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Norway’s Corporate Liability Law: Key Provisions and Interpretations

A recent Supreme Court judgment has shed light on Norway’s corporate liability law, which holds companies accountable for criminal offenses committed by their employees or representatives. Here are the key provisions and interpretations:

Penal Provision

Section 27 of the Penal Code imposes liability on any person, including companies, who contribute to or aid and abet an offense. Prosecutors and courts have discretion to decide whether to impose corporate liability, considering factors such as:

• The severity of the offense
• The preventative effect of the penalty
• The company’s financial capacity

Prosecutorial and Judicial Discretion

The imposition of corporate liability is subject to prosecutorial and judicial discretion. Even if conditions are satisfied, there is no general presumption of corporate liability under Norwegian law. Prosecutors and courts assess each case based on a broad range of factors, including:

• The severity of the offense
• The preventative effect of the penalty
• Whether the company could have prevented the offense

Individual and Corporate Liability

Individuals and companies may be held liable for the same offense. The assessment of corporate liability takes into account whether a penalty should be imposed on any individual person. In some cases, companies may be penalized even if no individual is found guilty or charged with the offense.

Culpability

Companies may be penalized based on objective criteria, regardless of subjective culpability or accountability requirements. However, this raises concerns about:

• Proportionality
• Compatibility with international human rights standards

Successor Liability

A successor entity may be held liable for criminal offenses committed by the target entity prior to a merger or acquisition. The main rule is that criminal liability follows the company’s formal identity, but there are exceptions in cases of asset sales or transfer of shares.

Defences and Exceptions

There are no specific defences against violations of anti-corruption provisions. General defences under the Penal Code may apply, such as:

• Necessity
• Self-defense

The assessment of corporate liability takes into account whether the company had an effective compliance program in place at the time of the violation.

No Formal Defences or Exceptions

There are no formal defences or exceptions available to violations of anti-corruption provisions. No sectors or industries are exempt from these offenses, and there is no system of:

• Safe harbors
• Amnesty programs based on self-reporting or compliance procedures

As Norway’s corporate liability law continues to evolve, companies operating in the country must remain vigilant about implementing effective anti-corruption measures to avoid criminal liability.