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Scares about reservation rights

The EEA Agreement gives Norway the right to reserve itself against EU laws that the EU wants to enter into the EEA. No government has taken that right. But Jonas Gahr Støre, our new foreign minister, has stated that the right of reservation is real.


Gahr Støre is safe political reason: The government platform of the red-green government states that the reservation right in the EEA agreement can be used "If particularly important Norwegian interests are threatened" of new EEA rules.

The current debate on the right of reservation is triggered by the Services Directive that the majority of the European trade union movement is now mobilizing against and by the chemicals directive REACH, which the chemical industry is working to weaken so much that it does not provide satisfactory protection against hazardous pollutants (Ny Tid 38 and 39).

Warnings on failing grounds

In "Politisk kvarter" on P2, Jan Tore Sanner (H) was out last Monday with two warnings against using the right of reservation against this chemicals directive. A Norwegian reservation would, firstly, affect Norwegian industry – and secondly, the EU could, as a countermeasure, increase tariffs on Norwegian fish.

Both are exceptionally misleading. But scares of this kind are used by EU supporters every time the question of the right of reservation in the EEA agreement is raised in the political debate. There is little factual basis for such scares.

Poses Norwegian and foreign producers equally

If it were to become important for Norway to reserve itself against the Chemicals Directive, it would be because it does not set strict enough requirements for the production and use of chemicals that can be dangerous to health and the environment – or for products that contain such environmental toxins.

There is currently a fierce battle between the European chemistry industry on the one hand and environmental organizations and health authorities on the other. The industry has for several years conducted a comprehensive lobbying campaign against the Chemicals Directive to weaken it as much as possible.

If Norway were to reserve itself against the Chemicals Directive, it would be to be able to have stricter rules than the EU gets in some areas. It will "affect" all manufacturers – both Norwegian and foreign – who make goods that do not satisfy the strict Norwegian rules. But in Norway, all producers – both Norwegian and foreign – will have to compete on the basis of such strict Norwegian rules. It can hardly affect Norwegian industry in competition with foreign ones.

EU countermeasures?

But can the EU not react with countermeasures? The EU can do that. But it is not just any countermeasure that the EEA agreement allows the EU to take action. What the agreement allows for is that the part of the EEA agreement that has the closest connection to the Chemicals Directive can be repealed.

The Chemicals Directive falls under the chapter on “Chemicals, industrial risk and biotechnology” in Annex 20 to the EEA Agreement on environmental issues. There will therefore be EU rules within this chapter that may be repealed. (There are 22 attachments in total.)

The purpose of putting parts of this chapter out of force is to balance the disadvantages that Norway inflicts on the EU by having stricter chemical rules than those that the EU itself adopts. Firstly, it is difficult to see how a possible imbalance can be corrected by putting other environmental rules out of force.

Secondly, such rules cannot be repealed by unilateral measures by the EU. The EU and the three EEA states Norway, Iceland and Liechtenstein must agree on what is “The affected part of the attachment” as stated in Article 102 (5) of the EEA Agreement.

And it is at least certain that the duty on fish falls completely outside the "affected part" of the annex which deals with environmental issues.

A political burden within the EU

Then it is of course conceivable that the EU will react politically – and not under contract law – to a Norwegian reservation. Whether that will happen depends on what kind of EU rule we reserve against. If we reserve the right to maintain stricter health and environmental requirements, the room for maneuver of the EU is severely limited.

The room for maneuver is extra small if many EU governments, parties and environmental organizations would like to have as strict requirements as the Norwegian ones. And there are more than enough of them in the fight for the EU chemicals directive. It will simply look bad if the EU were to "punish" Norway to set stricter health and environmental requirements for the flood of chemical pressures that are pouring in over us.

More and more environmental toxins enter our body through the air we breathe, the water we drink, the food we eat. Young children often have higher concentrations of such environmental toxins in their blood than their parents and grandparents. It is therefore fairly certain that in a few years both the EU and Norway will introduce stricter health and environmental requirements than those set today.

And should someone in the EU fable to set up tariffs on fish from Norway, then it is contrary to such basic rules in the WTO that it takes a Jan Tore Sanner to think of something like that.

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