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Norwegian Legal Summary of 2023: High impact cases on climate and privacy

A selection of high impact cases from Simonsen Vogt Wiig's Dispute and Resolution team in 2023, coupled with analysis of the legal mega trends they are part of.

Climate and environment
In November 2023, SVW assisted Greenpeace and Nature and Youth Norway in a new climate case before the District Court of Oslo. The plaintiffs challenge the validity of three new oil field approvals on the Norwegian Continental Shelf and ask for a temporary injunction.

At issue is whether the State has lawfully adhered to a Supreme Court judgement from 2020, which presupposes that climate impacts of exported combustion emissions would be subject to an environmental impact assessment prior to final approval of new fields, see (in Norwegian) HR-2020-2472-P para. 241 seq. In addition, the plaintiffs argue that the State failed to assess the best interest of children, as required by Article 3 of the Convention on the Rights of the Child, in light of scientific evidence showing that emissions from the contested approvals would exacerbate the risks of deadly extreme weather events and non-linear climate change (tipping points). The Court’s decision is expected by the end of January 2024.

World-wide, climate litigation surged to at least 2341 cases. In addition, climate cases figured prominently in the docket of the Grand Chamber of the European Court of Human Rights (ECtHR), with three climate cases heard in 2023. The European Network of National Human Rights Institutions exceptionally intervened as a third party in all three cases. SVW’s new partner, Jenny Sandvig, pleaded on their behalf in the first case heard in March 2023 (KlimaSeniorinnen et al. v. Switzerland). Decisions are expected in 2024.

Beyond case-specific outcomes, climate litigation increasingly influences legislative developments. For instance, the EU’s new Corporate Sustainability Reporting Directive (CSRD) and the recently agreed Corporate Sustainability Due Diligence Directive (CSDDD) both require that large companies align with the critical temperature target of limiting warming to 1,5 C. This arguably codifies an unwritten standard of conduct interpreted by a District Court in the Hague in a climate case against Shell in 2021 (appealed), in which Shell was required to reduce its emissions, including from sold oil and gas, by 45% by 2030 to limit warming to 1,5 C.

See our take on the new (in Norwegian) EU CSDDD here, and the negotiated drafts here.

Privacy and Data Protection
Another mega trend in 2023 was privacy and data protection. SVW assisted Meta Platforms Ireland Ltd (MPIL) and Facebook Norway AS (FB Norway) in connection with an order from the Norwegian Data Protection Authority (NDPA) to stop behavior-based marketing on Facebook and Instagram. The NDPA believed that there was not sufficient legal basis for the handling of personal data. The order, which was accompanied by a decision on a coercive fine, was made pursuant to GDPR Art. 66 cf. the Personal Data Act § 1. The provision gives the national supervisory authority the right to take urgent measures with legal effect on its own territory. The order received a lot of attention nationally and internationally.

MPIL and FB Norway requested a temporary injunction to prevent the implementation of the order and the coercive fine. The District Court did not grant the request. The companies also instituted legal proceedings to quash the administrative decisions. SVW assisted in both processes.

The NDPA later brought the case before the European Data Protection Board, which concluded in a binding decision in the same way as the NDPA. MPIL and FB Norway consider the decision to be invalid. Pending a final legal clarification, MPIL has launched a new consent model for its services where users can choose between a free version (advertising financed) or a version where you pay for use.

Animal welfare
Lastly, SVW assisted in a Supreme Court case between the Norwegian Society for Protection of Animals and the Kennel Club and several dog breeders, see (in Norwegian) HR-2023-1901-A. At issue was whether further dog breeding of the Cavalier King Charles Spaniel and the English Bulldog violated the Animal Welfare Act Section 25.

The Supreme Court held that the animal organization had legal interest, albeit their claim was of abstract character. On the substantive issues of law, the Supreme Court was divided. A majority (three justices) held that continued breeding of the Cavalier King Charles Spaniel violated Section 25 of the Act, while continued breeding of the English Bulldog was lawful, provided that a specific breeding programme was followed. A minority (two justices) disagreed that continued breeding of the Cavalier King Charles Spaniel violated Section 25.

The Supreme Court’s decision has implications for the breeding of other dog breeds, in addition to other animal species protected by Norwegian law. SVW assisted the Kennel Club and the breeders.