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RegisteredattheERACourtunderNofc!te-/ . 9......dayof.. ^....... JO^.<>.. NORGES H0YESTERETT EFTA Court Doc 113 - Registry - 1, rue du Fort Thungen 1499 Luxembourg Luxembourg Request for an Advisory Opinion CaseNo 25-036986SIV-HRET,civil case, appeal againstjudgment: CaseNo 25-056992SIV-HRET,civil case, appeal againstjudgment: 1. INTRODUCTION (1) The Supreme Court ofNorway (Norges H0yesterett) hereby requests an Advisory Opinion from the EFTACourt in CaseNo 25-036986SIV-HRETandCaseNo 25-056992SIV-HRET: see section 5 la oftheNorwegianCourts ofJusticeAct (Lov om domstolene) andArticle 34 of the Agreement betweenthe EFTA States on the Establishmentofa SurveillanceAuthority and a Court of Justice (SCA). (2) Both ofthe casesbeforethe SupremeCourt have as their mainissuethe questionwhetherthe privateparties are entitled to disabilitybenefitin Norway. UnderNorwegianlaw, entitlement to disability benefit is acquired through continuous membership in the national insurance scheme for a periodoffive years, previously three years, whichis acquiredinter aliathrough havingbeen lawfully residentin Norway. Theprivate parties do not satisfythe conditions basedon period ofresidencein Norwayalone, but bothhavebeenresident and acquired social security rights in another EEA State - to wit, Spain and Gennany, respectively - before moving to Norway. In SpainandGermany, social security coverageis acquiredin otherways than solely beingresident. The questions referred by the SupremeCourt herein concernthe principles governingaggregationunderRegulation (EC) No 883/2004ofthe European Parliamentand ofthe Council of29 April 2004 on the coordinationofsocial security systems ('the Social Security Regulation'), read in conjimction with Article 29 ofthe EEAAgreement. (3) The SupremeCourt hasnot previously heard any casesraisingquestions as to howperiods in Norwayare to be aggregated/coordinatedwithperiods from anotherEEA State. There is some case-lawfrom the Court ofAppeal (lagmannsretten) level, includingthejudgments under appeal in thepresent case. An overall objective ofthe presentreference is to obtain clarification as to whether the existing case-law is based on a correct interpretation ofthe EEAAgreement. (4) The first questionreferred seeks clarificationas to whichperiods in anotherEEA Statethe Norwegianauthorities areto take into account and aggregatewith thoseperiods in Norway whichgive social security coverage. The question seeks to clarify whatthe conditions are for takingperiods completed in other countries into account. Beseksadresse: Postadresse: Telefon: Error! Unknown document Error! Unknown document Error! Unknown document Error! Unknown document property name. property name. property name. property name. Error! Unknown document Error! Unknown document Error! Unknown document property name. property name. property name. (5) The Norwegian authorities have obtained information from the Spanish and German authorities on standardisedforms as to whichperiods givingrise to social security coveragein those States the private parties in the cases have. The second question seeks to clarify whether theNorwegian authorities have obtained that infomiation in a correct manner and whether they ought to have obtained other relevant information. (6) The first paragraph of section 12-2 of the Norwegian National Insurance Act (folketrygdloven) hasbeen constmed as imposing a requirement ofcontinuous membership in the national insurance scheme for a period of five years, previously three years, prior to the onset of disability. The third question is aimed at clarifying whether the EEA Agreement imposes requirements as to how such a national condition ofcontinuous membership must be applied in practice. As is apparent from what is set out in the following, the information obtained shows that the private parties in both cases before the Supreme Court have had interruptions in their periods ofsocial security coverage in the other country, including in connection with their moving to Norway. 2. OVERVIEW OF THE PARTIES TO THE CASE (7) The parties involved in Case No 25-036986SIV-HRET - "the Spain case" - are: Appellant: A Counsel: Advokat John Christian Elden and Advokat OlafHalvorsen Ronning Elden Advokatfirma AS P.O. Box 6684 St. Olavs plass 0129 Oslo Respondent: Norwegian State, represented by the Labour and Welfare Directorate (Staten v/Arbeids- og velferdsdirektoratet) Counsel: Advokat Anders Narvestad Officeofthe Attorney General (Civil Affairs) (Regjeringsadvokaten) P.O. Box 8012Dep. 0030 Oslo (8) The parties involved in Case No 25-036986SIV-HRET - "the Germany case" - are: Appellant: B Counsel: Advokat J0m Are Gaski Advokathuset Vest AS Vetrlidsallmenningen 27 5014 Bergen Respondent: Norwegian State, represented by the Labour  and Welfare Directorate (Statenv/Arbeids- ogvelferdsdirektoratet) Counsel: Advokat Anders Narvestad Officeofthe Attorney General (Civil Affairs) (Regjeringsadvokaten) P.O. Box 8012 Dep. 0030 Oslo (9) The caseshavebeenjoined at the SupremeCourt to be heardtogether. 3. SUMMARY OF PRINCIPAL FACTS 3. 1 The Spain case (10) A was bom in Pakistan on XX.XX. 1987. He moved to Spain in 2005 and worked there before moving to Norwayon 10 April 2013. A is now a Spanishcitizen. (11) The onset ofdisability has previously been the subject of dispute in the case. For the puqioses ofthe casebeforethe Supreme Court it shall be assumed, on thebasisofthe Court of Appeal's mling on the issue, that the onset ofA's disability was in January 2016. (12) A applied for disabilitybenefit in Norwayon 19 December2017, whichapplicationwas refused by decision ofthe Norwegian Labour and Welfare Administration (NAV), which decisionwasupheldby an orderof7 September2020oftheNational InsuranceCourt (Trygderetten). A hastwice applied, unsuccessfully, for the caseto be reopenedbefore the National InsuranceCourt andhasreapplied for disabilitybenefit, with the result that various decisions andorders havebeenhandeddown. It is not considerednecessaryto describethat administrativeprocess in detail. The disagreementhasrelated to inter aliathe time ofthe onset ofA's disability, andwhetherhe hasbeen a memberofthenational insurancescheme for a sufficientlylengthy period to be entitled to disabilitybenefit. (13) The decision at issue in the present case was adopted after A reapplied for disability benefit on 29 July 2021. He wasrefusedby NAV decisionof 16November2021, on the ground that he didnot satisfythe requirement laid downin the first paragraphof section 12-2 ofthe National InsuranceAct ofmembership in the national insurancescheme for a period offive years prior to the onset of disability in January 2016, or the alternative conditions laid down in the secondor third paragraphofsection 12-2 ofthe National InsuranceAct. (14) The Norwegian authorities have twice obtained infonnation from the Spanish authorities on the E205 ES form, the first time on 4 April 2019 in connectionwith the first application procedure and the second time on 22 November 2021. NAV requested additional information andreceived a response from the Spanishauthoritiesby letter of 17 January2022. (15) By order of 1 August 2024, the National Insurance Court upheld the refusal ofNAV Appeals (NAVKlageinstans), concludinginter aliathat the requirement ofcontinuous membership in the national insurance scheme for five years prior to the onset of disability was not fulfilled. TheNational InsuranceCourt writes the followingin the order:  "NAVhas obtainedinformation on periods ofinsurance from Spain,whichshows that he was registered as having periods of insurance in Spain during the followingperiods: 17. 01. 2008 31.01, 2009 02. 12.2009 19. 02 2011 01. 08. 2011 16. 12, 2011 01. 02. 2012 23.02, 2012 02.04.2012 17.05, 2012 25.09.2012 24. 12, 2012 28. 11.2013 12. 12, 2013" (16) A appealed to Borgarting Court of Appeal (Borgarting lagmannsrett), claiming that the NationalInsurance Court's decisionwas invalid. Borgarting Court ofAppeal mled on that appeal by judgment and order of 4 February 2025, following a simplified procedure, which found in favour of the State. (17) The Court of Appeal's judgment states inter alia the following: "A accordingly does not satisfy the condition ofmembership in the national insurance scheme in Norway during the five years preceding the onset of disability. Membership periods in other EEA countries are however included in the assessment ofprior membership: see Articles 6 and 45 of Social Security Regulation No 883/2004. As a result, periods of insurance from Norway and periods ofinsurance from other EEA States canbe aggregated: seeArticle 6 ofthe Social Security Regulation. It is a requirement, however, that the period of insurance must be continuous, including in the event of aggregation with periods of insurance from EEA States. According to the infomiation provided by the Spanish authorities, A lacks a period of insurance from Spain in the period from 25 December 2012 until he moved to Norway on 10 April 2013, the date used as a basis by the National Insurance Court. The Court ofAppeal refers inter alia to Annex 83 to the statement in defence. In a letter to the Norwegianauthorities, the Spanish authorities stated that a condition for membership in Spainis that the person concerned must be in employment, and that this is the reason for the interruptions in the period of insurance in Spain. The Court ofAppeal refers inter alia to Annex 86 to the statement in defence. The Court of Appeal also refers to a translation of a letter sent to A by the Spanish authorities (with "Annex No 233" added by hand). The letter was produced by A on 26 November 2024 under "Miscellaneousdocuments". It is also apparentfrom that letter that, in Spain, social security rights are acquired only by persons who are in employment. Hence, residence in Spain is not sufficient on its own. It is, incidentally, also apparent from the letter to A that the Spanish authorities have sent informationto the Norwegianauthorities on five occasions. The Court  ofAppeal considersthat there is no reasonto doubtthe information the Spanish authorities have provided to NAV. In Norway, everyone who is residentin the realm is, as a rule, compulsorily members of the national insurance scheme. Other EEA countries may have other requirements for membership than Norway and, in many other EEA countries, residenceis not a sufficientcriterion for membershipunderthe relevant country's social security scheme. A number ofcountries have a requirement ofoccupational activity, either as a worker or self-employed person." (18) A has appealedto the Supreme Court, andon 9 May 2025 the Appeals Selection Committee ofthe SupremeCourt (Heyesteretts ankeutvalg) ruled as follows: "Leave to have the appeal heard by the Supreme Court is granted in respect ofthe applicationofthe law as it relates to the questionwhetherthe requirement of previous membershipunder section 12-2 oftheNational InsuranceAct is fulfilled. Leaveto appeal is otherwiserefused." (19) On 7 October2025, thejudge in chargeofpreparing the case(forberedende dommer) mled that an Advisory Opinionwouldbe sought from the EFTACourt 3.2 The Germany case (20) B was bom on XX XX 1964 in Morocco. She moved from Morocco to Gennany in 1996 and then to Norway in 2005. She is now a German citizen. (21) The exact date ofmoving to Norwayhaspreviously beenthe subject ofdispute in the case. For the purposes ofthe casebeforethe Supreme Court it shall be assumed, on thebasisofthe Court of Appeal's ruling on the issue, that B moved to Norway no earlier than May 2005. The onset ofher disabilitywas in April 2008. (22) B applied for disabilitybenefit on 19 June2018. NAVobtainedinformation on periodsof insurancefrom the Gennanauthorities on the E205 DE form, whichis dated22 August 2019. (23) By decisionof8 October2019, NAVrefusedthe claim for disabilitybenefit on the ground that B did not satisfythe conditionofcontinuous membership in the national insurance scheme for a period of three years and/or the German social security scheme prior to the onset ofdisability. NAVtook the view that nor did she satisfythe alternative conditionslaid down in the secondor thirdparagraphofsection 12-2 [oftheNational InsuranceAct]. Thedecision states the followingwith respect to membership in the national insuranceschemein Germany: "Wehave received documentation from the social security authorities in Gennany to the effect that you havebeen a member oftheir social security schemeduring the followingperiods: As from Up to and including 01.03.2004 31. 10.2004 01.07.2003 01.07.2003 01.07. 1996 30.09.2002  We have not included periods stated merely as 8. 1 .2 as, according to the Gennan forms [sic], they are included only in the calculation of early retirement pension, and based on practice which assumes that these are not periods that are considered for the purposes of entitlement to a German invalidity benefit." (24) By decision of 1 5 December 2020, NAV Appeals upheld the order that B was not entitled to disability benefit. B brought the case before the National Insurance Court, which handed downan order 14 December2022 upholdingthat decision. (25) B appealed to Eidsivating Court ofAppeal (Eidsivating lagmannsrett), which suspended the proceedings because B had also requested that the case be reopened in respect ofthe earlier refusal. In the dismissal of that request by NAV Appeals, dated 18 August 2023, inter alia the following is stated: "In the request for reopening, the appellant states that there was a serious procedural error in that NAV failed to assess hermembership in the German social security scheme in accordance with the total period of insurance in Gennany. Inthat connection, reference is made to the order in whichthe National InsuranceCourt hasnoted that the Gennan social security authorities did not indicate any relevant period of insurance after 31 October 2004 and that neither NAV nor the National Insurance Court is to review that infonnation. This is the correct interpretation: see inter alia thejudgment in LA-2016-200383." (26) The proceedings before the Court ofAppeal were then resumed. Byjudgment of 1 7 February 2025, Eidsivating Court of Appeal found in favour of the State. Inter alia the following is stated in the judgment: "Informationobtainedfrom the Gennanauthorities showsthat B acquiredperiods of insurance in Germany as follows: as from 1 July 1996 up to and including 30 September 2002, asfrom 1 July 2003 up to andincluding 1 July 2003 and, lastly, as from 1 March 2004 up to and including 31 October 2004. The Norwegian authorities are to base themselves without question on infonnation from other countries' authorities: see Article 5 ofthe Implementing Regulation. B may not, therefore, successfully argue that NAV ought to have examined the German niles or that NAV has misapplied the German rules. The Court of Appeal nevertheless notes that there is nothing to support the position that the information from the German authorities is incorrect. During the preparatory stages of the case, it seems as though there was some discussion as to whether the Norwegian authorities had used the correct fonn to obtain infonnation from the German authorities. The Court ofAppeal understands that this submission has been withdrawn, but can in any event not see that any errors were made in obtaining the information. B has also claimedthat Article 51 ofthe Social SecurityRegulation,relating to aggregation of periods of insurance, must entail that she is entitled to disability benefit. As stated earlier, it is anunconditionalrequirement for entitlement to disability benefit under the Norwegian rules that prior periods of insurance must be continuous. The last period in which periods of insurance were acquired conferring entitlement to invalidity benefit under the German rules ended on 31 October 2004. The Court of Appeal interprets the EEA mles as meaning that, if B  hadhad a period ofinsurancein Germanyuntil the end ofMarch2005, it would havebeen included in the calculation. That is not the case here, however. It cannot be inferred from Article 6 or Article 51 ofthe Social Security Regulationthat the Norwegianauthoritieshave anunconditionalobligationto aggregateprevious periods ofinsurancecompleted in anotherEEA country andNorwegianperiods of insurance, irrespective of when the period of insurance was completed in that other country, as claimedby B. The Court ofAppeal accordinglydoesnot takethe view that it is contrary to the EEAAgreement or the Social SecurityRegulation not to aggregatemembershipperiods in Germany andNorwegianperiods of insurance." (27) B has appealedto the SupremeCourt. On 25 June2025, the Appeals SelectionCommittee of the SupremeCourt granted leave to appeal in so far as regardsthe issue ofthe applicationof the law. Leaveto appeal was otherwiserefused. (28) On 7 October2025, thejudge in chargeofpreparingthe caseruled that anAdvisory Opinion wouldbe sought from the EFTACourt. 4. RELEVANT RULES 4. 1 Norwegianlegislation (29) Section 12-2 ofthe NationalInsuranceAct is worded as follows: "It is a conditionfor entitlement to disabilitybenefitthat the person concernedhas been a member ofthe national insuranceschemefor the five years precedingthe onset ofdisability: see section 12-8. In the assessmentofwhetherthe conditionis fulfilled, no account shall be taken ofperiods spent servingwith international organisationsor bodies ofwhichthe NorwegianStateis a member, to whichit makes financial contributions or to whichit is responsible for contributingto staffing. The condition of five years of prior membership in the first paragraph shall not applyto a personwho hasbeen a member ofthe insurance scheme for at least one year immediatelybeforehe or she submits a claim for disabilitybenefit, if a. the person concernedbecamedisabledbeforeturning 26 yearsof ageand at thattime was a memberofthe national insurance scheme, or b. the person concerned, after turning 16 years ofage,hasbeen a member of the national insurance scheme except for a maximum of five years. The conditionin the first paragraphshall not apply if the person concerned was a member of the national insurance scheme at the time of the onset of disability and the disability benefit in the event of a 100 per cent degree ofinvalidity: a. calculatedon the basisunderthe first paragraphofsection 12-11 will at least correspond to halfofthehighrate underthe third sentence ofthe secondparagraphofsection 12-13, or  b. calculated on the basis ofperiods of insurance will at least correspond to halfof the minimum benefit under the second paragraphofsection 12-13. Future periods of insurance shall not be included in the calculation: see the fifth paragraphofsection 12-12." (30) The requirement ofhavingbeen a member ofthe national insurance scheme for five years entered into force on 1 January 2021. Previously, the rule required that the person had to have been a member for a period of three years prior to the onset of disability. Under the transitional provisions, if the claim for disability benefit was submitted before the amendment entered into force - as occurred in the Gennany case - the previous three-year membership conditionapplied. (31) Membership of the national insurance scheme can be acquired in different ways, including being resident in Norway: see section 2-1 of the National Insurance Act, which is worded as follows: "Persons who reside in Norway are compulsorily members ofthe national insurance scheme. Residents ofNorway are those who stay in Norway, when the stay is intended to last or haslasted at least 12 months. A person whomoves to Norwayis considered resident from the date of entry. It is a condition for membership that the person concerned has legal residence in Norway. In the event oftemporary absence from Norway that is not intended to last more than 12 months, the person concerned is still considered resident here. However, this does not apply if the person concerned is to stay or has stayed abroad for more than six months per year for two or more consecutive years." (32) Membership in the national insurance scheme can also be acquired on thebasis ofbeing a worker: see section 2-2 of the National Insurance Act, which is worded as follows: "A person who is not a member of the national insurance scheme under section 2- 1 is nevertheless compulsorily member ofthe national insurance scheme if the person concerned is a worker (section 1-8) in Norway or on theNorwegian part of the Continental Shelfin connection with exploration or extraction of oil, gas or other natural resources. This shall apply only if not otherwise provided for in or pursuantto thepresent Act. It is a condition that the person concerned is legally able to engage in paid employment in Norway or on the Norwegian Continental Shelf." (33) In other words, lawful employment in Norway or in the specified industries on the Norwegian Continental Shelfgives rise to being a member of the national insurance scheme, irrespective ofplace ofresidence. (34) Section 1 -3 ofthe National Insurance Act provides:  "The present Act shall be interpreted and applied in accordance with the principles on free movement and equal treatment as provided for in the Main Part of the EEA Agreement." (35) Furthermore, section 12-1a ofthe National Insurance Act lays down provisions on international social security coordination: "Disability benefit is an invalidity benefit under the social security regulation. Provisions in the present chapter shall be disapplied to the extent necessary in respect ofrelevant provisions in the Main Part ofthe EEA Agreement, the Social SecurityRegulation, the ImplementingRegulationandbilateral andmultilateral social security agreements: see sections 1-3a and 1-3 b. The Ministrymay, by regulation, issueprovisions supplementing or facilitating compliancewith provisions on invaliditybenefits in the Social Security Regulationandthe Implementing Regulation." (36) Sections 1-3 and 12-1 oftheNational InsuranceAct were addedin 2022, but the substantive content was, in reality, the same as previously, through section 1-3 then in force and through national regulations. A new section 1-3a was also enacted in 2022, covering the implementation ofthe Social Security Regulation and the Implementing Regulation [Regulation (EC) No 987/2009 ofthe European Parliament and ofthe Council of 16 September2009 laying downthe procedure for implementing Regulation(EC) No 883/2004 on the coordinationofsocial security systems], conferringon them the status ofNorwegian legislation and giving them primacy corresponding to what is provided for in section 12-1 a of the National Insurance Act. 4.2 The EEAAgreement (37) The [principle of] free movement ofworkers is laid downin Article 28 ofthe EEA Agreement, whichprovides, inter alia: "1. Freedom ofmovement for workers shall be securedamongEC Member States and EFTA States. 2. Suchfreedom ofmovement shall entail the abolitionofany discrimination basedon nationalitybetweenworkers ofEC Member States andEFTA States as regards employment, remuneration and other conditionsofwork and employment. [...]" (38) The principle of coordination of social security benefits is laid down in Article 29 of the EEA Agreement: "In order to provide freedom ofmovement for workers and self-employed persons, the Contracting Parties shall, in the field of social security, secure, as provided for in AnnexVI, for workers and self-employedpersons andtheir dependants, in particular:  10 a. aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount ofbenefit, of all periods taken into account under the laws of the several countries b. payment ofbenefits to persons resident in the territories of Contracting Parties." (39) The Social Security Regulation is incorporated into Annex VI to the EEA Agreement, pursuant to the Decision of the EEA Joint of 1 July 2011, with effect from 1 June 2012. It provides for the continuation and evolution of corresponding provisions in Regulation (EEC) No 1408/71 [published in the EEA Supplement to the Official Journal of the European Union, dated 15 May 2003]. (40) Recitals 4, 5, 9, 10, 13, 14 and 26 of the Social Security Regulation state the following: "4. It is necessary to respect the special characteristics of national social security legislation and to draw up only a system of coordination. 5. It is necessary, within the framework of such coordination, to guarantee within the Community equality oftreatment under the different national legislation for the persons concerned. [...] 9. The Court ofJusticehas on several occasionsgiven an opinionon the possibility of equal treatment ofbenefits, income and facts; this principle should be adopted explicitly and developed, while observing the substanceand spirit oflegal rulings. 10. However, the principle of treating certain facts or events occurring in the territory of another Member State as if they had taken place in the territory ofthe Member State whose legislation is applicable should not interfere with the principle of aggregating periods of insurance, employment, self-employment or residence completed under the legislation of another Member State with those completed under the legislation ofthe competent Member State. Periods completed under the legislation of another Member State should therefore be taken into account solely by applying the principle of aggregation ofperiods. [...] 13. The coordinationrules must guaranteethatpersons moving withinthe Community and their dependants and survivors retain the rights and the advantages acquired and in the course ofbeing acquired. 14. These objectives must be attained in particular by aggregating all the periods taken into account under the various national legislation for the purpose of acquiring and retaining the right to benefits and of calculating the amount ofbenefits, andby providingbenefits for the various categories ofpersons covered by this Regulation. [...] 26. For invalidity benefits, a system of coordination should be drawn up which respects the specific characteristics ofnational legislation, in particular as regards recognition of invalidity and aggravation thereof."  11 (41) Ofparticular importance for thepresent caseare Articles 5 and6 ofthe Social Security Regulation, whichare wordedas follows: "Article 5. Equal treatment of benefits, income, facts or events Unless otherwise provided for by this Regulation and in the light ofthe special implementing provisions laid down, the following shall apply: a. where, underthe legislation ofthe competent Member State, thereceipt of social security benefits and other income has certain legal effects, the relevant provisions of that legislation shall also apply to the receipt of equivalent benefits acquiredunderthe legislation ofanotherMember Stateor to income acquiredin another Member State, b. where, underthe legislation ofthe competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account oflike facts or events occurring in any Member State as thoughtheyhadtakenplace in its ownterritory." "Article 6. Aggregation of periods Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes the acquisition,retention, duration or recovery ofthe right to benefits, the coverageby legislation, or the accessto or the exemption from compulsory, optional continuedor voluntary insurance, conditional upon the completion ofperiods of insurance, employment, self- employment or residence shall, to the extent necessary, take into account periods ofinsurance, employment, self-employment or residencecompleted underthe legislation of any other Member State as though they were periods completed underthe legislation whichit applies." (42) The tenns period of insurance, period of employment, period of self-employment and period of residence are defined in Article l(t), (u) and (v) of the Social Security Regulation: "Article 1. Definitions Forthepurposes ofthis Regulation: (t) 'period of insurance' means periods of contribution, employment or self- employment as definedor recognised asperiods ofinsuranceby the legislation underwhichthey were completed or consideredas completed, and all periods treated as such, wherethey areregardedby the said legislation as equivalentto periods ofinsurance; (u) 'period of employment' or 'period of self-employment' mean periods so defined or recognised by the legislation under which they were completed, and  12 all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment or to periods of self-employment; (V) 'period of residence' means periods so defined or recognised by the legislation under which they were completed or considered as completed". (43) Article 6 ofthe Social Security Regulation hasbeen discussed by Norwegian courts previously. The implications for Norwegian law are, according to a judgment of 9 October 2017 ofAgder Court of Appeal (Agder lagmannsrett) in Case No LA-2016-200383: "There is no doubt that the aggregation principle entails that a period of membership in the national insurance scheme in another EEA country (in this case Spain) is to be regarded as equivalent to membership in the Norwegian national insuranceschemein the determinationofwhetherthe eligibility conditionof continuous membership for three years can be deemed to be satisfied. This must be understood as meaning that if the requirement laid down in national social security legislation is, for example, membership in the national insurance scheme, then the person concerned must have been a member of the other EEA country's social security scheme by having satisfied the conditions for membership provided for in the other country's relevant legislation, such as a national rule requiring an employment connection; it is not sufficient to have stayed in the other country for a certain time, and thus under the rules on applicable legislation in the regulation have been formally covered by the other country's social security legislation, unless under the other country's social security legislation the stay in itselfentailedthat the person concernedwas insured." (44) The same interpretation has been applied in a number of other Court of Appeal judgments: see LH-2023-40680, LB-2023-68371 and thejudgments under appeal in the present case. The first judgment referred to stated the following with respect to Article 6 of the Social Security Regulation: "The Court of Appeal understands the wording as follows: the first sentence indicates that the 'competent institution of a Member State' is to begin with the relevant conditionin its own social security legislation, whetherthatbeperiod of employment, period ofself-employment or period of residence. In the last part of the provision, it is provided that periods completed under the same criterion 'under the legislation of any other Member State' is to be taken into account together with periods completed in the country in which the application for a social security benefit has been made. Although the wording of the provision might have been fonnulated in a more easily accessible manner, the Court of Appeal considers that this is the most logical interpretation, that is to say, the same types of periods are aggregated. This means that where a period of insurance is the national criterion, periods of insurance from other countries and national periods ofinsuranceare to be aggregated." (45) Furthennore, Regulation (EC) No 987/2009 of the European Parliament and of the Council [of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems] ('the Implementing Regulation') lays down detailed rules on the implementation of the Social Security Regulation, also referred to as the basic regulation. Ofparticular interest for the present case are Article 12 and Article 5 ofthe ImplementingRegulation.  13 (46) Article 12 lays downdetailedrules on the aggregationofperiods, providing inter alia: "Article 12. Aggregation of periods 1. Forthepurposes ofapplyingArticle 6 ofthebasic Regulation, the competent institution shall contact the institutions of the Member States to whose legislation the person concerned has also been subject in order to determine all the periods completed undertheir legislation. 2. Therespective periods ofinsurance, employment, self-employment or residence completed under the legislation of a Member State shall be addedto those completed underthe legislation ofany other Member State, insofaras necessaryfor thepurposes ofapplyingArticle 6 ofthe basicRegulation,providedthat theseperiods do not overlap." (47) Article 5 containsprovisions on the legal value ofdocuments andinformation obtainedfrom another Member State, providing inter alia: "Article 5. Legal value of documents and supporting evidence issued in another Member State 1. Documents issuedby the institution ofa Member State and showingthe position of a person for the purposes of the application of the basic Regulation andofthe implementing Regulation, and supporting evidence on thebasisofwhichthe documentshavebeen issued, shall be accepted by the institutions ofthe other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued. 2. Wherethere is doubt aboutthe validity ofa documentor the accuracyof the facts on whichthe particulars containedtherein arebased, the institution of the Member State that receives the document shall ask the issuinginstitution for the necessaryclarificationand, where appropriate, the withdrawalofthat document. The issuinginstitution shall reconsider the grounds for issuingthe documentand, if necessary, withdrawit." 5. SUBMISSIONS OF THE PARTIES 5. 1 CASE NO 25-036986 (the Spain case) (48) SubmissionsofA: (49) A submits that he is entitled to disability benefit in Norway under section 12-2 ofthe National InsuranceAct, read in conjunction with section 2-1 thereofandthe rules laid downin the Social Security Regulation, andthat the National InsuranceCourt's refusal of 1 August2024 is accordinglyinvalid. (50) A submits, in themain, that his entitlement to disabilitybenefit in Norwayfollows directly from a correct applicationofArticle 6 ofthe Social SecurityRegulation, read in conjunction with section 12-2 of the National Insurance Act and section 2-1 thereof, inasmuch as periods  14 of lawful residence in Norway and periods of lawful residence in Spain are to be aggregated in the determination ofwhether the Norwegian conditions for membership in a compulsory social security scheme and entitlement to disability benefit in Norway are satisfied. (51) The Norwegian requirements laid down in section 12-2 oftheNational Insurance Act, read in conjunction with section 2-1 thereof, must be viewed as a national legal requirement relating to period ofresidence for entitlement to disability benefit under the rules on aggregation of periods laid down in Article 6 of the Social Security Regulation. (52) Under Article 6 ofthe Social Security Regulation, A is entitled to require that relevant periods completed in Norway andrelevant periods completed in Spainbe aggregated. In the present case, he is entitled to require that the Norwegian authorities aggregate corresponding periods oflawful residence in Spainunder the Spanishrules andtheperiods ofresidence completed by him in Norway. (53) In the application of the aggregation mles laid down in the Social Security Regulation, it is submitted, in the main, that in the aggregation of periods of lawful residence under the other country's law, it is not relevant whether the periods in question have implications for the acquisition of social security benefits under the other country's law. It is submitted, in the alternative, that it is sufficient for aggregation under Article 6 ofthe [Social Security] Regulation that the period in question completed in another country is a condition under that other country's law for entitlement to the same kind of social security benefits, without there being a requirement that that condition or other conditions for entitlement to social security benefitsin that other country are satisfied. (54) Whenthe competent country's authorities are to assess the periods completed in that other country that are to be taken into account in the application ofArticle 6 ofthe Social Security Regulation, under Articles 5 and 12 of the Implementing Regulation the authonties must, as a mle, base themselves on the information on the position of the person applying for a social security benefit as stated in documents issued by that other country. (55) This presupposes that the competent country has made inquiries to the other country concerning relevant time periods. In the present case, Norway hasnot made inquiries asto periods ofresidence, with the result that infonnation relating to periods ofinsurance cannot be used as a basis in the assessment. (56) In the alternative, it is submitted that the Norwegian requirement ofa five-year continuous period ofinsurance prior to the onset ofdisability, if only periods constituting periods of insurance for the purposes of the application of the Social Security Regulation are taken into account, amounts to a restriction and/or indirect discrimination under EEA law which cannot bejustified. (57) The requirement ofa five-year continuous period ofinsurance constitutes a restriction on the right offree movement because it places persons who have exercised their right offree movement at a disadvantage compared to persons who have completed all oftheir periods of employment in Norway, including in particular persons who have been employed in countries which base entitlement to invalidity benefit on the basis of acquisition periods during referenceperiods.  15 (58) The restriction cannotbejustified, particularly becauseis not basedon any legitimate objective andis not proportionate. (59) SubmissionsoftheNorwe ian State re resentedb the LabourandWelfareDirectorate: (60) Whenthe periods from Norwayand Spainare assessedtogether, in the five-yearperiodprior to the cut-offpoint, A had 13.6 months without acquisitionofentitlement, distributedover fourperiods. Dueto thoseintermptions, he did not satisfy the affiliationrequirement laid downin the first paragraphofsection 12-2 oftheNational InsuranceAct. He did notbecome disabledin Norwayor Spainbeforeturning 26 years ofage, does not haveover five years without qualifyingperiods in the EEAafterturning 16 years of age, andhasnot hadsufficient acquisitionofentitlement in Spainor Norway. As a result, nor did he satisfythe affiliation requirements laid downin the secondandthird paragraphsof section 12-2 [oftheNational InsuranceAct]. (61) A basicrequirement in order for a period from anotherEEA country to be aggregatedis that the other Stateuses the period to confer acquisitionofentitlement to a benefit: seeArticle 6 of the Social SecurityRegulation, Article l(t), (u) and(v) ofthe Social SecurityRegulationand Article 29ofthe EEA Agreement. Norway has used the correct official fonn in its communicationwith the Spanishauthorities. Onthe basisofwhatthe Spanishauthorities have communicated, there is nothing to suggestthat Spainallows lawful residenceto confer qualificationfor invaliditybenefit. A's statedperiod oflawful residencemust accordingly not be taken into account. (62) The requirement ofhavingbeen a member for a certainperiodunderthe first paragraphof section 12-2 ofthe NationalInsuranceAct is a requirement ofa "periodofinsurance". Whetheror not the appellant is correct on the point that this is a requirement ofa "periodof residence"is irrelevant. Norwayis underan obligationto aggregateall periods which,under Spanishlaw, qualify for invaliditybenefit. (63) The State submits that there is no indirect discrimination against A as a worker: see Article 28 of the EEA Agreement, inasmuch as he is treated in the same manner as other persons who have a gap in their acquisitionofentitlement to social securitybenefits. Any discrimination there can in any event bejustified. (64) The first paragraphof section 12-2 oftheNationalInsuranceAct must be viewedin context with other eligibility conditions for disabilitybenefit. Under the secondparagraphofsection 12-2 thereof, the conditionoffive years ofcontinuous membership does not apply in respect ofpersons whobecamedisabledat a young age(letter a), or who havenot hadlengthy intermptions in theirmembership (maximum five years aflterturning 16 years ofage, (see letter b). This applies irrespective ofwhetherthe applicanthasbeenin Norwayor another EEA country. Underthe third paragraphofsection 12-2 thereof, nor does the requirement apply in respect ofpersons havinga specifiedlink to the national insurancescheme. Letter b ofthethird paragraphwill, for example, be fulfilled for everyone who, prior to the onset of disability, hasat least 20 years in total ofmembership in thenational insuranceschemeor another EEA country's social security system. Exceptionsare also made from the membership requirement for persons who are disableddueto occupational injury, includingwhenit occurred in anotherEEA country: seethe first paragraphofsection 12-17ofthe National InsuranceAct. The exceptions showthat there is no general requirement offive years of continuous acquisitionofentitlement that applies for everyone.  16 (65) The affiliation requirements laid down in the first to third paragraphs ofsection 12-2 ofthe National Insurance Act are the result of a balancing of considerations: see, inter alia, the legislature's preparatory works in draft legislation Ot.prp. nr. 4 (1993-1994) part 3.2. 1, Prop. 130 L(2010-2011) part 7. 9.4, Prop. 85 L (2016-2017) part 7.4. 3.4, 9. 10. 3 and 9. 1. 11. 1 and Prop. 10 L(2019-2020) part 6. 3. One ofthe objectives hasbeen to have eligibility conditions which arenot more generous than elsewhere in the EEA- in particular subject to the proviso that entitlement can be acquired through lawful residence - and, at same time, are not overly stringent. Another objective has been to prevent the possibility ofreceiving disability benefit from acting as a disincentive for individuals to search for employment. (66) EEA law entails coordination, not harmonisation, ofnational social security systems, at the same time as national mles must be applied in such a way that they do not discriminate, directly or indirectly, against EEA citizens. The last-mentioned restriction must, however, be constmed in the light of the general rule: the Member States are free to design their own social security systems in accordance with national objectives: see, for example, Sozialministeriumservice, C-l 16/23, EU:C:2024:292, paragraphs 67-68, and recital 17a ofthe Social Security Regulation. The European Court ofJustice (ECJ) has accepted that the States may impose requirements ofprior affiliation to a social security system before entitlement to benefits arises. EU law does not provide any guarantee that moving from one country to another will be neutral from a social security standpoint: see Zyla, C-272/17, EU:C:2019:49, paragraph 45. Nor is it documented or established that A's gap in acquisition ofentitlement is linked to the exerciseoffree movement as a worker, in contrast to whatthe ECJexaminedin Klaus, C-482/93, EU:C:1995:349. (67) The principle of aggregation ofperiods concretizes the requirement of equal treatment of EEA nationals. When the Norwegian authorities have aggregated the appellant's qualifying periods from Spainin the determination ofwhether the membership requirement laid down in the National Insurance Act is satisfied, he is being treated on an equal footing with Norwegian citizens. (68) The prohibition of indirect discrimination affects national rules which are "intrinsically liable to affect workers who are nationals of other EEA States more than national workers": see Bygg & Industri Norge AS and Others, E-2/24, paragraph 70, and Larcher, C-523/13, EU:C:2014:2458, paragraph 32. The Norwegian requirement ofmembership in the national insurance scheme does not, by its very nature, make it more difficult for EEA migrants to acquire rights. Ifit nevertheless were the case that the requirement is more difficult to satisfy for persons with previous stays in an employment-based system - whichhas not been proven - it cannot in any event be attributed to the Norwegian rules, but rather to restrictions in the other country's system for whichperiods qualify for a benefit. Ifthe first paragraph of section 12-2 oftheNational InsuranceAct hadbeen draftedto include a referenceperiod- for example, five years' acquisition of entitlement within a seven-year period - the requirement would still be easier to satisfy for persons having a connection to a residence-based system thanto an employment-based system. 5.2 Case No 25-056992 (the Germany case) (69) Submissions of B:  17 (70) B submits that she is entitled to disabilitybenefitunderthe three-yearmle then in force under section 12-2 oftheNational InsuranceAct. B cameto Norwaytogetherwithher children. Her husband had come to Norway somewhat earlier. The rules on family reunification, reflected in Article 29 ofthe EEAAgreement, apply to her case. (71) Her application for disability benefit was refused. Her "neutral period of insurance" under Gennan rules was not taken into account in the aggregation with the Norwegian one. As a result, shedid not satisfytherequirementunderthe Norwegianrules. "Periodofinsurance"is definedin Article l(t) ofthe [Social Security] Regulation as "periods of contribution, employment or self-employment as defined or recognisedasperiods ofinsuranceby the legislationunderwhichthey were completed or consideredas completed" and all periods under Gennan law are regardedas equivalent to suchperiods, including "neutral period ofinsurance". (72) It is submitted, in the main, thatthe tenn "neutral period ofinsurance"(seejudgment in Duchon, C-290/00, EU:C:2002:234)shouldberecognisedin Nonvegianlaw. Duchon concerned an Austrianmigrant workerwho wasinjured in Germany and subsequentlymoved backhome. InAdanezVega, C-372/02, EU:C:2004:705,the ECJheld that Germany, as the competent State, was not underany obligationto includemilitary service from Spainas a "periodofemployment". For B, the situationis the opposite. Entitlement to a benefit acquired in Gennanyis to be included: ref. "neutral period ofinsurance". The wordingofArticle 6 of the Social Security Regulation and the definitions of the relevant time periods in Article 1 suggestthat all time periods which, undera State's legislation, are a relevant time period are to be taken into account. (73) Under Article 5 of the Social Security Regulation, rights in one country are to be recognised in the other country and a "neutral periodofinsurance"is a relevant period whichis to be recognisedin Gennany. In that light, it is logical underArticle 5 that it also be recognised underNorwegianrules. Any other outcome wouldbe contrary to Article 29 ofthe EEA Agreement. (74) As regardsperiods ofinsurance, she is coveredunder German insuranceduringboth the "neutral period" andthe "acquisitionperiod". Bothperiods are relevant, rather thanlimiting this to the "acquisition period" for a longer period of insurance. It would be discriminatory, and contrary to the EEAAgreement, to require continuous membershipunder section 12-2 of the National InsuranceAct in whichonly "acquisition"periods ofinsuranceare taken into account, ratherthanperiods ofinsurancein whichtheperson concernedis covered. (75) Under German law, the three-year"acquisition"period canbe anytime withinthe last five years, whilst theNorwegianauthoritiesrequire that the acquisitionperiod ofperiods of insurancemust be immediatelyprior to the moving to Norway, anduninterrupted. That the period ofinsuranceis to be continuous andonly the "acquisition"periods ofinsuranceare to be taken into account, ratherthan "neutral periods", entails that the Norwegianauthorities havemore stringentrequirements in relation to her Gemian acquisitionthanwhatfollows from the German rules. As is apparent from Tomaszewska, C-440/09, EU:C:2011:114, paragraph30, "... the principle ofaggregationofinsurance, residence or employment periods [... ] is one ofthe basicprinciples" and one cannot lose social security benefitswhenmoving.  18 (76) No requirement may be imposed to the effect that an acquired period ofinsurance is to be immediately prior to andunintermpted before shemoves to Norway, asthat is not a condition under the German legislation (SGB book 6, Paragraph 43, second subparagraph). The Norwegian authorities have introduced a "Norwegian" additional condition whichis more stringent andprecludes thepossibility for migrant workers, unemployed persons, etc., from having the opportunity to move to Norway without losing social security rights. This is contrary to the fundamental rights provided for in Articles 28 and 29 of the EEA Agreement on free movement. (77) If "neutral periods" are excluded, that will affect job seekers, migrant workers, etc., and will be a clear restriction on the right of free movement in a dynamic labour market. The reality is that the Norwegian rules impose a requirement to the effect that a person must have been in employment for a lengthy period immediately before moving to Norway. This infringes the right of free movement and is accordingly an "obstacle". (78) The EU legislature's reminder in recital 37 [ofthe Social Security Regulation] on the importance ofthe principle ofthe exportability ofsocial security benefits is illustrative: "[a]s the Court ofJustice hasrepeatedly stated, provisions which derogate from the principle ofthe exportability of social security benefits must be interpreted strictly", which suggests that the Norwegian authorities' practice, under whichonly the administrative mles under the E204 and E205 are used as a basis for rights, must be considered to be contrary to the EEA Agreement. (79) Submissions oftheNorwe ian State re resented b the Labour andWelfare Directorate: (80) B hadto have a continuous qualifying period from 31 March 2005 to 31 March 2008 in order to qualify for disability benefit under the first paragraph ofsection 12-2 ofthe National Insurance Act. She had not acquired entitlement that qualified her for invalidity benefit in Germany after 1 November 2004, and in Norway shehad a qualifying period from May 2005 at the earliest. She had an intermption of at least six months, including at least one month in the relevant period from 31 March 2005 to 31 March 2008. Because she did not become disabled before turning 26 years ofage, has over five years' absence from social security systems in the EEA after turning 16 years ofage, and does not have sufficient acquisition of entitlement in Gennany or Norway, nor did she satisfy alternative affiliation requirements laid down in the second and third paragraphs of section 12-2 [ofthe National Insurance Act]. (81) B's submission to the effect that theNorwegian authorities also hadto aggregate the period in the spring of 2005, for which she states she had social security coverage in Germany, cannot be upheld. It is not periods with any coverage under the German social security scheme which are to be aggregated under Article 6, but rather periods which qualify for coverage against the same risk as the benefit which is sought from Norway. A period with social security coverage does not come within the scope of Article 5 of the Social Security Regulation, and Article 5 is in any event subordinate to Article 6: seerecital 10ofthe Social Security Regulation and recital 3 of Decision No H6 of 16 December 2010 [concerning the application of certain principles regarding the aggregation ofperiods under Article 6 ofRegulation (EC) No 883/2004 on the coordination of social security systems] ofthe Administrative Commission [for the Coordination ofSocial Security Systems] (32011 D 0212(01)) ("Decision No H6"). (82) The system is that the States, as a clear general rule, areunder an obligation to base themselves on other States' communicated periods: see, for example, point 2 and recital 4 of  19 DecisionNo H6. It is not required that EEA States' competent institutions develop detailed knowledge of other countries' domestic law, and the State does not have knowledge of which factors in other EEA countries give rise to interruptions in qualifyingperiods. Noris this a prerequisite for applying Article 6 ofthe Social SecurityRegulation. (83) Reference is otherwisemadeto the State's submissions in the Spaincaseon the issue of discrimination. 5. QUESTIONS (84) In the light ofthe foregoing, the Supreme Court refers the following questions to the EFTA Court: 1. Whenentitlement to invaliditybenefit in the competent State(Norway) is subject to a requirement ofa prior period ofmembershipin the social security schemewhichinter alia can be acquired through a period ofresidence in that State, which time period(s) in anotherEEA State (Spain/Germany) is/are thenrelevant for aggregationwithtime periods in the competent StateunderArticle 6 ofthe Social SecurityRegulation, and subject to whichconditions is the aggregationto takeplace? Is account to be taken of: periods ofresidencein the other StateunderArticle l(v) ofthe Social Security Regulation; periods of insurance in the other State under Article l(t) of the Social Security Regulation; or more/otherperiods in the other State? 2. In the determinationofwhichtime period(s) in anotherEEA State canbe aggregated underArticle 6 ofthe Social Security Regulation, canthe competent Statebaseitself solely on the responsesgiven by the other Statepursuantto the Implementing Regulationon the E 205 form or more recent equivalents, or must the competent State, in situations such as those at issuein thepresent cases, obtain additionalinfonnation, includinginformationrelating to period ofresidenceandwhatconstitutes a period of insurance/isregardedas equivalent to such a time period in the other State? 3. Do Article 6 ofthe Social Security Regulation, and/orArticles 28 and29 ofthe EEA Agreement, imposerequirements - and, if so, whichones- as to how a national condition ofcontinuousperiod ofinsurance/membershipin the national insurance schemeas a conditionfor acquiringinvaliditybenefitmust be applied in cases such as the present ones, in whichthere is to be aggregationwith time periods from another EEA State? Oslo, 9 Febmary2026 Ingvald Falch Supreme Court Justice Electronic signature Case E-1/26-2 Luxembourg, 2 March 2026 Dear Sir/Madam, Please find enclosed, a copy of the application, together with the translation into English, from Supreme Court of Norway (Norges Høyesterett), dated 9 February 2026, in the case A and B v Staten v/Arbeids- og velferdsdirektoratet, requesting the EFTA Court to give an advisory opinion pursuant to Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. The request was lodged on 9 February 2026 and entered in the register of the EFTA Court (reg. No E-1/26-1) as Case No E-1/26. In accordance with Article 20 of the Statute and Article 90(1) of the Rules of Procedure of the EFTA Court, the Governments of the EFTA States, the EFTA Surveillance Authority, the Union (which includes the Governments of the EU States), the European Commission and the parties to the dispute are entitled to submit to the Court written observations on the questions referred for an advisory opinion. Written observations must be lodged at the Court within two months from the date of this notification, i.e., at the latest by Monday, 4 May 2026, cf. Article 39(2) of the Rules of Procedure. Please be informed that the Court has decided that all written observations, lodged in Advisory Opinion cases registered at the Court, will be published on the Court's website before the oral hearing takes place. Should you believe that observations you intend to submit include confidential or sensitive information, the Court invites you to submit a non-confidential version alongside your observations. In those cases, only the non-confidential version will be published. Moreover, should you believe that the written observations are, exceptionally, only to be published after the judgment of the Court has been delivered, you are invited to submit a reasoned request setting out the reasons thereto. Yours faithfully, Bryndís Pálmarsdóttir Senior Administrator Encl. 1, rue du Fort Thüngen, L-1499 Luxembourg. Telephone: +352 42 108-1. E-mail: [email protected]