Norway implemented very strict legislation on hiring in employees from temporary work agencies in April/July 2023. Advokatfirmaet Haavind complained to ESA early this year, on behalf of Adecco and Manpower, alleging that the new legislation violates Norway’s EU/EEA obligations. ESA has now concluded, and agrees that the new legislation is in breach of these obligations.

The most drastic change in the Working Environment Act is that it now prohibits hiring in workers for “work of a temporary nature”, except replacements. Moreover, a new regulation totally bans hiring in employees for building work at construction sites in the Oslo area. The new legislation is perhaps the most important change in Norwegian employment legislation during the last years, leading to high unemployment in temporary agencies and trouble for a lot of user undertakings.

In the complaints to the EFTA Surveillance Authority (ESA) we have alleged that the new legislation contravenes both the EU Directive on temporary agency work (2008/104) and the free movement of services. ESA has opened a general case against Norway regarding the new legislation, asking intrusive and good questions. Also two other companies/units have to our knowledge filed complaints.

The Norwegian Ministry of Labour and Social Inclusion answered ESA on the 5 May 2023.

In Haavind’s 16 pages letter to ESA 26 June 2023, we have given our comments to Norway’s reply letter.

Our general view is simply that Norway’s arguments are neither tenable – nor valid as legal arguments. The real background for the new rules is an ideological view that contravenes the obligations that Norway has under the EEA Agreement. The rest of the letter from Norway seems to be based on a) wishful thinking, without any basis in tenable logics nor empiric data, and b) arguments that are not real. Even if states have a clear leeway of discretion under the EEA Agreement, the reasons that Norway invokes for a restriction that goes to the core of Directive 2008/104 Directive (and free movement of services) do not meet the relevant criteria (i.a. suitability, consistence, necessity, proportionality).

We are happy to see that ESA has now come to the same conclusion, and refers to several of the same arguments as we refer to in our letter to ESA and previous correspondence.

It remains to see how the Norwegian government reacts to the letter of formal notice from ESA, but this is very positive news for a significant number of businesses in Norway.