals of entry into Norway, and how the rights of free movement enjoyed under the EFTA Convention fit with the EU/EEA and Nordic agreement rules (section VI). II.  THE LEGAL ARRANGEMENTS FOR EU, EEA AND NORDIC NATIONALS IN NORWAY

The starting point for EU, EEA and Nordic nationals arriving in Norway is (unsurprisingly) to be found in Norwegian national law. The most important statute setting out the legal rights and obligations of non-Norwegian nationals moving to Norway is the Norwegian Immigration Act (IA), covering amongst other things rights of entry, residence, and grounds for deportation and rejection (ie refusals of entry).1 The rules set out in the IA are further detailed in 1 Act relating to the admission of foreign nationals into the realm and their stay here, LOV-2008-05-15-35, available in English at https://lovdata.no/dokument/NLE/lov/2008-05-15-35?q= Immigration%20Act.

176  Christian NK Franklin several regulations (forskrifter), the most important of which is the Immigration Regulation (IR).2 The rules are administered by several different bodies, the main focal point of which is the Directorate of Immigration (Utlendingsdirektoratet (UDI)). The UDI plays a key role in both the development and implementation of Norway’s immigration and refugee policy, and is tasked with both facilitating and controlling lawful immigration to Norway. Working in tandem with national and local police authorities, the UDI is therefore responsible for processing asylum and family reunification applications, issuing visitors’ visas and all manner of residence permits and travel documents, and making ultimate decisions on deportation and the rejection of foreign nationals.3 The UDI operates under and answers directly to the Ministry of Justice and Public Security, and in turn instructs both the police and Norwegian foreign service missions in immigration cases.4 The UDI’s decisions under the IA, IR and Nationality Act (see further section V) may be appealed to the Immigration Appeals Board (UNE) – a special tribunal, whose decisions on immigration and citizenship cases are binding on the UDI. There are several laws governing social security rights, the main ones being the National Insurance Act (NIA),5 the Family Allowance Act6 and the Child Benefit Allowance Act.7 The rules are administered by the Norwegian Labour and Welfare Administration (NAV) and its 456 municipal offices. The NAV answers in turn directly to the Ministry of Labour and Social Inclusion. Concerning naturalisation rights (ie becoming a Norwegian citizen), the main rules are to be found in the Nationality Act (NA) and Nationality Regulations (NR).8 All decisions concerning acquisition or loss of citizenship are made by the UDI, following applications made to the police authorities or Norwegian Foreign service missions. As mentioned previously, decisions of the UDI may be appealed to the UNE.9 2 Regulation concerning the entry of foreign nationals into the Kingdom of Norway and their presence in the realm, FOR-2009-10-15-1286. 3 Applications for residence and work permits are submitted to and prepared by the police. The police also have authority to decide a great number of such applications themselves. Unlike deportation and rejection cases, however, the police authorities do not have the power to reject applications for residence and work permits – such cases must be determined by the UDI. 4 Less integral for our present purposes, but the UDI must also cooperate with, and in certain instances answer to, a number of other bodies when dealing with refugees, including eg the Directorate of Integration and Diversity (IMDi), the National Police Immigration Service (PU) and local municipal authorities. 5 Lov om folketrygd (folketrygdloven), LOV-1997-02-28-19. 6 Lov om kontantstøtte til småbarnsforeldre (kontantstøtteloven), LOV-1998-06-26-41. 7 Lov om barnetrygd (barnetrygdloven), LOV-2002-03-08-4. 8 Lov om norsk statsborgerskap (statsborgerloven), LOV-2005-06-10-51; Forskrift om erverv og tap av norsk statsborgerskap (statsborgerforskriften), FOR-2006-06-30-756. 9 Important exceptions nevertheless apply. According to § 7 NA, certain applications rejected on grounds of fundamental national interests or foreign policy considerations may not be appealed, but may be reviewed by the Ministry of Labour and Social Inclusion. The only ground for review is a claim of invalidity, and the Ministry shall bear all costs of the review procedure (§ 27 NA). The Ministry will also deal with complaints in cases where it has instructed the UDI as to a course of action on grounds of fundamental national interests or foreign policy considerations according to § 28 NA.

Free Movement Rights in Norway  177 The Norwegian national rules concerning immigration, social security rights and nationality for EU, EEA and Nordic nationals can nevertheless not be considered in isolation. In order to understand how they are interpreted and applied, they must also be viewed in light of the many international obligations that have contributed to their formulation. As discussed in earlier chapters, the multi-layered patchwork of rights and obligations flowing from various international legal instruments is complex.10 For EU and EEA nationals, the Main Part of the EEA Agreement, and its many Annexes incorporating EEA-relevant EU regulations, directives and decisions, is naturally central.11 For nationals of the EFTA states, the EFTA Convention – which covers Norwegian, Icelandic and Swiss nationals – is also relevant.12 And for Nordic nationals, one must also be wary of the many Nordic agreements, including the Agreement on Common Nordic Labour Market (1982), the Nordic Passport Control Agreement (1957, as amended 1979) and the Nordic Convention on Social Security (1981). III.  LEGAL BASIS FOR ESTABLISHING RESIDENCE IN NORWAY

This section deals with what it takes to become resident in Norway, and whether there is a difference between Nordic nationals and EU/EEA nationals when it comes to the national residence requirements. This issue does not concern only national law, however, as residence under Norwegian law is in fact prescribed and to a certain extent dictated by Norway’s international legal obligations. In short, and as we shall see, the differences are significant, since no residence permit is required for Nordic nationals. A.  EU/EEA Nationals Establishing Residence As a starting point, all EU/EEA nationals looking to reside in Norway enjoy a general, unwritten right to free movement as a matter of EEA law. In its Advisory Opinion in Campbell, the EFTA Court held that the free movement of workers under Article 28 EEA is (only) ‘a specific expression of the general right to move and reside freely within the EEA’.13 The EFTA Court said nothing about the legal basis for this general EEA right, which in the context of EU law is naturally found in Articles 20 and 21 of the Treaty on the Functioning of the European 10 See eg Butler, ch 3 of this volume. 11 Agreement on the European Economic Area (EEA) [1994] OJ L1/3. 12 Convention Establishing the European Free Trade Association (1960) Treaty No 5266 UNTS 1563, 422. 13 Case E-4/19 Campbell [2020] EFTA Ct Rep 21, para 48; as confirmed in eg Case E-2/20 L [2021] 21 April 2021, para 24. Thereby paraphrasing similar statements made by the Court of Justice of the European Union (CJEU) concerning the relation between Art 45 and Art 21 TFEU, see eg Case C-457/12 S and G, ECLI:EU:C:2014:136, para 45.

178  Christian NK Franklin Union (TFEU).14 Based on the EFTA Court’s approach in other cases, however, it seems fair to assume that this relatively novel EEA law right was drawn from several EEA sources.15 The Court’s pronouncement was nonetheless significant, since there are no provisions in the EEA Agreement mirroring those on Union citizenship. The establishment of a general right of free movement runs counter to the EFTA states’ traditional understanding that EEA rights of free movement are limited to a number of pre-defined categories of economically active persons. It may therefore take a while for at least some of them to fully accept.16 Tacit support for the EFTA Court’s approach, which essentially amounts to expanding freedom of movement rights to a wider range of economically inactive persons, may nevertheless also be found in the CJEU’s decision in IN.17 Notwithstanding the fact that the EEA Agreement contains no provisions mirroring the EU’s policy on the Area of Freedom, Security and Justice (AFSJ), the Court viewed the combined effects of rights afforded to EFTA state nationals under the EEA Agreement, the Schengen acquis and several other agreements between (at least two of) the EFTA states and the EU on the joint asylum system and the European Arrest Warrant, as rendering the position of the Icelandic citizen in the case ‘objectively comparable with that of an EU citizen to whom, in accordance with Article 3(2) TEU, the Union offers an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured’.18 Notwithstanding this development, the categorisation of various groups of persons is still important under (both EU and) EEA law. Which category a person falls into will usually determine what rights and conditions of residence in Norway the EU/EEA national will enjoy. Beyond Article 28 EEA regarding workers, the EEA Agreement contains several other specific expressions of rights to

14 [2016] OJ C202/1. 15 eg provisions in the Main Part of the EEA Agreement on the free movement of workers, self-employed and service providers and recipients, the many EU legal acts incorporated into the Annexes of the EEA Agreement concerning free movement of other categories of persons, and the very purposes and structure of the EEA Agreement itself. See further, CNK Franklin and HH Fredriksen, ‘Differentiated Citizenship in the European Economic Area’ in D Thym and V Kosta (eds), Research Handbook on European Union Citizenship Law and Policy – Navigating Challenges and Crises (Edward Elgar 2022) 297. 16 Heavily objected to by Norwegian authorities in various interventions before both the CJEU and the EFTA Court, see eg the Report for the Hearing in Case E-4/19 Campbell, available at https:// eftacourt.int/cases/e-4-19/. For an example from the CJEU, see the arguments put forward by the Norwegian Government, as reiterated in AG Tanchev’s Opinion, in Case C-897/19 PPU Ruska Federacija v IN, ECLI:EU:C:2020:128, paras 55–60. 17 Case C-897/19 PPU Ruska Federacija v IN, ECLI:EU:C:2020:262, para 50. 18 ibid para 58. The Court hereby extended its earlier judgment in Case C-182/15 Petruhhin, ECLI:EU:C:2016:630, concerning the protection of Union citizens from extradition to third countries on the basis of Arts 18 and 21 TFEU, to an Icelandic citizen facing extradition to Russia whilst on holiday in Croatia. For more on these cases, and an assessment of their impact on EEA law, see eg CNK Franklin, ‘Diffusion and Differentiation of EU norms in the EEA’ in D Fromage (ed), (Re-)defining Membership: Differentiation in and outside the European Union (Oxford University Press, forthcoming).

Free Movement Rights in Norway  179 free movement and residence concerning self-employed persons (Articles 31–35 EEA) and service providers and receivers (Articles 36–39 EEA). Other categories of persons, including for example retirees and students, and family members of all of the above, are covered by various EEA Regulations and Directives. Rights of free movement and residence for EU/EEA nationals are nevertheless subject to specific limitations and conditions set out in the Citizenship Directive, which is (somewhat confusingly, perhaps) also made part of EEA law.19 Given the dualist approach to the relationship between national and international law under the Norwegian Constitution, both the Main Part of the EEA Agreement and all secondary EU law measures (Regulations, Directives, etc) incorporated into its Annexes must be made into Norwegian national law. Rights of residence for EU/EEA nationals in Norway therefore flow in part from § 1 of the Norwegian EEA Act (NEEA),20 which incorporated the Main Part of EEA Agreement into Norwegian law, and from Chapter 13 of the IA (§§ 109–125), which transposes the Citizenship Directive. Whilst there is no principle of primacy akin to that under EU law, a ‘quasi-primacy’ principle of EEA law – reflected in §§ 1 and 2 NEEA – ensures that in situations of potential conflict between provisions of the NEEA (and consequently therefore the Main Part of the EEA Agreement) and the IA (or any other Norwegian statute, for that matter), the former shall apply. Rights and conditions for residence for EU/EEA nationals for up to three months, from three months to five years and for permanent residence, as set out in the Citizenship Directive (Articles 5–7, 12–14 and 16–18), therefore apply in full in Norway by virtue of Chapter 13 IA §§ 111–116. The fundamental EEA principle of homogeneity requires identical provisions under EU and EEA law to be interpreted and applied in the same way, with deference to their understanding as a matter of EU law.21 Although the differences between the EU and EEA legal constructs may exceptionally be such as to require differing interpretations,22

19 Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. Notwithstanding the lack of any provisions in the EEA Agreement mirroring Arts 20 and 21 TFEU, given its obvious impact on rights afforded to economically active persons (workers, etc), the Directive had eventually come to be incorporated into the Annexes of the EEA Agreement. Further on the Citizenship Directive’s rather difficult passage into EEA law, see CNK Franklin, ‘Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law’ (2017) 19 Cambridge Yearbook of European Legal Studies 165. 20 Lov om gjennomføring i norsk rett av hoveddelen i avtale om Det europeiske økonomiske samarbeidsområde (EØS) m.v. (EØS-loven), LOV-1992-11-27-109. 21 See Arts 1, 6 and 105 EEA, and eg Preamble, recitals 4 and 15 to the Main Part of the EEA Agreement. The EFTA Court has in several cases held that the provisions do not need to be reproduced verbatim but that substantive similarities will suffice, see eg Case E-14/11 Schenker v ESA [2012] EFTA Ct Rep 1178, para 78. 22 See eg Case C-72/09 Rimbaud, ECLI:EU:C:2010:645 (free movement of capital); cf Case T-115/94 Opel Austria, ECLI:EU:T:115:94, however, where the Court of First Instance rejected pleas by both the Council and the Commission for diverging interpretations of Art 10 EEA and (what is now) Art 30 TFEU.

180  Christian NK Franklin where the provisions are similar in substance, they enjoy a strong presumption in favour of homogeneous interpretation and application.23 Homogeneity is nevertheless not entirely synonymous with uniformity. As already stated, there is no primacy of EEA law in the same way as under EU law. Further, the EEA Agreement does not require direct effect of nonimplemented EEA provisions in the EFTA states.24 The differences in formal applicability between EU and EEA law therefore seem rather plain. The lack of direct effect and primacy in the event of a conflict between residence provisions of the Citizenship Directive and the Norwegian IA is nevertheless offset to a great extent through full transposition of the former coupled with the effects of (quasi-)primacy and the inclusion of a so-called ‘sector-monism’ provision in § 3 IA. This provision provides that international norms binding on Norway shall have precedence over conflicting rules in the statute.25 Norwegian authorities are also obliged to attempt harmonious interpretations of national law in tune with Norway’s international obligations, as a matter of both EEA and national law.26 As far as homogeneous interpretation is concerned, Article 6 EEA makes clear that case law of the European Court of Justice before 1992 is binding and to be followed by EFTA Court. Practice further reveals that case law of Court of Justice after 1992 to date will also be followed.27 This may and has nevertheless led to problems in recent years, in situations where the Court of Justice has either created indigenous rights of residence, or based its interpretation of rights of free movement and residence under the Citizenship Directive on the EU Treaty rules on citizenship. Since Union citizenship is not a part of EEA law, reaching identical interpretations under EU and EEA law becomes a rather strained operation. The EFTA Court has nevertheless proved rather adept at squaring this particular circle. Building on a more effects-based understanding of homogeneity,28 the EFTA Court has in a series of cases concerning residence rights under Article 7 of the Citizenship Directive held that what matters is ensuring homogeneity as 23 See eg Case E-3/98 Rainford-Towning [1998] EFTA Ct Rep 205, para 21; P Hreinsson, ‘General Principles’ in C Baudenbacher (ed), The Handbook of EEA Law (Springer, 2016) 349, 352–53. 24 See eg Case E-18/11 Irish Bank [2012] EFTA Ct Rep 592. The fact that the CJEU’s general approach to direct effect of provisions in certain international agreements to which the EU is a party has led it to conclude in several cases that provisions of the EAA Agreement may have direct effect under the EU pillar of the EEA, does not change the fact that the same does not hold true for the EFTA pillar, see eg Case T-115/94 Opel Austria, ECLI:EU:T:115:94. 25 For more on these ‘sector-monism’ provisions, see eg CNK Franklin et al, ‘Norway (including Iceland & Liechtenstein)’ in MR Botman (ed), National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order (Eleven International Publishing 2020) 340. 26 See eg Case E-01/07 Criminal Proceedings against A [2007] EFTA Ct Rep 246; HR-2000-49-B. 27 See eg Joined Cases E-9/07 and E-10/07 L’Oréal [2008] EFTA Ct Rep 258, para 28. Whilst the Court of Justice also routinely takes EFTA Court practice into account in its own case law, there is little denying the formal and practical hierarchical relationship between the two. 28 Rooted in Case E-9/97 Sveinbjörnsdóttir [1998] EFTA Ct Rep 95, para 60; and Case E-04/01 Karlsson [2002] EFTA Ct Rep 240, para 28, where the EFTA Court established the unwritten principle of state liability for breaches of EEA law.

Free Movement Rights in Norway  181 to the practical outcome in a case, even if this comes at the expense of homogeneous interpretations of the EU measures in question.29 In short, as we recall, Article 7 provides for a right of residence for up to five years for EEA nationals and their family members in the territory of another Member State. The private individuals involved in the cases were not seeking to enforce their rights against a host EEA state to which they had moved, however, but rather against their own home states (ie Iceland and Norway) upon return from stays abroad. According to several decisions of the CJEU, in its EU setting, such a right may only flow directly from Article 21 TFEU and not the Directive.30 Yet interpreting the Directive in the same manner as the Court of Justice would have left EFTA state nationals and their family members unable to enjoy the same rights of free movement and residence as those that flow from EU law. In a bold move, the EFTA Court therefore held that in light of the differing EU/EEA legal contexts in which the Directive was to be applied, the case law of the Court of Justice in question did not apply to the cases with which it was dealing.31 Further, that Article 7 of the Directive, interpreted in its indigenous EEA legal context, was to be understood as giving rise to rights against an EFTA state national’s home state, in the same manner as Article 21 TFEU does under EU law.32 As a result, the need to ensure homogeneity as to results may therefore sometimes trump homogeneity as to identical interpretation.33 The Citizenship Directive also affords a wide range of derived rights of residence for family members of EU/EEA nationals moving to Norway.34 Where the family members in question are EU/EEA nationals themselves, this will pose little difficulty, since they may well enjoy free-standing rights of residence themselves under Chapter 13 IA. Where the family members are third-country (ie non-EU/EEA) nationals, or EU/EEA nationals falling outside the remit of Chapter 13 IA, things are slightly more complicated. Since the EEA Agreement 29 Case E-26/13 Gunnarsson [2014] EFTA Ct Rep 254; Case E-28/15 Jabbi v Norway [2016] EFTA Ct Rep 575; and Campbell (n 13). 30 Case C-456/12 O and B, ECIL:EU:C:2014:135; confirmed in eg Case C-133/15 Chavez-Vilchez, ECLI:EU:C:2017:354; Case C-89/17 Banger, ECLI:EU:C:2018:570; Case C-230/17 Altiner and Ravn, ECLI:EU:C:2018:497. 31 Campbell (n 13) paras 54–59. 32 A view that now seems to be accepted by the Norwegian administrative authorities, see eg the Circular issued by the Norwegian Ministry for Labour and Social Inclusion of 25 January 2022, ‘Instruks om tolkningen av vilkårene for avledet oppholdsrett for tredjelandsborgere som er familiemedlemmer av EØS-borgere’, AI-1/2022, section 4, available at www.regjeringen.no/no/ dokumenter/instruks-om-tolkningen-av-vilkarene-for-avledet-oppholdsrett-for-tredjelandsborgeresom-er-familiemedlemmer-av-eos-borgere/id2898528/. 33 See further CNK Franklin, ‘Pride and Prejudice: Some Reflections on the (In)discretionary Application of Fundamental Freedoms by Norwegian Courts’ in AT Müller and W Schroeder (eds), 25 Jahre Europäischer Wirtschaftsraum (2020) 1 Europarecht 225. 34 Although the Citizenship Directive is central as a source of derived rights for third-country nationals, it is important to note that the Workers Regulation 492/2011 (which is fully incorporated into EEA and Norwegian national law) also provides certain additional residence rights for family members of (former) mobile workers, see eg Art 10 concerning residence rights for children and their primary carer.

182  Christian NK Franklin does not generally cover immigration from third countries or the EU’s AFSJ policy, neither the Family Reunification Directive nor the Long-term Residents Directive has been made part of EEA law.35 Certain free-standing rights for third-country nationals may nevertheless flow from the Citizenship Directive, as reflected in § 114(3)–(4) and § 116 IA. Paragraph 114 IA transposes the Directive’s rules on retention of residence rights for all family members (including thirdcountry nationals) in the event of the EU/EEA national’s death, departure from Norway, divorce or cessation of live-in relationship. Various conditions apply. Where the EU/EEA sponsor has died or left the country, the third-country family member must either fulfil one of the conditions under § 112 (1) IA (ie be a worker, a self-employed person or have sufficient resources and sickness insurance for their stay), or be a family member of a person who fulfils one of these conditions. Alternatively, where the third-country national has custody of the deceased/departed EU/EEA national’s child or children, the right to residence will be retained for as long as the children are enrolled at an educational establishment, until the completion of their studies. In order to retain residence in the case of divorce or cessation of cohabitation, in addition to fulfilling the conditions of § 112 (1) IA, further requirements will also apply: The marriage must have lasted at least three years (one of which must have been spent living in Norway); the third-country national must have custody of the EU/EEA national’s child(ren); the relationship must have been marred by ‘particularly difficult circumstances’ (eg cases involving domestic violence); or the third-country national must enjoy legal rights of access to a child/children resident in Norway. Paragraph 116 IA transposes the right to permanent residence for family members (irrespective of their nationality) of EU/EEA nationals under Articles 16–18 of the Citizenship Directive. The primary condition for permanent residence is that the third-country national family member has resided legally and continuously in Norway for five years (notwithstanding shorter stays abroad).36 Once acquired, third-country national family members must apply for a residence card from Norwegian authorities (usually at their local police station).37 Nationals of the EU/EEA and their family members who are EU/EEA nationals do not have to apply for a residence card, but may choose to apply for a residence permit at their discretion.38 In any event, it seems clear that the very right of permanent residence under § 116 is not contingent upon acquisition of

35 Directive 2003/86/EC [2003] OJ L251/12; Directive 2003/109/EC [2003] OJ L16/44. 36 On the meaning of continuity, Art 16(3) of the Citizenship Directive (as transposed by § 19-17 IR) expressly discounts temporary absences not exceeding a total of six months a year, absences of a longer duration for compulsory military service, and/or one absence of a maximum of 12 consecutive months for important reasons (eg pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country). 37 § 119 IA. 38 § 118 IA. They are nevertheless subject to a duty to register their stay with local authorities within three months of arriving in Norway, who may ask for various forms of documentation as set out in § 117 IA.

Free Movement Rights in Norway  183 a residence card or permit; the right itself is triggered automatically once the conditions for permanent residence are fulfilled. In addition to the free-standing rights mentioned so far, third-country national family members of EU/EEA nationals may also enjoy certain derived rights of residence under §§ 111 (stay up to three months), 114 (residence for up to five years) and 116 (permanent residence), on the conditions set out therein. Derived rights under §§ 111 and 114 IA are conditional upon the thirdcountry national family member’s moving with or being reunited with the EU/ EEA sponsor in Norway, and are considered to last for as long as the EU/EEA national enjoys residence rights in Norway. Alternatively, in situations where the conditions of these provisions may prove more difficult to fulfil, third-country nationals may in any event have resort to the general rules on family reunification set out in Chapter 6 IA (§§ 39–53). It is also important to note more generally that matters falling outside Chapter 13 as not regulated in the Citizenship Directive may nevertheless be caught by the general provisions on free movement in the Main Part of the EEA Agreement – for example, in the event that a situation similar to that dealt with by the CJEU in Carpenter were to arise in a Norwegian context.39 In that case, the Court held that the denial of residence to the third-country national wife of a United Kingdom (UK) citizen resident in the UK yet providing cross-border services to other EU countries in his business, constituted a restriction on the right to provide services under Article 56 TFEU. Although the situation of a Norwegian citizen who married a third-country national without having initially exercised any rights of free movement to another EEA country is not regulated under Chapter 13 IA, it would presumably (given the principle of homogeneity) be resolved instead on the basis of Articles 36–39 of the Main Part of the EEA Agreement (as combined with §§ 1 and 2 NEEA, and/or § 3 IA). Similarly, residence rights for third-country nationals who are employed by companies based in other EEA countries established in Norway – and their family members, regardless of nationality – may also presumably flow from the general rules governing freedom of establishment under Article 31 EEA, to the extent that these are not considered covered by § 114 (2) IA, and at least for as long as they are providing services in Norway.40 Finally, it is important to be wary of a few potential (and real) peculiarities and thorny issues regarding EU/EEA nationals’ rights of residence in Norway under EEA and Norwegian national law. First, rights of residence for up to five years under Article 114 IA (transposing Article 7 of the Citizenship Directive) for all other persons than workers and self-employed persons (ie students, persons not in work, etc) and their family members, are conditional on proof

39 Case C-60/00 Carpenter, ECLI:EU:C:2002:434. 40 See eg H Bull, ‘Kapittel 13’ in V Vevstad (ed), Utlendingsloven – Kommentarutgave (Universitetsforlaget 2010) 626.

184  Christian NK Franklin of sufficient resources and comprehensive medical insurance during their stay in Norway. According to the CJEU, the entire point of these conditions is for the individual to avoid becoming an unreasonable burden on the social services of the host state.41 Norwegian courts have nevertheless interpreted the requirement of ‘sufficient resources’ in a very strict manner.42 A similarly strict – and clearly erroneous – understanding of the term ‘comprehensive medical insurance’ has also been adopted by the Norwegian Ministry of Labour and Social Inclusion. In a recent circular, through which it instructs case handlers in the NAV on the processing of applications for residence, it states that insurance must be ‘all encompassing’, covering ‘all risks’.43 Such an absolute requirement had previously been included in various directives pre-dating and replaced by the Citizenship Directive, but it finds no basis in the wording of the current rules.44 Further, the fact that comprehensive insurance does not need to cover all risks was already inferable from the CJEU’s judgment in Baumbast, decided more than 20 years ago.45 The more recent decision in VI further clarifies that once an EU/EEA national is affiliated to a public sickness insurance system in the host Member State, he or she shall be deemed to have sufficiently comprehensive sickness insurance within the meaning of Article 7 of the Citizenship Directive.46 Second, there appear to be diverging views on what will constitute continuous residence for more than three months, so as to qualify for residence for up to five years under § 114 and Article 7 of the Directive. According to § 19-9 IR, the three-month period under § 111 IA (transposing Articles 5–6 of the Citizenship Directive) will be considered interrupted when the EU/EEA national and/or family member (regardless of nationality) leaves Norway for another country. As a result, any trip abroad during the first three months’ stay in Norway would

41 Case C-333/13 Dano, ECLI:EU:C:2014:2358, para 73; and Preamble, recital 10 to the Citizenship Directive. 42 In TOSLO-2015–52864 (Jabbi), the Oslo District Court held that the Norwegian sponsor (wife) of a third-country national (husband) applying for residence on their return to Norway, having lived in Spain for more than a year, did not satisfy the condition of sufficient resources for her stay abroad – notwithstanding the fact that she had received social benefits from Norway during her time abroad, amounting to more than Spanish citizens receive in social security benefits when unemployed. Such a strict interpretation is nevertheless highly questionable in light of the underlying objectives of the Directive, the historical understanding of the term as set out in Art 1(1) of Directive 90/364 (which Art 7 of the Citizenship Directive replaced) and several decisions of the Court of Justice, making clear that the source of the resources – whether private or public, or even obtained illegally – was irrelevant (Case C-200/02 Chen, EU:C:2004:639, para 30; Case C-93/18 Bajratari, ECLI:EU:C:2019:809) and that any conditions of sufficient resources imposed by a host state must be subjected to a proportionality test (Case C-413/99 Baumbast, ECLI:EU:C:2002:493). For a detailed analysis, see Franklin (n 33). 43 See n 32. 44 Art. 1 of Directive 90/364 on the right of residence [1990] OJ L180/26; Directive 93/96 on the right of residence for students [1993] OJ L317/59; and Art. 1(1) of Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity [1990] OJ L180/28. 45 Baumbast (n 42). 46 Case C-247/20 VI, ECLI:EU:C:2022:177.

Free Movement Rights in Norway  185 result in the clock winding back to zero and a new three-month period beginning. The requirement stipulated by the IR therefore seems clearly out of tune with the EFTA Court’s ruling in Campbell, where it was held that short-term stays or travel out of the country cannot automatically be considered as interrupting the three-month period.47 The District Court and the Court of Appeal, which had both heard the case before the Norwegian Supreme Court asked the EFTA Court for an Advisory Opinion, had reached different conclusions on this point.48 The Supreme Court was not given the chance to provide final clarification, however, as shortly after the EFTA Court’s ruling the plaintiff was offered residence in Norway on other grounds, with the result that the case was withdrawn. In light of the EFTA Court’s findings, however, an amendment of § 19-9 IR seems clearly called for. Third, it is important to note that EEA law does not espouse the EU Charter of Fundamental Rights.49 Lack of inclusion of the Charter has nevertheless been largely overcome so far in practice by reference to other legal instruments binding on the Contracting Parties.50 In situations where the CJEU interprets provisions of the EU Treaties (or secondary EU measures) in the light of the Charter, and the EU Treaty provisions in question are replicated in the terms of the EEA Agreement, the latter will usually be interpreted by the EFTA Court in the same manner under reference either to the provisions of the European Convention on Human Rights (ECHR) and/or to the constitutional traditions common to the EFTA states.51 The absence of the Charter has therefore posed only a theoretical problem to date, and will likely continue to do so, unless and until the accidents of litigation give rise to a case concerning indigenous rights found in the Charter that are not reflected in either the ECHR or the common constitutional traditions of the EEA/EFTA states (such as, eg, the freedom to conduct a business under Article 16 of the Charter). B.  Nordic Nationals Establishing Residence Whilst the general rules on residence set out in Chapter 6 IA apply in principle to all immigrants, and the rules in Chapter 13 IA to all EU/EEA nationals, the 47 Campbell (n 13) paras 65–67. 48 TOSLO-2017-19932; LB-2017-119057. 49 Charter of Fundamental Rights of the European Union [2012] OJ C326/391. 50 For examples of the EFTA Court’s ‘bridging’ work in this area, see HH Fredriksen and CNK Franklin, ‘Of pragmatism and principles: the EEA Agreement 20 years on’ (2015) 52(3) CML Rev 629, 646–50; and Franklin and Fredriksen (n 15). 51 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, 4 November 1950, ETS 5. Made largely possible thanks to references in the EEA Agreement’s Preamble to human rights and the social dimension of the internal market; see further eg F Arnesen and HH Fredriksen, ‘Preamble’ in F Arnesen et al (eds), Agreement on the European Economic Area – a Commentary (CH Beck/Hart/Nomos/ Universitetsforlaget 2018) para 3.

186  Christian NK Franklin situation for Nordic nationals looking to move to Norway is nevertheless made infinitely less complex under Norwegian law. Paragraph 5 IA makes abundantly clear that citizens of the Nordic countries are fully exempt from the general requirement under § 55 IA of obtaining a residence permit in order to reside and/or work in Norway. This rule thereby transposes Article 1 of the Agreement on Common Nordic Labour Market of 6 March 1982. Furthermore, according to § 19-22 IR, Nordic nationals are not required to register entry in Norway either – unlike the requirements applicable to non-Nordic EU/EEA nationals under § 117(1) IA. Awareness of the rules specific to Nordic nationals may be of particular importance for Danish citizens residing on the Faroe Islands looking to move to Norway, as these persons would seem to fall without the scope of (EU and hence also) the EEA rules.52 As far as family members of Nordic nationals are concerned, the situation is entirely unproblematic where the family members in question are Nordic nationals themselves. In such a case, they will naturally enjoy indigenous residence rights of their own accord. Where the family member is a non-Nordic EU/ EEA national or third-country national, however, the Nordic agreements do not appear to offer any particular rights – let alone advantages. The reasons for this may of course be many, for example that the Nordic agreements were initially drafted at a time before free-movement rights had developed such as to fully cover family members as they do today, and/or that no amendments or revisions have been forthcoming in recent years due to the political sensitivity of immigration issues more generally. In any event, in order to secure residence in Norway, family members of Nordic nationals who are not Nordic nationals themselves will have to have recourse to the general rules applicable under the IA – that is Chapter 13 for EU/EEA nationals, and/or the universal family reunification rules set out in Chapter 6. IV.  ACCESS TO SOCIAL RIGHTS/INCLUSION IN RESIDENCE-BASED SOCIAL SYSTEMS IN NORWAY

This section looks at access to residence-based social security benefits in Norway for EU/EEA and Nordic nationals. The idea here is to analyse whether the national law differentiates between the various groups of persons. As we shall 52 See eg Arts 25, 26(3) and 27 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties, annexed to the Treaty concerning the accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community of 27 March 1972 [1972] OJ 73/3; further in Protocol 2, Art 4 to the Treaty, which stipulates that ‘Danish nationals resident in the Faroe Islands shall be considered to be nationals of a Member State within the meaning of the original Treaties only from the date on which those original Treaties become applicable to those Islands’.

Free Movement Rights in Norway  187 see, although the EEA and Nordic Agreement rules build directly on the EU social security regulations, there are nevertheless a few minor substantive differences, and also some interesting differences in both geographical and personal scope between them. A.  EU/EEA Nationals’ Access to Rights The EEA rules on social security rights mirror the EU rules to a great extent. Article 29 EEA is (in substance) a carbon copy of Article 49 TFEU, and fully incorporated into Norwegian law with primacy over conflicting national law by virtue of §§ 1 and 2 NEEA. The current EU Social Security Regulations (883/2004 and 987/2009) were both incorporated into Annex VI of the EEA Agreement in 2011.53 Regulation 883/2004 aims to strengthen free movement by guaranteeing that persons moving within the EEA, including their dependants and survivors, may retain certain social security rights and advantages acquired in other EEA states.54 Social security coordination under the Regulation is based on five fundamental principles: determination of which state’s law shall apply in a given situation (Articles 11–16); non-discrimination on grounds of nationality (Article 4); equal treatment of facts or events taking place in other Member States (Article 5); aggregation of periods of insurance, employment, self-employment or residence completed under the legislation of other Member States (Article 6); and exportability of benefits to other Member States (Article 7). Regulation 987/2009 supplements Regulation 883/2004 by introducing a number of administrative provisions, including rules on how cases are to be handled and on exchanges and retention of digital information between social security authorities in the EEA states. It is important to note, however, that Regulation 1231/2010, which extended the scope of the Social Security Regulations to cover third-country nationals legally resident in the EU, has not been made part of EEA law.55 In accordance with Article 7 EEA, which requires EEA regulations to be made part of national law ‘as such’, Regulations 883/2004 and 1231/2009 are both fully incorporated into Norwegian law. As is usually the case where EEA regulations are made part of Norwegian law, this was done by simply stating in a national regulation (forskrift) that the two EEA Regulations were to apply in

53 Regulation 883/2004 on the coordination of social security systems [2004] OJ L166/1; Regulation 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems [2007] OJ L284/1. Incorporated by EEA Joint Committee Decision 76/2011 of 1 July 2011. 54 See Regulation 883/2004, Preamble, recitals 13 and 14; Case E-8/20 Criminal Proceedings against N [2021] 5 May 2021, para 46. 55 Regulation 1231/2010 extending Regulation 883/2004 and Regulation 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality [2010] OJ L344/1.

188  Christian NK Franklin full as Norwegian national regulations.56 Any conflicts arising between the EEA Regulations and the provisions of the NIA or NIR are technically dealt with by reference to § 1-3 NIA (which states that reciprocal social security agreements with other countries may make exceptions from the rules of the NIA) and § 1 of the national regulation incorporating Regulations 883/2004 and 1231/2009 (which states that several statutes, including the NIA, are to be set aside in the event of conflict). Together, these provisions are designed to afford primacy of rights contained in the two EEA Regulations (as implemented by the national regulation) over conflicting rules that might be found in the NIA. This method of ensuring primacy is nevertheless somewhat problematic, since the only way in which this could be promised constitutionally under Norwegian law would have been to make provision for this in the NIA itself – not in the statutory instrument ranking below it. The method of implementing the Social Security Regulations, and attempting to ensure them primacy in the face of conflicting rules in Norwegian social security law, of course matters little in situations where conflicts between the norms are not spotted to begin with. A situation that unfortunately came to pass with the recent NAV scandal in Norway. In short, in the Autumn of 2019, the Norwegian Government informed the public of several systemic breaches of EEA rights to export various sickness benefits when moving or staying abroad in other EEA states. In order to qualify for the benefits, the NIA imposed a condition of residence in Norway, with only limited grounds for exception.57 The ‘stay in Norway’ requirements had been at odds with Article 21 of Regulation 883/2004 since the latter was made part of Norwegian law as of 1 June 2012. And before that, stretching all the way back to the entry into force of the EEA Agreement itself in 1994, the IA rules had been contrary to Article 36 EEA (free movement of services). As a result, several thousand benefit recipients, mainly (but not exclusively) Norwegian nationals, who had been in other EEA states whilst receiving the sickness benefits, had been met with hefty reimbursement claims by Norwegian authorities over the years. Approximately 80 of these unfortunate souls ended up being prosecuted, convicted and serving time in prison for social security fraud. To make matters even worse, in light of certain decisions by the Norwegian National Insurance Court, which directly raised the issue a few years’ earlier, Norwegian authorities both could and should arguably have acted even sooner.58 Following a public inquiry, many of the criminal cases were reopened. One of these (a pilot case) resulted in a referral by the Norwegian Supreme Court to the EFTA Court, which confirmed the suspected breaches

56 § 1-3 IA; § 1 of Forskrift om inkorporasjon av trygdeforordningene i EØS-avtalen, FOR-201206-22-585. 57 §§ 8-9, 9-4 and 11-3 NIA. 58 See eg TRR-2016-2619, TRR-2016-2634, TRR-2017-1058, TRR-2017-2308, TRR-2017-3662 and TRR-2018-567.

Free Movement Rights in Norway  189 of EEA law.59 Legislative work subsequently began in earnest towards reforming the Norwegian social security laws, so as to bring them in line with Norway’s EEA (and other international) social security coordination obligations.60 The Ministry of Labour and Social Inclusion published its legislative proposals for change on 1 April 2022.61 Where the implementation of EEA rules concerning sickness benefits left much to be desired, recent opinions of the EFTA Court nevertheless show that Norwegian authorities have understood and applied the rules pertaining to exportability of certain other benefits – such as, for example, unemployment benefits under Articles 63–65 of Regulation 883/2004 – in more correct fashion. Interestingly, the EFTA Court here held that the rules on unemployment benefits, which derogate from the main rule on exportability in Article 7, allow EEA states to impose residence (and presence) requirements in all situations other than those specifically provided for by Articles 64, 65 and 65a.62 Further the Court held that those provisions ‘exhaustively regulate’ the three situations in which the competent EEA state is required to allow recipients of an unemployment benefit to reside or stay in the territory of another EEA state. The Court therefore concluded that the requirement to stay in Norway to be entitled to unemployment benefits in cases where the conditions of Articles 64, 65 or 65a are not fulfilled is compatible with the Regulation, including Article 5(b) thereof.63

59 Criminal Proceedings against N (n 54); HR-2021-1453-S. 60 See the comprehensive Norwegian Official Report NOU 2021:8, ‘Trygd over landegrensene, Gjennomføring of synliggjøring av Norges trygdekoordineringsforpliktelser’, where several specific suggestions are made on how to bring Norwegian law more in line with Norway’s international obligations – not only under EEA law, but also with the EFTA Convention, Nordic agreements and other bi- and multilateral agreements with other countries. The main suggestions for amendments broadly consist of abolition of the ‘stay in Norway’ requirements; full transposition of all multi- and bilateral agreements in the field at statutory level coupled with a clear(er) indication of the formers’ primacy; and the inclusion of comprehensive international law ‘pointers’ in the statutes themselves. 61 Prop 71 L (2021–2022) Endringer i folketrygdloven mv. (synliggjøring av folkerettslige forpliktelser til trygdekoordinering). 62 See Case E-13/20 O v Arbeids- og velferdsdirektoratet [2021], 30 June 2021; and Case E-15/20 Criminal Proceedings Against P [2021] 30 June 2021. 63 The Court of Appeal, which made the referral in Criminal Proceedings Against P, fully accepted and applied the reasoning of the EFTA Court in its final judgment (see LB-2019-159381). Interestingly, the National Insurance Court making the referral in O was much more critical of the EFTA Court’s reasoning (see TRR-2019-2736). Although it found that there were not strong enough grounds to disregard the EFTA Court’s opinion (which is advisory), the court was not convinced that an assessment of the relevant provisions of Norwegian law was not required in light of the general rules on free movement under the Main Part of the EEA Agreement. For a similar view, see T Bekkedal and M Andenæs, ‘Er mottakere av dagpenger beskyttet av EØS-avtalens grunnleggende rett til fri bevegelighet?’ (2022) 61(3) Lov og Rett 145. Even if a supplementary assessment involving a proportionality review had been carried out, it is nevertheless difficult in my view to imagine a different final outcome in these cases, given the rather obvious differences in nature between unemployment and other benefits.

190  Christian NK Franklin B.  Nordic Nationals’ Access to Rights The Nordic Convention on Social Security extends the personal scope of the EEA Social Security Regulations to a much broader range of persons not otherwise covered by the EEA rules. In line with Article 8(1) of Regulation 883/2004, since the Nordic Convention pre-dates and offers more favourable rights for several groups of persons than under the Regulation, it will therefore apply ahead of the EEA rules in light of the so-called ‘sector monism’ clause in § 1-3 NIA. First, the Nordic Convention extends the scope of the EU/EEA Regulations to various third-country nationals. As already mentioned, immigration from third countries is generally deemed to fall outside the scope of EEA law, which goes some way towards explaining why Regulation 1231/2021, which extends the scope of Regulation 883/2204 in the EU to cover legally resident thirdcountry nationals, was not deemed EEA-relevant. The Nordic Convention nevertheless plugs part of this gap, at least as far as certain categories of thirdcountry nationals connected to the Nordic countries are concerned. According to Articles 3 and 4, for the purposes of aggregation, third-country nationals can take into account periods of membership in national insurance schemes, employment, self-employment or residence completed under the legislation of any other Nordic state as though they were periods completed in Norway. And unlike the situation, for example, regarding residence rights, which as we have seen are primarily derived from an EEA national, these rights under the Nordic Convention are transformed to free-standing rights, attributed directly to the third-country nationals in question. Second, Articles 1, 2 and 3(1) expressly and implicitly extend the geographical scope of the EEA Social Security Regulations to Åland, the Faroe Islands, Greenland and Svalbard – areas that, although strongly tied to Finland, Denmark and Norway respectively, nevertheless are not part of the geographical scope of EU/EEA cooperation. Third, and rather significantly when seen by comparison to EEA cooperation more generally in the field, Article 3(2) of the Nordic Convention also extends Regulation 883/2204 to cover persons who are not and have not been classified as either workers or self-employed persons under the Regulation – essentially rendering the Regulation applicable to all economically inactive Nordic nationals. This is a significant difference since, as we have seen, Norwegian authorities (notwithstanding the EFTA Court’s pronouncements to the contrary) are generally averse to the idea that free movement under EEA law may be viewed as connected to non-economic activity. Fourth, concerning residence-based membership of the Norwegian National Insurance Scheme, this will be much easier to achieve for persons covered by the Nordic Convention than for non-Nordic EU/EEA nationals. Primarily because, as we have already seen, acquiring residence is easier for Nordic nationals. And, second, since the determination of what constitutes residence is also made simpler under the Convention. Article 11 of Regulation 1231/2009 provides

Free Movement Rights in Norway  191 that in the case of a difference of views between two or more EEA states as to where an individual to whom Regulation 883/2004 applies may be considered to reside, the ‘centre of interests’ of the person concerned shall be determinative. Many factors may be taken into account in this rather comprehensive assessment, including, for example, the duration and continuity of their presence in the territory of the Member States concerned, the nature and specific characteristics of any activity pursued, family status and family ties, and the country in which the person is deemed to reside for taxation purposes. By comparison, the determination of an individual’s country of residence is made infinitely simpler under the Nordic Convention. According to Article 5, in the absence of special reasons indicating the contrary, Nordic nationals need merely show proof of registration in the National Registry of the country concerned. Finally, it is worth noting certain specificities of the Nordic Convention rules connected to particular types of benefits, where the situation seems different than under EEA law. First, since the EEA Agreement (according to the views of the Norwegian authorities, at least) does not apply to the continental shelf, Article 6 of the Convention provides that work related to the exploration and exploitation of natural resources on a Nordic state’s continental shelf will also be considered work in that country for the purposes of determining which country’s legislation will be applicable under Title II of the Regulation. Second, according to Article 7 of the Convention, the host Nordic state is obliged to cover certain travel expenses for return to the state of residence in the event of a person’s getting ill in the host state. Third, Article 10 of the Convention makes an exception to the rules in Article 61 of the Regulation concerning special rules on aggregation relating to unemployment benefits, by providing that individuals covered by the Nordic Convention may count work and social security periods from other Nordic states even if the last working period was not carried out in the state where the unemployment benefits are claimed.64 Fourth, Article 15 of the Convention introduces a waiver on the refunding of costs between Nordic states for certain benefits-in-kind relating to sickness, maternity and workrelated accidents or occupational disease, which otherwise would not apply under Regulation 883/2204.65 V.  NATIONALITY AND NATURALISATION IN NORWAY

Norwegian citizenship can generally be gained in one of three ways, depending on the particularities of the applicant’s situation: by application, by notification, or simply by birth. In the last situation, § 4 NA stipulates that children with a 64 Subject to a general condition that during the past five years, the individual has either received unemployment benefits from the Nordic state where the application is made, or worked sufficiently so as to be entitled to unemployment benefits under the legislation applicable there. 65 The Convention thus makes exceptions to Articles 35, 41 and 65 of Regulation 883/2004.

192  Christian NK Franklin Norwegian mother or father will automatically gain Norwegian nationality – irrespective, it seems, of the country in which they are actually brought into this world.66 A child born in an EU/EEA and/or Nordic country may therefore acquire Norwegian nationality at birth. For persons not born of a Norwegian parent, however, Norwegian law does in fact differentiate rather significantly between Nordic and EU/EEA nationals when it comes to naturalisation. Whereas EU/ EEA nationals must undergo at times rather cumbersome (and expensive) application and vetting procedures, Nordic nationals may be ‘fast tracked’ through a simpler application procedure, or rely on mere notification of their desire to acquire Norwegian citizenship. A.  EU/EEA Nationals Naturalising Most immigrants who want to become Norwegian nationals, including nonNordic EU/EEA nationals, must apply for this. Indeed, according to § 7 NA, the general rule is naturalisation by application. According to this rule, at the time when the application falls to be decided, the applicant must have clarified his or her identity.67 The applicant must be over 12 years of age, and both be and intend to remain in Norway.68 In addition, applicants must fulfil various knowledge requirements relating to the undertaking of Norwegian language and social studies courses, as further detailed in § 8 NA.69 Whilst EU/EEA nationals are expressly exempt from the general requirement in § 7(d) NA of fulfilling the conditions for permanent residence under § 62 IA, they must have been legally residing in Norway for three years on the basis of the rights set out in Chapter 13 IA before they can apply.70 As mentioned earlier (section III), §§ 112–116 IA transpose the various residence rules of the Citizenship Directive. In addition, EU/EEA nationals must have stayed in the country for at least eight of the past 11 years, with valid residence permits of at least one year’s duration.71 Several exceptions nevertheless apply. According to § 10 NA, for persons who can document (by way of their approved tax returns) that they 66 Specific rules apply for non-Norwegian national children who are adopted – see § 5 NA and the Norwegian Adoption Act – Lov om adopsjon (adopsjonsloven), LOV-2017-06-16-48. 67 The specific rules on clarification of identity are found in §§ 1-1, 1-2 and 1-3 NR. 68 § 7(a) NA. 69 According to this provision, as further detailed in § 4(1)–(5) NR, applicants aged 18–67 must be able to document that they have undergone either 300 hours of approved Norwegian teaching, or that they have ‘sufficient knowledge’ of the Norwegian or Samí language. In addition, they must be able to show that they command a minimum of Norwegian as a spoken language and have passed a social studies exam in Norwegian. Several exemptions nevertheless apply, including for applicants who have completed Norwegian secondary schooling with pass grades in Norwegian and social studies, completed courses at University level in the Norwegian or Samí languages, and for individuals who are granted dispensation from the requirements on health or other specific grounds. 70 § 14 NA. 71 § 7(e) NA.

Free Movement Rights in Norway  193 had ‘sufficient income’ in the past year, the residence requirement is reduced to six out of the past 10 years, with valid residence permits of at least one year’s duration.72 The requirement is further reduced to five of the last seven years for persons who arrived in Norway before the age of 18, and five out of the past 10 years for applicants married to a Norwegian citizen and living in the same domicile as them.73 The applicant must also have a clean criminal record and not have been punished or subjected to any other sanctions for a criminal offence. According to § 9 NA, a ‘quarantine’ period will apply for any person convicted of a criminal offence, the duration of which will vary according to the nature of the offence, during which applications for Norwegian nationality will be refused.74 The applicant must apply for a copy of his or her police record from local police authorities and attach this to the application, a process that usually takes about four weeks at no cost. Whilst the acquisition of Norwegian nationality used to be dependent on being released from any other nationality, as of 1 January 2020 Norway recognises dual citizenship.75 Concerning family members of EU/EEA nationals who become Norwegian nationals, special provision is made under § 17 NA for children under the age of 18 to acquire Norwegian nationality. This provision does not afford a right to nationality per se, but rather a right to apply for nationality on more favourable terms. The only conditions applicable are that the child has clarified his or her identity, that he or she both is and intends to remain in Norway for the future, and he or she has not been punished or subjected to any other sanctions for a criminal offence. In addition, children over the age of 2 years must have been staying in Norway for the past two years with residence permits of at least one year’s duration. B.  Nordic Nationals Naturalising The processes for Nordic nationals to acquire Norwegian citizenship are simpler and easier than those that apply for other EU/EEA nationals. First, according to § 13 NA, whilst Nordic nationals may apply for Norwegian nationality under the conditions set out in § 7 NA, they are exempt from the general temporal residence requirements contained in § 7(d) and (e), and need 72 This exception came into force as of 1 January 2022, with the requirements of what constitutes ‘sufficient income’ further determined by § 6-1 NR as resources through income and benefits corresponding to at least three times the National Insurance scheme basic amount (as of 1 May 2021 equalling NOK 319,197 in total). 73 § 11 and § 12 NA. 74 § 5 NR contains several provisions mapping out the various quarantine periods relating to all manner of criminal convictions and sanctions. 75 Lov om endringer i statsborgerloven (avvikling av prinsippet om ett statsborgerskap), LOV2018-12-20-121.

194  Christian NK Franklin only have stayed in Norway for the two past years in order to qualify. Nordic nationals who ‘can understand’ Norwegian are also specifically exempt from the vigorous Norwegian language and social studies requirements that might otherwise apply.76 As mentioned in section V.A, special (and simpler) conditions apply under § 17 NA for children of EU/EEA nationals who have become Norwegian nationals, when they apply for Norwegian nationality. The conditions are eased even more for children of Nordic nationals. Although such children over the age of 2 years must have been staying in Norway for the past two years in order to apply, the residence permit requirements are naturally waived. Second, and indigenous to them, according to § 20 NA, citizens of Denmark, Finland, Iceland and Sweden may become Norwegian nationals through mere notification. According to this procedure, the person becomes a Norwegian national on the date when the notification is received by the police, provided that the conditions for the notification have been met. The conditions are rather straightforward, and require the person to be at least 18 years of age, to have lived in Norway for the past seven years, and during those seven years not to have committed any criminal offence punishable by prison sentence or other form of penal sanction. Since the introduction of dual citizenship in Norway on 1 January 2020, there is no longer a requirement for Nordic nationals to give up their other Nordic nationality upon acquiring Norwegian citizenship either. VI.  OTHER DIFFERENCES IN NORDIC/EFTA REGULATION

Two matters will briefly be discussed in this section. First, the general tightening of the Norwegian rules on deportation and differences in the treatment of Nordic and other EU/EEA nationals regarding refusals of entry into Norway. Second, the rights of free movement enjoyed under the EFTA Convention, and how these fit with the EU/EEA and Nordic agreement rules. A.  Deportation and Refusal of Entry Since the Nordic agreements do not generally regulate the matter, awareness of the EEA rules concerning deportation may be of crucial importance for Nordic nationals living in Norway.77 Paragraphs 122–123 in Chapter 13 IA contain specific rules on deportation applying to EU/EEA nationals and their family members, transposing relevant provisions of the Citizenship Directive. These rules apply by way of exception to the general rules allowing for the expulsion 76 § 4-6 NR. 77 It is also important to note that § 69 IA makes a general exception for all foreign (including Nordic) nationals born in Norway and who have continuously had a fixed abode in the country, who may not be deported.

Free Movement Rights in Norway  195 of foreign nationals set out in Chapter 8 IA (§§ 66–72). Given the strict requirements of the Citizenship Directive, as interpreted by the CJEU and EFTA Court, foreign nationals may generally be considered as less protected from expulsion under the rules in Chapter 8 than EU/EEA nationals and their family members residing in Norway. That said, all of the rules on deportation under the IA have been subjected to rather significant changes in recent years, opening up for Norwegian authorities to deport those considered undesirables in a much wider range of situations than was previously possible. Following amendments that entered into force in 2020, both third-country nationals and EU/EEA nationals may, for example, suffer expulsion for committing criminal offences under the Road Traffic Act.78 Although the preparatory works to the amending statute, which will usually carry significant weight when interpreting the provisions in question, seemed to indicate caution as regards too strict an approach when deporting on these new grounds, the legislative proposal also makes clear that the amendments were generally designed to make it easier to expel foreigners in the future.79 The general trend of softening the grounds for expulsion has seemingly been picked up by the lower Norwegian courts, who have sailed rather close to the wind in their understanding of the protection afforded under EEA law against deportation. The Oslo District Court and Court of Appeal had, for example, upheld a decision of the UDI and UNE expelling a Romanian national from Norway for committing two minor theft offences over a three-year period, for which the individual was merely fined, on grounds of posing a genuine, present and sufficiently serious threat affecting the fundamental interests of Norwegian society.80 The decision of the lower courts was (in my opinion, correctly) overturned by a unanimous Supreme Court on appeal.81 The Supreme Court held that two criminal offences, carrying fines of NOK 5,000 and 8,000 respectively, could not be deemed sufficiently serious.82 Further, that there was little evidence that the individual posed a present threat – given that three years had passed between the two offences, the risk of repeat offences could not be said to be present and the individual in question had obtained work in (and was therefore planning to move his family to) Norway shortly after commission of the last offence.83 The fact that such a case necessitated the time and expense of

78 Lov om vegtrafikk (vegtrafikkloven), LOV-1965-06-18-4. 79 See Prop 40 L (2019–2020) Endringer i utlendingsloven (utvidet adgang til utvisning m.m.) 5, where the Ministry stated that it is important that immigration legislation does not have an ‘unnecessarily high threshold for deportation’ in cases where deportation otherwise appears to be a reasonable and proportionate reaction. Innst.250 L (2019–2020) 5 nevertheless emphasises that in cases involving EU/EEA nationals, deportation for traffic offences should be limited to serious offences, that there must be a risk of repeat offences in the future and that deportation can only be based on the individual’s personal circumstances (not on general, preventive grounds). 80 TOSLO-2020-756; LB-2020-94662. 81 HR-2022-533-A. 82 ibid para 58. 83 ibid para 61. Indeed, both the Court of Justice and EFTA Court have held that previous criminal convictions will not be enough of themselves, and that there must be a real risk of repeat offences

196  Christian NK Franklin legal proceedings at three instances seems indicative of Norwegian authorities’ pursuit of a harder line on deportation.84 Briefly concerning refusals of entry into Norway, Nordic nationals may – like any foreign citizen – be denied entry into Norway under the general rules applicable under §§ 17 and 121 IA. A specific exemption is nevertheless made under § 17(2) IA for Nordic nationals who are resident in Norway, who may not be turned away at the border. B.  EFTA Convention – Same as EEA Rules or Different? A question of particular importance for Swiss nationals looking to move to and work in Norway is whether the rules that apply to them under the EFTA Convention are the same as those applicable to EU/EEA nationals. Following its revision in 2002, the EFTA Convention today contains several provisions concerning both free movement of persons and for the coordination of social security systems between the EFTA states (Iceland, Norway, Liechtenstein and Switzerland).85 Key EU/EEA regulations and directives (with the notable omission of the Citizenship Directive) are also made part of the Convention acquis, as updated via amendments to Annex K.86 The Convention itself is nevertheless silent on whether the Convention’s rules, which to a great extent mimic those of the EEA Agreement, are to be interpreted in the same way as the latter. There is also a lack of case law touching upon the issue. General consensus in academic writing has nevertheless been that where EFTA provisions reflect the content of EEA rules, a strong presumption should be said to exist that they will be interpreted in the same way.87 A recent decision by one of the Norwegian Courts of Appeal concerning corporate taxation issues linked to establishment rights between Switzerland and Norway seems to confirm this, stating that the presumption may be rebutted (at least in Norway) where the aims and/or context of the rules in question differ.88 Fiscal issues are nevertheless considered particularly contentious in an EEA context. The Court of Appeal was therefore quick to point out that the situation may

occurring in the future, see eg Case C-50/06 Commission v the Netherlands, ECLI:EU:C:2007:325, paras 44–49; L (n 11) para 48. 84 The Supreme Court even seems to infer at one point that the case could not even be considered borderline, see para 58. For a more clear-cut instance of repeat offences triggering expulsion of an EU/EEA (Swedish) national, see eg the Supreme Court’s decision in HR-2019-2400-A. 85 EFTA Convention (n 12) Art 20 (free movement) and Art 21 (social security), with further reference to Annex K. 86 Including eg Regulation 883/2004 (n 49) and Regulation 987/2009 (n 49). Both incorporated into Annex K of the EFTA Convention by EFTA Council Decision no 5/2015, in force as of 1 January 2016. 87 See eg B Pirker, ‘Switzerland and the EEA’ in Arnesen et al (ed) (n 47) 80. 88 LB-2020-79857 – UTV-2021-1169, concerning Art 23 of the EFTA Convention and Art 31 EEA. Appeal to the Norwegian Supreme Court was not allowed, so the decision is now res judicata.

Free Movement Rights in Norway  197 well be different, and the links much stronger, with regard to other rules in the EFTA Convention and EEA Agreement – calling particular attention to the rules concerning free movement of persons in this regard.89 That the presumption of consistent interpretation may be more difficult to rebut in the field of persons is further emphasised by Norwegian state practice.90 Potential differences between the treatment of EU/EEA and Swiss nationals as far as residence in Norway are concerned have in any event seemingly been abated by the very drafting of § 109 IA and § 19-1 IR. These provisions make clear that the rules of Chapter 13 IA are to apply equally to nationals of the EFTA states. Concerning social security rights, although none of the EFTA Convention rules on coordination have been specifically incorporated into Norwegian law, the same practical result has been secured by the inclusion of so-called ‘sector monism’ clauses in the National Insurance Act (§ 1-3), the Family Allowance Act (§ 22) and the Child Benefit Allowance Act (§ 22). According to the recent Official Norwegian Report on Social Security, and notwithstanding a few minor exceptions, Norwegian authorities also appear to treat Swiss nationals for all practical intents and purposes as though they were EU/EEA nationals.91 VII.  CONCLUSION: NORWAY

From what we have seen in this chapter, it seems fair to conclude that the legal situation of Nordic nationals coming to Norway is a great deal more advantageous than that of other non-Nordic EU/EEA nationals. Nordic nationals – and in many instances also their family members, regardless of nationality – enjoy a wide range of enhanced rights and simpler ways of attaining them. Concerning residence, Nordic nationals (and their family members who are Nordic nationals) are fully exempt from the general requirement of obtaining a residence permit in order to live and/or work in Norway. As far as access to social security benefits in Norway is concerned, the Nordic Agreements extend the scope of the EU/EEA Social Security Regulations to all economically inactive Nordic nationals. For the purposes of aggregation, third-country national family members of Nordic nationals also enjoy a free-standing right to have periods of membership 89 ibid 12. 90 See eg Ot.prp.nr.97 (2008–2009) Om lov om endringer i utlendingsloven og i enkelte andre lover, 16, concerning proposed amendments to the Norwegian Student Financial Aid Act (LOV-2005-06-03-37). The Ministry emphasised that in light of the similarities between the EEA and EFTA rules of free movement for workers, the right to financial aid for students afforded to EU/EEA nationals had to apply equally to Swiss nationals. The law was changed accordingly. 91 NOU 2021:8 ‘Trygd over landegrensene, Gjennomføring of synliggjøring av Norges trygdekoordineringsforpliktelser’, 217. Exceptions include where the rules may be different due to a lack of updating of EFTA Convention Annex K (which has not been updated to cover amendments made to the Social Security Regulations under EU/EEA law since 2012), or where the rights are connected to work on the Norwegian continental shelf (see § 2-4 National Insurance Act, § 3a Family Allowance Act, and § 6 Child Benefit Allowance Act).

198  Christian NK Franklin in national insurance schemes, employment, self-employment or residence completed under the laws of other Nordic states taken into account as though they were periods completed in Norway – a right not enjoyed by third-country national family members of non-Nordic EU/EEA nationals moving to Norway. The geographical scope of the EU/EEA Regulations is also extended by the Nordic Agreements to cover Åland, the Faroe Islands, Greenland and Svalbard. Concerning naturalisation rights, whilst both EU/EEA and Nordic nationals must generally apply to become Norwegian citizens, the latter are exempt from some of the requirements that would normally apply – and may even (subject to certain conditions) attain Norwegian nationality by way of mere notification. As for other potential differences, it is important to note that the tougher line on deportation pursued by Norwegian authorities over the past few years would indeed seem to apply equally to both Nordic and non-Nordic EU/EEA nationals – although Nordic nationals resident in Norway may not be denied entry into the country. Finally, concerning rights of residence and access to social security benefits under the EFTA Convention, it seems as though Swiss nationals are generally treated on a par with all other EU/EEA (including Nordic) nationals in practice.

10 Free Movement Rights in Iceland CIARÁN BURKE* AND ÓLAFUR ÍSBERG HANNESSON**

I. INTRODUCTION

T

his chapter discusses whether the Nordic cooperation model adds anything to the rights granted by the law of the European Economic Area (EEA law) in Iceland. The concept of residence can be used as a condition both for inclusion in and exclusion from social security under EEA law and in national legislation. In the Nordic countries, where social security schemes are, for the most part, based on residence, there is a longstanding practice of defining residence for the purposes of social security. The following analysis is focused on the residence-based model of the welfare state employed by Iceland. Individual rights to social benefits have developed from being based on citizenship to being based upon registered residence, regardless of nationality. Further, since joining the EEA, Iceland has adopted various modifications to its legislation that are closely connected with the notion of residence. Iceland relies heavily on a national administrative system of residence registration, primarily to determine eligibility for entitlement to social rights. Furthermore, access to social benefits relies on registered residence, representing the key for the effective enjoyment of any rights that EEA and Nordic nationals may derive from the EEA Agreement and the 2012 Nordic Convention on Social Security (Nordic Convention).1 In this contribution, section II describes the system and conditions for residence registration in the Icelandic Civil Registry (Registers Island/Þjóðskrá Íslands). Section III demonstrates the changes to the legislation that were deemed necessary when the EEA Agreement entered into force. The Nordic Convention on Social Security, which imposes obligations

* The views expressed in this contribution are strictly personal, and cannot in any way be attributed to the European Free Trade Association (EFTA) Surveillance Authority. ** The views expressed in this contribution are strictly personal, and cannot in any way be attributed to the EFTA Court. 1 Nordic Convention on Social Security, done at Bergen, adopted on 12 June 2012, in force since 1 May 2014. See at I-55071-080000028043178d.pdf.

200  Ciarán Burke and Ólafur Ísberg Hannesson on Iceland to provide special arrangements for individuals arriving from other Nordic countries, is also discussed. Next, the Civil Registry’s restrictive position in relation to accessing the registry is examined (section IV). Thereafter, the differences between persons covered by the personal scope of the Nordic Convention and EU/EEA nationals2 establishing residence in Iceland are discussed, and finally a brief look is taken at the naturalisation process. Section V comments on the relationship between the national and EEA concepts of residence II.  THE LEGAL ARRANGEMENTS FOR EU, EEA AND NORDIC NATIONALS IN ICELAND

It is important to note that while the EEA Agreement does not include the concept of Union citizenship, Directive 2004/38 (applicable throughout the EEA), geared to bolster the right of Union citizens to move to and reside in any Member State, is not restricted in its application to Union citizens alone.3 As it built upon the provisions of previous directives, which also formed part of the EEA Agreement, it was transposed into the Agreement almost unchanged, thus extending its scope to nationals of the EEA/EFTA states. For EU/EEA nationals, Section XI of the Foreign Nationals Act No 80/2016 applies, implementing important elements of Directive 2004/38/EC. Article 6 thereof, which grants all EU/EEA nationals an unconditional right to free movement in another EEA state for up to three months, is transposed via Article 83 of the Act: [A]n EEA or EFTA national who presents a valid passport or identity card may enter Iceland … and reside in Iceland for up to three months after entering the country, as long as his/her stay does not cause an unreasonable burden on the social assistance system.

Article 7(1) of the Directive is given effect by Article 84 of the Act. It provides: EEA or EFTA nationals are entitled to reside in Iceland for longer than three months if they satisfy one of the following conditions: a. are employed or self-employed in Iceland, b. intend to provide or avail themselves of services in Iceland and furthermore satisfy the requirements of subparagraph c, as applicable,

2 The term ‘EU/EEA nationals’ is used throughout this chapter to refer to European Union (EU) citizens and nationals of the EEA EFTA states (Iceland, Norway and Liechtenstein), who enjoy identical privileges in Iceland on the basis of EEA law, as it is implemented into Icelandic domestic law. 3 Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC [2004] OJ L158/77.

Free Movement Rights in Iceland  201 c.

have sufficient funds for themselves and their family members so as not to place a burden on the social assistance system while in residence and are covered by health insurance covering all risks during their period of residence in Iceland, d. are enrolled in a recognised educational institution with the aim of obtaining education or work training; are covered by health insurance covering all risks during their period of residence in Iceland and can provide proof of secure means of support …

Both provisions reproduce the relevant EEA law almost verbatim. Foreign nationals not covered by the EEA Agreement may need to apply for a residence permit to enter and stay in Iceland. The Icelandic rules distinguish between persons covered by the personal scope of the Nordic Convention4 and EEA countries, as the former are free to travel to Iceland to work and live there, whereas EU/EEA nationals need to meet the requirements set out in the Foreign Nationals Act. However, this distinction does not have a great deal of effect in practice, as in reality, the Icelandic authorities, for most purposes, subsume Nordic nationals under the larger umbrella of EU/EEA nationals and treat them as such. Article 8(1) of Directive 2004/38/EC authorises EEA states to require EU/ EEA nationals to register with the relevant authorities. States may make the failure to comply with a registration requirement subject to sanctions, provided always that such sanctions are proportionate and non-discriminatory. Although EEA states may be entitled to require EU/EEA nationals to register with competent authorities, the CJEU has repeatedly affirmed that registration certificates do not create rights of residence but simply serve to attest to existing rights conferred directly by EU – and by analogy EEA – law.5 As noted, Iceland operates a residence-based registration system, in which registration of one’s residence operates as an effective gateway to eligibility for entitlement to a wide array of social rights.6 However, one sui generis element of the Icelandic system may be that it was devised, first and foremost, for the purpose of national migration control, and as a means of ensuring the international protection of foreign nationals and stateless persons via the asylum system (including non-refoulement and subsidiary protection), rather than as a means of regulating social entitlements simpliciter.7 Registration was thus intended as a means of keeping track of migrants who might find themselves in Iceland, in either a regular or 4 In accordance with Art 4 of the 2012 Nordic Convention, its aim is to extend the scope of Regulation 883/2004, but according to Art 3, the Convention shall apply to persons who fall within the personal scope of the Regulation and who are also subject to or have been subject to legislation in the Nordic countries. This means that Nordic nationality is effectively irrelevant in deciding whether the Nordic Convention should apply to an individual. Rather, here (past) residence is decisive. 5 Case C-459/99 MRAX, ECLI:EU:C:2002:461, para 74; and Case C-215/03 Oulane, ECLI: EU:C:2005:95, paras 17 and 18. 6 See C Bruzelius, ‘Freedom of movement, social rights and residence-based conditionality in the European Union’ (2019) 29(1) Journal of European Social Policy 70. 7 See Art 2 of the Foreign Nationals Act 2016 no 80, 16 June, and the annexed explanatory note.

202  Ciarán Burke and Ólafur Ísberg Hannesson an irregular situation, requiring them to register in order to gain access to the state organs that might assist them. In practice, however, the system’s operation has impacted significantly upon the practical realisation of free-movement rights under EEA law, and under the Nordic Convention. Icelandic social security benefits are only paid to those registered as resident in Iceland. The welfare state has developed with a strict reference to territoriality, and has combined the requirement that individuals are lawfully resident with the condition that they are registered in the Civil Registry as preconditions for being insured. This dual requirement, of lawful and habitual residence, may be contrasted with the model prevailing in other EEA states such as Germany, where habitual residence, albeit registered with the local municipality, is generally sufficient in order to qualify for many benefits.8 Like many EU and EEA states, Iceland operates a residence-based registration system, in which registration of one’s residence operates as an effective gateway to eligibility for entitlement to a wide array of social rights. It delineates specific definitions for residence, which also operate as de facto eligibility criteria for certain benefits and services.9 The Foreign Nationals Act provides the legal basis for foreign nationals to stay or take up residence in Iceland. III.  LEGAL BASIS FOR ESTABLISHING RESIDENCE IN ICELAND

With residence registration serving such a central function, oversight and management of registration is clearly crucial. These tasks are allotted to the Civil Registry via the Act on Legal Domicile No 80/2018. In accordance with Article 14 thereof, an EU/EEA national may stay in Iceland for three to six months without being registered. Those who intend to stay for more than six months are obliged to report their domicile at the Civil Registry. ‘Domicile’ is defined as the place where an individual has his or her permanent residence.10 The Nordic Agreement on public registration between Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway and Sweden applies to those who move to Iceland from other Nordic countries. The Agreement stipulates that people can only register one legal domicile in the Nordic countries. When a legal domicile is registered in Iceland, the Civil Registry notifies the country of departure of the registration in Iceland, and then the person is registered as having moved to Iceland in the national registry of the relevant country. ‘Permanent residence’ means the place where an individual spends his or her free time, keeps his or her belongings and sleeps.11 Alternatively, an individual 8 Bruzelius (n 6) 71–73; See also M Blauberger and SK Schmidt, ‘Welfare Migration? Free Movement of EU Citizens and Access to Social Benefits’ (2014) 1 Research and Politics 3. 9 With respect to broader European comparators, see Bruzelius (n 6) 83. 10 Art 14 of the Act on Legal Domicile No 80/2018. 11 Art 20 of the Act on Legal Domicile No 80/2018; see at ec.europa.eu/social/main.jsp?catId= 1114&intPageId=4600&langId=de.

Free Movement Rights in Iceland  203 may be registered at the offices of the town to which he or she intends to move, or at the office of the District Commissioner.12 As a general rule, all members of the same nuclear family must have the same legal domicile. The definition of residence employed in this context reflects that of other Icelandic legislation treating related issues, such as those concerning taxation, eligibility for social assistance and residence-based social security benefits. The concept of residence is also similar to that of ‘centre of interest’, applied in the area of EU/EEA social security coordination.13 Although not registering is not associated with any formal penalty, registration is of the utmost practical importance, and has an indirect legal impact, as many laws refer to the category of legal domicile, which results from registration,14 or employ registration as a precondition when deciding on residence in another legal context. Iceland shares the concept of registered residence as a gateway to social benefits with many other EEA states. However, failure or inability to register one’s residence may equally be construed as a barrier to such benefits.15 Having one’s residence registered in Iceland, as a matter of practice, operates as a precursor to securing entitlement to public services and solidarity benefits, such as pension rights, the right to access education and the healthcare system, as well as social assistance. Thus, it is important for a person to register his or her residence domicile as soon as possible after arriving, if he or she intends to live permanently in Iceland.16 Beyond being prevented from accessing public services, such individuals might eventually face legal consequences, since it is generally illegal to remain longer than three months in Iceland without registering one’s domicile.17 This demonstrates the conflation of legal and habitual residence in Icelandic law. In practice, registration of residence for EU/EEA nationals is generally conditional on the provision of proof by such nationals and their family members that they are lawfully exercising the right to reside under Directive 2004/38/EC as transposed via the Foreign Nationals Act.18 This means that, for periods of residence beyond three months, such individuals must have sufficient resources for themselves and their family members, so as not to place a burden on the social

12 See at ec.europa.eu/social/main.jsp?catId=1114&intPageId=4600&langId=de. 13 This area is regulated by Regulation 883/2004/EC, which has been incorporated into the EEA Agreement, and which is thus applicable in Iceland. Like Icelandic domestic law, Art 1(j) of the Regulation defines residence as habitual residence, though, unlike Icelandic law, it makes no reference to legal residence. 14 This is regulated by the Act on Legal Domicile No 80/2018. 15 For further European examples, see Blauberger and Schmidt (n 8). 16 At www.awesome-rvk.is/guides/kennitala; www.skra.is/english/people/change-of-address/movingto-iceland/i-am-a-nordic-national/staying-more-than-6-months/. 17 See at ec.europa.eu/social/main.jsp?catId=1114&intPageId=4600&langId=en. 18 See at www.skra.is/library/Samnyttar-skrar-/Eydublod/A-262-registration-EES-EFTA-foreignnational.pdf.

204  Ciarán Burke and Ólafur Ísberg Hannesson assistance system, and comprehensive health insurance.19 In implementing this criterion, Icelandic authorities should have reference to the interpretation of the notion of sufficient resources by the Court of Justice and particularly the EFTA Court.20 However, beyond this, the Civil Registry has required the person in question to submit confirmation from his or her employer, or a copy of the employment contract, stating that that person is employed for at least three months and that his or her wages comply with the requirements for minimum living expenses.21 When it comes to non-economically active citizens, or in cases where the salary in the employment contract does not meet the subsistence standard, the EU/EEA nationals in question must be able to prove that they can support themselves in Iceland for at least three months with private means according to the published guidelines for minimum living expenses. Non-workers are permitted to demonstrate other means of subsistence, such as funds in a bank account, corresponding to the minimum subsistence level.22 A.  The Information Gathered in the Civil Registry As a general rule, all children born in Iceland and Icelanders born abroad will be registered from birth in the Civil Registry. An Icelandic National Identification Number (kennitala) is also granted to all non-nationals who qualify for registration.23 The Civil Registry is used as the basis for decisions concerning the rights and obligations of persons domiciled in Iceland, as well as Icelandic citizens. These may include decisions concerning tax liability, voting rights, the right to an Icelandic passport and access to various rights based on legal domicile, marital status, etc. The registered information includes kennitala, gender, place of birth, citizenship, full name, marital and cohabitation status, family registration code, legal domicile, Icelandic or other residence (if applicable), religious adherence, links between children and adoptive parents, custody of children, restricted registration, as well as a record of the legal competence of persons.24

19 Art 84 of the Foreign Nationals Act No 80/2016. 20 See, inter alia, Case E-4/11 Arnulf Clauder [2011] EFTA Ct Rep 216. 21 See at skra.is/folk/flutningur/flutningur-til-islands/ees-efta-rikisborgarar/dvol-lengur-en-3-manudir/ er-med-vinnu/. 22 The monthly minimum subsistence for an individual is 212,694 ISK. The three-month minimum is 638,082 ISK. Employees need to demonstrate that they have at least 212,694 ISK in salary per month for at least three months. Individuals with private means of support have to demonstrate that they have at least 638,082 ISK to support them financially while staying in Iceland. See at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-an-eea-efta-citizen/ staying-more-than-3-months/minimum-subsistence/. 23 See at www.skra.is/english/people/my-registration/id-numbers. 24 See at www.skra.is/english/people/my-registration/.

Free Movement Rights in Iceland  205 B.  How to Qualify for Residence Registration A legal domicile – defined as where an individual lives on a regular basis – represents the necessary condition for everyone intending to stay in Iceland for periods exceeding three months. It represents the key qualifier to gain registration, and thus to access locally provided benefits and services as well as social security services. To this principal qualifier it must be added that the individual in question must satisfy the Icelandic immigration rules, which apply differently to different nationalities, representing the combination of habitual and legal residence. C.  Differences between Nordic Nationals and EU/EEA Nationals Establishing Residence i.  Nordic Nationals Establishing Residence Nationals of the Nordic states who intend to work in Iceland may enter and stay for up to six months from the date of their arrival without registration of their residence at the Civil Registry.25 This represents a more generous period than that applicable to other nationalities, including EU/EEA nationals. Nevertheless, even Nordic nationals are obliged to get in touch with the Iceland Revenue and Customs (Skatturinn) to apply for a kennitala. After the ID-procedure for the kennitala has been completed, the Nordic national will also receive a tax card. The kennitala itself does not independently grant any rights and does not confirm an individual’s right to residency. If the Nordic national intends to work during this period, his or her employer or the Directorate of Labour must apply for an ID number.26 For Nordic nationals, as for other categories of individuals arriving in Iceland, residence for more than six months without registration of legal domicile is illegal and can have an impact on a person’s rights. It is further stated that ‘the right to public service and assistance is mostly dependent on a registered legal domicile, so it is advisable to register one as soon as possible’.27 This – and the inability to secure most social assistance without registering one’s residence – is demonstrative of a cleavage between the lex lata, which is permissive, and the reality, which restricts the rights of Nordic (and EEA) nationals in practice until such time as they register their domicile. In accordance with the Nordic Agreement on Public Registration, applicable between Denmark, Finland, Iceland, Norway and Sweden, persons (of whatever

25 See at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-a-nordic-national/ staying-less-than-6-months/. 26 The employer does so using form A-263/A-264, 42. 27 See at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-a-nordic-national/ staying-more-than-6-months/.

206  Ciarán Burke and Ólafur Ísberg Hannesson nationality) moving from other Nordic states staying longer than six months must register a legal domicile in Iceland at the Civil Registry or the respective municipality within seven days of their arrival.28 They must also complete the A-253 form and transfer a notification from their Nordic state of nationality to Iceland. After their domicile is registered and the registration has taken place, they will be allocated a kennitala. ii.  EU/EEA Nationals Establishing Residence Article 8(1) of Directive 2004/38/EC provides that for periods of residence longer than three months, the host EEA state may require EU/EEA nationals to register with the relevant authorities. Article 8(3) of the Directive lists the documents that must be submitted in order to obtain the registration certificate. Workers or self-employed persons must present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons. States in the EEA may oblige EU/EEA nationals to comply with such administrative formalities and impose fines for non-compliance. However, a failure to comply with such formalities can never be a ground for deportation. Thus, as long as the EU/EEA national fulfils the conditions of Article 7 of the Directive, of being economically active or having sufficient economic resources and medical insurance, he or she should be entitled to reside in the host EEA state without formalities. In Iceland, new arrivals from other EEA countries must qualify for registration in accordance with Article 89 of the Foreign Nationals Act. Under Article 89, EU/EEA nationals must submit documentation proving that they fulfil the requirements to stay in Iceland for more than three months. The precise requirements concerning which documents need to be submitted depend on the particular group of persons. In line with Article 7 of Directive 2004/38/EC and Article 84 of the of the Foreign Nationals Act, the authorities may request them to present, in addition to a valid identity card or passport: (i) confirmation of employment from an employer, or proof that they are self-employed or offer services; (ii) confirmation of health insurance and documentation that they have sufficient funds to support themselves and their family members; (iii) confirmation of enrolment to study at a recognised educational institution, and confirmation of health insurance and documentation that they have sufficient funds to support themselves and their family members. Directive 2004/38 does not provide clear-cut standards as regards the level at which a person’s resources as required by Article 7 may be considered (in)sufficient. However, as the Court held in Brey: [T]he first sentence of Article 8(4) of Directive 2004/38 expressly states that Member States may not lay down a fixed amount which they will regard as ‘sufficient resources’,

28 ibid.

Free Movement Rights in Iceland  207 but must take into account the personal situation of the person concerned. Moreover … the amount ultimately regarded as indicating sufficient resources may not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where that criterion is not applicable, higher than the minimum social security pension paid by the host Member State.29

The Court further noted, with respect to the automatic application of the sufficient resources condition, rejecting the application of fixed reference norms to establish whether the sufficient resources condition is fulfilled: It follows that, although Member States may indicate a certain sum as a reference amount, they may not impose a minimum income level below which it will be presumed that the person concerned does not have sufficient resources, irrespective of a specific examination of the situation of each person concerned …30

The amount of sufficient funds is not regulated by the Foreign Nationals Act, nor is there any definition of what can be considered sufficient funds, which poses a question of legal certainty. This determination is rather at the discretion of the Civil Registry, which sets a fixed amount to determine whether or not the EU/EEA national has ‘sufficient funds’. It requires that newly arriving EU/EEA nationals demonstrate, their capacity for financial support for at least three months from their registration date, in accordance with the guidelines for minimum living expenses. Those guidelines provide that the funds are deemed sufficient if they are equivalent to the level of the minimum financial support criteria in Reykjavík. At present the monthly minimum subsistence for an individual is 212,694 ISK. In practice, this means that the non-economically active individuals needs to prove that they have at least 638,082 ISK to support themselves.31 Employees need to demonstrate that they have at least 212,694 ISK in salary per month for at least three months, and service providers are also obliged to provide proof of at least three months’ income, again rated against minimum standards prescribed by administrative regulations.32 If a particular applicant is unable to demonstrate the minimum subsistence meeting criteria in Icelandic law, the registration of a legal domicile with the Civil Registry is refused, and this person will not receive an ID number.33 This would render the claimant’s entire right to residency in Iceland liable to be revoked.

29 Case C-140/12 Brey, ECLI:EU:C:2013:565, para 67. 30 ibid para 68. 31 See at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-an-eea-efta-citizen/ staying-more-than-3-months/minimum-subsistence/. 32 See, in this regard, at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-aneea-efta-citizen/staying-more-than-3-months/i-am-employed/service-provider-or-service-recipient/. 33 See B Eiríksdóttir, ‘Framkvæmd skráningar EES-launþega hér á landi á grundvelli 89. gr. útlendingalaga nr. 80/2016 í ljósi skuldbindinga samningsins um Evrópska efnahagssvæði’ (28 November 2017) Úlfljótur vefrit.

208  Ciarán Burke and Ólafur Ísberg Hannesson The above requirements in other words means that EU/EEA nationals, and even workers, who cannot satisfactorily prove the above will not be registered, even though they may fulfil the requirements for legal residence according to EEA law. Article 8(4) requires EEA states, in all cases, to determine whether a person has sufficient resources on the basis of the personal situation of the person concerned. However, the Civil Registry seems to treat the figure above as the amount that must be satisfied in all cases. This implies that account cannot be taken of exceptional circumstances that may affect a particular individual, for example when that individual is able to live rent-free, or has access to subsidised food through his or her workplace. Such an inflexible model may be criticised, as in practice, what constitutes ‘sufficient resources’ may in fact vary from person to person. In this respect, Bjarnveig Eiríksdóttir has observed, the conditions imposed by Icelandic regulations, namely to submit confirmation from the employer or a copy of the employment contract stating that an individual is employed for at least three months and that his or her wages comply with domestic requirements for minimum living expenses, are not stipulated in either Article 7 or Article 8 of the Directive.34 In this context, it is worth recalling that Article 28 EEA mirrors the wording of Article 45 of the Treaty on the Functioning of the European Union. The provision gives EEA workers and self-employed persons the right to move freely and participate in economic activity in other EEA states on the same terms as nationals. Equal treatment extends to all social advantages,35 and workers must not be discriminated against on the basis of nationality as regards welfare benefits, including social assistance,36 in the country of work. The question remains who qualifies as a ‘worker’ and thus deserves equal treatment. As noted, Icelandic law requires employees to demonstrate that they have an income above the monthly minimum subsistence for an individual (212,694 ISK) in order to be registered, imposing an additional (and illegitimate) condition to those foreseen by EEA law. It follows from settled case law that the concept of a worker must be interpreted broadly. In that regard, the EFTA Court followed the case law of the Court of Justice and held, in Campbell, that: Its essential feature is that for a certain period of time a worker performs services for and under the direction of an employer in return for remuneration. Moreover, a person is a worker even if only engaged in part-time work, or where the remuneration received is below the minimum guaranteed wage in the State concerned, provided that the activity in question is not purely marginal and ancillary.37

34 ibid.

35 Case

C-65/81 Reina v Landeskreditbank Baden-Württemberg, ECLI:EU:C:1982:6. C-248/83 Hoeckx, ECLI:EU:C:1985:214. 37 Case E-4/19 Campbell v The Norwegian Government, judgment of 13 May 2020, para 49. 36 Case

Free Movement Rights in Iceland  209 In this respect it might be recalled that in Vatsouras,38 the Court of Justice considered that a wage of €169 a month below the minimum subsistence level was not necessarily too small for Mr Vatsouras to qualify as a worker. It follows from the above that the fact that employment undertaken may yield an income lower than the minimum guaranteed wage in the host state does not prevent the person from being regarded as a worker within the meaning of Article 28 EEA. Separately, the Court of Justice has held that someone may engage in a ‘brief minor’ professional activity that ‘did not ensure him a livelihood’, or an activity that ‘lasted barely more than one month’, and still be regarded as a worker.39 As noted by Bjarnveig Eiríksdóttir, many EU/EEA nationals arrive on a temporary contract from which it is hard to prove any intension of being employed in the future. As Bjarnveig Eiríksdóttir has said, this broad approach to the concept of worker does not seem to be followed by the Civil Registry, as its interpretations are more restrictive. It imposes conditions on arriving economically active EU/ EEA nationals that are not imposed upon Icelandic citizens, and that are not prescribed by Directive 2004/38/EC.40 Furthermore, the Civil Registry’s requirement for three months’ employment and the criteria for the minimum subsistence level41 effectively amount to a unilateral interpretation of the notion of free movement of workers. Adding conditions for being a worker under Article 28 of the EEA, granting discretion to the administrative services or allowing a difference between law and practice, all create additional legal uncertainty. This may seriously undermine the right of free movement. Failing to meet the resource requirement imposed by the Civil Registry will lead to the automatic rejection of an application. This practice thus seems to stand in contrast to settled case law. As already stated, not having secured registration has important implications. It bars individuals from accessing benefits where registration is required. Nationals of the EU/EEA may be lawfully residing in Iceland, but if they cannot prove the the required matters, it is difficult for them to access many public benefits and services to which they may be entitled under EEA law. One example is health care, which will be discussed in section IV. If an individual meets all of the relevant registration requirements,42 the Civil Registry will concurrently apply for a kennitala for the person in question. This is a unique national identification number employed to identify individuals and organisations in Iceland, and is identical to the system ID number for each

38 Joined Cases C-22/08 and 23/08 Vatsouras and Koupatantze, ECLI:EU:C:2009:344. 39 Judgment of the Court of Justice in Case C-413/01 Ninni-Orasche, ECLI:EU:C:2003:600, para 32. 40 See Eiríksdóttir (n 33). 41 See at www.skra.is/umsoknir/rafraen-skil/vinnuveitendagatt-ees-efta-borgarar/. 42 A-271: Application for registration in the national registry for period exceeding three months.

210  Ciarán Burke and Ólafur Ísberg Hannesson individual’s personal data in the national registry.43 Besides proof of residence, the kennitala is necessary as a means of identification in several situations. For example, the kennitala is used to apply for a tax card, to open bank accounts, to register motor vehicles and for commercial receipts. This highlights the great practical importance of having this number and, as a corollary, the difficulty of residing in Iceland without one, which is, in any event, de facto and de iure impossible for virtually all EEA and Nordic nationals for periods exceeding six months. While the gamut of rights open to EU/EEA nationals is clearly broader and better developed than those for persons falling under the personal scope of the Nordic Conventions, certain distinctions in relation to the latter should nonetheless be underlined. As noted, Nordic nationals who intend to work in Iceland may enter and stay for up to six months without registration, a more generous period than is applicable to EU/EEA nationals. Nevertheless, in practice, even Nordic nationals must apply for a kennitala and receive a tax card. This therefore does not exempt Nordic nationals from bureaucratic procedures during the first six months. Further, while rights under the EEA Agreement are tied to nationality of the EEA states, the Nordic Agreement on Public Registration grants rights to persons of any nationality moving from other Nordic states. However, again, such persons who intend to remain longer than six months in Iceland must register a legal domicile in Iceland at the Civil Registry or the respective municipality within seven days of their arrival. IV.  ACCESS TO SOCIAL RIGHTS/INCLUSION IN RESIDENCE-BASED SOCIAL SYSTEMS IN ICELAND

An extensive welfare system has been established in Iceland, which is principally regulated by the Social Security Act No 100/2007 and the Act on Social Assistance No 99/2007.44 Iceland’s social security system has been influenced from a variety of outside sources. First, Iceland has, perhaps unsurprisingly, drawn inspiration from the models of social assistance previously implemented in the domestic law of the other Nordic countries, especially that of Denmark. This parallelism may be explained by shared history, but also by continued cooperation via the framework provided by the various Nordic Conventions.45 Second, Iceland is a comparatively young constitutional democracy, and the legislative design of the social system is, in part, based on the Beveridge Report published in the United Kingdom in 1942. 43 See at www.skra.is/english/people/my-registration/id-numbers/system-id-number. 44 B Thorarensen, Stjórnskipunarréttur Mannréttindi (Bókaútgáfan CODEX 2008) 541, 542. 45 K Ólafsdóttir and S Ólafsson, Economy, Politics and Welfare in Iceland – Booms, Busts and Challenges (FaFo Oslo 2014) 13.

Free Movement Rights in Iceland  211 The first Icelandic legislation on social security was enacted in 1937 and covered all branches of insurance. The rights accorded were contingent upon citizenship. Citizenship was also the key criterion in the 1946 legislation. All Icelandic citizens residing in Iceland were insured and had rights to receive benefits. Neither foreign nationals nor Icelandic citizens residing abroad enjoyed such rights. When the social security legislation was amended in 1956 and 1963, the possibility for foreign nationals to receive benefits emerged in limited circumstances. In 1970, a major revision of the social security system began, and a new Social Security Act was introduced that entered into force in 1972. Benefits under the Act were no longer linked to nationality but rather to residence in Iceland. In this regard, Iceland was following the long Nordic tradition of registering all inhabitants. At the time, the Nordic countries had concluded an agreement concerning the administration of registration of residence when people were moving from one country to another. This was also in line with the first Nordic Agreement on Registration of Residence, which entered into force in October 1969. When Iceland joined the EEA in 1994, the state was obliged to apply the acquis communautaire on intra-European social security. This necessitated fundamental reform of its national social security legislation. Previously, there had been no need to find out the status or nationality of a person. Each person was individually insured, and officials needed only to consult the Civil Registry to determine whether a person was registered with legal residence in Iceland and the duration of that residence. Adopting Regulation 1408/71 (since superseded by Regulation 883/2004) as part of EEA membership meant that Iceland divided its former Social Security Law (No 67/1971) into two enactments, namely, the Act on Social Security46 and the Social Assistance Act.47 The preparatory works to the Act on Social Security provided that the purpose of the rules of EEA social security law was to ensure that an employed or a self-employed person who chose to work in another EEA state would retain his or her full social security rights, even if he or she moved between countries. As regards the Social Assistance Act, however, the preparatory works stated that a separate Act was needed in order to ensure that social assistance-type benefits, not covered by EEA coordination, remained the responsibility of the state and did not extend beyond its borders. Since joining the EEA, Iceland has repeatedly modified its social security legislation to adapt to EEA law. For example, in 1998, a new chapter was introduced to the Social Security Act, defining the persons insured. The rules clarify what is meant by residence, who decides whether a person is residing in Iceland, and when a derogation may be made if a person is insured but does not reside in Iceland, for example in the case of posted workers. The Government’s

46 Which 47 Which

became Act No 117/1993, now Act No 100/2007. became Act No 118/1993, now Act No 99/2007.

212  Ciarán Burke and Ólafur Ísberg Hannesson proposal expressly stated that international social security coordination and Regulation 883/2004 necessitated new legislation. This demonstrates a certain level of understanding that participation in the EEA apparatus could impact upon domestic social security provision. A.  A Residence-Based Social Security System Under the Social Security Act No 100/2007, the state provides old-age pensions, disability pensions, age-related disability supplements, pension supplements, disability allowances and child pensions. While the social security system is generous, providing mutual insurance, income equalisation and a social safety net to those who live in Iceland and fulfil certain conditions, the system remains contingent in most cases upon registered legal domicile in Iceland.48 Article 4(1) provides that everyone who has been legally resident in Iceland for a certain period of time automatically becomes a member of the Icelandic social insurance system, regardless of nationality. However, certain conditions must be met to become entitled to benefits, for example regarding age, disability and periods of legal residence. Income and family circumstances may also influence an individual’s potential entitlement.49 In accordance with Article 4(2), insurance cover ceases to apply when the individual moves his or her residence from Iceland. However, under Article 5, although no longer residing in Iceland, certain categories of people may, upon application, remain insured by the system for limited periods. The Social Insurance Administration (Tryggingastofnun, SIA) determines whether individuals are regarded as insured in Iceland under the Social Security Act. The decision of the Administration may be appealed to the Social Security Ruling Committee. Furthermore, Article 58 of the Act states that benefit recipients resident in states with which the Government enters into agreements, or with which the Minister has negotiated under Article 68, shall be paid benefits in accordance with the further details of such agreements.

This entails that benefits under the Act – and the conditions concerning who may receive them – must fulfil EEA law and the Nordic Convention. The effect of this provision is that certain social benefits – for example sickness benefits paid in cash – may, in some circumstances, be due to individuals even if they undertake stays in other EEA or Nordic states, even if such stays may imperil their residence status as a matter of Icelandic law. This entails a break with the strict residential conditionality for the receipt of certain classes of benefits, but it should be noted that such circumstances arise only very occasionally. 48 See at www.skra.is/english/people/change-of-address/moving-to-iceland/i-am-a-nordic-national/ staying-more-than-6-months/. 49 See at www.asa.is/social-insurance-in-iceland.

Free Movement Rights in Iceland  213 B.  Old-Age Pension The Icelandic pensions system consists of three pillars: social insurance; pension funds; and supplementary pension savings.50 The social insurance system is a public pensions system, funded by taxation, to which all Icelanders belong. It includes old-age pensions, disability pensions and rehabilitation pensions. In order to be eligible for receipt of the full old-age pension (ellilífeyrir), residence alone does not suffice. Only those who have resided in Iceland for 40 years or more between the ages of 16 and 67 are entitled to a full pension. Those who have lived in Iceland for less than 40 years between these ages are entitled to a proportional pension.51 In general, only the period of residence is considered and not the amount that the individual has contributed to the system. The Welfare Appeals Committee ruling 75/200052 in that context stated that ‘it did not matter whether the person in question had worked much, little or not at all during … residence’. Article 17(1) also contains a special rule, which stipulates that married couples, both of whom receive old-age pensions, may nevertheless base rights on the residence period of the spouse who has the longer entitlement period.53 Couples in civil unions enjoy the same rights.54 Additionally, old-age pensions depend upon how much income a person has earned during his working life. The maximum public pension is capped. However, the pension paid is income-tested against income from other sources, reduced when income exceeds a certain level and withdrawn entirely when income is above a given threshold. Those who have worked in two or more EEA states may have accumulated pension rights in each. Therefore, EEA applicants for the old-age pension must have resided in Iceland for at least one year (between the ages 16 and 67) if they have resided in another EEA state for the previous two years and otherwise meet the conditions of EEA law.55 This interpretation is based in particular on Regulation 883/2004. The SIA rules state that it is not sufficient for an applicant to have resided in Iceland for one year; the individual must have come to Iceland to work and must have worked for at least one month to be entitled to an old-age pension under the Social Security Act.

50 See Art 16(1) of the Social Security Act No 100/2007; norden.diva portal.org/smash/get/ diva2:968720/FULLTEXT01.pdf, 87. 51 Art 17(1) of the Social Security Act No 100/2007. 52 The Welfare Appeals Committee ruling of 22 March 2000 (75/2000). 53 G Sigurðsson and R Helgadóttir, Almannatryggingar og félagsleg aðstoð (JPV 2007) 106–07. 54 Art 49 of the Act on Social Security. It should be mentioned that Art 49(2) states that a common domicile, or cohabitation lasting more than one year as attested by other unequivocal evidence, shall be regarded as the equivalent of the registration of a civil union in the National Register. 55 Sigurðsson and Helgadóttir (n 53) 105.

214  Ciarán Burke and Ólafur Ísberg Hannesson The SIA has repeatedly confirmed that the applicant must fulfil the conditions of Regulation 883/2004 of one year’s residence in Iceland: In case no 88/2007,56 … the applicant applied for a proportional old-age pension on the basis of Article 48 of Regulation no 883/2004. SIA refused the applicant the benefits as she had not lived in Iceland for one year. The Welfare Appeals Committee confirmed the SIA’s outcome …

C.  Residence-Based Social Assistance Article 1 of the Social Assistance Act No 99/2007 lists the categories of benefits covered: Social assistance benefits consist of: single parent’s allowance, child pension in connection with school studies or vocational training of young people aged 18–20, homecare allowance, spouse’s benefit, homecare benefit, death grant, rehabilitation pension, household supplement, additional supplements, [automobile purchase grants,] automobile purchase supplements, automobile operation supplements and reimbursements of substantial expenses in connection with medical assistance and medications.

This provision serves to distinguish between benefits under the Social Assistance Act and under the Social Security Act. Social assistance is not within the material scope of Regulation 883/2004, so no conflict between them can arise. Article 1(2) of the Social Assistance Act stipulates the residence conditions that an individual must fulfil in order to receive benefits under the Act: Social assistance benefits are paid only to persons who are legally domiciled in Iceland …

Thus it is quite clear that an applicant must be domiciled in Iceland. This has been tested more than once before the Welfare Appeals Committee, which rules on appeals lodged in connection with administrative decisions.57 Repeated rulings by the Committee have clarified that it considers it is not possible to deviate from the condition laid down in Article 1 in any circumstances. However, it is appropriate to point out the fundamental difference between the residence conditions under the Social Assistance Act and under the Social Security Act. The former clearly states the condition that the applicant must be resident in Iceland in order to receive benefits. However, it is not assumed that the person in question must have resided in this country for any specific period of time in order to do so.58 Similarly, the applicant must be resident in Iceland

56 Case no 88/2007, The Welfare Appeals Committee ruling of 2 May 2007. 57 See, for example, the Welfare Appeals Committee rulings on Case no 52/2003 of 9 April 2003 and Case no 375/2005 of 8 March 2006. 58 Sigurðsson and Helgadóttir (n 53) 486–87.

Free Movement Rights in Iceland  215 to receive benefits under the Social Security Act, but Article 58 thereof stipulates that benefit recipients resident in states with which the Government enters into agreements, or with which the Minister has negotiated under Article 68, shall be paid benefits in accordance with the further details of such agreements. Such authorisation is not found in the Social Assistance Act. Furthermore, the Social Security Act stipulates that entitlement to benefits shall be calculated in proportion to the period of residence in the country for a certain period of time. Such conditions are not found in the law on social assistance. D.  The Nordic Convention Iceland has entered into several agreements with other states or international organisations on social security. These agreements are concluded on the basis of Article 68 of the Social Security Act No 100/2007 or comparable provisions of the previous Social Security Act.59 Various agreements have been made on the basis of Article 68, the most important of which is the 2012 Nordic Convention on Social Security.60 The Convention has independent legal force in the Icelandic legal order, on the basis of the law on the ratification of the Nordic Convention on Social Security No 119/2013, supplanting the 1981 Copenhagen Convention. Under Article 4 of the 2012 Convention, its aim is to extend the scope of Regulation 883/2004; but under Article 3, the Convention shall apply to persons who fall within the personal scope of the Regulation and who are also subject to or have been subject to legislation in the Nordic countries. This means that Nordic nationality is effectively irrelevant in deciding whether the Nordic Convention should apply to an individual. Rather, here again, (past) residence is decisive.61 The purpose of the Convention was, in particular, to give non-employed persons and nationals of third countries rights comparable to those generally covered by the EEA Agreement.62 Individuals who have never entered the labour market in Iceland will nevertheless start earning rights if they fall within the Convention’s scope. For example, an individual who moves to Iceland as a disabled person and earns the right to an old-age pension accordingly. In certain circumstances, confusion can occur when Nordic Convention and EEA rights overlap and conflict with one another. In particular, problems may arise with respect to persons falling under the definition of a family member in accordance with the Regulation, who are also covered as non-economically active persons under the Nordic Convention. The latter guarantees individual

59 ibid

72.

60 Nordic

Convention on Social Security (n 1). and Helgadóttir (n 53) 72.

61 Sigurðsson 62 ibid.

216  Ciarán Burke and Ólafur Ísberg Hannesson social security rights in the country of residence, while Regulation 883/2004 guarantees derived rights in the country of employment of the person’s employed family member. The Convention guarantees a slightly wider variety of benefits to non-economically active persons than Regulation 883/2004 accords to family members, though it should be noted that Regulation 883/2004 is itself significantly more inclusive than previous EEA rules in this regard, in particular Regulation 1408/71. A similar confusion surrounds the status of students. In Iceland, under SIA rules, rights under the EEA Agreement are given priority if an individual can base his or her right on each of the agreements. This means that, as a matter of fact, there is effectively no difference between Nordic nationals and EU/EEA nationals as regards social security benefits in Iceland. This issue does not often come up before the Welfare Appeals Committee, but there are a few examples, for example in Case no 135/2007.63 E.  Entitlement to Health Care The third type of benefit to be discussed pertains to health care. Iceland has a universal healthcare system that is residence-based, which means that to have a right to health care in Iceland, an EU/EEA national needs to have his or her national registration address in Iceland. Health insurances are administered by the Ministry of Health.64 The Health Insurance Administration, established by the Act on Health Insurance No 112/2008, is responsible for the implementation of health insurance, and will contract and pay providers for health services. Under Article 9 of the Act, health insurance covers health service and other assistance to be provided at the expense of the state or with the cost participation of the state. The State Treasury finances 84 per cent of the social insurance in Iceland.65 As such, individuals are not obliged to pay special premiums for their social insurance; instead, employers pay premiums to the State Treasury on wages paid to individuals.66 After the registration of an individual’s domicile has been completed, the person can immediately apply for registration in the Insurance Health Insurance Registry (Sjúkratryggingar Íslands).67

63 Here, the applicant, a Faroese, was applying for an old-age pension under the Nordic Convention. The applicant claimed that he had lived in Iceland for three years in the 1960s. The SIA refused him the old-age pension as the applicant could not prove his residence in this country during that period. The Committee confirmed this outcome. 64 See Art 2 of the Health Service Act No 40/2007 at www.government.is/ministries/ministryof-health/about-the-ministry-of-health/. 65 ‘Out-of-pocket expenditure (% of current health expenditure) – Iceland’, World Bank, 27 February 2021. 66 See at www.sjukra.is/english. 67 ibid.

Free Movement Rights in Iceland  217 In accordance with Article 10(1) of the Act on Health Insurance, persons who have been resident in Iceland for six months shall be regarded as having health insurance coverage. However, emergency healthcare services are available to all. Moreover, upon a ministerial order, exemptions to the six-month period may be granted. A person may be registered already after three months, if he or she is working or studying and explicitly applies for early registration. In this case it is sufficient to state the intention to stay longer than three months, provided that this intention can be verified by supplementary documentation. The procedure for registration in the residence registry may take several weeks. As a consequence, a migrant cannot enjoy the benefits of the healthcare system before he or she becomes officially resident. Iceland has no national social security card, but doctors have access to the Civil Registry to check whether the patient is listed there and, consequently, is covered by the Icelandic health insurance system. The consequence of not being listed in the national residence registry is that the doctor cannot see that a person is insured in Iceland. In such cases, however, the doctor might ask whether the patient has a European Health Insurance Card (EHIC). The EHIC, however, can only be used in Iceland by persons insured in an EEA state other than Iceland. If a patient is not listed in the Civil Registry, and does not have an EHIC, he or she must pay the total cost of the health care directly to the doctor. This will be the case for persons working in Iceland for less than three months or residing there for less than six months. However, the moment such persons become covered by the Icelandic health insurance system, the SIA will provide full reimbursement retroactively. In addition, if an EU/EEA national has been insured in the public system of another EEA Member State, he or she is entitled to be insured in Iceland from the date on which his or her domicile is registered in Iceland, because periods of insurance, employment or residence in other EEA Member States are considered to fulfil the six months qualification. Persons transferring their residence to Iceland from another EEA Member State must be able to document that they have been covered by the rules on health insurance in another EEA State. Within the EU/EEA, this can be done with Form E104, which is used to document that a person has been insured, resident or employed in the countries where Regulation 883/2004 on the coordination of social security systems applies. If a person cannot document that he or she is covered by any of the abovementioned regulations, Icelandic Health Insurance will request the document from the country of insurance. In these situations, EU/EEA nationals who move to Iceland cannot receive health benefits until the national authorities obtain the necessary information from abroad. The Nordic Convention on Social Assistance and Social Services of 14 June 1994 is also of relevance in this regard. It is applicable to all persons residing in a Nordic country and to all Nordic nationals regardless of country of residence. It encompasses situations in which persons move to another Nordic

218  Ciarán Burke and Ólafur Ísberg Hannesson country and need long-term treatment or care. The Convention prescribes that persons covered by its scope should attain equal treatment with Icelandic nationals, regardless of how long they have been in Iceland. A special procedure exists for migrant workers who are not yet registered, so as to guarantee complete and uninterrupted healthcare protection: after having obtained the necessary documentation (kennitala, a valid working contract, and Form E-104 for the aggregation of relevant insurance periods as proof of legal employment in Iceland), migrant workers become fully covered by the healthcare system. Before 2010, Iceland also required a tax statement, which could in practice only be provided after the worker had received his or her wage. In this regard, The EFTA Surveillance Authority sent a letter of formal notice to Iceland on 13 May 2009, concluding that the practice of requiring a tax statement from migrant workers as proof of legal employment, in order for them to be registered with the Icelandic Social Insurance Administration, was contrary to the definition of ‘employed person’ in Regulation 883/2004, with the result that, contrary to Article 2 of the Regulation, Iceland did not treat all employed persons as covered by that Regulation. In response, Iceland no longer requires the tax information.68 The respective regimes applicable to EU/EEA nationals, on the one hand, and persons falling under the personal scope of the Nordic Convention, on the other may, be distinguished from general rules applicable to foreign residents in Iceland. Persons who fall under the Nordic Convention’s scope and who arrive to reside and work in Iceland will be covered by Icelandic national health insurance after their coverage by the health insurance system in their home state has been confirmed. Nevertheless, they must register a domicile in Iceland and apply for social insurance registration. The health insurance is then valid from the date of registration of their domicile. It should be noted that if a person decides to move back to Iceland from another Nordic country within 12 months, he or she will automatically have health insurance once he or she has (re-)registered his or her domicile.69 The Nordic Agreements are specifically beneficial for students in this regard. When students return from other Nordic countries within six months of the end of their course of study, they can provide confirmation of their study during the period concerned together with an application for health insurance registration, and upon doing so, will be insured immediately on the date of registration in Iceland. Nordic temporary workers or self-employed Nordic nationals can remain insured in the social insurance system of their home state when working in Iceland.

68 ESA

Case no 62966. 1 of the Icelandic Nationality Act No 100/1952.

69 Section

Free Movement Rights in Iceland  219 V.  NATIONALITY AND NATURALISATION IN ICELAND

If Icelandic citizenship was not acquired at birth70 or granted by legislation,71 it is possible to acquire Icelandic citizenship via an application, which should be filed by the person, or by his or her representative if the person is under 18.72 The Minister of Justice decides whether to approve applications for Icelandic citizenship, after receiving the comments of the police and the Directorate of Immigration.73 The Directorate of Immigration is authorised to grant Icelandic citizenship on the grounds of a successful application. An applicant must fulfil at least one of the residence requirements and all the so-called special requirements. For the residence requirements to be fulfilled, the person must be the holder of a permanent residence permit or not need a residence permit to live in Iceland, and must have been lawfully present (ie excluding persons in Iceland irregularly or whose immigration status has yet to be determined, for example persons seeking international protection) in Iceland for several consecutive years before applying.74 The required length of residence differs between individuals, but each applicant must fulfil at least one of the residence requirements listed in Article 8 of the Icelandic Nationality Act No 100/1952. Under Article 9 of that Act, it is necessary for the individual to meet certain conditions before naturalisation is granted. In particular, it is necessary that the individual be capable of working and have a good reputation, which he or she should demonstrate by submitting testimonials from two Icelandic citizens of good standing. Furthermore, every applicant is obliged to pass a test in Icelandic. He or she must not be in arrears with respect to the payment of taxes. Lastly, the person should be capable of supporting himself or herself in Iceland, and must not have received a support grant from a local authority for the past three years. The applicant must not, either in Iceland or abroad, have been fined or imprisoned, or be involved in a case pending in the criminal justice system in which he or she is suspected of, or charged with, conduct that is criminal. However, under Article 9(1) Nr 6a-f, it is possible to be naturalised if the latter condition is not met by the individual. If the applicant does not meet the conditions for the granting of Icelandic citizenship as provided for by the Icelandic Nationality Act No 100/1952, he or she may request that the application be submitted to the Althingi, the Icelandic Parliament.75



70 ibid.

71 Section

2 of the Icelandic Nationality Act No 100/1952. 7 et seq of the Icelandic Nationality Act No 100/1952. 73 Art 7(1) of the Icelandic Nationality Act No 100/1952. 74 See at utl.is/index.php/en/citizenship-for-adults. 75 See at utl.is/index.php/en/basic-requirements. 72 Arts

220  Ciarán Burke and Ólafur Ísberg Hannesson A.  Naturalisation for EU/EEA Nationals Article 8 of the Icelandic Nationality Act No 100/1952 states that, in general, a person may be naturalised after seven years’ residence. In certain circumstances, it is possible for EU/EEA nationals to reduce this time period. Naturalisation after three years is allowed if a person is married to (or in a recognised union with) an Icelander. The Icelandic spouse must have held citizenship for five years and the marriage must have subsisted for at least four years. Second, when a person is in recognised cohabitation with an Icelandic citizen, the residence period is five years and subject to the same criteria as for spouses. For the child of an Icelandic citizen, provided the parent has held Icelandic citizenship for five years, naturalisation takes two years. Former Icelandic citizens require only one year of residence. The residence requirement for recognised refugees is five years. A person born in Iceland and not holding any other citizenship may be granted citizenship after three years’ residence.76 B.  Naturalisation for Nordic Nationals For nationals of other Nordic states, the requirement of seven years’ domiciled residence is reduced to four years.77 When an individual has been resident sufficiently long to qualify for citizenship, the focus is on that person’s continued residence and his or her lawful stay during the last year prior to the application’s being submitted.78 The applicant must have resided continuously in Iceland during the last years preceding submission of the application for citizenship. Exceptions to the requirement of continuous residence are possible, however.79 In addition, under Article 14(b) of the Icelandic Nationality Act No 100/1952, a citizen of a Nordic state who has acquired citizenship there in a manner other than by legislation or in an equivalent manner, who has reached the age of 18 years, who has been domiciled in Iceland for the past seven years and who has not during this period been sentenced to prison or been placed into preventive custody, may acquire Icelandic citizenship by informing the Minister of Justice in writing of his or her desire to do so (thereby dispensing with the other formal requirements). Exceptionally, under Article 14(c) of the Icelandic Nationality Act No 100/1952, an individual who lost his or her Icelandic citizenship and who has since acquired citizenship of a Nordic state can reacquire the Icelandic citizenship by informing the Ministry of his or her desire to do so, provided he or she has been granted domicile in Iceland.

76 Art

8(1) Nr 2-6 of the Icelandic Nationality Act No 100/1952. 8(1) Nr 1 of the Icelandic Nationality Act No 100/1952. 78 See at utl.is/index.php/en/basic-requirements. 79 See at www.norden.org/en/info-norden/icelandic-citizenship. 77 Art

Free Movement Rights in Iceland  221 VI.  THE RELATIONSHIP BETWEEN NATIONAL AND EEA CONCEPTS OF RESIDENCE

The implementation and application of Directive 2004/38/EC and Regulation 883/2004 have brought to light a certain friction between EEA law and the Nordic welfare states with their residence-based welfare rights.80 This is certainly the case in Iceland, where significant adaptations to Directive 2004/38/EC in particular have been necessary. The concept of ‘residence’ is defined in Article 1(j) of Regulation 883/2004 as meaning ‘the place where a person habitually resides’. In contrast, the definition of ‘stay’ in point (k) of that article is defined as meaning ‘temporary residence’. It is used with other provisions in the Regulation, which link legal effect to a person’s residence. Article 7 of Regulation 883/2004 further provides that cash benefits … shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his/her family reside in a Member State other than that in which the institution responsible for providing benefits is situated.

This provision prescribes that eligibility for cash benefits may not be made contingent upon the insured individual’s residence, whether in the home state or another EEA state. However, it should be noted that a ‘stay’ does not necessarily involve a visit of short duration.81 What, then, is the relationship between the EEA and Icelandic concepts of residence? The Court of Justice has reaffirmed in its case law that under Article 7 of the Regulation, cash benefits shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his or her family reside in another EEA state. Further, a condition of presence could be equivalent in practice to a habitual residence clause.82 Indeed, the EFTA Court has noted that a presence requirement is in fact significantly more restrictive than a residence requirement.83 It follows that an EEA state cannot make receipt of such benefits conditional on continuous physical presence either.84 The EFTA Court has further interpreted the concept of residence in connection with Article 63 of Regulation 883/2004. This provision can also be understood as a special rule for applicable legislation, whereby unemployed persons fall under the legislation of the country of residence in certain situations and they

80 C Jacqueson, ‘From negligence to resistance: Danish Welfare in the light of Free Movement Law’ (2016) 18(2) European Journal of Social Security 183; T Kotkas, ‘Independent Choices and Extrinsic Pressures: EU membership and the Development of Residence-bases Social Security Schemes in Finland’ (2016) 18(2) European Journal of Social Security 164. 81 See Case C-255/13 I, ECLI:EU:C:2014:1291, para 50. 82 Case C-503/09 Stewart, ECLI:EU:C:2011:500, para 73. 83 Case E-3/12 Stig Arne Jonsson [2013] EFTA Ct Rep 248, paras 69–74. 84 Case E-8/20 Criminal proceedings against N, judgment of 5 May 2021, para 139.

222  Ciarán Burke and Ólafur Ísberg Hannesson are entitled to benefits there. In Case E-13/20 O, the Court held that Article 63 derogates from the main rule in Article 7 and allows EEA states to impose residence rules, including presence requirements, for entitlement to unemployment benefits in cases other than those provided for by Articles 64, 65 and 65a.85 In this context residence has the function of determining the applicable legislation. When a person’s residence is decisive for determining the applicable legislation, it is important that different national concepts of residence are not applied. Using the EEA concept ensures that each individual is considered as having permanent residence in one Member State alone. The Court of Justice has repeatedly held that social security covered by the scope of Regulation 883/2004 and social advantages covered by Regulation 492/2011 fall within the scope of Union (and by analogy, EEA) law. States may not exclude persons to whom their national legislation applies under EEA law from the benefits arising therefrom. However, there is no provision in Regulation 492/2011 to prevent a Member State from making the right to be affiliated to a social security scheme of a person who is not employed or self-employed in the territory of a Member State, conditional upon the person’s residence in that territory if this condition is not discriminatory. Regulation 492/2011 is not very clear in this respect and the Court has approached this question only indirectly. VII.  CONCLUSION: ICELAND

The category of registered residence represents the key to accessing the Icelandic welfare state. Alongside this is the kennitala, which basically enables access to public services and meaningful participation in everyday life in Iceland. This means that unregistered EU/EEA nationals who do not possess a kennitala will face a difficult situation when trying to exercise the full gamut of rights deriving from the free-movement provisions of EEA law, and in particular Directive 2004/38/EC. Such EU/EEA nationals are likely to be impeded in practice in terms of their ability to access public and social benefits. Iceland’s implementation of Article 8 of Directive 2004/38 requires EEA workers who have a right of residence for more than three months to register with the relevant authorities. The Civil Registry is responsible for registration in Iceland. However, it seems that the Civil Registry has taken a restrictive position in relation to accessing the Registry. It uses a more restrictive concept of ‘worker’ than is prescribed in the relevant EEA rules as interpreted by the Court of Justice, with the result that certain EU/EEA national workers may not be able to register their legal residence and obtain a kennitala, which may, in practice, lead to limitations on those workers’ enjoyment of rights derived from EEA law.



85 Case

E-13/20 O, judgment of 30 June 2021, para 41.

Free Movement Rights in Iceland  223 In addition, certain privileges extended to individuals arriving from other Nordic states – such as the provision that they are not required to register their residence for six months, as distinct from the three-month period for EU/EEA nationals – may be criticised as ‘paper rights’, since in effect, such individuals are in any event obliged to clear other equivalent bureaucratic hurdles, such as applying for a kennitala, in order to register themselves, and since they will ultimately be required to register their residence in order to receive social benefits in the medium term. The interaction between Icelandic law, on the one hand, and the Nordic Convention, in particular, on the other, would seem something of a hotchpotch, with current arrangements in Iceland reflecting a lack of joined-up thinking with respect to how the two frameworks interact. In practice, moreover, the Nordic dimension does not seem to grant any further rights of significant substance than those granted under EEA law (though it should be noted that right-holders may be different under the two systems), though it is probably an exaggeration to suggest that there is any problematic incompatibility between the two orders that could not be cured via a more adaptive approach by the Icelandic legislator. Further protection concerns may be highlighted in relation to the kennitala system, with the Icelandic Data Protection Authority (which is amongst the smallest in Europe and comparatively poorly funded) having rarely objected to the creeping amalgamation of different sources of information. The crossfertilisation of functions creates a risk that the kennitala might be used to combine multiple databases, though Iceland’s adherence to the General Data Protection Regulation86 has admittedly reduced this risk. That individuals are not able to remove their names and addresses from the web-accessible version of the Civil Registry creates an additional risk that marketing companies may be able to create personal profiles with this data, representing a clear threat to privacy. However, while the distinction between EU/EEA nationals, on the one hand, and Nordic nationals, on the other, in terms of the length of time that they may remain in Iceland without registration, would seem to have little practical effect, the possibility of ‘short-cuts’ towards nationalisation shows that Icelandic national law still displays a clear preference for the integration of Nordic nationals over nationals of other EEA states in certain domains. With respect to the vast majority of other rights, and particularly social security, however, the practice of the Icelandic authorities in giving effect to the EEA Agreement’s provisions in circumstances in which there is a conflict between these and the Nordic Convention, entails that, as a general rule, there is little distinction between Nordic nationals and nationals of other EEA states as to how they are treated. 86 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L119/1.

224

11 Free Movement of Persons and the Autonomous Territories in the Danish Kingdom: Greenland and the Faroe Islands ULLA NEERGAARD*

I. INTRODUCTION The Danish polity is similar to other major European polities in having been an empire for centuries.1

L

ong ago, Denmark was a big and powerful kingdom. For instance, in the seventeenth century it included a large part of Scandinavia, Iceland, Schleswig-Holstein, and colonies in the West Indies and India.2 Today, as a kind of a reminiscence of this past, the kingdom – although having become quite small – nevertheless also includes Greenland and the Faroe Islands. In the context of European Union (EU) law, it is intriguing that Denmark itself has the status of a member of the EU, while Greenland is an ‘Overseas Country or Territory’ (OCT) and the Faroe Islands, in principle, are a ‘third country’ in the terminology of EU law.3 At the same time, Denmark is * This chapter draws to some degree on some of the author’s previous works, including in particular: U Neergaard, ‘The Legal Relations between the EU, Greenland and Denmark – A Harmonious Love Triangle?’ (2020) 2 Europarättsligt Tidsskrift 207; and U Neergaard, ‘§26 – Die rechtlichen Beziehungen zwischen der Europäischen Union, Grönland und Dänemark’ in P-C Müller-Graff and A Hatje (eds), Enzyklopädie Europarecht, vol 1: Europäisches Organisations- und Verfassungsrecht (Nomos 2020) 1255. The author warmly wishes to thank Nina Holst-Christensen for substantive comments. The usual disclaimer applies. 1 IB Neumann, ‘Imperializing Norden’ (2014) 49(1) Cooperation and Conflict 119, 126. 2 See eg HA Sølvarà, Færøerne efter freden (Aarhus Universitetsforlag 2020) 77; R Glenthøj and M Nordhagen Ottosen, Union eller undergang. Kampen for et forenet Skandinavien (Gads Forlag 2021) 8; and A Haslund Hansen and M Harbsmeier (eds), Dansk Ekspeditionshistorie. I kongens og oplysningens tjeneste. 1600–1850 (Gads Forlag 2021) 50. 3 At times, the more specific term ‘territory sui generis’ is applied in the context of EU law; see eg D Kochenov (ed), EU Law of the Overseas. Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (Wolters Kluwer 2011) 440.

226  Ulla Neergaard also one of those Nordic countries that for a long time – starting from before its membership of the EU in 1973 – has strived for a rather sophisticated level of institutionalised cooperation, with the aim of making the Nordic region the most sustainable and integrated region in the world. The Helsinki Treaty – often referred to as the Nordic Constitution – was already signed by Denmark, Finland, Iceland, Norway and Sweden in 1962.4 However, Greenland and the Faroe Islands have not independently signed the Treaty, but do have seats on the Nordic Council.5 The origin of some of the complexities may be seen as following from the Constitution (in Danish ‘Grundloven’), which constitutes the highest Danish source of law and has supremacy over other Danish sources of law. When it was adopted in 1849, Greenland kept its status as a colony, and was therefore not explicitly a separate part of the Constitution.6 The Faroe Islands, on the other hand, had explicitly been part of the Constitution since 1849 and had never had the status of a colony.7 Previously, in 1816, the Islands had been given the status of a region/county (in Danish an ‘amt’).8 On the basis of decisions made in 1952, Greenland was formally decolonised in 1953 by

4 See at norden.org/en/publication/helsinki-treaty-0. According to the Nordic Council’s webpage at norden.org/en/information/nordic-council, Denmark, Iceland, Norway and Sweden were the founding members of the Nordic Council when it was formed in 1952, and Finland joined a few years later, in 1955, whereas the Faroe Islands and Åland joined in 1970, and Greenland in 1984. The Helsinki Treaty is available at norden.org/en/publication/helsinki-treaty-0. 5 According to the Nordic Council’s webpage at norden.org/en/information/nordic-council, the Council has 87 elected members, with Denmark, Finland, Norway and Sweden each having 20 members. Furthermore, it is explained that two of the Danish representatives are from the Faroe Islands and two are from Greenland. It is furthermore explained that the Faroe Islands, Greenland and Åland have exerted greater influence on Nordic cooperation since the Åland Document was adopted on 5 September 2007 (this document is available at norden.org/sites/default/files/2018-08/ aalandsdokumentet.pdf). See also the Danish Act on Nordic cooperation, Lov om nordisk samarbejde no 185 of 28/04/1971 with later amendments. 6 F Harhoff, ‘§ 1’ in H Zahle (ed), Danmarks Riges Grundlov med kommentarer (DJØF Forlag 1999) 29, 30. 7 ibid 29. 8 J Hartmann, ‘The Faroe Islands: possible lessons for Scotland in a post-Brexit devolution settlement’ (2019) 44(1) EL Rev 111, 113. Importantly, although not formally having had the status of a colony, as pointed out by A Kočí and V Baar, ‘Greenland and the Faroe Islands: Denmark’s autonomous territories from postcolonial perspectives’ (2021) 75(4) Norwegian Journal of Geography 189, 198, the Faroe Islands were managed similarly to Greenland and the differences often only lie in terminology: ‘“Colony has to be understood in relation to the much broader term ‘colonialism’, referring to an asymmetrical power relation, controlled and defined by the European power to service its self-interests” … In contrast to Greenland, colonization of the Faroe Islands started centuries before the era of modern European colonialism and ethnically and culturally the Faroese population [is] not as different from the Danish population as the Inuit are … The second part of the preceding statement, which explains the exclusion of the Faroe Islands from the list of Danish colonies, can be supported by Anibal Quijano’s claim that race was “the key element of the social classification of colonized and colonizers” … Applying this racial approach reveals that, unlike Greenland, where the population is 80% Inuit, the Faroe Islands do not have an indigenous population.’

Greenland and the Faroe Islands  227 integration with the Kingdom of Denmark.9 Its status then became, along with the Faroe Islands, what in Danish constitutional theory is commonly viewed as part of Rigsfællesskabet, which might be translated as the ‘community of the realm’10 or ‘the commonwealth of the Danish State’.11 Against that background, section 1 of the Constitution was (with effect from 1953) amended to read ‘This Constitutional Act shall apply to all parts of the Kingdom of Denmark.’12 None of the previous constitutional acts had contained any equivalent provision regarding the geographic extent of the Constitution.13 The provision is commonly understood as implying that the Act applies to all three ‘members’ or ‘entities’ of the realm, in other words Denmark, the Faroe Islands and Greenland. Despite the apparent simplicity of its formulation, the provision masks many complexities that are encompassed by it.14 With regard to the subject matter of the present volume and of this chapter in particular, these interwoven relationships and connected intrinsic complexities obviously are of central importance. Thus, at the core of the issues to be cast light upon stands the relationship between each of the two associated territories with Denmark and the EU respectively, as several of the rights in question in many instances will follow therefrom rather than independently. In other words, further clarification thereof is a prerequisite for consideration of possible freemovement rights. Against that background, this chapter hence aims, first, to analyse Greenland’s overall legal relationship with Denmark as well as the EU (section II). Subsequently, the focus turns to the Faroe Islands, also regarding its general legal relationship with Denmark as well as with the EU (section III). In each of those two sections, attention is also paid to the surprisingly rather under-explored question of whether Greenlanders and Faroese may be considered Union citizens, and there is discussion of what the rights of Union citizens from elsewhere, if any, may be in the autonomous territories. In addition, it is here – very briefly – examined what possible implications Nordic cooperation may have.15 Section IV concludes in overall terms by summarising the rather intriguing findings of the analysis.

9 O Spiermann, Danmarks Rige i forfatningsretlig belysning (DJØF Forlag 2007) 62. 10 UP Gad, National identity politics and postcolonial sovereignty games – Greenland, Denmark, and the European Union (Museum Tusculanum Forlag 2017) 11. 11 JH Danielsen, ‘Self-Government and the Constitution: Greenland within the Danish State’ (2013) 19(4) European Public Law 619. 12 See the English translation at legislationline.org/documents/section/constitutions. The text in Danish is ‘Denne grundlov gælder for alle dele af Danmarks Rige.’ 13 Harhoff (n 6) 29. 14 See further, eg, ibid. 15 Importantly, reference is made to Jacqueson, ch 6 of this volume, as many of the central matters, such as those related to Danish citizenship, nationality and immigration, are regulated in Danish law due to the distribution of competences between the entities of the Danish Kingdom, as noted below. For the sake of limiting the degrees of complexity, issues relating to the European Free Trade Association (EFTA) are not explicitly addressed; see instead Björgvinsson, ch 4, Franklin, ch 9, and Burke and Hannesson, ch 10 of this volume, respectively.

228  Ulla Neergaard II. GREENLAND

Greenland is intrinsically a place of contrasts. For example, on the one hand, it is the largest island in the world, covering an area bigger than the combined area of the largest EU Member States, consisting of about 2.2 million square kilometres and being almost 50 times the size of Denmark. On the other hand, it is nevertheless inhabited by an extremely small population, consisting of fewer than 60,000 individuals. Also, about 80 per cent of the island is covered by ice, has extreme weather conditions, and the melting of the ice has become a worldwide symbol of the threat of climate change and global warming. Furthermore, it is geographically not considered as a part of Europe as such, since it is in many respects seen as closer to North America; yet its closest relations are with Denmark/Europe.16 Historically, it is generally considered that the first Inuits came to Greenland about 4,500 years ago. Later on, other cultures arrived. They are ethnically and linguistically close to the Inuits of Canada, Alaska and Siberia.17 The Norse, as the first non-Inuits, are considered to have first arrived in the tenth century and to have settled on Greenland for about 500 years. Greenland has been seen as belonging to the Danish Crown since the fourteenth century, but was first properly colonised by Denmark at the beginning of the eighteenth century, by then being administered by ‘the Royal Greenland Trade Department’ in Copenhagen.18 These steps took place in 1721, when the Danish-Norwegian Priest Hans Egede arrived, as he is seen as responsible for having made Greenland into a Danish colony and Christianising the Greenlandic population.19 Most of the population is of Greenlandic ancestry, and the remainder is predominantly Danish, though it has become increasingly international lately.20 The official language is nevertheless Greenlandic, although Danish functions as the second language. Greenland, in principle, also has its own flag. Although fishing and a few other, less substantial activities21 are significant sources of income, subsidies – mainly from Denmark – are also extremely important. In addition, certain sources of income derive from the EU.

16 See in this respect, eg, G Alfredsson, ‘Greenland and the Law of Political Decolonization’ (1982) 25 German Yearbook of International Law 290, 290, who points out that at one point, Greenland is separated from Canada by only 30 kilometres. 17 ibid. 18 F Harhoff, ‘Greenland’s Withdrawal from the European Communities’ (1983) 20 CML Rev 13, 14. 19 Dansk Institut for Internationale studier, Afvikling af Grønlands kolonistatus 1945–54. En historisk udredning (2007) 10. Also see eg E Porsild, ‘Greenland at the Crossroads’ (1948) 1(1) Arctic 53; or FAJ Nielsen, ‘Den ældste grønlandske Bibel – et sprogligt og kulturelt møde’ in O Høiris et al (eds), Fra vild til verdensborger (Århus Universitetsforlag 2011) 147. 20 Statistics Greenland, Greenland in Figures 2018 (2018) 7. 21 See further ibid.

Greenland and the Faroe Islands  229 A.  Greenland in the Danish Kingdom The relationship with Denmark has been one flowing in a continuous direction towards more and more independence. The term ‘home rule’ (in Danish ‘hjemmestyre’) is used as an equivalent to ‘self-governance’.22 Although ‘home rule’ is nowhere mentioned in the Danish Constitution, such a home-rule arrangement became established in Greenland in 1979, following a referendum in 1978 in which 70 per cent of those voting concurred.23 Gad explains the background to and development of this arrangement as that the opposition to it was split between one minority favouring continued integration with Denmark and another that was critical of the limitations upon the rights and recognition of the Greenlandic people in the Home Rule Act.24 Home rule might originally have been considered as conferring a limited autonomy in certain administrative matters within the realm, which drew its inspiration from the arrangement already established for the Faroe Islands.25 More precisely, though, as summed up by Weiss, it established limited decentralisation, by the transfer to Greenland authorities of certain legislative and executive powers and concomitant financial responsibility in a number of specifically listed areas, but where matters such as foreign relations, the Constitution, defence and the system of courts of law remained the responsibility of the central government.26 The Home Rule Administration was essentially responsible for the development of Greenland’s society and had legislative powers concerning, in particular, taxes and duties, fishing, hunting, labour market affairs, social affairs, education and culture, health services, domestic passenger and goods transport, environmental protection and the municipal structure.27 In April 1979, the new Landsting, which is the Danish name for Greenland’s regional parliament, was elected on the basis of these new rules.28 Replacing the home-rule arrangement, a new ‘self-rule’ arrangement entered into force on 21 June 2009.29 A majority representing 75 per cent of the

22 See generally, I Foighel, ‘Home Rule in Greenland: A Framework for Local Autonomy’ (1980) 17(1) CML Rev 91; I Foighel, ‘A Framework for Local Autonomy: The Greenland Case’ (1979) 9 Israel Yearbook of Human Rights 82; I Foighel, ‘Grønlands hjemmestyre’, U1979B.99; and F Harhoff, ‘Det grønlandske Hjemmestyres grund og grænser’, U1982B.101. 23 Lov om Grønlands hjemmestyre no 577 af 29 November 1978. See further Lov om Grønlands Selvstyre no 473 af 12 June 2009. 24 Gad (n 10) 9. 25 F Weiss, ‘Greenland’s Withdrawal from the European Communities’ (1985) 10 EL Rev 173, 175. 26 ibid. 27 P Walsøe, ‘The Judicial System in Greenland’ in B Dahl et al (eds), Danish Law in a European Perspective (Thomson 2002) 493, 493. 28 Weiss (n 25) 175. 29 Lov om Grønlands Selvstyre [Act on Greenland’s Self-Governance] no 473 of 12 June 2009 (unofficial English translation available at naalakkersuisut.gl//~/media/Nanoq/Files/Attached%20Files/ Engelske-tekster/Act%20on%20Greenland.pdf). See, for an analysis of its constitutional dimensions, eg, JH Danielsen, ‘Grønlands Selvstyre og Danmarks Riges Grundlov’ (2011) 1 Juristen 9, and Danielsen (n 11). Greenland’s regional government is called Landsstyre in Danish.

230  Ulla Neergaard population had in a prior referendum confirmed acceptance of this model in a vote on an enhanced version of home rule.30 The background to the Danish Parliament’s passing of the Act is stated in its Preamble to be a recognition that the people of Greenland are a people pursuant to international law with the right of self-determination, where the Act is based on a wish to foster equality and mutual respect in the partnership between Denmark and Greenland. Pursuant to section 1 of the Act, the Greenland self-government authorities shall exercise legislative and executive power in the fields of responsibility taken over. In addition, the Act includes provisions regarding, for example, the economic relations between the Greenland self-government and the Danish Government, foreign relations, and cooperation between the Greenland self-government authorities and the central authorities of the realm regarding statutes and administrative orders. The Danish Supreme Court remains the highest court.31 Interestingly, there are no explicit references to the EU in the Act. It is generally acknowledged that there are limits as to which areas ultimately can be transferred to Greenland. According to the Ministry of Justice, these include: constitutional affairs (including matters concerning the royal family, the activities of the Folketing, or the conduct of affairs of the Danish Government relating to matters of concern to Greenland, elections to the Folketing, the state’s finances, the promulgation of laws and treaties issued or entered into by the state authorities, the symbols of the realm, and language); foreign affairs; defence and security policies; the Supreme Court; citizenship; and foreign exchange and monetary policies.32 Although foreign affairs are thus formally still the responsibility of Denmark, in practice Greenland’s involvement has gradually increased in that regard.33 B.  Greenland and the EU When Denmark joined the EU in 1973, the resistance in Greenland to such a step appears to have been rather substantial, as about 70 per cent of Greenlanders had voted against accession in the 1972 Danish referendum.34 Nevertheless, unlike the Faroe Islands, Greenland – which at the time did not have a home-rule arrangement – had to accede as an integral part of Denmark. However, several conditions, often considered very much in favour of Greenland, were agreed

30 Gad (n 10) 10. 31 See further, eg, at domstol.dk/om/organisation/Pages/RetteniGr%C3%B8nland.aspx. 32 Danielsen, ‘Grønlands Selvstyre’ (n 29) 9–18; and Danielsen (n 11). Also see Betænkning 1497/2008, Selvstyre i Grønland (2008) 24–27. 33 S Blockmans, ‘Between the Devil and the Deep Blue Sea? Conflicts in External Action Pursued by OCTs and the EU’ in D Kochenov (ed), EU Law of the Overseas. Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (Wolters Kluwer 2011) 313. 34 Gad (n 10) 9.

Greenland and the Faroe Islands  231 upon. In that regard, the favourable conditions as to fishing and Protocol No 4 on Greenland are of particular importance.35 Only a few years after the establishment of the home-rule arrangement in 1979, a consultative referendum was held in Greenland on 23 February 1982 on whether the European Community Treaties should continue to apply in Greenland.36 A fairly small anti-EU majority emerged. Although the Danish Government was in support of Greenland’s remaining in the EU, it had announced prior to the referendum that it would respect the result.37 Following the outcome, the Landsstyre requested the Danish Government, in which this competence was vested, to initiate the negotiations with the EU.38 On 19 May 1982, the Danish Government, with reference to Article 96 of the ECSC Treaty, Article 236 of the EEC Treaty and Article 204 of the Euratom Treaty, then submitted its proposal in that regard.39 Against this background, the Council of Foreign Ministers of the EU decided at its meeting on 29 November 1983 to negotiate expediently on the terms and conditions for the withdrawal and the transformation to a future association.40 The Council reached agreement in February 1984, which was signed in Brussels in March of the same year.41 There was a minor delay caused by the fact that the necessary ratification had not been completed in all the Member States before the deadline of 1 January 1985.42 Greenland’s exit from the EU eventually took effect on 1 February 1985. Above all, it was the future organisation of fishing rights that stood at the centre of the negotiations.43

35 It was stipulated in Protocol No 4 that ‘Article 1. Denmark may retain its national provisions whereby a six month period of residence in Greenland is required to obtain a licence for engaging in certain commercial activities in that territory. The Council may, acting in accordance with the procedure laid down in Article 57 of the EEC Treaty, decide upon a liberalization of this system. Article 2. The institutions of the Community will seek, within the framework of the common organization of the market in fishery products, adequate solutions to the specific problems of Greenland.’ See further, eg, H Krämer, ‘Greenland’s European Community (EC)-Referendum, Background and Consequences’ (1982) 25 German Yearbook of International Law 273. 36 ibid. Krämer explains that in 1972, 3,990 Greenlanders wanted to join the EU and 9,658 voted against joining; whereas in 1982, 12,615 wanted to leave and 11,180 wanted to stay. 37 S Skovmand, ‘Grønland gik imod strømmen’ Notat (30 March 2007); and T Høyem, ‘Minister for Greenlandic Affairs addressing the conference at the opening’ in H Rasmussen (ed), Greenland in the Process of Leaving the European Communities (Forlaget Europa 1983) 9–10. 38 Harhoff (n 18) 28. 39 ‘Danish Government memorandum of 19 May 1982/Danish Government proposal for the amendment of the Treaties establishing the European Communities with a view to Greenland’s withdrawal from the Communities and the application to Greenland of the special association arrangements in Part Four of the EEC Treaty’ in Commission, Status of Greenland, Commission opinion, Commission communication presented to the Council on 2 February 1983, Bulletin of the European Communities, Supplement 1/83, 6. 40 Weiss (n 25) 173. 41 ibid. 42 ibid. 43 See eg Udenrigsministeriet, Redegørelse til Grønlands Landsting om forhandlingerne om Grønlands udtræden af EF, 4 May 1983.

232  Ulla Neergaard At that time, there was no provision equivalent to the present Article 50 of the Treaty on European Union (TEU), which is concerned with the withdrawal of Member States, which could have served to provide some degree of relevant guidance.44 In fact, the withdrawal was formally handled through a revision procedure in which the Member States adopted the so-called Greenland Treaty, which consisted of just seven articles.45 Here, the overall framework for the exit was stipulated. It was emphasised in the Preamble that, in view of Greenland’s special features, the Danish proposal should be accepted by ‘arrangements being introduced which permit close and lasting links between the Community and Greenland to be maintained and mutual interests, notably the development needs of Greenland, to be taken into account’. At the same time, a protocol on special arrangements for Greenland consisting of three articles was annexed, according to Article 3(2) of the Treaty.46 Of interest today is rather the wording of Protocol No 34 on special arrangements for Greenland, which, in principle, is a continuation of the original Protocol No 4. In addition to the Greenland Treaty and the annexed protocol, other initiatives were adopted. Among these, it may be mentioned in particular that an agreement regarding fishing,47 including another protocol concerning the conditions for fishing, was adopted.48 In simplified terms, it is crucial for the understanding of the outcome of the negotiations that Greenland ended up accepting a continuation of the EU fishing rights in its waters, but on the condition of favourable and long-lasting economic compensation from the EU. Also, as will be discussed in the following section, it became possible for Greenland to keep direct access to the internal market for its products, which at the time were mainly fish, without import restrictions. When Greenland left the EU, ties were not totally cut off; rather, it was given the status of an overseas country or territory (OCT),49 which refers to territories that are situated outside the EU but that, for historical, social, cultural and/ or political reasons, have a relationship to a Member State of the EU. They are referred to in Annex II of the Treaty on the Functioning of the European Union (TFEU).50 They are not sovereign states with an international legal personality

44 P Athanassiou et al, ‘EU Accession from Within? An Introduction’ (2014) 33 Yearbook of European Law 335, 336. 45 Treaty amending, with regard to Greenland, the Treaties establishing the European Communities [1985] OJ L29/1. 46 Protocol on special arrangements for Greenland [1985] OJ L29/7. 47 [1985] OJ L29/9 available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:21985 A0201(01)&from=EN. 48 [1985] OJ L29/14 available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:2198 5A0201(02)&from=EN. 49 For an account of the reasons behind that choice, see eg M Olsen, ‘Minister for Social Affairs in Greenland’s Home Rule. Perspectives beyond Greenland secession from the EEC’ in H Rasmussen (ed), Greenland in the Process of Leaving the European Communities (Forlaget Europa 1983) 26. 50 As a result of Brexit, those OCTs that had special relations with the United Kingdom are no longer associated with the EU, and the number of OCTs has been reduced from 25 to 13.

Greenland and the Faroe Islands  233 and can be viewed as situated in a grey area, as neither Member States nor third countries.51 The legal contours of the OCT formula were reshaped to fit the future re-association of Greenland.52 Thus, when Greenland withdrew from the EU, a provision was inserted in what is now Article 204 TFEU. Here, it is stated that the provisions regarding the OCTs are applicable in Greenland: The provisions of Articles 198 to 203 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the Treaties.

Article 198 TFEU highlights the basic purpose as being to promote the economic and social development of the countries and territories, and to establish close economic relations between them and the Union as a whole, as well as to serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire. Attention should also be given to Article 200 TFEU, which stipulates that customs duties on imports into the Member States of goods originating in the OCTs shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of the Treaties, and that customs duties on imports into each OCT from Member States or from the other OCTs shall be prohibited in accordance with the provisions of Article 30 TFEU. Council Decision 2021/1764 of 5 October 2021 on the association of the Overseas Countries and Territories with the European Union including relations between the European Union on the one hand, and Greenland and the Kingdom of Denmark on the other (Decision on the Overseas Association, including Greenland) is of significance as well.53 The essence of the interrelationship is stipulated in its Preamble in the following manner: The TFEU and the secondary legislation adopted on the basis of it do not automatically apply to the OCTs, with the exception of a number of provisions which explicitly provide for their application. Although not third countries, the OCTs do not form part of the single market and must nevertheless comply with the obligations imposed on third countries in respect of trade, particularly rules of origin, health and plant health standards and safeguard measures.

This means that with respect to trade, that OCTs must meet, for example, the obligations laid down in relations with third countries, in particular 51 PH Madsen et al,’ Højt oppe mod Nord – der hvor EU-retten ikke (helt) gælder’ (2016) 09 Advokaten 28. 52 K Mason, ‘European Communities Commission – Greenland – EC Commission Draft Approves Withdrawal of Greenland from European Community and Proposes Terms for Economic Reassociation’ (1983) 13 Georgia Journal of International and Comparative Law 865. 53 Available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D1764&from=EN. The Decision establishes the rules and the procedure for the association of the Union with the OCTs, including Greenland, and replaces Council Decision 2013/755/EU (‘Overseas Association Decision’) and Council Decision 2014/137/EU.

234  Ulla Neergaard with regard to rules of origin, unless provision is made to the contrary.54 The Decision contains several provisions that have the consequence that Greenland (and other OCTs), in many respects, is in a better position than third countries and in several areas even equates to Member States.55 Accordingly, pursuant to Article 44 of the Decision, products originating in Greenland (and other OCTs) shall be imported into the Union free of import duty, and the Member States shall, according to Article 45 of the Decision, not apply to imports of products originating in Greenland any quantitative restrictions or measures having equivalent effect. Also, pursuant to Article 47 of the Decision, the Union shall not discriminate between OCTs and the OCTs shall not discriminate between Member States. As an OCT, Greenland therefore has direct access to the internal market without import restrictions; and, at the same time, the OCTs are not prevented from maintaining or introducing customs or quantitative restrictions on imports of products originating in the Union within the meaning of Article 45 of the Decision.56 Particularly regarding Greenland, the important role of Greenland is acknowledged, for example in the Preamble, where among other things, the geostrategic position of Greenland is noted, as is the importance of the pursuit of mutual interests, in particular the increasing impact of climate change on human activity and the environment, maritime transport, natural resources, including raw materials and fish stocks, as well as research and innovation. Danish Governments throughout time have always been said to have taken the position that EU law is not applicable to an OCT such as Greenland, unless explicitly stipulated.57 In that respect it is crucial to understand whether the special arrangements for the association of the OCTs establish an autonomous and separate legal system in which only Articles 198 to 204 TFEU and the acts adopted on the basis of those articles would be applicable, or whether those arrangements constitute a lex specialis applicable, if necessary, in place and instead of the general rules contained in the TFEU.58 In that regard, the Court of Justice of the European Union (CJEU) importantly states in Prunus that ‘OCTs therefore benefit from the provisions of European Union law in a similar manner to the Member States only when European Union law expressly provides that OCTs and Member States are to be treated in such a manner.’59 54 Madsen (n 51). 55 ibid. 56 ibid. 57 ibid. 58 Case C-222/13 TDC, ECLI:EU:C:2014:1979, paras 71–72. Also see, eg, D Kochenov, ‘The EU and the Overseas: Outermost Regions, Overseas Countries and Territories Associated with the Union, and Territories Sui Generis’ in D Kochenov (ed), EU Law of the Overseas. Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (Wolters Kluwer 2011) 22. 59 Case C-384/09 Prunus, ECLI:EU:C:2011:276, para 29. Also see Joined Cases C-24/12 and C-27/12 X and TBG, ECLI:EU:C:2014:1385, para 45; and Case C-327/15 TDC, ECLI:EU:C:2016:974, paras 74–82. To some degree also related, see Case C-395/17 Commission v the Netherlands, ECLI:EU:C: 2019:918, para 76; and Case C-391/17 Commission v United Kingdom, ECLI:EU:C:2019:919, para 74.

Greenland and the Faroe Islands  235 By now, it appears to be clear from the case law of the CJEU that the abovementioned position of the Danish Government finds support there. Despite that, it is of interest in this context that Kochenov has pointed out more generally in relation to OCTs that it is sometimes virtually impossible to answer the simplest of possible questions as to which law is to apply.60 It is also of interest that the CJEU has held that a Member State can be considered liable vis-à-vis the EU for wrongful actions of an OCT that is under the responsibility of that Member State, and might be obliged, in accordance with the principle of sincere cooperation, to compensate any loss from own resources.61 All in all, what is at stake is a rather delicate and legally somewhat also rather ‘blurred’ interrelationship between an OCT, the ‘responsible’ Member State and the EU. C.  Free Movement of Persons in the Context of Greenland The first issue now to be considered is whether Greenlanders as OCT nationals have better rights in an EU legal context than they would have, had they been nationals of third countries. On the one hand, the answer is likely to be yes. As Greenlanders automatically have the nationality of Denmark, they are – already – as OCT nationals, in principle, viewed as also entitled to the rights conferred by Union citizenship, such as the right to move and reside freely within the territory of the Member States. In support of this, reference may be made to Eman and Sevinger, a decision rendered in 2006, in which the Grand Chamber of the CJEU, albeit very briefly, explicitly stated that ‘persons who possess the nationality of a Member State and who reside or live in a territory which is one of the OCTs … may rely on the rights conferred on citizens of the Union’.62 Thus, literally understood, Greenlanders have both Danish and Union, but not Greenlandic, citizenship.63 This is also in conformity with the Commission’s understanding that unlike with third countries, all OCT nationals are in principle European citizens in the sense of Article 17 of the EC Treaty, which states that every person holding the

60 Kochenov (n 58) 4. 61 Commission v the Netherlands (n 60); and Commission v United Kingdom (n 59). See further J Ziller, ‘Vicarious liability of Member States for their Overseas Countries and Territories: Commission v United Kingdom and Commission v The Netherlands’ (2020) 57 CML Rev 1887. 62 Case C-300/04 Eman and Sevinger, ECLI:EU:C:2006:545, para 29. For a fuller account of the case, see LFM Besselink, ‘Case C-145/04, Spain v United Kingdom …, Case C-300/04, Eman and Sevinger …’ (2008) 45 CML Rev 787; and J Shaw, ‘The Political Representation of Europe’s Citizens: Developments’ (2008) 4(1) European Constitutional Law Review 162. 63 Although, being Danish citizens, Greenlanders may choose between having either a Danish or a Greenlandic passport; see at sullissivik.gl/Emner/Transport_og_rejser/Pas?sc_lang=da-DK. These two versions contain certain minor differences relating to linguistic issues, including, for instance, that on the frontpage of the Danish passport is stated ‘Danmark – Den Europæiske Union’ and on the Greenlandic passport is stated ‘Danmark – Kalaallit Nunaat’.

236  Ulla Neergaard nationality of a Member State is a citizen of the Union. More precisely, all nationals of Greenland and the French and Dutch OCTs also have the nationality of the related Member State automatically … As European citizens, OCT nationals are in principle also entitled to the rights conferred by Union citizenship (as laid down in Articles 18 to 22 of the EC Treaty), such as the right to move and reside (but not work) freely within the territory of the Member States. Moreover, OCT nationals can be granted the right to vote for and participate in the election of the European Parliament, subject to the conditions defined by the related Member States in compliance with Community law … Only if an OCT became fully independent would its nationals in principle cease to be European citizens and its close link with the EU via the related Member State disappear.64

According to Kochenov, Greenlanders – in the capacity of being Member State nationals residing in OCTs – are fully-fledged Union citizens, meaning that Part II TFEU on Union citizenship is fully applicable to them, empowering all Greenlanders to benefit from the rights and freedoms granted to them by the EU as long as they are not in conflict with Part IV TFEU.65 Furthermore, it is worthwhile pointing to the fact that the CJEU in Eman and Sevinger paid substantial attention to the principle of equal treatment.66 Shaw is in that regard of the opinion that the equal treatment principle from which the citizens involved in the case benefit is not the general principle of non-discrimination on grounds of nationality, which has hitherto pervaded the vast majority of the cases on Union citizenship, nor the right of free movement and the right of residence, but rather a general principle of equal treatment that protects persons from irrational and unjust legislative outcomes, without reference to some physical or social characteristic they may have (like gender, age or nationality).67 Yet, on the other hand, although it is thus the clear point of departure that Greenlanders enjoy Union citizen rights and are under the protection of the general principle of non-discrimination, it must be stressed that the area of what have been referred to as regional/subnational citizenship schemes in the context of EU law is, after all, not very well elucidated.68 Therefore, on the basis of only one judgment, which in the context of the development of the law on Union citizenship is already of an older date, and which, after all, only concerns a rather specific issue (although essential, namely, the right to vote, considered as the pre-eminent political right pertaining to citizenship),69 it is difficult not to

64 Commission, Green Paper. Future relations between the EU and the Overseas Countries and Territories COM(2008) 383. 65 Kochenov, ‘EU Citizenship in the Overseas’ in Kochenov (ed) (n 58) 199. 66 Eman and Sevinger (n 62) para 61. 67 Shaw (n 62) 185. 68 D Kochenov, ‘Regional citizenships and EU law: the case of the Aland islands and New Caledonia’ (2010) 35 EL Rev 307. The author understands regional (subnational) citizenship as referring to ‘any legal status established at the subnational level which provides its bearers with particular rights (and duties)’. 69 Besselink (n 62) 803.

Greenland and the Faroe Islands  237 stop for a second and consider whether the Union citizenship of Greenlanders is really in every sense meant to be considered as fully-fledged, as put forward by Kochenov. As the rights connected with Union citizenship, since Eman and Sevinger was decided in 2006, have only strengthened further, it might be reaching too far to expect such an understanding (which would, for example, strongly affect the right to residence of third-country nationals, for instance, married to Greenlanders and having children born in Greenland). In that respect, Prunus, mentioned in section II.B, might also have to be taken into consideration as a limiting factor, as it, as mentioned more generally, was decided – about five years after Eman and Sevinger – that OCTs therefore benefit from the provisions of EU law in a manner similar to the Member States only when EU law expressly provides that OCTs and Member States are to be treated in such a manner.70 In addition, it is of interest that the Commission as quoted considers the Union citizenship rights to include the right to move and reside, but not work, freely.71 Unfortunately, this view is not qualified or explained in any way, but it could at least be seen as perhaps pointing in the direction that the Commission at the time did not necessarily perceive the Union citizenship of, say, Greenlanders to be fully-fledged. Therefore, due to the legal uncertainty at hand, further clarification and coherence could indeed be wished for.72 Thus, on the one hand, it is possible – as pointed out by Goldner Lang and Perišin – that the CJEU will continue extending the scope of the Union citizenship provisions, with the consequence of further increase of the protection of OCT nationals and their free-movement rights.73 On the other hand, it is also possible that some kind of pulling back will take place. In all circumstances, Eman and Sevinger is a truly important case; or as Shaw has pointed out: What is notable is the willingness of both the Court of Justice and the [Advocate General] to extend the protection of the general principles of Community law to a group of citizens of the Union on a personal basis, notwithstanding that they are not ‘connected’ in any way to the EU as single market or to the European Parliament as a legislature. Nor indeed are they even residing in another member state, which has

70 Prunus (n 59) para 29. 71 Commission (n 64). 72 In that regard, see also eg E Denza, ‘Dimitry Kochenov (Ed), EU Law of the Overseas: Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis. Alphen aan den Rijn: Kluwer Law International, 2011. 492 pages. ISBN: 9789041134455. EUR 110.’ (book review) (2012) 49 CML Rev 1519, 1519, who points out that ‘The status of European law in the territories on its periphery – dependent on one of the Member States of the Union – has been an area neglected not only by academic scholars but also by the politicians and diplomats framing constitutional change to the Treaties … In consequence of this benign neglect, there are major legal uncertainties as to the application of European law in the overseas territories and as to how the status of a territory may be changed from one category to another, and there is a complete lack of coherence in the overall framework.’ 73 I Goldner Lang and T Perišin, ‘Free Movement of Services and Establishment in the Overseas’ in Kochenov (ed) (n 58) 179, 198.

238  Ulla Neergaard been the usual trigger in earlier citizenship cases. This is the true innovation of the case, and is in many respects far more significant for citizenship as a whole than it is for the narrower question of the right to vote for the European Parliament.74

A second issue of interest to consider is whether Union citizens (other than Greenlanders/Danes) moving into/residing in Greenland have any free-movement rights in Greenland, as an asymmetry in that regard cannot immediately be ruled out. In that light, it is perhaps not entirely surprising that the Danish understanding seemingly is that since Greenland is not a member of the EU, free-movement rules are not applicable to Greenland.75 This is also in conformity with what was pointed out previously, namely, that Danish Governments over time have taken the position that EU law is not applicable to an OCT such as Greenland, unless explicitly stipulated.76 Nevertheless, the ruling in Eman and Sevinger may also have significance here, as it is stated there that persons who possess the nationality of a Member State and who ‘reside or live in a territory which is one of the OCTs’ may rely on the rights conferred on citizens of the Union. In this context, it is also of some interest that Shaw, regarding the judgment, points out: It is significant that the Court does expressly confirm that as nationals of one of the member states (sharing Netherlands nationality with those resident in the Netherlands) ‘citizens’ of Aruba are indeed citizens of the Union. It seems to limit its conclusion to those who ‘reside or live in a territory which is one of the OCTs referred to in Article 299(3) EC’, … but it would seem equally logical to argue that citizenship of the Union is a personal status of nationals of the member states which they carry with them wherever they are. How else, logically, could the principle of consular and diplomatic protection for Union citizens while in third countries enacted in Article 20 EC actually apply? It should surely not be limited only to those who are temporarily in third countries, but must also extend to those with settled residence in third countries.77

Thus a literal reading of Eman and Sevinger could perhaps be claimed to point in the direction of the prevailing of at least some degree of reciprocity.78 However, against such an understanding and with reference to what has already been indicated above, the area is connected with much uncertainty as to the limits of EU law. Thus, it is of interest that Kochenov has importantly explained that a number of interesting collisions arise as a result of the discrepancies existing between the scopes ratione loci, which is limited in the case of the OCTs by Article 355(2) TFEU and Annex II TFEU, and ratione personae of EU law, which does not possess any such limitations, by definition covering 74 Shaw (n 62) 184-85. 75 See at nyidanmark.dk/da/Applying/The%20Faroe%20Islands%20and%20Greenland/Work% 20in%20Greenland. 76 Madsen (n 51). 77 Shaw (n 62) 181. 78 Eman and Sevinger (n 62) paras 29 and 57.

Greenland and the Faroe Islands  239 all the Member State nationals no matter where they reside.79 Therefore, due to the discrepancy in the application of EU law to citizens and to territories, all the main rights of Union citizens residing in the OCTs that have at least some territorial component can potentially be susceptible to limitations.80 In other words, according to Kochenov, no one can limit Union citizenship rights that are per se unrelated to the ratione loci of EU law, such as rights to petition the ombudsman, initiate legislation via the citizens’ initiative, or the right to diplomatic protection, whereas the rights framed as dependent on the ratione loci of EU law can be limited.81 Thus limitations are likely to be in force, which according to Kochenov would only be logical, when Union citizenship is considered in the general context of the essence of OCT status, which has been established specifically to limit the application of EU law in the OCTs.82 As a consequence, Kochenov points out that all the three main categories of rights associated with the status of Union citizenship, namely, free-movement rights, political rights and the right not to be discriminated against on the basis of nationality, are de facto affected by limited application in the case of Union citizens residing in/moving into OCTs.83 The competence of social affairs today rests on Greenland itself (rather than on Denmark), but the area of social rights of Union citizens residing in Greenland in all circumstances constitutes an example of an area where the above-mentioned legal uncertainty prevails.84 In contrast, if a person is a citizen in Denmark, Norway, Sweden, Finland or Iceland, the situation clearly is different. Indeed, in that situation there is, for instance, then no need for a visa or a residence or work permit.85 In fact, this follows already from the spirit of the Helsinki Treaty, which in Article 2 stipulates that in the drafting of laws and regulations in any of the Nordic countries, citizens of all the other Nordic countries shall be treated equally with the ­citizens of the aforementioned country.86 79 Kochenov (n 65) 200–01. 80 ibid. 81 ibid. 82 ibid 202. 83 ibid. 84 Kochenov (n 68) 322. For some relevance, also see Case C-359/13 Martens, ECLI:EU:C:2015:118. Regarding social security in Greenland, see D Pieters, Social Security in Small Law Jurisdictions (Springer 2021) ch 10. 85 See eg at nyidanmark.dk/da/Applying/The%20Faroe%20Islands%20and%20Greenland/Work% 20in%20Greenland. Of some relevance, see also T Gammeltoft-Hansen et al, ‘Grønland som flygtningeland – udlændingeretlige og folkeretlige implikationer’ (2021) 2 Juristen 57. 86 The Helsinki Treaty is available at norden.org/en/information/helsinki-treaty. The Agreement Concerning a Common Nordic Labour Market (which is available at norden.org/en/treaties-andagreements/agreement-concerning-common-nordic-labour-market) is also of interest, as it, among other things, is stated in Art 1 that none of the contracting countries shall require a work permit in respect of the nationals of any other contracting country. Also worth paying attention to is that in Art 2 it is stipulated that the regulations concerning the labour market in each individual country may not place the nationals of the other contracting countries in a worse position than that country’s own nationals, and that nationals of one contracting country who are employed in another

240  Ulla Neergaard III.  THE FAROE ISLANDS

Like Greenland, the Faroe Islands have many distinct and fascinating traits. This North Atlantic archipelago consists of 18 major islands, among which 17 are inhabited, as well as lots of very small, uninhabited ones. The total area consists of about 1,400 square kilometres. The group of islands is situated quite far from Europe – and Denmark – namely about 650 kilometres off the coast of Northern Europe. They could appear ‘lonely’, situated as they are out in the Atlantic somewhere between Scotland, Norway and Iceland. Although not, like Greenland, covered mainly by ice, the terrain is still quite rough, with landscapes dominated by grasses and moss on softly curved hills at times combined with rocks, and with a climate described as subpolar oceanic. Historically, the Faroe Islands are considered to have been first discovered and inhabited by Irish monks and later on by Vikings, probably from about ad 850 onwards.87 They became part of the Kingdom of Norway in 1035.88 In 1380, the Crowns of Norway and Denmark were joined.89 Throughout the centuries, the Faroe Islands mostly retained self-government, but they were officially ­incorporated into the Kingdom of Denmark in 1709.90 In 1814, with the Treaty of Kiel – when Norway was ceded to Sweden – the Faroe Islands remained part of the Kingdom of Denmark (together with Iceland and Greenland).91 Like Greenland, the Faroe Islands are inhabited by only a very small population, consisting of about 50,000 to 55,000 inhabitants.92 The majority of the population comprise ethnic Faroese, who are considered as being mainly descendants of the Vikings who settled on the islands around ad 800.93 The official language contracting country shall be treated in the same way as that country’s own nationals with respect to remuneration and other conditions of work. It is stated in Protocol 8) that ‘By an exchange of notes the Danish Government may, on the basis of a decision taken by the home rule Government of the Faroe Islands or the home rule Government of Greenland, and subject to reciprocity, accede to the Agreement of today’s date also with respect to the Faroe Islands or Greenland.’ In addition, the Nordic Convention on Social Security may be of interest (available at I-55071-080000028043178d. pdf (un.org)). It is here stated in Art 1 that ‘“Nordic country” means each of the Contracting States together with the self-governing territories of the Faroe Islands and Greenland, which themselves have powers in the areas covered by the Convention, and the Åland Islands, insofar as these territories have agreed that the Convention shall apply to them.’ In Denmark, § 1 of Udlændingeloven, LBK no 1910 of 26 September 2021, stipulates that citizens in Finland, Iceland, Norway and Sweden can without permission enter and reside in the country. § 66 states that the Act is not applicable to Greenland and the Faroe Islands, but can by royal decree fully or partially be brought into force in those entities with the derogations the circumstances there may require. As to Greenland, see in that regard the register of Greenlandic law (available at stm.dk/statsministeriet/publikationer/ groenlandsk-lovregister-2021/); and as to the Faroe Islands, see the register on Faroese law (available at rigsombudsmanden.fo/publikationer/lovregister/). 87 J Varberg, Viking. Ran, ild og sværd (Gyldendal 2019) 304. 88 Hartmann (n 8) 113. 89 ibid 113. 90 ibid. 91 Sølvará (n 2) 2 et seq. 92 Statistics Faroe Islands, available at hagstova.fo/en/population/population/population. 93 Hartmann (n 8) 114.

Greenland and the Faroe Islands  241 is Faroese, which constitutes a development from Old Norse and is most closely related to Icelandic. Danish, however, has a role to play as well, as it has to be taught in schools and can be applied in public matters. Most inhabitants accordingly speak both languages. The Faroe Islands have, in principle, their own flag. A.  The Faroe Islands in the Danish Kingdom As in Greenland, a clear development towards more and more independence can be observed in the Faroe Islands. Already in 1946, there was a consultative referendum resulting in a small majority in favour of independence.94 This did not directly lead to independence, but in 1948 a ‘home rule’ arrangement was implemented, securing a fairly high degree of self-governance.95 The Home Rule Act lists areas for which the Faroese authorities could immediately assume responsibility, or which could be transferred at a later stage.96 Examples of such areas are municipal affairs, public healthcare and other welfare services, certain areas of taxation, education, and agricultural matters and fisheries.97 At the same time, the Islands’ status as a Danish ‘amt’ was brought to end.98 The Faroe Islands have a parliament, in Danish called ‘Lagting’ (literally meaning ‘law assembly’), which quite exceptionally has roots going far back in time to the early settlement, although at times it was put on hold. This, then, for obvious reasons became strengthened. In 2005, even more competences were devolved to the Islands. Technically, this took place by an amendment of the Home Rule Act and with the competence of the Lagting being substantially extended with the so-called ‘Takeover Act’.99 It is noteworthy that there are no explicit references to the EU in the Act. It is explicitly stated that the Act applies to all matters except for: the Danish Constitution, citizenship, the Supreme Court, Foreign Affairs, Security and Defence, and currency and monetary matters.100 Matters mentioned in this list will be transferred only after negotiations between the two entities.101 Included in this category are, among other things, passports, the area of immigration (Udlændingeområdet) and border control. As a result of these developments, the Faroe Islands now enjoy full authority over many subject matters, although

94 See at en.wikipedia.org/wiki/Faroe_Islands. 95 ‘Lov nr 137 af 23/03/1948. Lov om Færøernes hjemmestyre’. 96 Hartmann (n 8) 113. 97 See List A of ‘Lov nr 137’ (n 95). 98 See Art 15, ‘Lov nr 137’ (n 95). 99 Hartmann (n 8) 114. 100 Art 1, ‘Lov nr 578 af 24. juni 2005 om de færøske myndigheders overtagelse af sager og sagsområder’. Consequently, the Faroe Islands’ capacity to enter into international agreements or join international organisations is still limited. 101 Art 2, ‘Lov nr 578 af 24’ (n 100).

242  Ulla Neergaard still not in certain significant areas, such as the administration of justice, policing, prison and probation services, and financial regulation and supervision, which therefore continue to be regulated by Danish law.102 The Faroe Islands have continuously received financial subsidies from Denmark. B.  The Faroe Islands and the EU The narrative of the relationship between the Faroe Islands and the EU is – at least on the surface – much less complicated than that of Greenland and the EU. The reason is the obvious one that the Faroe Islands have always stayed outside the EU as a consequence of a referendum that took place in 1972 and its different constitutional situation when compared with Greenland at the time.103 Due to the autonomy entrusted to them, in contrast to Greenland, the Faroe Islands had a choice to stay outside the Union. Most likely central to this decision at the time was the wish to retain autonomy over the Islands’ own fishing waters, which is probably still of relevance today. Accordingly, the islands have, in EU terminology, the status of a ‘third country’,104 and Article 355(5) TFEU accordingly stipulates that ‘This Treaty shall not apply to the Faroe Islands.’ Thus, in principle, the Faroe Islands are exempt from the application of all EU law, including, for example, free-movement law. Nevertheless, there may be instances when EU law may still have an indirect impact.105 Even so, today it may be claimed that the Faroe Islands have established rather extensive relations with the EU.106 These are manifested mainly through bilateral agreements.107 The majority of these agreements relate to fisheries and the free movement of goods.108 As a result, according to Hartmann, the Faroe Islands have wide access to the Single Market, implying that they allow duty-free access to all EU products, including industrial, fishery and agricultural products, with the exception of dairy products and sheep meat, whereas the EU allows duty-free access to all Faroese industrial products, most fishery products and selected agricultural products.109 Also according to Hartmann, EU law may apply to the Faroe Islands in non-devolved areas, to the limited extent to which Danish laws implement EU legislation.110 102 Hartmann (n 8) 115. 103 See eg Sølvarà (n 2) 77. 104 See eg Udenrigsministeriet, Redegørelse for konsekvenserne for Færøerne og Grønland af Forfatningstraktaten m.v. (2005) 4. 105 Madsen (n 51). 106 Hartmann (n 8) 112. 107 See, for a list including the formal texts, government.fo/en/foreign-relations/missions-ofthe-faroe-islands-abroad/the-mission-of-the-faroes-to-the-european-union/bilateral-relationsbetween-the-faroe-islands-and-the-european-union/. 108 See further at government.fo/en/foreign-relations/missions-of-the-faroe-islands-abroad/themission-of-the-faroes-to-the-european-union/the-faroe-islands-and-the-european-union/. 109 Hartmann (n 8) 119. 110 ibid 117.

Greenland and the Faroe Islands  243 C.  Free Movement of Persons in the Context of the Faroe Islands Intriguingly, the situation for Faroese, who just like Greenlanders automatically have the nationality of Denmark, might be rather different. As the point of departure, according to Article 20(1) TFEU, is that every person holding the nationality of a Member State shall be a citizen of the Union, one could easily believe that this would then also include Faroese. However, if one takes a closer look, the picture is a bit more blurred and not necessarily completely settled. When Denmark joined what was then the EEC, it was stipulated in Article 1 of Protocol No 2 on the Faroe Islands that the Faroe Islands could accede to the EU as a part of Denmark, if Denmark were to issue a declaration to that effect at the latest by 31 December 1975.111 If that were to become the case, it was then in Article 4 of the same Protocol stipulated that ‘Danish nationals resident in the Faroe Islands shall be considered to be nationals of a Member State within the meaning of the original Treaties only from the date on which those original Treaties become applicable to those Islands.’ Since that option was never exploited, the provision has been read by, for example, Wagner to imply that the Faroese therefore ‘enjoy a rather interesting status under EU Law as Danish nationals but non-Union citizens’.112 In other words, this implies that ‘Danish Union citizenship’ is contingent on the place of residency and can be lost simply by settling on the Faroe Islands.113 At that time, Union citizenship was non-existent, as it was not until the Treaty of Maastricht, which entered into force in 1993, that it was launched, so the implications back in the early 1970s beyond doubt could not have been known at all. Therefore, it is more reasonable, as Kochenov also argues, that in light of Eman and Sevinger and given the wording of the relevant provisions of the Treaties, the legal meaningfulness of Article 4 of the Protocol can be brought into question.114 More specifically, he argues that given that Danish nationality law applies in Denmark, Greenland and the Faroe Islands equally, and thus corresponds with the legal construct involved in Eman and Sevinger, and since all Danish nationals, as Member State nationals, are by definition European citizens, it is highly unlikely that any sound interpretation of the Union law in force can result in the conclusion that any Dane residing in the Faroe Islands would lose Union citizenship.115 Wagner agrees on this point of view, and adds 111 Documents concerning the accession to the European Communities of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland [1972] OJ L73/163, available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= OJ:L:1972:073:FULL&from=EN. 112 L-J Wagner, ‘Member State nationality under EU law – To be or not to be a Union Citizen?’ (2021) 28(3) Maastricht Journal of European and Comparative Law 321. See also eg Kochenov (n 65) 205. 113 Wagner (n 112). 114 D Kochenov, ‘The Puzzle of Citizenship and Territory in the EU: On European Rights Overseas’ (2010) 17 Maastricht Journal of European and Comparative Law 230, 236. 115 ibid.

244  Ulla Neergaard that such an understanding is also complicated by the fact that there is just one Danish nationality, which is not subject to further internal differentiations or variations, implying that Danish nationals residing in the Faroe Islands are as much Danes as Danish nationals residing on the mainland and having an unconditional right to reside in Denmark.116 Thus, he also argues that all Danish nationals should therefore be regarded as Union citizens, irrespective of their place of residence.117 However, as Wagner adds, Protocol No 2 on the Faroe Islands forms an integral part of the Treaties, and Article 4 therefore is not just a unilateral interpretative instrument but enshrines a territorial exemption from the personal scope of EU law in primary EU law.118 Therefore, Article 4 must be understood by him as not only creating a genuine exemption from Union citizenship, but also establishing a distinctive type of Danish nationality for the purpose of EU law.119 So far, this somewhat precarious situation has been dealt with pragmatically. Due to the fact that Danish law does not distinguish between Faroese and other nationals of the Kingdom, and since nothing prevents people residing on the Islands from moving their residency to mainland Denmark, which they can do rather easily, they can thereby obtain Union citizenship status with all the rights connected therewith.120 Even more simply, they can skip changing their residency and obtain the same result, as they can just get a standard Danish passport (as it is a long-standing practice of the Danish and Faroese authorities to issue such to all Danish nationals, even if domiciled on the Faroe Islands).121 Looking at the other side of the coin, although the Faroe Islands are part of Danish immigration policy, certain differences rule, since they are outside the EU membership. To start with, EU nationals other than Danes residing in the Faroe Islands undoubtedly remain Union citizens (in the same manner as Union citizens anywhere else in the world). However, Union citizens are considered not to have special rights to work or establish themselves on the Faroe Islands.122 The modification to that is that if a person is a citizen of a Nordic country, he or she

116 Wagner (n 112) 322. 117 ibid. 118 ibid. 119 ibid. 120 Hartmann (n 8) 120. 121 ibid. To this picture Wagner adds ‘The practical question of how to distinguish between Danish Union citizens and the Danish non-Union citizens, nevertheless, seems to have been solved on a rather pragmatic note: Danes residing in the Faroe Islands can either get a green version for Faroe Islanders or a burgundy Danish EU Passport … Union citizenship for Danes residing in the Faroe Islands, hence, seems to be a question of passport colour preferences. Whether or not this modus operandi is fully in line with the spirit of Protocol No 2 on the Faroe Islands, though, is a different matter …’; see Wagner (n 112) 322. 122 Hartmann (n 8) 120. Also see at norden.org/en/info-norden/work-and-residence-permits-faroeislands, where it is stated that ‘The Faroe Islands are not a member of the European Union (EU), and so the EU rules on free movement do not apply to the Faroe Islands.’

Greenland and the Faroe Islands  245 can freely travel to the Faroe Islands to live, study and work, and would, for instance, not need a visa, a work permit or a residence permit.123 This is in contrast with the situation for persons coming from a country outside the Nordic region, where a work permit and residence permit is required in order to work in the Faroe Islands.124 IV. CONCLUSIONS

This chapter has analysed the legal situation regarding the autonomous territories, Greenland and the Faroe Islands, in relationship to Denmark and the EU. This has served as a kind of a background for obtaining an understanding as to the free movement of persons. Although both territories are entities within the Danish Kingdom, the analysis has revealed that significant differences prevail as to free movement. It is also an area where there is much legal uncertainty as to the details of the legal framework. In general terms, the analysis has demonstrated that both Greenland and the Faroe Islands have continuously moved towards more and more independence from Denmark. However, the competence regarding citizenship has not been transferred as such.125 In contrast, for example, competences regarding social affairs have been transferred. At the same time, both autonomous territories have – in different circumstances and at different times – in principle been able to oppose membership of the EU despite being entities in the Danish Kingdom, which has been considered by Kočí and Baar as a modern form of anticolonial struggle.126 However, as has been explained in this chapter, this does not mean that there are no ties at all, both explicitly and implicitly. Greenland is more connected than the Faroe Islands already due to its OCT status, and Greenlanders are as a consequence also likely to be considered to have the status of Union citizens. In contrast, the Faroe Islands have in principle the status of a third country or a territory sui generis, where the latter term could in this case be considered more correct due to its links to the EU through Danish membership. As the entity is part of the Danish Kingdom, EU law may nevertheless also have importance here too. However, in principle, Faroese are not considered Union citizens if they have residence on the islands, although in practical terms they may nevertheless gain such status quite easily. As to Union citizens’ rights in relation to Greenland and the Faroe Islands, this appears to be an area connected with even greater levels of uncertainty. The general picture revealing 123 See at norden.org/en/info-norden/work-and-residence-permits-faroe-islands. 124 ibid. See also the analysis of Greenland in section II. For further details as to the Nordic Passport Union and Schengen, see JH Danielsen, ‘Responsum. Færøernes stilling i forhold til den nordiske pasunion og Schengen-samarbejdet’, 31 October 2012, at logting.fo/files/casestate/14255/141.13%20 Skjal%20A.pdf. Regarding social security in the Faroe Islands, see Pieters (n 84) ch 7. 125 Spiermann (n 9) 111. 126 Kočí and Baar (n 8) 198.

246  Ulla Neergaard itself is that these rights are – again – likely to be stronger in the former autonomous territory than in the latter. In all circumstances, a person may in general terms be considered better off as a Nordic national than a Union citizen from elsewhere in both Greenland and the Faroe Islands – and the other way around. As explained, this follows already from the spirit of the Helsinki Treaty, but of course not only that. Largely due to unusual constructions developed on the back of historic events from far back in time, the puzzle of the law regulating free movement of persons in relation to the autonomous territories in the Danish Kingdom, Greenland and the Faroe Islands, is not easily solved. Also, the last word on the matter is likely not to have been written yet, as there is an essential need for the many uncertainties to be handled and in connection therewith more coherence to be established in the legal framework. In fact, perhaps an entire paradigm change for legislation is needed, or at least thorough revision and modernisation, with better recognition of the unique situation of each of the individual territories and based on a holistic review. But also, more narrowly, a fresh internal review of the tensions between EU law and the autonomous territories could be timely, with the purpose of increased transparency. At a minimum, this is called for regarding free-movement rights, including consideration of what would be the future, ideal legal situation to strive for, such as, for instance, whether ‘fully-fledged’ Union citizenship for, say, Faroese and Greenlanders should be valid law, and whether they themselves really would want that. All in all, underneath the topic covered lies a bigger, but still fairly untold, story about Denmark’s and the EU’s, as well as the associated territories’, memories of imperialism and colonialism; echoes of a past that by many is seen as dark.127 Yet it is a story that is urgently in need of telling, for having uncovered, redirected and atoned; or, as eloquently expressed by Nicolaïdes: In his preface to Fanon’s Les Damnés de la terre, Sartre writes, ‘We too, the people of Europe are being decolonized […] let us look at ourselves if we dare and see what we become’. To dare and see ought indeed be the starting point of any post-colonial exploration. And in this realm, the journey must start with self-reflexivity, that is, the ability to reflect critically and openly upon both discourse and practice, the systematic questioning of the assumptions behind one’s methods, and the capacity to draw lessons from outside one’s world – whether from the past or from the perceptions of others.128

127 See further eg A Sierp, ‘EU Memory Politics and Europe’s Forgotten Colonial Past’ (2020) 22 International Journal of Postcolonial Studies 686. 128 K Nicolaïdes, ‘Southern Barbarians? A Post-Colonial Critique of EUniversalism’ in K Nicolaïdis, B Sebe and G Maas (eds), Echoes of Empire: Memory, Identity and Colonial Legacies (IB Tauris & Company 2014) 247, 299. The Foreword, which is referred to, is available at marxists.org/reference/ archive/sartre/1961/preface.htm. The book in which it was included is available in Danish: F Fanon, Fordømte her på jorden (Informations Forlag 2021).

Part IV

Conclusion

248

12 Flickering Contours of a Nordic Citizenship Encircling a Legal Core of EU/EEA Law KATARINA HYLTÉN-CAVALLIUS AND JAAN PAJU

I. INTRODUCTION

I

s the Nordic legal cooperation with regard to free movement of persons to be labelled as integrationist, complementary or irrelevant in relation to EU and EEA law? This edited volume’s various contributions indicate that the Nordic legal framework for free movement of persons – the result of a long tradition of legal cooperation in the region – is certainly not irrelevant, even though it lacks the legal ‘teeth’ of EU and EEA law. As follows from the contributions on each respective Nordic state, there is plenty of national legislation and close administrative cooperation between various state agencies in the Nordic region, which give the legal regime of freedom of movement based on EU/EEA law a clear added value and practical effectiveness. This effect has come about through a long tradition in the Nordic region of mutuality in policy making, coordinated legislative drafting at each national level and communicative administrative developments of the respective Nordic welfare states.1 As for the legal interaction with EU law, Nordic legal cooperation appears far less of an integrationist driving force than the former. Rather, the legal and administrative regime for free movement of persons between the Nordic states facilitates the ‘hard law’ stemming from the level of EU law. This dismantles some of the administrative hindrances many Union citizens otherwise face when moving between states. We therefore see the blurry contours of a non-formalised ‘Nordic citizenship’ of sorts, built around a legal core of the Union citizenship that is conferred by EU law, the latter being a legal concept that, in controversial ways, also makes its mark in the EEA jurisdictions.2



1 See 2 See

Wenander, ch 2 of this volume. Björgvinsson, ch 4 and Franklin, ch 10 of this volume.

250  Katarina Hyltén-Cavallius and Jaan Paju II.  ENCOURAGING FREE MOVEMENT OF PERSONS IN THE NORDIC REGION

When looking at the legal framework for Nordic cooperation, the Helsinki Treaty sets out the goals. The Treaty is an international agreement that also lays down the institutional framework for the Nordic Council as well as the Nordic Council of Ministers. It foresees that each of the respective legal systems of the Nordic states shall treat other Nordic nationals on an equal footing with its own citizens. Being an international framework agreement, and especially as the Nordic legal systems all take a dualistic point of departure, it does not in itself give rise to any justiciable, individual rights that can be claimed before a court. Instead, the Helsinki Treaty presupposes that each Nordic state will take legislative initiatives at its respective national level, for the practical realisation of this principle of equal treatment of other Nordic nationals. Still, the Treaty strives for the achievement of a common Nordic labour market. To this aim there is added an international agreement on social assistance and social services that treats Nordic nationals more favourably than other Union citizens in a free movement situation, as well as a Nordic Convention on Social Security that complements the EU’s Regulation 883/2004.3 Furthermore, the agreement on a coordinated system of residence registration of all persons residing within each Nordic State simplifies the movement between Nordic states for persons who already have established residence in a Nordic state.4 Hence, Nordic legal cooperation, while not creating supranational legal rights for the individual, has spurred the making of a legislative framework at each national level in the Nordic states, in parallel to EU/EEA law, that in practice promotes and facilitates the free movement of Nordic nationals within the region. Nevertheless, given the standing of EU law, whenever the legal outcomes of Nordic cooperation are not in line with EU law, the latter will supersede any Nordic agreement and the respective national legislation it has given rise to. Because of this, Graham Butler understands that Nordic cooperation does not add much to the existing EU law framework. He argues that the legal regime of free movement of persons follows from EU law but lacks any clear legal guarantees when emanating from Nordic cooperation.5 True, while the effects of Nordic cooperation in this area may generate a certain added value in practical terms, without the effect of EU legal integration we could not talk of any individual right to freedom of movement in the Nordic region. This is because Nordic cooperation is mostly just that: politically driven cooperation between states, lacking in terms of a clear rights-bearing framework for the individual

3 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) [2004] OJ L166/1. 4 Överenskommelsen om folkbokföring (1968/2004). 5 Butler, ch 3 of this volume, section III.D.

Flickering Contours of a Nordic Citizenship  251 and without any supranational ‘Nordic Court of Justice’, nor any institutions to supervise implementation or interpretation of ‘Nordic law’. Hence, according to Butler, any talk of special treatment of Nordic citizens in the field of free movement is simply Union citizenship in disguise. True, EU law takes precedence over national law and is therefore the floor for the free movement of persons in the Nordic States, but is it also the ceiling? Some effects of the Nordic agreements, as discussed by Catherine Jacqueson, Thomas Erhag and Päivi Johanna Neuvonen in their respective contributions on Denmark, Sweden and Finland, can arguably be said to be more than just EU law in disguise.6 From their perspective, those effects actually amount to an individual’s very real and substantiated enjoyment of equal treatment across the Nordic region, regardless of economic activity or self-sufficiency. As a result, they generate legally approved fast tracks to accessing residence and social rights in another Nordic state, and make it easier to adopt another Nordic state’s nationality by naturalisation. As for the administrative side of things, Henrik Wenander holds that the institutional structures between the Nordic states can be understood as an important asset. This is so, as annexes to the Nordic agreements and other agreements between the Nordic agencies regulate close cooperation at the civil service level, where agencies as well as border committees meet on a regular basis.7 As a result, there is a functioning inter-Nordic cooperative administration with an exchange of relevant personal data, in addition to a well-developed information service that, within the given legal framework, can be understood as integrative. Perhaps ‘it is in these smaller settings, related to everyday life, that the Nordic cooperation of the future has its most important role to play’.8 III.  THE NORDIC LEGAL FRAMEWORK: COMPLEMENTARY BUT ALSO INTEGRATIONIST

A special character trait of Nordic legal cooperation is that while only three out of five Nordic states are EU Member States, and the associated territories like Greenland and the Faroe Islands are territorially outside the scope of EU law, they are all united by the particular free movement of persons regime that follows from the Nordic legal cooperation. In addition, Norway and Iceland are EFTA states, which makes the main principles of EU free movement of persons law also applicable in their jurisdictions, but without the EU primary law concept of Union citizenship, nor the EU Charter of Fundamental Rights 6 See Jacqueson, ch 6, Erhag, ch 7 and Neuvonen, ch 8 of this volume. 7 cf Art 13 of the Nordic Convention on Social Security, which foresees an additional administrative agreement on the cooperation. 8 Wenander, ch 2 of this volume, section VI. See also P Leino-Sandberg, LH Leppävirta and S Miettinen, ‘Har det nordiska rättsliga samarbetet en framtid i Europeiska unionen?’ [2016] Europarättslig Tidskrift 399, 421 ff.

252  Katarina Hyltén-Cavallius and Jaan Paju (the Charter). This makes for a rather special legal landscape, in which EU primary and secondary law are applicable to Denmark, Sweden and Finland but where only the secondary law of the EU free movement of persons regime applies to Norway and Iceland. As Davíð Þór Björgvinsson and Christian Franklin discuss, the EEA homogeneity principle nevertheless calls for an interpretation of EEA law in line with EU law, which should resolve such discrepancies.9 As a further complexity, in parallel to the Nordic agreements, EU/EEA law is to some degree extended to Greenland and the Faroe Islands, both territorially, as Franklin notes with regard to social security, as well as personally, with a sort of extraterritorial Union citizenship, as Ulla Neergaard concludes in her contribution.10 Thus, Nordic legal cooperation with regard to free movement of persons intermingles with a complex and mixed EU/EEA law structure, where the legal outcome may differ depending on which Nordic state or territory is in focus. While on the one hand lacking in legal forcefulness in terms of individual rights, Nordic nationals evidently enjoy a special status both legally and as to how they are perceived by national administrations in comparison to other Union citizens, regardless of which Nordic state or territory we look at. Jacqueson, for instance, sees how Danish law treats other Nordic nationals as basically assimilated to Danes, rather than treating them as Union citizens from an EU Member State, the latter category lying closer to the perception of being ‘immigrants’. This effect of assimilation of other Nordic nationals echoes throughout the contributions, as Erhag refers to a Nordic ‘heritage’ when discussing residence rights and Neuvonen refers to ‘Nordic union citizens’ as different in standing from other Union citizens. Wenander’s chapter depicts a distinct region in the north of Europe that shares historical, cultural and linguistic bonds. This special bond is deepened by the fact that Nordic nationals may take up residence in another Nordic state or associated territory, as follows from the respective Nordic national aliens acts, without being subject to any eligibility criteria or burdensome administrative procedures. As follows from the agreement on social assistance and social services, Nordic nationals that are economically inactive also have access to social protection in another Nordic state, as no legal requirements for their residence rights are imposed. This is in clear contrast to what follows from EU Directive 2004/38 (Citizenship Directive).11 To be a Nordic national

9 Björgvinsson, ch 4 and Franklin, ch 9 of this volume. 10 Franklin, ch 9 of this volume, section IV.B, and Neergaard, ch 11 of this volume, section IV. 11 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC (Text with EEA relevance) [2004] OJ L158/77.

Flickering Contours of a Nordic Citizenship  253 is tangibly something more than being just any EU/EEA national. In addition, and compensating for the fact that there is no formalised supranational legal concept of ‘Nordic citizenship’, the Nordic states have jointly introduced, at each respective national level, a fast-track procedure for other Nordic nationals to acquire the national citizenship of their Nordic host state, often outstripping the permanent residence status offered by the Citizenship Directive by some years. To treat Nordic nationals as equals in law, as well as to allow them to easily and quickly adopt the Nordic nationality of their state of residence via naturalisation, thus makes the need for a legally constructed ‘Nordic citizenship’ similar to Union citizenship rather superfluous in the Nordic region. Whereas the EU’s concept of Union citizenship might hold more legal weight, and have justiciable rights at its core, its force is nevertheless circumvented by conditionalities because of the sec­ondary law requirements of, for example, economic activity or self-sufficiency for achieving legal residence in other EU Member States. The Nordic variant of a free movement regime epitomises the principle of non-discrimination on grounds of (Nordic) nationality in a way that has not yet been achieved in EU law for its concept of Union citizenship. The special bond between the Nordic states forged through a long tradition of political and legal cooperation clearly gives rise to substantial added legal value for all Nordic nationals when they are in a free movement context within the Nordic region, irrespective of the fact that it is for the national legal setting of each of the Nordic states to regulate these various situations. In light of the above, the contours of some kind of socio-cultural figure of ‘Nordic citizenship’ start to manifest themselves. Such a sighting would also be in line with the Nordic states’ ambition to become the most integrated region in the world by 2030. As follows from the contributions in this anthology, Nordic cooperation does offer some real added value to Nordic nationals and has an integrative effect. However, it is important to underline that, legally, the initiatives at the level of Nordic cooperation cannot be anything but complementary to the EU law regime of free movement of persons, as EU law takes precedence over any cooperation that falls within the remit of EU law. Hence, this Nordic ‘added value’ for free movement of persons within the region must always be in compliance with EU law, regardless of any sociocultural view of common heritage and mutual understanding. In line with this, the compatibility of the more generous Nordic rules on residence, as well as naturalisation for Nordic nationals, who thereby qualify for social rights with no additional requirements when compared to EU law’s demands for sufficient resources and comprehensive sickness insurance (as the case is with the EU’s Citizenship Directive), is discussed by Erhag and Neuvonen. They both point to the fact that the Nordic common rules are more favourable vis-à-vis Nordic Union citizens, and thus possibly not in compliance with EU law as being discriminatory with regard to other Union citizens. However, the question is whether the special treatment of Nordic nationals can be understood as discriminatory, as the treatment does not benefit the host state’s own

254  Katarina Hyltén-Cavallius and Jaan Paju nationals in any respect but only a defined category of other EU/EEA nationals. This is discriminatory treatment of a different kind; rather an accentuated form of ‘regional equal treatment’. In other words, an enhanced expression of the principle of non-discrimination on grounds of nationality applied at the inter-Nordic level. It is doubtful that such treatment could be understood as discriminatory, as the difference in treatment is of an integrative character. This ‘Nordic equal treatment’ encourages rather than discourages free movement of economically inactive Union citizens and EEA nationals too, albeit only those who come within the legal scope of Nordic cooperation. Recognising the benefits of this, we sympathise with Neuvonen’s assertion that ‘it would seem short-sighted to dismiss successful attempts at treating economically inactive non-nationals more equally than is currently required under EU free movement law’.12 With regard to Norway and Iceland, the free movement of persons regime is arguably a more complex legal landscape. There is no fundamental status of Union citizenship, nor a free-standing right of free movement for persons but only the implementation of the EU secondary law in this area, to which Norway and Iceland have acceded through the EEA Agreement, paired with the additional effects on national legislation stemming from Nordic legal cooperation. However, Franklin draws the attention to the ‘quasi-primacy’ principle of EEA law, where EEA law takes precedence over Norwegian law when establishing residency, as well as to the fundamental EEA principle of homogeneity that requires identical provisions under EU and EEA law to be interpreted in the same way, which also Björgvinsson points out in his contribution. Irrespective of EU primary law’s not being directly applicable, there is here a legal landscape where the primary law, as well as case law from the Court of Justice of the European Union, has an influence in Norway and Iceland. However, Franklin holds, and Ciarán Burke and Ólafur Ísberg Hannesson also indicate in their contribution, that the influence of EU primary law cannot be stretched to the extent that one could talk of a Nordic equivalent of the EU’s Union citizenship. This is because the strict requirements of the Citizenship Directive, as transposed to national immigration law, will apply to all non-Nordic EU/ EEA nationals. From that perspective, the more generous treatment of Nordic nationals in the EFTA states compared to non-Nordic Union citizens is less troublesome since, as opposed to Denmark, Sweden and Finland, the larger EU primary law setting is formally missing. It is merely EU secondary legislation that is to be applied in Iceland and Norway, which makes it possible to argue that the national legislation that puts other Nordic nationals on a par with



12 Neuvonen,

ch 8 of this volume, section VI.

Flickering Contours of a Nordic Citizenship  255 Icelandic and Norwegian nationals, does not legitimately need to be extended to non-Nordic Union citizens. The legal landscape becomes even more complex when looking closer, as Neergaard does in her contribution, at the Faroe Islands and Greenland, the former being, in principle, a third state and the latter an ‘Overseas Country and Territory’ (OCT). The citizens of Greenland have the nationality of Denmark and could therefore be regarded as Union citizens, even if, as Neergaard discusses, it is far from certain that they are being seen as fully-fledged Union citizens from an EU law perspective (eg extending their rights to their third-state spouses and family). Taking this legal uncertainty into account, Nordic cooperation has certainly a role to play in a Greenlandic context. The Faroe Islands are in principle a third state, as in the referendum in 1972 the islanders decided not to join the EU, which is also stipulated in Article 355(5) TFEU. Neergaard points to multiple legal implications of the fact that, despite the fact that the inhabitants of the Faroe Islands are Danish citizens, they are lawfully treated as third-state nationals in an EU setting. The islanders could of course make use of their Danish passports and thus ‘pretend’ to be Union Citizens, but from an EU law perspective they do not have an equal standing with Danish citizens. As to the question of the legal standing of Union citizens moving to or residing in Greenland and the Faroe Islands, the picture is also legally blurred. Given this legal uncertainty, the free movement of persons regime stemming from Nordic cooperation turns out to be of vital importance here, as it allows for the legally smooth use of freedom of movement between the Nordic EU/EEA states to these two territories. Here, we see a true Nordic free-movement dimension emerge, offering a tangible legal regime for the individual to enjoy, albeit lacking in explicit rights. Neergaard talks of the spirit of the Nordic Convention, under which citizens of all the other Nordic states shall be treated equally, as the forceful guiding principle for the currently legally uncertain situation with regard to EU law-based free movement of persons rights in Greenland and the Faroe Islands. In conclusion, it could very well be that the principle of equal treatment of all Nordic nationals could be the key to understanding the effects of Nordic cooperation. It is a special Nordic equal treatment principle that aims at introducing a legal mindset of equality amongst the Nordic states’ citizens, rather than legally claiming an individualised ‘right’ to equal treatment in cross-border situations. As noted, such a mindset seems to be present when the contributors to this anthology discuss the legal challenges Nordic cooperation faces. It is certainly the case that the historical, cultural and also social bonds lead to a mutual understanding that opens up, as the section IV concludes, a culture of administrative cross-border cooperation between core state agencies, where other Nordic applicants are made equal, more or less, to a national applicant.

256  Katarina Hyltén-Cavallius and Jaan Paju IV.  EQUAL TREATMENT, EASY NATURALISATION AND COOPERATIVE NATIONAL ADMINISTRATIONS: THE ESSENCE OF NORDIC FREEDOM OF MOVEMENT

There is certainly a lot to say about the more favourable legal position enjoyed by Nordic nationals who make use of freedom of movement within the Nordic region. Reaching back to the overarching questions that spurred the publication of this edited volume, we ask whether it is possible to create additional values as well as well-functioning administrative highways, while being in full compliance with the requirements of EU/EEA law. Is it, at all, legally possible to develop and deepen a regional cooperation in parallel to the law governing EU integration? Butler finds that the supremacy of EU law overrules any such ambitions. However, there is also Neuvonen’s integrative regional view. Irrespective of the troublesome interaction with EU law, a free movement regime that makes it possible for economically inactive persons also to move easily between the Nordic states, and which overall administratively facilitates free movement of persons within a particular region in a way that is yet unheard of at the EU level, should arguably be cherished by the EU’s institutions rather than outlawed.13 On a regional level, the Nordic Council serves as the hub for Nordic ­cooperation. While having no formal decision-making power, the Council nevertheless consists of representatives from the parliaments of the five Nordic states and the autonomous territories, and meets on a yearly basis. The mere fact that issues are brought up to be discussed in this forum opens it up to finding best practices, information exchange and opinion forming, in turn giving rise to closer ties and simultaneous legislative initiatives.14 Furthermore, inter-regional political party groups were established in the 1980s, thereby enhancing crossborder cooperation, not just between states but also between Nordic p ­ olitical parties.15 The value of such close ties is hard to measure in legal terms. It gives rise to an exchange of ideas and mutual respect, and has led to coordinated legislative initiatives, in turn giving rise to a Nordic legal culture. In addition, there is the Nordic Council of Ministers, consisting of governmental ministers of the signatories to the Helsinki Treaty, where the ministers alternate depending on the subject being discussed. Its action is, as Wenander points out, of a political character, rather than legal or executive.16 The ministers may call for legislative action, but the Nordic cooperation ‘never … [goes] further than

13 cf Case C-435/06 C, ECLI:EU:C:2007:543, Opinion of AG Kokott, para 61. 14 F Wendt, Nordiska Rådet. Riksdagarnas nordiska samarbete (Föreningen Norden 1965) 23. 15 T Etzold, ‘The Case of the Nordic Councils – Mapping Multilateralism in Transition No 1’, International Peace Institute (December 2013) 2, at www.ipinst.org/wp-content/uploads/ publications/ipi_e_pub_nordic_council.pdf (accessed 30 May 2022). 16 Wenander, ch 2 of this volume, section III.A.

Flickering Contours of a Nordic Citizenship  257 each state permits’,17 as the cooperation is built on public international law. Therefore, the Council of Ministers cannot be understood as a body resembling the European Commission, as it consists of the respective states’ ministers and has no independent executive or legislative role to play. In sum, Nordic cooperation, in supranational legal terms, is rather weak, but it provides a political forum where mutual challenges are discussed, administrative best practices are introduced and closer administrative ­cooperation is encouraged. In and of itself, it cannot make the vision of the Nordic region as the most integrated region in the world by 2030 come true. This was obvious when the Covid-19 pandemic hit, as Neergaard, Paju and Raitio discuss in their contribution.18 Within days, otherwise lively cross-border commuting in the Nordic border regions became almost non-existent, and no legal action could be taken at a Nordic level. The existing cooperation and culture of mutual understanding were swept away. The informal letters from the Nordic Council of Ministers’ Border Obstacle Council (Gränshinderrådet), which addressed the responsible Nordic ministers, were largely ignored, national sovereignty instead being emphasised by each of the Nordic governments. Clearly, Nordic cooperation was legally toothless in challenging times, resulting in its tradition of mutual trust being severely damaged. In the light of this, Neergaard, Paju and Raitio argue that there is an imminent need to fix its ‘broken wings’ and rebuild the mutual trust at both the EU and the Nordic level. The first steps to fix these ‘broken wings’ were taken when Nordic Day was celebrated on 23 March 2022 online.19 Nevertheless, a highly critical report by the research council NordRegio, State of the Nordic Region 2022, was issued, and the Nordic politicians present at the Conference were united in finding that the border closures had disrupted the free movement of persons.20 Even so, no political declarations were made to ensure that border closures would not be introduced again in the future. Regardless of the lack of political will to safeguard against future border closures, or the legal hurdles in the way of deepening Nordic cooperation by giving it more of a more supranational structure as this would interfere with EU law, the everyday cooperation between authorities and between border regions shows that Nordic cooperation has an important role to play in ‘good times’. It is at the administrative level where true Nordic cooperation can be found. The daily informal contacts between Nordic authorities, where cross-border issues are seamlessly resolved and where information is shared just as between a state’s own national authorities, are, in our view, at the heart to the success story of

17 See Nordiska Rådet, The Role of the Nordic States in European Cooperation (Nordisk Utredningsserie 1973) 27. 18 See Neergaard, Paju and Raitio, ch 5 of this volume. 19 The discussion can be re-visited at www.norden.org/da/node/70816 (accessed 7 August 2022). 20 State of the Nordic Region 2022, at http://nordregio.org/wp-content/uploads/2022/03/State-ofthe-Nordic-Region-2022.pdf (accessed 7 August 2022), ch 6, esp the conclusion at 90.

258  Katarina Hyltén-Cavallius and Jaan Paju Nordic cooperation. In that regard, the realisation of the goals of EU free movement law is encouraged and facilitated in an efficient way, thanks to the strong ties and cooperative culture between Nordic state agencies. The legal basis for inter-Nordic administrative cooperation between state agencies stems from the Nordic conventions and the national legislation implementing them. The respective state agencies meet regularly to discuss the administrative cross-border challenges they face. These meetings have a role similar to that of the Administrative Commission attached to Regulation 883/2004. The difference is, however, that the Nordic meetings are less formal and have a much smaller format, with a pragmatic focus on problem solving. In addition to close cooperation between the authorities at a central level, integration is further enhanced by the Nordic information centres that resemble national SOLVIT-centres, albeit merely focusing on three border regions: Øresunddirekt (Sweden–Denmark), Grensetjänsten Norge–Sverige (Sweden– Norway) and Nordkalottens gränstjänst (Sweden–Finland–Norway).21 Despite the weaknesses in the legal aspects of Nordic cooperation on free movement of persons, there is intense Nordic administrative cooperation, where free movement is promoted on a daily basis and where Union citizenship rights, as well as the rules stemming from EU legislation, are substantiated and rea­lised in practice. While the applicable legislation is mainly EU/EEA law at its core, it nevertheless takes efficient and diligent national administrations to make the free movement of persons come true. This is the real strength of Nordic­ cooperation – the fostering of a culture of mutual understanding and cooperation that very well may be the key to the most integrated region in the world. V.  THE FLICKERING CONTOURS OF A NON-FORMALISED NORDIC CITIZENSHIP

It is hard to overlook the fact that most of the Nordic cooperation on a regional level is of a legally non-binding character and therefore of no real legal substantial value. As Butler strikingly notes, ‘Nordic arrangements offer little in the form of legal guarantees when compared to those under EU law and EEA law.’22 This should not come as a surprise, as Nordic cooperation is cooperation between states and not individual, rights-based-driven cooperation. However, as follows from the contributions to this edited volume, the effects of Nordic cooperation are far from irrelevant – quite the opposite. The effects of Nordic cooperation facilitate as well as complement the realisation of free movement rights stemming

21 See at www.oresunddirekt.se/se, www.grensetjansten.com, https://granstjanst.se respectively (all accessed 7 August 2022). 22 Butler, ch 3 of this volume, section IV.

Flickering Contours of a Nordic Citizenship  259 from EU law, and even go beyond the requirements of EU legal integration with regard to equal treatment. This, in combination with a long-established culture of administrative cooperation for the realisation of integrative goals, gives rise to the blurry contours of some kind of Nordic citizenship, non-formalised and therefore as hard to grasp as the flickering Northern Lights, which, at various times, light up the Northern hemisphere.

260

Index access to social rights common labour market, Nordic international agreement on  22 Denmark  105–10 Finland  164–9 Iceland  210–18 entitlement to health care  216–18 Nordic Convention on Social Security (1981)  215–16 old-age pension  213–14 residence-based social assistance  214–15 residence-based social security system  212 social assistance  214–15 Sweden  130–7 health care  135–6 residence-based social security benefits  134–5 social assistance  136–7 solidarity benefits  122 acquis communautaire  211 Act of Accession (1994) Contracting Parties  39 Joint Declaration on Nordic Cooperation (Declaration 28) appended to  24, 25, 38–9 administrative letters, from Commission  86–8 AFSJ see Area of Freedom, Security and Justice (AFSJ) Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA, 1994)  55, 61 Agreement on a Common Nordic Labour Market (1982)  4, 22, 102n22, 177, 186 Agreement on Public Registration  205–6, 210 Agreement on the European Economic Area (EEA Agreement, 1992)  4, 9, 178, 181–2, 199 absence of EU citizenship in  52–3 Annex V  69, 70

Annex VI  187 Annex VIII  69, 70 Contracting Parties  58 extension of EU common market to Iceland, Norway and Liechtenstein  55 and free movement  31, 33 free movement of persons through EU and EEA law  35–6 fundamental rights  55, 60, 63, 66, 67 incorporation of Directive 2004/38 into  41, 56, 69, 73 interpretation at the national level  58, 61 Joint Declaration by Contracting Parties  41 legal characteristics  56–7 and Nordic Social Security Convention  215 protection of fundamental rights under  57–61 provision on Nordic cooperation  25 regional integration  24, 26 scope of  24 structure  57 agreements see Agreement on the European Economic Area (EEA Agreement, 1992); Nordic Agreements; Schengen Agreement in Continental Europe Åland islands  24 Alemo-Herron and Others (Case C-426/11)  61 Alimanovic (Case C-67/14)  166, 168 Andersson and Andersson (Case C-321/97)  42–3 Area of Freedom, Security and Justice (AFSJ)  24, 178 asylum, right to  64 Balkan Import Export (Case 55/75)  43 Baumbast (Case C-413/99)  184 Belgo–Luxembourg Economic Union  38 benefit tourism  110, 112 Benelux region  40, 52, 173n150 Benelux Union  38 cooperation  24n83, 37–8, 173n150

262  Index border closures, COVID-19 pandemic  9, 26–9, 77–94 administrative letters from Commission and responses  86–8 checkpoints  85 Council Recommendation 2020/1475  90, 91, 93 divergent Nordic ‘models’ and strategies comparison  85–6 Denmark  80, 82–4 Finland  80, 84–5 Sweden  80–2 EU coordinated approach to  89–91 lessons learned and importance of building trust  92–4 and non-discrimination principle  86n29, 91 Nordic Border Obstacle Council letters to the Nordic states  88–9 Nordic cooperation  77, 79 Nordic Council action  91–2 Border Obstacle Council, Nordic  19, 80, 257 letters to the Nordic states  88–9 border obstacles  19, 28 see also Border Obstacle Council, Nordic Bosphorus v Ireland (2005)  65–6 Bouchereau (Case C-30/77)  162, 163 Brey (Case C-140/12)  166, 168, 206–7 Brite Strike Technologies (Case C-230/15)  38 Campbell (Case E-4/19)  48, 50, 75, 177, 181n29, 185, 208 Carpenter (Case C-60/00)  183 case law, free movement of persons  39–50 CJEU case law  42–5 EFTA Court’s case law  25, 45–8 impact of Union citizenship  40–2 importance of EU law for free movement  49–50 Opinions 1/91 and 1/92  44, 53 pooling of tax credits  47 subordination of Nordic arrangements  49–50, 51 see also individual cases CG (Case C-709/20)  4n6, 105, 109, 110 Charter of Fundamental Rights of the European Union (2012)  4, 251–2 Articles  63–5 citizens’ rights  68–75 content  59, 62–8 dignity  63 distinction between rights and principles  62–3

and the ECHR  62–8 tensions with ECHR standards  56, 61–75, 76 and EEA  55, 60, 61, 185 entry into force  61 equality  64–5 freedoms  63–4 interpretation  60, 61 justice  68 not binding upon the EFTA states  57 reach of  76 solidarity  65–8 child, rights of  64 circular free movement  47 citizenship acquisition in a Nordic state  5 of the EU formal lack of as a concept in Iceland and Norway  41–2 and free movement  36, 40 impact  40–2 legal concept  4, 41, 49 Nordic states and European integration  34 existence of in EU law  52 international agreement  21 Nordic  6, 21, 119, 253, 259 no legal concept  49 non-formalised  3, 49, 249, 253, 258–9 status  49 Swedish proposal for  116 rights of citizens  68–75 see also Citizens’ Rights Directive (Directive 2004/38) Citizenship Directive (Directive 2004/38)  5, 34, 45, 101 and Denmark  105, 110 enhancing free movement  53 and Finland  148, 152, 157–8, 162, 172 gap in Article 16 with respect to family members  72 and Iceland  75, 221, 222 impact of Union citizenship  40, 41 implementation  75, 123, 124, 139, 172, 221, 222 incorporation into EEA Agreement  41, 56, 69, 73 interpretation  41–2, 46, 61 homogeneous  73–4 and Nordic nationals  252–3 and Norway  179, 180, 182, 183

Index  263 residence-based social security benefits  134–5, 137 and Sweden  123, 124, 127, 139 civil code, Nordic  21 CJEU see Court of Justice of the European Union (CJEU) Clauder (Arnulf) (Case E-4/11)  40n31, 45–6, 71–2, 204n20 fundamental rights protection  59, 60 collective action, fundamental right to  66, 67 colonialism  226, 246 Commission v Belgium (Case C-408/03)  168 Committee of Senior Officials for Justice Affairs  19 Committees of Government Officials  19, 30 Common Foreign and Security Policy  24 common labour market  19, 145 Nordic international agreement on (1982)  22, 102n22 Convention on the Nordic Arrest Warrant  21 cooperation, Nordic  3, 6, 10, 18, 19, 29–32, 33n3, 39, 51, 75, 77–9, 86, 89–94, 251 administrative  49, 133, 249, 257–9 bilateral  125 and border closures  77, 79 codification  14 cooperation versus integration  6, 51 cultural  22 and Denmark  97, 98, 106n43 duty  17 economic  23 effects  258 and EU/EEA law  23–6, 75, 123 expanding  27 and Finland  147, 171, 172, 173 formal  9, 11, 12, 13, 16, 20 governmental side  15 and Greenland  226n5, 227, 230 under the Helsinki Treaty  14, 15, 98, 250 history among Nordic countries  172 and Iceland  199, 210 informal  11, 20 institutional  19n47, 29, 226 inter-Nordic  258 intra-Nordic  13 Joint Declaration on Nordic Cooperation (Declaration 28)  24, 25, 38–9, 172 and Kalmar Union  11 legislative  11, 13, 15, 17, 20–6 limited  10 versus Nordic agreements  33n3 political  26, 27

regional  29, 36, 37, 38, 79, 173, 258 and Sweden  121, 125, 127–8, 132, 133, 137, 138, 140, 145, 146 tradition of  3–6 weak  257 Copenhagen Convention (1981)  215 Corona Commission  81 Council of Ministers, Nordic  3–4, 250, 256, 257 border closures, COVID-19 pandemic  79 Border Obstacle Council  80 and Finland  171–2 Nordic Freedom of Movement Council at  79 proceedings  18 regional integration  9, 11, 16, 18–20, 27, 29, 30 see also Nordic Council Court of Justice of the European Union (CJEU)  24, 29, 56 compared with EFTA Court  43 concept of worker  102–3 and free movement  32, 34, 35, 37, 39, 42–5, 49 COVID-19 pandemic administrative letters from Commission and responses  86–8 and closure of borders  9, 29, 77–94 consequences for movement between Nordic states  29 divergent Nordic ‘models’ and strategies see under border closures, COVID-19 pandemic EU coordinated approach to border closures  89–91 lessons learned and importance of building trust  92–4 Nordic Border Obstacle Council letters to the Nordic states  88–9 Nordic Council action  91–2 and Nordic integration  257 self-isolation strategy  84 and testing  84, 85 Danish Kingdom see Kingdom of Denmark Dano (Case C-333/13)  105n39, 109n57, 110, 135n74, 166, 167, 168, 184 Denmark  47, 78, 83, 97–119 access to social rights  105–10 contribution-based entitlement  105 welfare benefits and services financed through taxes  105, 110

264  Index accession to the EEC (1973)  15, 78, 97–8, 111, 225, 230 Act of Epidemics (2021)  83 Act on an Active Social Policy (2021)  106, 107, 108, 113 Agency for Educational Grants  103, 112 Aliens’ Act  104 Board of Appeals for Study Grants and Loans  103–4 border controls during COVID-19 pandemic  83 competition with Sweden for influence  11 Constitution  117, 226, 229 constitutional theory  227 COVID-19 approach  82–4 Danish Agency for International Recruitment and Integration (SIRI)  99, 101, 102, 108 Danish People’s Party  111, 113 declaration, becoming Danish nationals by  115, 116 as EU Member State  33, 49–50 EU/EEA nationals access to social rights  108–10 establishing residence  101–5 legal arrangements  98–100 naturalisation  117–18 fear of benefit tourism and close monitoring  110–13 as first Nordic EU Member State  49–50 free movement rights in  97–119 access to social rights  105–10 legal arrangements  98–100 legal basis for establishing residence  100–5 nationality and naturalisation  115–18 nationality rules and Union citizenship  114–15 tense relationship with free movement and migration  110–15 gig workers  103 historical developments regarding  12 Immigration Appeals Board  107, 108 inclusion in residence-based social systems  105–10 Law on Active Social Policy  117 Law on Integration  117 Law on Social Service  117 legal arrangements for EU, EEA and Nordic nationals in  98–100 legal basis for establishing residence  100–5 Minister of Labour  89

Ministry of Employment  112 Ministry of Justice  83 nationality and naturalisation  115–18 nationality rules, free movement and Union citizenship  114–15 and non-discrimination principle  100, 109–10 non-economically active citizens in  104, 107–10 and Nordic cooperation  97, 98, 106n43 Nordic nationals access to social rights  106–8 legal arrangements  98–100 legal basis for establishing residence  101 obtaining Danish nationality  116–17 Pension Act  111 residence inclusion in residence-based social systems  105–10 legal basis for establishing  100–5 shielding the welfare state from migration  113–14 Social Appeals Board  104, 106, 108, 112, 114 Social Security Agreement (1955)  99 Supreme Court  230 tense relationship with free movement and migration  110–15 welfare system  110 deportation Finland  159–63 Norway  194–6 D’Hoop (Case C-224/98)  113 dignity, right to under EU Charter  63 direct effect, non-discrimination principle  42 Directive 2004/38 see Citizens’ Rights Directive (Directive 2004/38) disabilities, rights of persons with  64–5 ECHR see European Convention on Human Rights (ECHR) Ecolabel, EU  23 education, right to  64 EEA see European Economic Area (EEA) effective remedy, right to  68 EFTA and EFTA Court see European Free Trade Association (EFTA) elderly, rights of  64 Elz (Raymond) v Commission of the European Communities (Case 56/75)  38n23 Eman and Sevinger (Case C-300/04)  235–8, 243

Index  265 Enes Deveci (Case E-10/14)  60–1 entry bans in Denmark  83 in Finland  159–63 in Norway  194–6 environmental protection  67 equal treatment  5, 43, 70–1, 134, 143, 145, 146, 167, 187, 208, 218, 236, 250, 251, 256–8, 259 and Denmark  97–9, 102, 104–6, 108–11, 119 non-economically active citizens  110 Nordic  254 regional  254 ‘right’ to, in cross-border situations  255 and unequal treatment  118 equality, EU Charter  64–5 EU see European Union (EU) EU Charter see Charter of Fundamental Rights of the EU; Charter of Fundamental Rights of the European Union (2012) EU law and EEA law EU and EEA Agreement see Agreement on the European Economic Area (EEA Agreement, 1992) existence of EU citizenship in  52 free movement of persons through  31–53 CJEU case law  42–5 EFTA Court’s case law  45–8 EU primary law and regional arrangements  36–8 impact of Union citizenship  40–2 Nordic integration  51–3 subordination of Nordic arrangements and importance of EU law  49–50, 51, 53 importance for free movement  49–50 and Nordic cooperation  23–6 primary law and Nordic arrangements  38–9 and regional arrangements  36–8 regional integration, discouraging  30 EU/EEA nationals  5, 81, 82 Denmark access to social rights  108–10 establishing residence  101–5 legal arrangements  98–100 naturalisation  117–18

Finland access to social rights  164–9 deportation and entry bans  159–63 establishing residence  153–8 legal arrangements  148–51 right of permanent residence  158–9 Iceland legal arrangements  200–2 legal basis for establishing residence  206–10 naturalisation  220 Norway access to rights  187–9 legal arrangements  175–7 legal basis for establishing residence  177–85 naturalisation  192–3 Sweden access to social rights  134–7 establishing residence  128–9 legal arrangements  123–6 naturalisation  141–2 European Arrest Warrant  21, 100, 178 European Commission, administrative letters from and responses to during COVID-19 pandemic  78, 86–8 European Communities v Kingdom of the Netherlands (Case C-50/06)  162, 163 European Community Treaties  231 European Convention on Human Rights (ECHR)  5, 16, 49, 185 dignity provisions  63 and freedoms  63–4 tension with EU Charter  56, 61–75, 76 see also human rights European Convention on Nationality (1997)  139 European Court of Human Rights (ECtHR)  49, 58, 60 European Economic Area (EEA) concept of residence  221–2 Contracting Parties  73 EEA Agreement see Agreement on the European Economic Area (EEA Agreement, 1992) EEA nationals in Denmark, legal arrangements  98–100 EFTA pillar  41 EFTA-EEA states  33–6, 40, 42, 44

266  Index EU and EEA Agreement  35 free movement of persons through law of  31–53 CJEU case law  42–5 EFTA Court’s case law  45–8 EU primary law and regional arrangements  36–8 impact of Union citizenship  40–2 Nordic integration  51–3 fundamental rights of the individual in law of  55–76 human rights protection at the national level  57–8 standards, when EU law applied by EEA institutions  58–61 Iceland as Member State  33, 55 and impact of Union citizenship  42 institutions, EU legislation applied by  58–61 Joint Committee  41, 56, 69, 70, 73 nationals see EU/EEA nationals Norway as Member State  33, 55 quasi-primacy principle  254 and TFEU  36 European Economic Community (EEC)  14, 15 European Free Trade Association (EFTA)  31, 175 Conventions  196–7 EFTA Court  32, 34, 49, 57, 70–5, 177, 180, 181, 185, 188, 189, 204 case law  25, 45–8, 59 compared with CJEU  42–3 evaluating  52–3 EFTA pillar of the EEA  41 EFTA Surveillance Authority (ESA)  34, 57, 60 EFTA-EEA states  33–6, 40, 42, 44 EU Charter not binding upon states  57 and fundamental rights protection  59 homogeneity with the EU pillar see homogeneity (EFTA-EEA states) members  31 Surveillance Authority  218 European Health Insurance Card (EHIC)  217 European integration and the Nordic states  33–4 Nordic legal framework  251–5 European Monetary Union (EMU)  24 European Social Charter (1996)  58

European Union (EU) accession of the Nordic states to  9 Borders Code  84 citizenship of  251 concept  41 impact  40–2 legal concept  4 Nordic states and European integration  34 Council of Foreign Ministers  231 Denmark as Member State  15, 33, 78, 97–8, 111, 225, 230 Digital Covid Certificate  81 dissuading preferential arrangements of smaller cohorts  49 Ecolabel  23 and EEA Agreement  35–6 and the Faroe Islands  242 Finland as Member State  33 General Data Protection Regulation  223 and Greenland  230–5 Greenland’s exit from (1985)  231, 232 homogeneity with the EFTA pillar see homogeneity (EFTA-EEA states) impact of citizenship  40–2 legal arrangements for nationals in Denmark  98–100 nationals see EU/EEA nationals Nordic integration through  51–3 primary law concept  251 Sweden as Member State  33 withdrawal of Member States  231, 232 fair trial, right to  68 family life, right to see private and family life, right to Family Reunification Directive  182 Faroe Islands  5n13, 240–5, 255 colonization  226n8 in the Danish Kingdom  240, 241–2 devolution of competences to  241–2 and the EU  242, 252 free movement of persons in the context of  243–5, 246 history  240 home-rule  241 Lagting (parliament)  241 Nordic cooperation and EU law  24 part of Kingdom of Norway  240 Protocol No 2  243, 244 seats on Nordic Council  226 Takeover Act  241

Index  267 ‘third country’  225 see also Greenland Finland access to social rights  164–9 accession to the EU (1995)  78 Act on Social Assistance  165 Åland islands  150–1 State Department  171 Aliens Act  148, 149, 150, 152, 155–161, 164, 165, 168, 171 Constitution  147 Constitutional Law Committee  85 COVID-19 approach  80, 84–5 deportation and entry bans  159–63 Digital and Population Data Services Agency  150, 152, 164, 171 Enter Finland e-service  158 as EU Member State  33, 50 EU/EEA nationals access to social rights  164–9 deportation and entry bans  159–63 establishing residence  153–8 legal arrangements  148–51 right of permanent residence  158–9 historical developments regarding  12 Immigration Service  149–50, 159 Institute for Health and Welfare  85 KHO 2006:83 judgment  162 KHO 2011:64 judgment  159 KHO 2013:88 judgment  157 KHO 2015:28 judgment  155, 156 KHO 2015:173 judgment  166, 167 KHO 2016:12 judgment  162, 163 KHO 2020:166 judgment  156–7 KHO 2021:160 judgment  163 Law on Contagious Diseases  85 legal arrangements for EU, EEA and Nordic nationals  148–51 legal basis for establishing residence  151–63 deportation and entry bans (EU/EEA nationals)  159–63 EU/EEA nationals  153–63 Nordic nationals  151–3 permanent residence, right of (EU/EEA nationals)  158–9 Municipality of Residence Act  149, 164 National Health Insurance (NHI) scheme  165 Nationality Act  169, 170 nationality and naturalisation  169–71 Non-Discrimination Ombudsman  161

non-economically active citizens in  152, 155, 165–9 and Nordic cooperation  147, 171, 172, 173 Nordic Council member  147n3 Nordic nationals access to social rights  164 establishing residence  151–3 legal arrangements  148–51 legal basis for establishing residence  151–3 special treatment of  171–3 residence EU/EEA nationals’ right of permanent residence  158–60 Nordic nationals establishing  151–3 Social Assistance Act  166, 167 Supreme Administrative Court  150 free movement of persons circular  47 citizenship of the EU  36, 40 in Denmark access to social rights  105–10 legal arrangements  98–100 legal basis for establishing residence  100–5 nationality and naturalisation  115–18 tense relationship with free movement and migration  110–15 see also Denmark EEA Agreement see Agreement on the European Economic Area (EEA Agreement, 1992) encouraging, in the Nordic region  250–1 EU and EEA law, through  31–53 CJEU case law  42–5 EFTA Court’s case law  45–8 EU primary law and regional arrangements  36–8 impact of Union citizenship  40–2 Nordic integration  51–3 subordination of Nordic arrangements and importance of EU law  49–50, 51, 53 EU law and case law  39–50 CJEU case law  42–5 EFTA Court’s case law  25, 45–8 impact of Union citizenship  40–2 importance of EU law for free movement  49–50 in the Faroe Islands  240–5, 246

268  Index in Finland  147–74 access to social rights  164–9 legal arrangements for EU, EEA and Nordic nationals  148–51 legal basis for establishing residence  151–63 nationality and naturalisation  169–71 special treatment of Nordic nationals  171–3 in Greenland  235–9 in Iceland  199–223 access to social rights  210–18 differences between Nordic nationals and EU/EEA nationals in establishing residence  205–10 inclusion in residence-based social systems  210–18 legal arrangements for EU, EEA and Nordic nationals  200–2 legal basis for establishing residence  202–10 nationality and naturalisation  219–20 relationship between national and EEA concepts of residence  221–2 legal category of individuals  34 Nordic legal framework  245–59 as complementary but also integrationist  251–5 encouraging free movement  250–1 and the Nordic states EEA Agreement see Agreement on the European Economic Area (EEA Agreement, 1992) EU primary law  36–9 European integration  33–4 and Nordic arrangements  38–9 and regional arrangements  36–8 in Nordic states through EU and EEA law  32–9 in Norway  175–98 access to social rights  186–91 differences in Nordic/EFTA regulation  194–7 economically active or inactive persons  178 establishment of a general right of free movement  178 legal arrangements for EU, EEA and Nordic nationals  175–7 legal basis for establishing residence  177–86 nationality and naturalisation  191–4

right to freedom of movement and of residence  68–9 secondary law  252 subordination of Nordic arrangements  49–50, 51, 53 supranational regime  4 in Sweden access to social rights  130–7 legal arrangements  123–6 legal basis for establishing residence  126–9 nationality and naturalisation  137–42 and TFEU  34–8, 40, 87, 121, 122 free movement of workers  34 freedom of assembly and association  63–4 freedom of expression and information  63 freedom of thought, conscience and religion  63 freedoms, EU Charter  63–4 fundamental rights in EEA law  55–76 EEA Agreement, under  55, 57–61, 63, 66, 67 national level protection  57–8 standards when EU legislation applied by EEA institutions  58–61 freedom to conduct a business  60–1 guarantees for extradition measures  4 versus principles  62–3 see also human rights gender equality  64 general principles of law  10 Geneva Convention (1951)  64 Gottardo (Case C-55/00)  100 Greenland in the Danish Kingdom  229–30 decolonisation (1953)  226–7 and the EU/EEA  230–5, 252 withdrawal from (1985)  231, 232 fishing  231 free movement of persons in the context of  235–9 Greenland Treaty  232 home-rule  229 Inuits arriving in  228 language  228 Ministry of Justice  230 and non-discrimination principle  236 Nordic cooperation and EU law  24 ‘Overseas Country or Territory’ (OCT)  225, 232–6, 238, 239, 255 Protocol No 4  231, 232

Index  269 Protocol No 34  232 regional parliament (Landsting)  229 seats on Nordic Council  226 self-rule  229–30 and TFEU  232, 238 see also Faroe Islands Grzelczyk (C-184/99)  45 Gunnarsson (Case E-26/13)  47, 50, 72, 74, 181n29 Handyside v the UK (1976)  59 hard law  249 harmonisation of national law  23 health care Iceland  216–18 Sweden  135–6 Helsinki Treaty (1962)  14, 16–20, 23, 97, 98, 116, 226, 239, 256 Articles  17–18 extension in 1971  15 Nordic cooperation under  14, 15, 98, 250 signature  77, 226 Hoekstra (née Unger) (Case 75/63)  42 Holship (Case E-14/15)  59–60, 65, 67 homogeneity (EFTA-EEA states)  41, 55–8, 62, 68, 71, 76, 180 breaches of procedural homogeneity  41n35 differences in formal applicability  180 effects-based understanding  180–1 interpretation  180, 181 as to practical outcome  180–1 principle of  34, 52, 179, 183, 252, 254 and fundamental rights protection  56, 60, 61, 70, 75 substantive  44, 48 and uniformity  180 human rights  49, 145, 148, 150 ECtHR case law  49, 58 protection at the national level  57–8 see also European Convention on Human Rights (ECHR); fundamental rights Iceland  45, 199–223 access to social rights  210–18 entitlement to health care  216–18 and inclusion in residence-based social systems  212 Nordic Convention on Social Security (1981)  215–16 old-age pension  213–14 residence-based social assistance  214–15

Civil Registry  202, 204, 205, 207, 209, 210, 222 constitutional review principle  58 Data Protection Authority  223 Directorate of Labour  205 District Commissioner, office of  203 as EEA Member State  33 EFTA Court’s case law  46–7 EU/EEA nationals legal arrangements  200–2 legal basis for establishing residence  206–10 naturalisation  220 Foreign Nationals Act  200, 203, 206, 207 Health Insurance Act  217 Health Insurance Administration  216 human rights protection at the national level  58 Icelandic National Identification Number  204 inclusion in residence-based social systems  212 Insurance Health Insurance Registry  216 kennitala (working contract), application for  205, 206, 209, 210, 218, 222, 223 legal arrangements for EU, EEA and Nordic nationals  200–2 legal basis for establishing residence  202–10 Civil Registers  204 differences between Nordic nationals and EU/EEA nationals in establishing residence  205–10 qualification for residence registration  205 relationship between national and EEA concepts of residence  221–2 Minister of Justice  219 Ministry of Health  216 national law  47, 223 Nationality Act  219, 220 nationality and naturalisation  219–20 non-economically active citizens in  204, 207, 215, 216 and Nordic cooperation  199, 210 Nordic nationals legal arrangements  200–2 legal basis for establishing residence  205–6 naturalisation  220

270  Index qualification as a worker  208 residence concept of registered residence  203–4 concept of residence  221 legal basis for establishing  202–10 permanent  202–3 qualification for residence registration  205 relationship between national and EEA concepts of  221–2 residence-based social assistance  212, 214–15 temporary  221 Revenue and Customs  205 Social Assistance Act  210, 211, 214, 215 Social Insurance Administration (SIA)  212, 213, 214, 216, 218 Social Security Act  211, 212, 214, 215 Social Security Ruling Committee  212 and TFEU  208 Union citizenship, formal lack of as a concept  41–2 Welfare Appeals Committee  213, 214, 216 ILO Conventions  58 I.N. (Case C-897/19)  44–5, 46 integration see Nordic integration International Covenant on Civil and Political Rights (1966)  58 International Covenant on Economic, Social and Cultural Rights (1966)  58 inter-Nordic mobility  5 Jabbi (Yankuba) (Case E-28/15)  47, 48, 70n41, 72, 74, 75, 181n29 Joint Declaration on Nordic Cooperation (Declaration 28), appended to Act of Accession (1994)  24, 25, 38–9 Jonsson (Case E-3/12)  46, 50 justice, EU Charter  68 Kalmar Union  11, 27 Kingdom of Denmark EU law  24, 245 Faroe Islands in  240, 241–2 Greenland in  229–30 integration of Greenland with  226–7 Nordic cooperation and EU law  24 see also Faroe Islands; Greenland Kokott, J. (Advocate General)  39, 53 Konkurrenten.no AS (2019)  66 L (Norwegian Government v L) (Case E-2/20)  48, 50 labelling, environmental  23

labour market see Agreement on Common Nordic Labour Market (1982); common labour market languages  20, 29 Laval (Case C-341/05)  67 legal arrangements for EU, EEA and Nordic nationals in Denmark  98–100 in Finland  148–51 in Iceland  200–2 in Norway  175–7 in Sweden  123–6 legality principle  68 liberty, right to  63 Liechtenstein extension of EU common market to  55 right of permanent residence in  71 Long-term Residents Directive  182 Maastricht Treaty (1992)  73, 97 marriage and right to found a family  63 Matteucci (Case C-235/87)  100 Meling, M  41n35 migration  110, 111, 113, 124, 127, 140, 148, 201 crisis of 2015  27–8 law  128, 129, 136 migrant worker, concept  42n37 shielding the welfare state from (in Denmark)  113–14 Ministers of Labour  88, 89 mutuality, policy making  249 nationality in Denmark nationality rules and Union citizenship  114–15 naturalisation and nationality  115–18 non-discrimination principle  100 obtaining Danish nationality  116–17 and naturalisation in Denmark  115–18 in Finland  169–71 in Iceland  219–20 in Norway  191–4 in Sweden  134–7 non-discrimination principle on grounds of  42 nationals Danish  87 of EFTA-EEA states  45–8, 50 EU/EFTA-EEA  40, 42

Index  271 of EU Member States  32, 40, 41, 43, 44, 45, 46, 52 Finnish  87 Icelandic  40, 45, 47 non-economically active see non-economically active citizens Norwegian  40 third-country  32, 33n4, 35, 41, 43, 69, 182 see also EU/EEA nationals; Nordic nationals naturalisation application for  21 in Denmark  115–18 in Finland  169–71 in Iceland  219–20 in Norway  191–4 in Sweden  137–42 non-discrimination principle  5, 25, 42, 64, 253, 254 and border closures  86n29, 91 and Denmark  100, 109–10 and Greenland  236 nationality grounds  100 and Norway  187 and Sweden  123, 133, 143, 145 non-economically active citizens  70 in Denmark  104, 107–10 in Finland  152, 155, 165–9 in Iceland  204, 207, 215, 216 in Sweden  127–9, 133, 136, 137, 143 non-refoulement principle  150 NORDEK (Nordic economic community)  14, 97 Norden Association  13 Nordic Agreements  98n4, 147n3, 172n144, 177, 186, 194, 218, 251, 252 annexes to  251 inter-Nordic agreements  4 intra-Nordic agreements  33 new  25–6, 122 versus Nordic cooperation  33n3 see also Agreement on Common Nordic Labour Market (1982); Agreement on Public Registration Nordic Arrest Warrant  26 Nordic Border Obstacle Council  19, 80 letters to the Nordic states  88–9 Nordic citizenship see citizenship Nordic Constitution see Helsinki Treaty (1962) Nordic Conventions  101, 104–5, 114 and Denmark  112–13

Nordic Convention on Social Assistance and Social Services (Nordic Social Convention, 1994)  98, 99, 106, 107, 133, 134, 144, 217–18 Nordic Convention on Social Security (1981)  4, 5, 22, 23, 26, 46, 98, 124–5, 130, 132–3, 177, 190, 199, 215, 250 Iceland  215–16 Nordic cooperation see cooperation, Nordic Nordic Council  91–2, 250, 256 73rd Session, Copenhagen (2022)  91, 93 and border closures  79 cooperation  16 criticism of role  27 establishment  13 Faroe Islands having seat on  226 Greenland having seat on  226 members  18 Ministers of Nordic Affairs at  94 regional integration  9, 11, 13, 16, 18, 29 statute  13 see also Council of Ministers, Nordic Nordic Council of Ministers see Council of Ministers, Nordic Nordic Freedom of Movement Council  79 Nordic House cultural centre, Reykjavik  20 Nordic Innovation body  19–20 Nordic institutions/organisations  13, 16 pan-Nordic institutions  15 Nordic integration and COVID-19 pandemic  257 regional  9–30 development proposals  26–9 EU primary law and regional arrangements  36–8 future prospects  26–9 Helsinki Treaty (1962) see Helsinki Treaty (1962) historical developments  11–16 institutions and decision-making  16–23 new Nordic agreements  25–6, 122 preconditions  12 through the EU  51–3 Nordic labour market  14 Nordic Lawyers’ Meeting (1872)  12 Nordic legal framework  5, 245–59 as complementary but also integrationist  251–5 cooperative national administrations  256–8 easy naturalisation  256–8

272  Index encouraging free movement  250–1 equal treatment  256–8 identification of problems  51–2 non-formalised Nordic citizenship  258–9 reports, commissioning  51–2 strategy delivery  51 Nordic nationals  5, 14, 17, 21, 22, 25, 32, 34, 39–40, 49, 97, 98 Denmark access to social rights  106–8 legal arrangements  98–100 legal basis for establishing residence  101 obtaining Danish nationality  116–17 equal treatment see equal treatment Finland access to social rights  164 legal arrangements  148–51 legal basis for establishing residence  151–3 special treatment of  171–3 Iceland legal arrangements  200–2 legal basis for establishing residence  205–6 naturalisation  220 Norway access to rights  190–1 legal arrangements  175–7 legal basis for establishing residence  185–6 naturalisation  193–4 preferential treatment  110 Sweden access to social rights  132–4 application procedure  139, 145 legal arrangements  123–6 legal basis for establishing residence  127–8 naturalisation  140–1 registration procedure  139, 145 Nordic organisations see Nordic institutions/ organisations Nordic Passport Control Agreement (1957)  4, 177 Nordic Passport Union  14, 23, 77–9, 128 Nordic states accession to the EU  9 acquisition of citizenship in  5 cooperation tradition  3–6 legislation based on  20–3 described as a legal family linked to Continental legal tradition  10

East Nordic states  10 EU Member States as  42 EU primary law and the Nordic arrangements  38–9 and European integration  33–4 and the free movement of persons EEA Agreement see Agreement on the European Economic Area (EEA Agreement, 1992) EU primary law  36–9 European integration  33–4 through EU and EEA law  31–53 legal change  49 Nordic Border Obstacle Council letters to  88–9 open borders, desire for  77 as part of the EEA  33 rights-based change  49 shared history  11 West Nordic states  10 see also Denmark; Finland; Iceland; Norway; Sweden ‘Nordic Swan’ environmental labelling scheme  23 Nordic Vision  28 Nordism  13 Nordregio research centre for regional development  19 Norway access to social rights  186–91 inclusion in residence-based social systems  186–91 Child Benefit Allowance Act  176 Constitution  57–8 constitutional review principle  58 Courts of Appeal  196 deportation and entry bans  194–6 differences in Nordic/EFTA regulation  194–7 Directorate of Immigration (UDI)  176, 195 as EEA Member State  33 EFTA Convention  196–7 EU/EEA nationals access to rights  187–9 legal arrangements  175–7 legal basis for establishing residence  177–85 naturalisation  192–3 Family Allowance Act  176 historical developments regarding  12 human rights protection at the national level  57–8

Index  273 Immigration Appeals Board (UNE)  176, 195 legal arrangements for EU, EEA and Nordic nationals  175–7 Ministry for Labour and Social Inclusion  176, 181, 189 National Insurance Act (NIA)  176, 188, 190 National Insurance Court  188 national law  175, 177, 179, 180, 181n34, 183, 186, 187 National Regulations (NR)  176, 188 Nationality Act (NA)  176, 191 and non-discrimination principle  187 Nordic nationals access to rights  190–1 legal arrangements  175–7 legal basis for establishing residence  185–6 naturalisation  193–4 Norwegian EEA Act (NEEA)  179 Norwegian Immigration Act (IA)  175–6 Norwegian Labour and Welfare Administration (NAV)  176 Oslo District Court and Court of Appeal  195 residence derived rights of  181–2, 183 EU/EEA nationals establishing  177–85 inclusion in residence-based social systems  186–91 Nordic nationals establishing  185–6 right to permanent residence for family members  182–3 Social Security Regulations  188 Supreme Court  185, 188 and TFEU  177–8, 181, 187 Union citizenship, formal lack of as a concept  42 O and B (Case C-456/12)  47 OCT see ‘Overseas Country or Territory’ (OCT) open borders, desire for in Nordic states  77, 78 ‘Øresunds-region,’ development of  78 Orfanopoulos and Oliveri C-482/01 and C-493/01)  162, 163 Ospelt (Case C-452/01)  44 Oulane (Case C-215/03)  157 ‘Overseas Country or Territory’ (OCT)  225, 232–6, 238, 239, 255 Pakvries BV (Case 105/83)  37 personal data, protection of  63

Petruhhin (Case C-182/15)  100 Polydor (Case 270/80)  43, 71, 74 private and family life, right to  63, 71 private law  10, 12, 13, 17, 21 property, right to  64 proportionality principle  48 closure of borders  83, 87, 89, 91 Denmark  113, 118n90 fundamental rights  62, 66 Norway  184n42, 189n63 Prunus (Case C-384/09)  234 quasi-primacy principle, EEA law  254 ratione loci/ratione personae  238–9 Regulation 883/2004 (on coordination of social security systems)  5, 22, 26, 111, 250 ‘employed person,’ defining  218 Iceland  214, 216, 218, 221–2 Norway  187, 188, 189, 190, 212 scope of  222 Sweden  125, 142 residence continuous  48 Denmark inclusion in residence-based social systems  105–10 legal basis for establishing  100–5 Finland EU/EEA nationals’ right of permanent residence  158–60 Nordic nationals establishing  151–3 Iceland concept of registered residence  203–4 legal basis for establishing  202–10 permanent  202–3 qualification for residence registration  205 residence-based social security system  212 inclusion in residence-based social systems Denmark  105–10 Iceland  212 Norway  186–91 legal basis for establishing Denmark  100–5 Finland  151–63 Norway  177–86 Sweden  126–9 Norway derived rights of  181–2, 183 EU/EEA nationals establishing  177–85

274  Index inclusion in residence-based social systems  186–91 Nordic nationals establishing  185–6 right to permanent residence for family members  182–3 relationship between national and EEA concepts of  221–2 solidarity benefits  122 Sweden inclusion in residence-based social systems  130–7 lawful right to  131 legal basis for establishing  126–9 municipality of habitual residence  136 residence-based social security benefits  134–5 Roders BV (FG) and others (C-377/93)  37 ‘Scandinavianism’  12 Schengen Agreement in Continental Europe  14, 140 Schengen acquis  4, 32, 35, 178 Schengen Borders Code  84 Second Schleswig War (1864)  12 Sharpston, Advocate General  33n4 social assistance Iceland  214–15 Sweden  136–7 see also access to social rights social dumping  110 soft law  90 solidarity, EU Charter  65–8 subsidies  105, 132, 201, 208, 228, 242 Svalbard, Arctic Ocean  24 Sweden access to social rights  130–7 health care  135–6 residence-based social security benefits  134–5 social assistance  136–7 solidarity benefits  122 accession to the EU (1995)  78, 122 Aliens Act  127–9, 131, 142 Aliens Ordinance  128 Citizenship Act  137, 138, 140, 141, 142 competition with Denmark for influence  11 COVID-19 approach  80–2 double citizenship  139 entry of Danish citizens into during COVID-19  78 as EU Member State  33, 50

EU/EEA nationals access to social rights  134–7 establishing residence  128–9 legal arrangements  123–6 naturalisation  141–2 free movement rights in access to social rights  130–7 legal arrangements  123–6 legal basis for establishing residence  126–9 nationality and naturalisation  134–7 Governmental Ordinance on COVID-19 (December 2020)  81–2 Health and Medical Services Act  132, 136, 143, 144, 145 historical developments regarding  12 legal arrangements for EU, EEA and Nordic nationals in  123–6 legal basis for establishing residence in  126–9 Migration Agency  124, 131, 139 Minister of Interior Affairs  89 Minister of Justice  15 Ministry of Foreign Affairs  82 and non-discrimination principle  123, 133, 143, 145 non-economically active citizens in  127–9, 133, 136, 137, 143 and Nordic cooperation  121, 125, 127–8, 132, 133, 137, 138, 140, 145, 146 Nordic nationals access to social rights  132–4 legal arrangements  123–6 legal basis for establishing residence  127–8 naturalisation  140–1 population register  122, 126, 129 Population Registration Act  122, 127, 129, 132, 135, 136, 144 regional administrative boards  140 residence inclusion in residence-based social systems  130–7 lawful right to  131 legal basis for establishing  126–9 municipality of habitual residence  136 residence-based social security benefits  134–5 Schengen nationals  127 Social Insurance Agency  124, 131, 135–6 Social Insurance Code  122, 124, 125, 130, 131, 135, 143, 144

Index  275 social security system  130 Social Services Act  122, 124, 125–6, 137 Tax Agency  124, 127, 134 Unemployment Insurance Act  125 Switzerland  35 TFEU see Treaty on the Functioning of the European Union (TFEU) third-country nationals  32, 33n4, 35, 41, 43, 69 free-standing rights  182, 183 Tjebbes (Case C-221/17)  115 Treaty of Maastricht (1992)  34 Treaty on the European Union (TEU)  59, 232 Treaty on the Functioning of the European Union (TFEU)  25, 99–100, 104 Annex II  232 and Benelux Union  38 and EU citizenship  73 and free movement  34–8, 40, 87, 121, 122 and Greenland  232, 238 and Iceland  208 impact of Union citizenship  40, 42 labelled as an enabling clause  37

non-discrimination principle  42 and Norway  177–8, 181, 187 protection of workers in EU Member States  42 and Sweden  121, 122, 143, 145 and workers  42 Trojani (Case C-456/02)  168 TV 1000 Sverige (Case E-8/97)  59 UK v Council (EEA) (Case C-431/11)  35 UK v Council (EEC-Turkey) (Case C-81/13)  36 UK v Council (Switzerland) (Case C-656/11)  35 Van Duyn (Case C-41/74)  71 Vatsouras and Koupatantze, (Joined Cases C-22/08 and 23/08)  209 Viking (Case C-438/05)  67 Wahl (Case E-15/12)  46–7, 50, 70 work, right to  64 World War I  12 World War II  13

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