Ot.prp. nr. 70 (1998-99)

Om lov om endringer i lov 4 februar 1977 nr. 4 om arbeidervern og arbeidsmiljø m.v., i lov 4. mars 1983 nr. 3 om statens tjenestemenn m.m. og i lov 27. juni 1947 nr. 9 om tiltak til å fremme sysselsetting

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1 Brev fra EFTA Surveillance Authority av 18. januar 1999 til Norwegian Mission to the European Union

Dear Sir or Madam,

Subject: COM 010.200.048 The Norwegian employment services system

Reference is made to our earlier correspondence regarding the above and the information received.

As you recall, the Authority has raised the issue of whether the Norwegian application of rules concerning employment placement services system complies with Article 59(1) and 54 of the EEA-Agreement, especially as the equivalent provisions of the EC Treaty have been interpreted by the Court of Justice in case C-41/90 Höfner and C-55/96 Job Centre Coop.

From the information received, it would seem that the Public Employment Service is a public undertaking with special or exclusive rights within the meaning of Article 59. The Public Employment Service enjoys a monopoly on the market for the provision of placement services in Norway. These services could extend to nationals of other EEA countries. These facts seem to call for a review under Articles 59(1) and 54 of the EEA-Agreement.

The salient point as regards the Public Employment Service is whether it is manifestly unable to satisfy demand on the market for all types of activity. In Job Centre Co-op, the Court points out, in paragraph 33, that the market for provision of services relating to the placement of employees is both very extensive and extremely diverse. The Court further states, in paragraph 34 that:

«On such an extensive and differentiated market, which is, moreover, subject to enormous changes as a result of economic and social developments, public placement offices may well be unable to satisfy a significant proportion of all requests for services.»

The Authority's preliminary opinion is that there is a high risk that the present Norwegian application of rules concerning placement services is in violation Articles 59(1) and 54 of the EEA-Agreement. However, a more detailed review is needed to reach a final conclusion.

The report from the committee set up to review and assess the present legislation on job placement and hiring out of labour (Blaalidutvalget), was submitted to the Authority in November 1998. We have noted that the committee's proposal is to abolish the present monopoly and liberalise the provision of placement services. The Authority's preliminary opinion is that the liberalisation of placement services as proposed by the committee in NOU 1998:15, would remove the competition concerns.

The Authority notes that the committee has also proposed to liberalise the rules regarding hiring-out of labour. The Authority has not assessed this issue in detail. However, the principles set out in the above mentioned case law would also seem relevant with regard to hiring-out of labour. If only a limited number of companies are licensed to hire out employees and these cannot jointly satisfy the demand for such services in the relevant market(s), this might amount to a breach of Articles 59(1) and 54. It is, therefore, the Authority's preliminary opinion that the committee's proposal would probably remove any competition concerns also with respect to this service market.

We ask you to keep us informed about the further developments in relation to changes in the system for placement services and hiring-out of labour.

Yours faithfully,

Amund Utne


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