Norway accused of meddling with judicial independence

A spat over the re-appointment of a judge to a European court has given rise to accusations of politicians meddling with the judiciary. The country in question? Norway.

The controversy stems from Oslo’s decision to shorten the mandate of a Norwegian judge sitting on the European Free Trade Area (EFTA) court.

Senior judges and academics in Norway have accused the government of undermining the court, saying it sets a bad example to authoritarian regimes across Europe. Critics suspect the move is intended as a way of replacing the judge with someone more explicitly pro-Norwegian, after local press reports that the government is upset after a string of court losses.

The Norwegian judge in question is Per Christiansen, whose six-year term was due to end in January. After failing to find a replacement, the Norwegian government reappointed him last month — but only for three years, rather than the usual six.

Norway’s government — a mix of conservatives and populists — says Christiansen should retire when he turns 70, as is required of all judges working in Norway. Critics point out that EFTA’s own rules do not include an age-limit.

The Norwegian Judges Association said the government’s decision was “very unfortunate,” risked undermining the court’s legitimacy and could feed “speculation about whether there might in fact be other reasons for reducing the term of office.”

“We find ourselves in a situation where the governments of several countries, including in Europe, are endeavoring to undermine the independence of the courts by changing their composition through various formal means,” wrote Ingjerd Thune, a district court judge who heads the association, and Henrik Bull, a supreme court judge. “We fear, however, that what has happened in connection with the reappointment of Judge Christiansen could undermine Norway’s credibility” when trying to counter such meddling.

Ane Haavardsdatter Lunde, a spokesperson for the Norwegian Ministry of Foreign Affairs, said it would respond to the judges who have voiced concerns but declined to comment further.

Iceland, Liechtenstein and Norway are members of the EFTA Court, each with one permanent judge on the court which oversees the countries’ access to the EU single market and rules on their application of EU laws.

Press reports describe the Norwegian government as increasingly critical of the three-judge EFTA Court following a string of losses. There is a perception that the court is stricter than the European Court of Justice, to the detriment of Norway.

In recent years the court has ruled that Norway breached European law by restricting the ability of foreign construction companies to operate or failing to clean up air pollution. Another recent judgment held Norway should have done more to clamp down on money laundering and terrorism financing.

A question of independence

The Surveillance Authority — which, like the European Commission, is responsible for enforcing EFTA rules — is investigating the appointment.

“Any question mark raised concerning the independence of an EEA Institution is a very serious matter, and that makes it all the more important that we give the states a chance to make their point of view known before drawing our own conclusions,” said Carsten Zatschler, legal and executive director at the EFTA Surveillance Authority.

The probe follows a complaint by Norwegian academics, including Mads Andenæs, a United Nations special rapporteur, who also reportedly applied for the position. They give several examples of Norwegian judges who have worked at international courts beyond the age of 70.

“Current European affairs and recent Norwegian history should make the authorities particularly sensitive not to appear to manipulate retirement ages for judges,” according to the academics.

The move was reminiscent of 1940 when “Norwegian supreme court judges resigned when lower retirement limits opened [the way to pack] the court with collaborators.”

The issue has also landed on the desk of the EFTA Court. In a separate procedure, a Lichtenstein court has asked the court to clarify whether the abnormal mandate could result in its rulings being declared invalid.