No State aid in the Norwegian authorities funding of the Nasjonal digital læringsarena, NDLA

By Decision of 26 June 2014, following the formal investigation procedure, the EFTA Surveillance Authority (ESA) concluded that the financing granted to NDLA does not involve State aid. This is because NDLA is not engaged in an economic activity. Thus, it does not constitute an undertaking within the meaning of EU/EEA competition law (and State aid rules). NDLA performs a task that falls within the scope of public education.

In 2006, the Norwegian government decided to introduce free teaching material for secondary schools and to encourage the use of digital learning material. The county municipalities were invited to cooperate in the purchase and development of such digital learning material. 18 county municipalities decided to set up an inter-county cooperation under the name of NDLA, i.e. all with the exception of the county municipality of Oslo.

In short, NDLA is organised as an inter-county cooperation body under Article 27 of the Norwegian Local Government Act (lov 25. september 1992 nr. 107 om kommuner og fylkeskommuner). It develops and purchases digital learning material for Norwegian secondary schools. The material is made available to Norwegian pupils on a designated website free of charge.

In 2010, ESA received a complaint arguing that NDLA was an undertaking and that the funds it had been granted amounted to illegal State aid. The complaint was lodged by Den Norske Forleggerforening, the Norwegian Publishers Association.

In 2011, having conducted a preliminary assessment procedure, ESA concluded that these funds did not constitute State aid within the meaning of Article 61(1) EEA since NDLA was not engaged in an economic activity.[1] Thus, it did not constitute an undertaking. In particular, the development of digital learning material fell within the scope of public education. Moreover, NDSL was an integrated part of the public administration, which provided its services to the Norwegian public free of charge.

In 2012, the EFTA Court annulled the 2011 decision on formal grounds.[2] In essence, in spite of serious difficulties as regards the legal situation of NDLA and the presence of aid in its favour, ESA failed to open the formal investigation procedure. In 2013, as a result of that judgement, ESA opened a formal investigation into the NDSL funding.[3]

Today, ESA confirmed its finding on absence of aid in favour of NDLA as a result of the non-economic character of its activities. As it reiterated, NDLA performs a task that falls within the scope of public education.

[1] 311/11/COL: EFTA Surveillance Authority Decision of 12 October 2011 on alleged aid granted to Nasjonal digital læringsarena, OJ C 92, 29.3.2012, p. 3.

[2] E-1/12 - Den norske forleggerforening v EFTA Surveillance Authority,  EFTA Ct. Rep [2012] p. 1040.

[3] 136/13/COL: EFTA surveillance Authority Decision of 27 March 2013 on opening the formal investigation into potential aid to the Nasjonal digital læringsarena (NDLA), OJ C 229. 8.8.2013, p. 31.