A government commission publicly confirmed on Wednesday that state welfare agency NAV did indeed wrongly prosecute many Norwegians who received benefits while abroad. Questions have been raised over whether NAV actually did violate EU/European Economic Area (EEA) rules, but the commission’s legal experts confirm violations occured and maybe for even longer than previously thought.
The commission’s report prompted the new government minister in charge of labour and welfare issues, Torbjørn Røe Isaksen, to claim that it was thus correct to “pull the emergency brake” last fall, when the violations were revealed.
“We now have a unanimous commission confirming that the (EEA) rules don’t allow NAV to reject claims for sick pay, unemployment or other benefits just because the client is present in another EEA country,” said Isaksen when the commission’s report was presented.
NAV clients must still apply to travel to other EEA countries while receiving benefits because of various activity requirements imposed since 2018, Isaksen noted, “but it’s important to say that they (commission members) think the application demand itself has not been carried out correctly.”
According to the commission’s preliminary findings, EU and thus EEA welfare programs give residents of EU/EEA countries the right to receive sick pay, for example, also if they’re sick in another country. All that matters is for the benefit requirements to have been met in the applicant’s home country, in this case Norway.
The commission thus supports NAV’s own legal evaluation last year, which reinforced the scandal that has shaken Norway’s social welfare state to its core. Both NAV and government leaders have apologized to NAV clients who were often severely punished for “exporting” their benefits.
Norwegian Broadcasting (NRK) reported that Isaksen hopes to also soon receive an evaluation from the European Free Trade Association (EFTA)’s Surveillance Authority ESA.
‘Turning every stone’
The Norwegian government’s commission probing the NAV scandal has been led by Professor Finn Arnesen, who specializes in European law. It was charged by Isaksen’s predecessor, Anniken Hauglie, with “turning over every stone” to find out how Norwegian practice of the EU’s welfare laws could have gone so wrong. Thousands of Norwegian were denied benefits if they were abroad, and many who received benefits while abroad were prosecuted, fined, ordered to repay benefits paid out and even jailed.
Hauglie, who resigned her post in January when Prime Minister Erna Solberg overhauled her government coalition, also wanted to know how NAV’s wrongful practice could have gone on for so long. It was initially believed to have begun in 2012, but the commission also thinks it began earlier, during the last left-center government led by the Labour Party.
Arnesen and his commission now think a probe is also needed of how NAV benefits cases were handled prior to 2012. That’s because they believe NAV’s wrongful demand (that Norwegian welfare benefits could only be received in Norway) amounted to a restriction on the EU/EEA’s fundamental right to free movement for EU/EEA residents among member nations.
Norway entered into its trade and policy agreement with the EU in 1994 that created the EEA, made Norway a member of EFTA and the subsequent Schengen agreement guaranteed free movement of goods and services within all three. “There can be wrongful verdicts and claims for refunds from before 2012, too,” wrote the commission in a press release issued Wednesday.
Arnesen noted that some of NAV’s demands for repayment of benefits after 2018 can be correct if the recipient failed (because he or she was abroad) to take part in mandatory activity aimed at either making them healthier or getting them a new job. NAV has been entitled, the commission noted, to know where its welfare recipients are since 2018, triggering the demand to apply for foreign travel.
Commission dismisses recent questions
A retired Supreme Court justice, Karl Arne Utgård, had raised questions over whether NAV did indeed err in its harsh response to alleged welfare cheats. Utgård, who reviewed the NAV scandal at his own initiative, believes Norwegian benefits can only be paid to recipients abroad if they also fell ill abroad.
Arnesen and his commission dismissed Utgård’s questions, saying they “haven’t used time or energy” to review the retired justice’s questions because that wouldn’t have produced a clear answer to how the rules are practice in other EU/EEA countries.
“The manner in which member nations understand national law has nothing to do with the European Free Trade Association court’s reasoning,” he said. “In order to understand how it works in other countries, you’d really have to extensively study that.”
Isaksen stressed, meanwhile, that “cleaning up” after the NAV scandal will continue, compensation to victims and offers of free legal assistance will continue. The commission’s final report is due in June but Isaksen, pointing to some dissention within the commission, also said there likely would be a need for “judicial clarification.” That could occur through the Norwegian or EFTA courts.