In its advisory opinion in the Saga Subsea case, the EFTA Court that the EEA Agreement applies to activities on the Norwegian continental shelf. This marks a departure from Norway’s longstanding position that the shelf falls outside the Agreement’s geographical scope. The opinion may have far-reaching consequences – not only for offshore labour law, but also for energy regulation, climate and environmental requirements, market access and the State’s regulatory latitude on the continental shelf.
Background and legal issue
On 19 February 2026, the EFTA Court delivered an advisory opinion to the Norwegian Supreme Court in the Saga Subsea case (Case E-6/25). The opinion clarifies that the EEA Agreement applies to petroleum activities on the Norwegian continental shelf.
The issue has its roots in the EEA negotiations in 1992. As also discussed in NOU 2024:7 Norway and the EEA: Development and experience, Norway has since maintained that Article 126 of the EEA Agreement – which provides that the Agreement applies to the “territory” of the Contracting Parties – limits its reach to the land territory, internal waters and the territorial sea.
The EFTA Court’s opinion may have consequences not only for which labour law rules apply to offshore work, but also for energy legislation, the assessment of climate and environmental impacts, rules on market access – and all other regulation of activities on the Norwegian continental shelf.
The opinion may prove to be one of the most significant EEA developments since the Agreement entered into force in 1994, and it goes to the heart of Norway’s claim to regulatory sovereignty over the continental shelf.
In principle, the opinion implies that the entire body of EEA law – including the rules on the free movement of goods, services, capital and persons within the EEA – applies to the regulation of activities on the Norwegian continental shelf. For energy companies, suppliers, staffing agencies and operators in sectors such as offshore wind and carbon storage, this may mean that EU legal acts which Norway has previously excluded from the EEA Agreement on the basis that the continental shelf was not covered will now need to be implemented. Legal acts previously implemented on a voluntary basis may become binding EEA law, and legal acts implemented in Norwegian law but with a limited territorial scope may also come to apply on the shelf.
The opinion is advisory, issued in response to questions from the Norwegian Supreme Court, which will now resume proceedings and decide the case on the merits. Regardless of the outcome before the Supreme Court, the EFTA Court’s advisory opinion may be of considerable significance for Norway going forward.
What the case concerns
Two employees of the staffing company Saga Subsea AS claimed equal pay with the permanent employees of the companies to which they were assigned. They worked on multi-purpose vessels in connection with petroleum activities on the Norwegian continental shelf. The question was whether the Temporary Agency Work Directive (Directive 2008/104/EC), which grants agency workers a right to equal treatment, also applies to agency workers on multi-purpose vessels.
The Norwegian Supreme Court referred the case to the EFTA Court, asking whether the Directive applies to employees of Norwegian staffing agencies who are assigned to work on Norwegian-registered vessels in petroleum activities on the Norwegian continental shelf. Specifically, the Supreme Court asked whether:
“… Article 5 of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (the Temporary Agency Work Directive) is to be interpreted as applying to workers employed by a temporary work agency established in an EEA State for the period during which they are assigned to work for an undertaking established in the same EEA State on board a vessel in connection with petroleum activities on that State’s continental shelf?”
Before the Supreme Court, the parties disagree on how the scope provisions of the Working Environment Act and the Ship Labour Act are to be interpreted, in particular whether the Working Environment Act applies to work on multi-purpose vessels. In the Supreme Court’s view, this may depend on whether the Temporary Agency Work Directive applies to the work performed on those vessels, which in turn raises a question as to the Directive’s – and thus the EEA Agreement’s – scope. The case therefore raises a question that extends beyond the specific labour dispute: does the EEA Agreement apply to activities on the Norwegian continental shelf?
What the EFTA Court held
The EFTA Court’s advisory opinion answers two key questions:
1. Seafarers are not exempt from the Temporary Agency Work Directive
The Directive contains no exemption for seafarers, unlike certain other directives. The Temporary Agency Work Directive therefore applies to all workers, regardless of whether they work on land, on vessels or on offshore installations. For the offshore staffing industry, this means that the equal treatment principle applies in full.
2. The EEA Agreement applies to the continental shelf
This is the principal point of the opinion. The EFTA Court rejected Norway’s argument that Article 126 limits the geographical scope of the EEA Agreement to the land territory and territorial sea.
The Court reasoned that a State’s exercise of sovereign rights over its continental shelf entails that the EEA rules must also apply there. The Court stated that:
“An EEA State which exploits its economic rights to explore and/or exploit natural resources on its adjacent continental shelf cannot evade the application of EEA law provisions designed to ensure protection of temporary agency workers in situations such as those in the main proceedings.”
The Court further held that:
“… the pursuit of an activity taking place on a continental shelf subject to the coastal State’s exclusive rights [falls] within the scope of the EEA Agreement …”
and that:
“… Article 126(1) of the EEA Agreement does not exclude petroleum activities on an EEA State’s continental shelf from the scope of the EEA Agreement.”
The EFTA Court emphasised that differing geographical scopes for EU Member States and EFTA States would conflict with the EEA Agreement’s principles of homogeneity, equality, reciprocity and balance. The Court’s reasoning parallels the CJEU’s judgments in Salemink (C-347/10) and Weber (C-37/00), in which the CJEU held that EU law applies to activities on Member States’ continental shelves when the Member State exercises jurisdiction.
In the EFTA Court’s view, Norway’s position also contained an internal inconsistency. In practice, Norway has “voluntarily” applied several EEA-incorporated directives to the continental shelf – including the CCS Directive (2009/31/EC), incorporated in 2012, the Hydrocarbons Licensing Directive (94/22/EC) and the social security coordination rules – while maintaining that Article 126 prevented any EEA obligations from applying there.
As Halvard Haukeland Fredriksen and Tollef Otterdal Heggen at the University of Bergen pointed out in a comment on Rett24 in September, no EEA Joint Committee decision contains any geographical extension; the EEA Agreement’s geographical scope cannot be extended through individual Joint Committee decisions; and Norway’s claim that these were 'ad hoc exemptions' lacked any legal basis. Fredriksen and Otterdal also warned that even a Norwegian victory could have proved harmful to Norwegian interests: the EU side could have used Norway’s own Article 126 argument to dispute that the CCS Directive or the social security rules apply as EEA law on the continental shelf.
The broader context: a shift in Norwegian EEA policy?
The Saga Subsea case forms part of a broader development in which Norway’s traditional approach to the EEA Agreement is being challenged, pointing towards a potential legal paradigm shift. Norway’s practice of selectively applying EEA rules to the continental shelf whilst maintaining that such application was not legally required may no longer be sustainable. For the Norwegian authorities, this may mean that the negotiating strategy vis-à-vis the EU and ESA needs to be recalibrated. For business, it signals that the regulatory framework for activities on the shelf may be undergoing change.
Before the EFTA Court, Norway argued that, pursuant to Article 126, the EEA Agreement applies only to the 'territory' of the Contracting Parties, and that under international law the continental shelf is not part of the State’s territory but an area over which the State enjoys only sovereign rights. Some may consider it unwise to have pressed the issue to a head – and unwise of the EFTA Court to have addressed it when not strictly necessary to answer whether the Temporary Agency Work Directive applies to employees of Norwegian agencies assigned to other Norwegian undertakings.
Business has to a significant extent relied on the State’s position, as illustrated by Offshore Norge's consultation response on the Net-Zero Industry Act (NZIA) in October 2024, which referenced NOU 2024:7 Norway and the EEA: Development and experience.
What does this mean for Norwegian business?
The opinion’s reach extends beyond the specific dispute concerning equal treatment for agency workers. If the EEA Agreement applies to the continental shelf, then in principle all EEA law that is substantively relevant to the activities conducted there will apply. This means that EEA law and the four freedoms apply in full, and that a range of EU directives and regulations which Norway has previously kept separate from the continental shelf may need to be assessed as EEA-relevant and applicable to activities there.
At this stage, it remains difficult to assess the overall consequences. The potential implications are extensive and far-reaching, and the full picture is difficult to evaluate. The Supreme Court must first decide the case on the merits. Nevertheless, certain sectors and illustrative examples can already be identified.
Offshore labour law
The most immediate consequences affect the offshore staffing industry. Staffing agencies supplying labour to vessels and installations on the continental shelf may need to ensure full equal treatment for agency workers, including in respect of pay, working hours, overtime, rest periods, night work, holidays and other remuneration. The agency bears obligations under the implementing rules, whilst the user undertaking must facilitate the practical realisation of equal treatment.
The obligation no longer turns on whether the individual worker is covered by the Ship Labour Act or the Working Environment Act. The EFTA Court emphasised that this legislative division cannot deprive workers of rights conferred by the Directive, and workers covered by the Ship Labour Act may be able to rely on the incomplete implementation of the equal treatment principle under the Temporary Agency Work Directive.
A further complexity arises from the fact that, from 1 January 2026, Norway requires Norwegian pay and working conditions for all workers on vessels servicing the continental shelf. On the one hand, the EFTA Court’s opinion strengthens worker protection by confirming that the Temporary Agency Work Directive applies. On the other hand, it confirms that the EEA rules on the free movement of services also apply on the shelf. Service providers from other EEA States operating vessels on the Norwegian continental shelf may therefore argue that Norway’s wage requirements constitute a disproportionate restriction on the freedom to provide services under Article 36 EEA. Trade unions may take the view that EEA law undermines gains achieved through national legislation.
For Norwegian employers, the opinion means that agency workers on Norwegian-registered vessels who fall within the scope of the Ship Labour Act may have a right to equal treatment under the Directive – and potentially a right to back pay if they have been engaged on less favourable terms. The Supreme Court will now determine this question in the main proceedings, and will also consider what direct consequences, if any, this may have for Norwegian employers. In any event, it appears likely that the equal treatment rules will need to be implemented for seafarers, and that Norwegian employers will need to review pay and working conditions to ensure compliance.
Energy regulation, environment and methane emissions
The opinion may also affect the assessment of whether a range of new EU legal acts are EEA-relevant. Norway has traditionally argued – and succeeded in its arguments – that legal acts regulating activities on the continental shelf fall outside the EEA Agreement’s scope. That argument has now been significantly weakened. Although EEA relevance is formally determined through EEA Joint Committee decisions, the opinion sets clear parameters for the assessment. It may become more difficult to argue that legal acts regulating offshore activity should not apply to the EFTA States on the basis that such activities fall outside the EEA Agreement’s geographical scope.
- The EU Methane Regulation (Regulation (EU) 2024/1787) requires energy operators to carry out systematic leak detection and repair (LDAR), to measure emissions at source level with associated reporting and verification requirements, and prohibits routine flaring and venting on offshore installations. The Regulation is marked as EEA-relevant but has not yet been incorporated into the EEA Agreement. Following the EFTA Court’s interpretation, it may be more difficult for Norway to resist incorporation on the ground that the continental shelf falls outside the EEA. For industry, this may entail more extensive measurement, reporting and leak detection requirements offshore, with corresponding needs for new systems, technology and contractual risk allocation.
- The Methane Regulation also brings the ACER Regulation (Regulation (EU) 2019/942) into focus, which some may view as politically sensitive in Norway. The Methane Regulation assigns tasks to ACER (the Agency for the Cooperation of Energy Regulators) relating to the monitoring of methane-related costs. Although ACER’s core mandate concerns electricity and gas market regulation, the applicability of EEA law on the shelf may imply that ACER-related obligations have effects on offshore activities.
- The Offshore Safety Directive (Directive 2013/30/EU) was adopted after the Deepwater Horizon accident in 2010. Norway opposed incorporating the Directive into the EEA Agreement on the basis that it regulates activities outside the EEA Agreement’s geographical scope. Norway’s supervisory regime is, in practice, stricter than the Directive’s, but the liability and insurance provisions may entail new or changed obligations. The question is whether Norway’s regime would need to be adjusted to align with the Directive.
- The Marine Strategy Framework Directive (Directive 2008/56/EC) requires Member States to achieve “good environmental status” in their marine waters across eleven qualitative descriptors and expressly covers marine areas under the State’s jurisdiction, including the continental shelf. It also grants environmental organisations a right to complain where good environmental status is not achieved. Norway rejected EEA relevance in 2011 on the basis that the Directive “to a large extent applies to areas outside the EEA Agreement’s geographical scope”.
Carbon storage and the Net-Zero Industry Act
- The Net-Zero Industry Act (NZIA) sets a target of 50 million tonnes of annual CO₂ storage capacity in the EU by 2030 and obliges oil and gas companies to contribute proportionately. Following the opinion, it may be easier for storage capacity on the Norwegian continental shelf to qualify under the EU framework, potentially benefitting holders of CO₂ storage licences on the shelf. At the same time, this would mean that NZIA obligations become binding EEA law, rather than something Norway may choose to comply with voluntarily. Offshore Norge noted in its consultation response on NZIA in October 2024 that “parts of NZIA may affect activities on the Norwegian continental shelf, particularly the provisions requiring oil and gas companies to make CO₂ storage capacity available”, and relied on the Government’s position in NOU 2024:7.
- The CCS Directive (Directive 2009/31/EC) is another example. The Directive is already incorporated into the EEA Agreement (in 2012), and Norway accepted its application to the shelf. By confirming that the EEA Agreement also applies to activities on the continental shelf, the EFTA Court’s opinion clarifies that this was always an EEA obligation, not a voluntary Norwegian extension.
Offshore wind and licensing
Norway’s offshore wind ambitions may face stricter EEA law scrutiny. The freedom of establishment and the freedom to provide services apply on the shelf, and requirements that operators be established in Norway may be challenged. The same may apply to pre-qualification criteria that in practice favour domestic operators.
Qualitative award criteria such as “positive ripple effects”, intended to channel industrial benefits to Norwegian suppliers and local communities, may be constrained. Norway’s ability to use offshore wind development as an industrial policy tool favouring domestic technology, local employment or national operators may be significantly curtailed. The EU Renewable Energy Directive (Directive (EU) 2018/2001, revised in 2023) may also become applicable to offshore wind projects on the continental shelf, with consequences for permitting processes, time limits and the design of support schemes.
The ESA has already approved the Norwegian support scheme for Utsira Nord and the contract for difference for Sørlige Nordsjø II. The opinion confirms that the ESA’s jurisdiction applies as EEA law, not merely as a matter of voluntary Norwegian acceptance.
What happens next?
It remains unclear what concrete follow-on effects the EFTA Court’s advisory opinion will have. The underlying case will now be decided by the Norwegian Supreme Court. The advisory opinion is not formally binding, and the Supreme Court will decide whether the Temporary Agency Work Directive entitles agency workers on multi-purpose vessels to equal pay, including whether this follows from the EEA Agreement applying on the continental shelf.
If the Supreme Court disagrees with, or nuances, the EFTA Court’s advisory opinion, questions may still arise concerning incomplete implementation of EEA law for activities on the continental shelf. The ESA may bring infringement proceedings against Norway for breach of the EEA Agreement, including in relation to legal acts incorporated into the EEA Agreement but not made applicable in Norwegian law to activities on the shelf. In such proceedings, any subsequent EFTA Court judgment finding an infringement would be binding on Norway – and the EFTA Court has already expressed its view on whether the EEA Agreement applies to the continental shelf.
Even if the Supreme Court agrees with the EFTA Court and proceeds on the basis that the EEA Agreement applies on the continental shelf, the practical consequences remain uncertain and will largely depend on how the Norwegian authorities handle the implications. This will likely require extensive mapping and implementation work, which may take time.
