Anti-Corruption 2024 Comparisons

Norway has ratified the following international conventions relating to anti-bribery and anti-corruption:

• the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997);
• the Council of Europe Criminal Law Convention on Corruption (1999);
• the Council of Europe Civil Law Convention on Corruption (1999);
• the Additional Protocol to the Council of Europe Criminal Law Convention on Corruption (2003); and
• the United Nations Convention against Corruption (2003).

In 2003, general criminal provisions prohibiting bribery and corruption were included in the Norwegian Penal Code. In the current Penal Code of 2005 (the “Penal Code”), the relevant provisions are Sections 387, 388 and 389 (the “Anti-corruption Provisions”). Section 387 covers “corruption”. Section 388 stipulates a higher penalty for aggravated or gross corruption and describes factors to be taken into consideration in deciding whether the corruption is aggravated. Section 389 covers “trading in influence”.

There are no guidelines produced for the interpretation and enforcement of the Anti-corruption Provisions specifically. In general, the preparatory works to the Penal Code, as well as case law from the Norwegian Supreme Court, provide the most important guidance for the interpretation of the law, including the Anti-corruption Provisions.

There were no significant amendments to the Anti-corruption Provisions in 2023.

Bribery and Corruption

The Anti-corruption Provisions are broad and general in scope, in the sense that they cover active and passive corruption, corruption in the public and private sectors and corruption committed in Norway and abroad. The Anti-corruption Provisions do not expressly use the term “bribery”, but bribes are considered corrupt acts and are thus covered by the definition in the Penal Code.

Passive corruption occurs when a person, for themselves or others, demands, receives or accepts an offer of an “improper advantage” in “connection with” the conduct of their “position, office or performance of an assignment” in Norway or abroad (Section 387, first paragraph, letter a).

Active corruption occurs when a person gives or offers any person an “improper advantage” in “connection with” the conduct of the passive party’s “position, office or performance of an assignment” in Norway or abroad (Section 387, first paragraph, letter b).

A description of the relevant requirements follows below.

Improper Advantage

It follows from the above that Section 387 prohibits the giving, offering, receiving or accepting of an “improper advantage”.

The term “advantage” is understood to mean anything of value that the passive party finds to be in their interest, or from which a benefit can be derived. Usually, advantages would be of economic value, such as payments, goods, services or entertainment. However, benefits of no economic value could also be considered to be advantages within the meaning of Section 387, such as something that confers a positive reputational impact, or being accepted into a private association.

In addition, the advantage must be considered “improper”, which means that the advantage must be clearly blameworthy, as opposed to merely criticisable.

Whether an advantage is considered “improper” must in each case be determined by a concrete assessment of the totality of the case at hand, based on a number of factors. Although it is not strictly necessary that the advantage is offered or given with the intent of influencing the passive party in their performance of duties, purpose or intent would nonetheless be an important factor when determining impropriety. Only in exceptional cases will there be grounds for criminal liability if there is no such intent. Other relevant factors would, inter alia, be the nature and value of the advantage, whether the act involves public officials, whether the advantage is given openly and transparently, and whether there has been a breach of internal ethical rules of the company or of practices within the relevant industry.

Gifts and Hospitality, etc

Hospitality expenditure, gifts and promotional expenditure may, in principle, be considered corruption. However, the threshold for such advantages to be considered as an “improper advantage” would be rather high.

Relevant sources of law do not define any minimum threshold amount that must be exceeded in order for hospitality expenditure, gifts and promotional expenditure to be considered “improper”. In general, nominal or modest gifts and hospitality would not be considered “improper” unless they can be considered excessive due to recurrence and/or improper due to contextual circumstances, such as an ongoing tender process in which the parties participate. Also, according to case law, when a benefit (typically hospitality) is not of a lasting nature, but is consumed in connection with an event that in itself is relevant to an employee’s (the passive party’s) position and the employee participates in the event openly, it will normally not be considered as an improper benefit under the corruption provision.

“In Connection With” the Receiver’s “Position, Office or Performance of an Assignment”

It is a condition that the improper advantage is offered, given, received or accepted “in connection with” the “position, office or performance of an assignment” of the passive party. Advantages offered to, or accepted by, the passive party in their role as a private individual fall outside the scope of Section 387.

The term “position, office or performance of an assignment” shall be interpreted broadly. It includes all types of public and private employment or authority, including board positions, political duties or the performance of consultancy services.

Normally, the improper advantage is provided in return for something that the receiver does or omits to do in the performance of their professional duties, to benefit the active party or someone they wish to favour. However, the advantage does not have to be related to a specific act or omission. Consequently, pure “greasing” may also be covered by Section 387.

Furthermore, Section 387 does not require that the passive party actually conducts any of the acts they have been encouraged to perform, or that they are in a position to do so.

The Supreme Court recently clarified that “in connection with” does not entail a requirement of causality, see the Supreme Court’s decision HR-2022-1278-A as referred to in 7.6 Recent Landmark Investigations or Decisions Involving Bribery or Corruption.

Facilitation Payments

The Penal Code does not expressly mention facilitation payments. However, it follows from the preparatory works that offering, giving, receiving or accepting facilitation payments may be considered as “corruption” under Section 387, provided that all the conditions for criminal liability are met.

Normally, the threshold for deeming facilitation payments to constitute an “improper advantage” would be rather high, given that the payment would typically be for services that the active person is entitled to receive. Relevant elements in the impropriety assessment would, among other things, be the value of the advantage provided (eg, amount paid), whether the payment is in line with local business practices, and whether the situation may be characterised or perceived as extortion (eg, if a person, when travelling abroad, feels compelled to pay a foreign public official a small payment for the return of their passport). Payments in such extortion situations will generally not be considered as corruption under Norwegian law.

Aggravated Corruption

Elements to be taken into consideration in determining whether the corruption is “aggravated” are set out in Section 388, letters a–d, which includes whether:

• the act was carried out by or towards a public official or in any other way violates the special trust attached to a position, office or assignment;
• the act resulted, or could have resulted, in a considerable financial advantage;
• there was a risk of considerable harm; and
• false accounting information or documentation was recorded or prepared.

Public Officials

The Anti-corruption Provisions cover corruption within the private and public sectors, including bribery of public officials. In general, corruption involving public officials would be considered more aggravating than commercial bribery. As noted above, the involvement of public officials is relevant when assessing whether the corruption shall be considered “aggravated”.

The Anti-corruption Provisions of the Penal Code do not include a definition of “public official”. However, the term is interpreted broadly, and does at least comprise individuals employed or otherwise engaged by, or instructed by, the government and state or municipal agencies in addition to individuals holding positions of “public officials” as defined in other provisions of the Penal Code or by laws other than the Penal Code. Depending on the circumstances, the term may also include individuals employed or engaged with state-owned entities.

Trading in Influence

Trading in influence is criminalised by Section 389 of the Penal Code (see 2.2 Influence-Peddling).

Culpability

The Anti-corruption Provisions apply to intentional violations (Sections 21 and 22 of the Penal Code). The intent requirement will be met in situations where a person commits a corrupt act with the awareness that the act, with certainty, or most likely, fits the description of the offence or considers it possible that the act fits the description of the offence, and chooses to act even if that should be the case. Furthermore, the provisions apply to any person who contributes to (aids and abets) the offence (Section 15). Attempts to violate the Anti-corruption Provisions may also be punishable (Section 17).

Violations of the Anti-corruption Provisions may give grounds for corporate criminal liability, provided that the violation/contribution to the violation was committed by persons “acting on behalf” of the company (see 3.3 Corporate Liability).

Failure to Prevent Corruption

Failure to prevent violations of the Anti-corruption Provisions is not an offence (see 6.1 National Legislation and Duties to Prevent Corruption).

Section 389 of the Penal Code criminalises “trading in influence”. As noted in 2.1 Bribery, this offence covers active and passive trading in influence, in the public and private sector, committed in Norway or abroad.

According to Section 389, first paragraph, letters a and b, trading in influence occurs when a person:

• for themselves or others “demands, receives or accepts an offer” of an “improper advantage” in “return for influencing the conduct of” a third party’s “position, office or performance of an assignment”; or
• gives or offers any person an “improper advantage” in “return for influencing the conduct of” a third party’s “position, office or performance of an assignment”.

Typically, trading in influence occurs when an influencing agent secretly requests, receives or accepts an offer of an advantage in return for exerting influence on a third person’s (ie, the decision-maker’s) professional conduct, who is not aware of the scheme and does not obtain any benefits from it. Both the influencing agent and the person offering or giving the advantage would be exposed to liability. However, Section 389 does not require that the influencing agent actually has the capacity/powers to influence the decision-maker. Furthermore, Section 389 does not require that any advantage has been attained.

When assessing whether the advantage is “improper” within the meaning of Section 389, it is considered to be of particular importance whether the influencing agent – for example, a lobbyist – openly informs the decision-maker that they are acting on behalf of another person. If the influencing agent is not transparent about representing another person, such conduct may be regarded as improper. If so, the act would be punishable under Section 389 provided that the other conditions for criminal liability are met.

The Accounting Act (1998) and the Bookkeeping Act (2004) require companies to keep adequate books and records.

According to the Penal Code, Sections 392–394, violations of provisions regarding bookkeeping and the documentation of accounting information, annual accounts, annual reports or storing accounts are criminally punishable.

The penalty provisions are general in nature and apply to violations of all provisions relating to accounting and bookkeeping. Thus, the provisions do not only apply to violations of the Accounting and Bookkeeping Acts, but also, for example, to violations of accounting rules in tax legislation.

The Penal Code does not contain any provisions that specifically address the misappropriation of public funds by a public official, the unlawful taking of interest by a public official, embezzlement of public funds by a public official or favouritism by a public official.

However, the general provisions related to, for example, the misappropriation of funds, fraud, or breach of financial trust (Sections 324, 371 and 390 respectively) may be applicable. In respect of the latter, the penal provision for breach of financial trust also specifically mentions that it would be considered an aggravating factor that the act was carried out by a public official (Section 390, second paragraph).

It should also be noted that, according to the general rules on the determination of penalties, it is an aggravating circumstance that a criminal offence was committed in the course of public service (Section 77 of the Penal Code).

It is commonly understood that the wording of Sections 387 and 388 of the Penal Code is wide enough to include the channelling of bribes through third parties such as family members, nominee companies, agents or other intermediaries. Case law shows that both legal and natural persons have been held liable for violations of Sections 387 and 388 by engaging third parties to participate in bribery or other corrupt transactions on their behalf.

Third parties involved in such offences may be held liable for criminal complicity (Section 15 of the Penal Code).

Criminal acts are not punishable when the limitation periods included in the Penal Code have expired (Section 85 of the Penal Code).

The limitation period(s) for criminal liability under Norwegian law depend/depends on the maximum statutory penalty prescribed for the various criminal offences.

According to Section 86 of the Penal Code, the limitation period for violations of the Anti-corruption Provisions committed by individuals are as follows:

• corruption (Section 387) – five years;
• aggravated corruption (Section 388) – ten years; and
• trading in influence (Section 389) – five years.

With respect to corporate criminal liability, the limitation period shall be calculated on the basis of the limitation period that would be applicable if the act was committed by an individual (Section 89 of the Penal Code).

Provisions concerning the start and interruption of limitation periods are included in Chapter 15 of the Penal Code; see, especially, Sections 87, 88 and 89.

According to the principle of territoriality under Section 4 of the Norwegian Penal Code, as a main rule, Norwegian criminal law, including the Anti-corruption Provisions, applies to criminal acts conducted in Norway (including in Svalbard and on Jan Mayen) and in certain specified places such as the Norwegian Exclusive Economic Zone and onboard Norwegian vessels.

The extraterritorial effect of Norwegian criminal law is mainly set out in Section 5 of the Penal Code. The Penal Code applies to violations of the Anti-corruption Provisions committed abroad by persons who are Norwegian nationals or domiciled in Norway, and to violations committed abroad on behalf of a corporate entity registered in Norway (Section 5, first paragraph, No 12). In addition, the Anti-corruption Provisions may apply retroactively to acts committed abroad; inter alia, to acts committed on behalf of a foreign entity that after the time of the act has transferred the entirety of its operations to Norway (Section 5, second paragraph). Thus, the Anti-corruption Provisions have extraterritorial reach.

Notably, such acts committed abroad may be prosecuted in Norway pursuant to the Penal Code, even if the activity does not constitute a criminal offence under local law. This is a consequence of the amendments made to Section 5 of the Penal Code as of 1 July 2020, which exempted foreign violations of, inter alia, the Anti-corruption Provisions from the general requirement of dual criminality. For example, the amendment makes clear that Norwegian companies may be held responsible for violations of the Anti-corruption Provisions committed by a foreign national acting on behalf of the company abroad, also when such actions would not constitute a criminal offence in the country in which they took place.

The Penal Code also generally applies to acts that Norway has a right or an obligation to prosecute pursuant to agreements with foreign states or otherwise pursuant to international law (Section 6).

In addition, Section 7 of the Penal Code provides that when the criminality of an act is contingent on, or affected by, an actual or intended effect, the act is also deemed to have been committed at the place where the effect has occurred or was intended to be caused.

Corporate criminal liability for violations of the Anti-corruption Provisions follows from the general provisions included in Sections 27 and 28 of the Penal Code. The Supreme Court has stated that corruption offences lie within the core area of corporate criminal liability.

The Affiliation Requirement (“on Behalf of”)

A corporate entity may be held criminally liable when a penal provision is violated by a person “acting on behalf” of a “company”. The term “company” is interpreted broadly, and includes companies, associations, foundations, organisations and public bodies. According to case law and the preparatory works to the Penal Code, a person would be “acting on behalf” of the company only if both the offender and the act have a certain connection with the company.

Complicity

According to Section 15 of the Norwegian Penal Code, a penal provision also applies to any person (including companies, in accordance with Section 27 of the Penal Code) who contributes to (aids and abets) the offence, unless otherwise provided.

Prosecutorial and Judicial Discretion

The imposition of corporate liability is subject to discretion (prosecutorial and of the courts) (Sections 27 and 28). This means that even if the conditions of Section 27 are satisfied, there is no general presumption of corporate liability under Norwegian law; ie, the imposition of a corporate penalty depends on all the circumstances of the case.

When deciding whether to impose liability on a company (and if so, the level of sanctions), the prosecutors and courts will conduct a broad overall assessment primarily based on the (non-exhaustive) list of factors set out in Section 28, including:

• the severity of the offence;
• the preventative effect of the penalty;
• whether the company could have prevented the offence by use of guidelines, instruction, training, checks or other measures;
• whether the offence has been committed in order to promote the interests of the company; and
• the financial capacity of the company.

In addition, according to case law, it is relevant to assess whether the company has taken appropriate measures to remedy the violation after becoming aware of it (so-called self-cleaning).

Individual and Corporate Liability for the Same Offence

Individuals and companies may – and often will – be held liable for the same offence. However, whether a penalty is imposed on any individual person is a relevant factor when assessing whether a penalty should be imposed against the company (Section 28, letter g).

Culpability

Companies may also be penalised if the individual who committed the offence is not prosecuted or convicted. In fact, the wording of Section 27 allows for corporate liability even if the subjective culpability or accountability requirements of the Penal Code are not met for the individual who committed the offence on behalf of the company. This would, in practice, mean that the Penal Code allows for penalising a company on the basis of strict liability; ie, even if no individual may be found guilty of, or charged with, the offence.

In a Supreme Court judgment of 15 April 2021, the Supreme Court held that such a strict liability requirement was not in conformity with the European Convention on Human Rights (ECHR) and case law from the European Court of Human Rights. However, in HR-2023-1212-A, the Court has now ruled that corporate punishment on an objective basis is not contrary to the ECHR, as long as it is not disproportionate. Following these two judgments, several issues remain unclear, including what threshold should be applied for imposing strict liability. A proposal for changes to the corporate criminal liability provision is currently under consideration; see 8. Review.

Successor Liability

Under Norwegian law, a successor entity may be held liable for criminal offences by the target entity that occurred prior to, for example, a merger or acquisition.

If a company undergoes “identity changes” after a criminal offence has been committed, criminal liability shall be placed at the company on behalf of which the offence was committed. This is currently not further regulated by law and depends on a complex assessment, where the guidelines are set out in case law and legal theory.

In summary, the main rule is that the criminal liability follows the company’s formal identity; ie, as it is established in accordance with the rules that apply to the type of company in question. This means that, for example, the transfer of shares in a company does not change which subject is criminally liable (Supreme Court Ruling of 2002 on p1722). In such cases, criminal liability would transfer with the target entity (ie, the entity being sold).

In the event of an asset sale where the activity in the original company is transferred to another company but the original company still formally exists, the acquiring company will, on the other hand and as a general rule, not be held criminally liable for any prior criminal offence. There may, however, be exceptions to this rule if the purchaser has taken over a complete division of a company with all activities, employees and contracts.

The Penal Code does not contain any concrete defences that apply specifically to the Anti-corruption Provisions.

Any of the general defences within the Penal Code may apply as defences for violations of the Anti-corruption Provisions. For example, it would be a defence against violations of an Anti-corruption Provision if the violation is committed on grounds of necessity (Section 17) or self-defence (Section 18).

In respect of corporate criminal liability, some of the discretional elements to be considered when determining whether corporate liability should be imposed contain defence-related elements (Section 28, and see 3.3 Corporate Liability). In particular, it would be relevant to assess whether the company could have prevented the offence by the use of guidelines, instruction, training, checks or other compliance measures (Section 28, letter c). A defence against liability for corruption violations committed “on behalf of” the company could therefore be to demonstrate that the company had in place an effective anti-corruption compliance programme at the time of the violation, and that the company could not reasonably have acted differently in its efforts to prevent the violation.

It is important to note, however, that the assessment of such defence is subject to (prosecutorial/judicial) discretion, and would not automatically absolve the company of corporate liability.

As there are no formal defences available to violations of the Anti-corruption Provisions of the Penal Code, there are no such exceptions.

There are no de minimis exceptions for the Anti-corruption Provisions of the Penal Code.

The Anti-corruption Provisions of the Penal Code apply to all natural and legal persons acting within the jurisdiction of the Penal Code (see 3.2 Geographical Reach of Applicable Legislation), without exception. Consequently, no sectors or industries are exempt from these offences.

Under Norwegian law, there is no formal system of safe harbours or amnesty programmes based on self-reporting or having in place adequate compliance procedures or remediation efforts.

However, self-reporting may reduce the penalty imposed for the violation (see 5.2 Guidelines Applicable to the Assessment of Penalties, 6.3 Disclosure of Violations of Anti-bribery and Anti-corruption Provisions and 7.4 Discretion for Mitigation). Moreover, efforts to remedy the violation after becoming aware of it (ie, self-cleaning) are relevant when determining whether corporate liability should be imposed, and, if so, when determining the level of sanctions imposed (see 3.3 Corporate Liability and 5.2 Guidelines Applicable to the Assessment of Penalties).

When committed by individuals, the penalties for corruption (Section 387 of the Penal Code) and trading in influence (Section 389 of the Penal Code) may be imprisonment for a term of up to three years and/or a fine. For legal persons, the corporate penalty for such offences would be a fine, which may be combined with loss of the right to operate or prohibitions on operation in certain forms.

In respect of penalties upon conviction for aggravated corruption (violation of Section 388 of the Penal Code), the penalties for natural persons may be a term of imprisonment up to ten years. For legal persons, the penalty may be a fine (unlimited amount), which may be combined with loss of the right to operate or prohibitions on operation in certain forms.

In addition, both natural and legal persons may face measures such as the confiscation of proceeds arising from the violation (Sections 66–76 of the Penal Code).

As further described in 5.1 Penalties on Conviction, the penalties for violations of the Anti-corruption Provisions are fines (no minimum or maximum limit) and/or imprisonment for certain maximum terms. The minimum term of imprisonment for such violations is 14 days (Section 31, second paragraph).

Within these minimum and maximum limits, Norwegian courts have much leeway in the determination of appropriate penalties.

General Statutory Guidelines

As a starting point, Sections 77 and 78 of the Penal Code contain general guidelines that apply to the determination of appropriate penalties for violations of the Penal Code within the applicable minimum and maximum limits. In addition, Sections 79 and 80 provide a basis for increasing or decreasing the maximum and minimum penalties, respectively, on a case-by-case basis.

In respect of general aggravating circumstances to be given particular consideration, Section 77 includes factors such as whether the offence:

• carried a considerable potential for harm;
• was intended to have a substantially more serious outcome;
• was committed by multiple persons acting together;
• was committed in the course of public service; or
• was perpetrated by violating a special trust.

In respect of general mitigating circumstances to be given particular consideration, Section 78 includes factors such as whether the offender:

• has prevented, reversed or limited the harm or loss caused by the offence, or sought to do so;
• made an unreserved confession, or contributed significantly to solving other offences; or
• acted on the basis of a dependent relationship to another participant.

Additionally, Section 78 provides a basis for prosecutors and courts to reduce the penalty due to the offender’s self-reporting (including giving an unconditional confession); see also 6.3 Disclosure of Violations of Anti-bribery and Anti-corruption Provisions. As regards the size of such “discount”, the Director of Public Prosecutions has expressed that, in general, a discount of between a quarter and a third would be considered appropriate. However, an overall assessment of all the relevant circumstances of the case must always be made.

Moreover, Section 80 provides a list of circumstances that would allow for the imposition of a penalty below the minimum penalty or a less severe type of penalty. Inter alia, this may be done when the offender, without knowing that they were under suspicion, has, to a significant degree, prevented or reversed the harm caused by the offence, or has made an unreserved confession.

In general, repeated offences may be more severely punished. Section 77, letter k, provides that an aggravating factor when determining an appropriate penalty is whether the act was committed by a person who has previously been the subject of a criminal sanction for similar acts or other acts of relevance to the case. Moreover, Section 79, which allows for the imposition of penalties exceeding the maximum penalty for the offence, provides that a sentence of imprisonment may be increased up to double length; inter alia, when a previously convicted person has again committed a criminal act of the same nature as one for which they have previously been convicted.

In respect of fines, Section 53 provides that when assessing the size of the fine to be imposed, particular weight shall, in general, be given, in addition to such factors that are generally given weight in assessing penalties, to the offender’s income, assets, responsibility for dependants, debt burden and other circumstances affecting financial capacity.

Corporate Criminal Liability

With respect to corporate criminal liability, the size of the fine to be imposed is determined based on the non-exhaustive list of factors set out in Section 28 of the Penal Code (see 3.3 Corporate Liability).

Law Enforcement/Case Law

In addition, the Norwegian National Authority of Investigation and Prosecution of Economic and Environmental Crime (ØKOKRIM) will publish information regarding the factors ØKOKRIM considers when issuing a penalty notice, including the size of the fine.

Also, case law may provide guidance for the assessment of appropriate penalties for corruption offences. For example, the Supreme Court has emphasised that the preventative effect of a penalty is of particular importance when determining appropriate penalties for corruption committed in the course of public service.

Norwegian legislation does not provide a legal duty to prevent corruption by setting up a compliance programme (or similar preventative measures). Consequently, a failure to prevent corruption is not an offence under Norwegian law.

Having said that, whether the company could have prevented a corruption offence by the use of internal guidelines, instruction, training, checks or other measures is an important factor when determining whether corporate liability should be imposed, and, if so, the size of the fine (Section 28 of the Penal Code, and see 3.3 Corporate Liability and 4.1 Defences). Implementing effective anti-corruption compliance programmes may therefore reduce the risk of criminal liability.

ØKOKRIM has expressed certain (soft-law) expectations with respect to the measures companies should implement to prevent corruption related to their business. Among other things, ØKOKRIM suggests that companies look to the DOJ Evaluation of Corporate Compliance Programs (from the US Department of Justice) and the UK Ministry of Justice’s guidance to the UK Bribery Act for inspiration in relation to compliance programmes.

Lobbying activities are not directly regulated by Norwegian legislation.

However, the Quarantine Act (LOV 2015-06-19-70) sets out rules on quarantine in certain situations when politicians, public officials/government employees transfer to new positions, for example, to companies in the private sector that carry out lobbying activities. The Quarantine Act also has rules on the obligation to provide information in connection with transfers covered by the act.

Also, as noted in 2.1 Bribery, Section 389 of the Penal Code criminalises active and passive “trading in influence” in the public and private sector, committed in Norway or abroad.

Typically, trading in influence occurs when an influencing agent (eg, a lobbyist) demands, receives or accepts an offer of an improper advantage in return for secretly exerting influence on a third person’s (ie, a decision-maker’s) professional conduct. Both the influencing agent (eg, a lobbyist) and the person offering or giving the advantage are exposed to criminal liability, see 2.2 Influence-Peddling.

When assessing whether the advantage is “improper” within the meaning of Section 389, particular importance is placed on whether the influencing agent (eg, a lobbyist) openly informs the decision-maker that they are acting on behalf of another person. If the influencing agent is not transparent about representing another person (by clearly informing the decision-maker of this fact), and does not have reason to believe that the decision-maker otherwise has knowledge of this, such conduct will often be regarded as “improper”.

However, it is stated in the preparatory works to Section 389 that the influencing agent is generally not required to inform the decision maker about who they are acting on behalf of, or of the type or value of the advantage they have demanded, received or accepted in this regard.

Other relevant circumstances when assessing whether the advantage was “improper” is typically the value and type of advantage that is demanded, received or accepted by the influencing agent, and who the decision-maker is (eg, whether the decision-maker holds a position or office that is especially important to safeguard from improper influence, such as members of the national assembly or the Supreme Court).

Norwegian law does not require individuals or companies to report any violations, or suspicion of violations, of the Anti-corruption Provisions.

However, as further described in 5.2 Guidelines Applicable to the Assessment of Penalties and 7.4 Discretion for Mitigation, self-reporting/admission of guilt could be of significant importance, both in the determination of whether to prosecute and at the sentencing stage.

Companies are encouraged by the enforcement authorities (such as ØKOKRIM) to disclose any suspicions of, for example, economic crime, and to do so as early and thoroughly as possible. Among other things, companies are encouraged to share the results of any internal investigations relating to the (suspected) violation. Should a criminal investigation be opened, companies are encouraged to co-operate with the investigative authorities.

In general, the timing and extent of the willingness to disclose information and co-operate with the authorities will be taken into account when the authorities exercise procedural discretion related to the case. For example:

• when considering whether to initiate investigative steps such as searching the company’s premises or seizing documents;
• whether to prosecute, and, if so, the nature of the charges; and
• when assessing company liability and deciding the amount of penalty to be imposed.

Right to Report Objectionable Conduct

There is protection afforded to whistle-blowers in Norway.

The protection of whistle-blowers follows from the Norwegian Act relating to the working environment, working hours and employment protection, etc, of 2005 No 62 (the “Working Environment Act”).

According to Section 2 A-1 (1) of the Working Environment Act, an employee has the right to report “censurable conditions” (ie, matters of concern, hereinafter referred to as “objectionable conduct”) relating to the employer’s business. From the same paragraph, it follows that this right is also granted to hired workers.

The term “objectionable conduct” includes matters that represent contravention of legal rules, written ethical guidelines or broadly accepted ethical norms in society (Section 2 A-1 (2)). Examples of “objectionable conduct” include:

• danger to life or health;
• danger to the environment or climate;
• corruption or other economic crimes;
• abuse of authority;
• unsatisfactory working environment; and
• breach of data privacy.

A notification may be made anonymously, and the employer would, to the extent possible, also be required to follow up on anonymous notifications.

The right to report objectionable conduct does not extend to matters that solely concern the employee’s own working conditions, unless such matters relate to conduct clearly defined as objectionable in Section 2 A-1 (2), as set out above. Examples of matters that would not normally be considered “objectionable conduct” within the meaning of the Working Environment Act include dissatisfaction about one’s salary, workload, distribution of work or occupational disagreements.

Procedure for Notifications

An employee may report concerns through various channels, including internally to the employer or a representative of the employer, in accordance with internal reporting procedures, in accordance with relevant reporting obligations or via a health and safety union or legal representative (Section 2 A-2 of the Working Environment Act). An employee may also report externally to a public supervisory authority or other public authority. In certain (albeit more limited) circumstances, an employee may also report directly to the media or the public.

Prohibition Against Retaliation

The right to report concerns is safeguarded by way of a prohibition against retaliation.

It follows from Section 2 A-4 of the Working Environment Act that retaliation against an employee or hired worker who notifies their employer or hirer of any objectionable conduct, in accordance with the procedure set out above, is prohibited. The prohibition against retaliation also applies in cases where the employee or hired worker has signalled their future intention to report; for instance, by providing information about objectionable conduct.

In this context, retaliation would include any detrimental act, practice or omission that is a consequence of, or reaction to, the employee or hired worker’s report. Examples of “detrimental acts” include:

• threats, harassment, arbitrary discrimination, social exclusion or other improper conduct;
• warnings, change of duties, relocation or demotion; and
• suspension, dismissal, summary discharge or disciplinary action.

There are no general financial incentives for whistle-blowers to report bribery or corruption in Norway.

However, an employee may, in certain circumstances, have an obligation to notify their employer of objectionable conduct in cases where the employee becomes aware of circumstances such as (Section 2–3 of the Working Environment Act):

• faults or defects that may involve a danger to life or health;
• harassment or discrimination in the workplace; or
• an employee suffering injury at work or diseases believed to be a result of the work or working conditions.

Please note that there are also some regulated professions that have an obligation to notify relevant authorities of suspicious transactions or activities, such as auditors and employees of financial institutions.

There is also an obligation for companies subject to the requirements of the Norwegian Act relating to measures to combat money laundering and terrorist financing of 1 June 2018 No 23 (the “Anti-money Laundering Act”) to report circumstances giving grounds for suspicion of money laundering or terrorist financing to the authorities (Section 26 of the Anti-money Laundering Act). This obligation also applies personally to board members, management representatives, employees and others acting on behalf of the company.

The key whistle-blowing provisions are found in Chapter 2 A of the Working Environment Act, as detailed in 6.4 Protection Afforded to Whistle-Blowers. They include:

• Section 2 A-1 on the right to report objectionable conduct (see 6.4 Protection Afforded to Whistle-Blowers);
• Section 2 A-2 on the procedure for reporting concerns (see 6.4 Protection Afforded to Whistle-Blowers);
• Section 2 A-3 on the employer’s duty to act in response to reported concerns;
• Section 2 A-4 on the prohibition against retaliation (see 6.4 Protection Afforded to Whistle-Blowers);
• Section 2 A-5 on redress and compensation in cases of breach of the prohibition against retaliation;
• Section 2 A-6 on the requirement for employers to prepare procedures for internal reporting, applicable to companies with at least five employees;
• Section 2 A-7 on the duty of confidentiality in connection with external reporting to public authorities; and
• Section 2 A-8 on the role of the Discrimination Tribunal in disputes relating to breaches of the prohibition against retaliation of whistle-blowers.

Under Norwegian law, enforcement of violations of the Anti-corruption Provisions of the Penal Code is a criminal matter, governed by the Norwegian Criminal Procedure Act (1981).

ØKOKRIM is the Norwegian national authority for the investigation and prosecution of economic and environmental crimes, including violations of the Anti-corruption Provisions. ØKOKRIM is simultaneously a public prosecutors’ office reporting to the Director of Public Prosecutions, as well as a centralised specialist police agency, organised under the National Police Directorate.

In practice, cases involving corruption offences may also be handled by the specialist teams for economic crimes in the local police districts.

In such cases, the police districts may – if necessary – request investigatory support from ØKOKRIM’s designated Assistance Team. The nature and extent of the support is determined on a case-by-case basis. By way of its support and guidance, ØKOKRIM contributes to building and maintaining competency in the police districts as well as to solving the cases. ØKOKRIM may also support the various special police agencies, such as the Norwegian Bureau for the Investigation of Police Affairs, which investigates criminal offences committed by police officers.

Particularly serious violations of economic crimes are handled by ØKOKRIM itself. In this regard, it should be noted that ØKOKRIM (unlike the police districts) has discretionary power to decide which cases to investigate. Its decision in this regard shall, in particular, be based on:

• the scope and complexity of the investigation/its economic size;
• whether the case is international/cross-border; and
• whether the nature of the case is such that an investigation should be opened as a matter of principle.

In respect of court proceedings, there are no specialised courts or judges for criminal cases in the Norwegian courts system. All courts and judges competent to handle criminal cases may handle cases involving violations of the Anti-corruption Provisions.

The Norwegian Criminal Procedure Act also applies to the investigation of corruption cases.

Due to the fact that aggravated corruption can be punished with ten years’ imprisonment, the police may – in addition to search and seizure of evidence – in such cases also use coercive measures, such as different forms of surveillance.

Norwegian criminal procedure does not currently contain any formal system for non-trial resolutions such as plea agreements, deferred prosecution agreements and non-prosecution agreements. However, criminal cases may be resolved through penalty notices; ie, resolution of a case without court proceedings (Chapter 20 of the Criminal Procedure Act).

Penalty notices are frequently used in cases regarding corporate criminal liability; eg, in corruption and other economic crime cases. If the penalty notice is not accepted by the company (or person) charged, the notice will serve as an indictment and court proceedings will be initiated.

In practice, and as mentioned in 6.3 Disclosure of Violations of Anti-bribery and Anti-corruption Provisions, the willingness to self-report/admit guilt and co-operate with the authorities will be taken into account; eg, in the prosecutorial discretion on whether to impose corporate liability and with respect to the level of the fine.

Furthermore, self-reporting and admission of guilt may also be considered by the court when determining an appropriate penalty (see 5.2 Guidelines Applicable to the Assessment of Penalties).

Norwegian law enforcement has the authority to investigate and prosecute crimes that fall within Norwegian jurisdiction (see 3.2 Geographical Reach of Applicable Legislation).

As mentioned in 7.2 Enforcement Body, ØKOKRIM has primary responsibility for the enforcement of international cases.

Some examples of recent cases involving violations of the Anti-corruption Provisions are included below.

First, a recent decision follows up on the Supreme Court’s clarification from 2022 on the condition in the corruption provision (Section 387 of the Penal Code) that a benefit must be granted “in connection with” the recipient’s position, office, or assignment to be considered corruption.

The Tjøme Case

In the decision HR-2022-1278-A, the Supreme Court overturned the Court of Appeal’s acquittal of an architect who had provided free architectural services to a municipal planning official. In the retrial in the Court of Appeal (decision LA-2022-118883) following the Supreme Court’s decision, both were convicted with aggravated corruption. The municipal planning official was sentenced to eleven months while the architect was sentenced to nine months of imprisonment. The Court of Appeal also decided to confiscate NOK30,000 from the municipal planning official.

The Supreme Court stated in the 2022 judgment that the term “in connection with” indicates a requirement of connection between the performance of a benefit and the position the recipient holds. But even if such connection or link must have a certain strength and be clear, there is no requirement for a direct causal connection between the benefit provided and the recipient’s position. The criteria “in connection with” is thus discretionary and must be assessed concretely in each case based on several factors. These factors may overlap with the factors used for assessing the other discretionary criteria “improper advantage”.

The Supreme Court’s decision has led to a need for further clarification. When both the criteria “in connection with” and “improper advantage” are to be interpreted in a discretionary manner, it becomes difficult to separate the assessments from each other. Also, it is not entirely clear how and in relation to which of these criteria the question of whether the purpose of providing the benefit was to influence the recipient’s decisions should be assessed or emphasised.

In line with the Supreme Court’s interpretation, the Court of Appeal conducted an assessment of several factors, including the nature of the official’s position in the municipality, the relationship between him and the architect, the kind of benefit that was given and the value of it, as well as the probability that the benefit would influence the official. The Court of Appeal found that there was a risk of influence at the time when the architect provided the free architectural services and thus that the benefit was given “in connection with” the municipal planning official’s position. Hence, the Court of Appeal chose to assess the influence in relation to the question of whether the benefit was given in connection with the recipient’s position.

The judgement is final.

Corruption in the Municipal Sector

In April 2022, four individuals were convicted by the Oslo District Court with imprisonment for corruption relating to the sale of real estate to the municipality of Oslo. A purchaser hired by a municipal real estate company was convicted for passive corruption for accepting money and other improper advantages from private investors in connection with their sale of real estate at inflated values to the municipal company. The remaining three individuals were convicted for active corruption, for non-transparently paying the consultant money, including kickbacks, in connection with the sales. The terms of imprisonment varied from six months to three-and-a-half years. A fifth individual was convicted of laundering the proceeds from the crimes.

The purchaser and two of the other individuals appealed the decision, but their convictions were upheld by the Court of Appeal in October 2023 (decision LB-2022-138463-2). Although no motive for influence was proven, the Court of Appeal noted that it is not a requirement that the active briber receives a specific quid pro quo; pure “greasing” is also covered.

ØKOKRIM has stated that the case illustrates the seriousness of corruption in the municipal sector and in particular in public procurement, where private and public sectors intersect. ØKOKRIM has underlined that it will focus on investigating corruption, particularly in the public sector, going forward.

Simple Corruption in DNV

In 2022, an individual was indicted for aggravated corruption for providing a Russian intelligence officer with documents he had obtained through his job as an engineer with DNV. Upon appeal, the Court of Appeal reduced the sentence to five months of imprisonment for simple corruption in September 2023 (decision LB-2023-27135).

The Court of Appeal found that the payment received by the engineer constituted an “improper advantage”. While an amount ranging from NOK40,000 to NOK50,000 over a two-year period may not be substantial, it surpasses the threshold for the application of the corruption provisions. The Court of Appeal considered that even though most of the documents provided to the Russian intelligence officer were neither confidential nor sensitive, the action still constituted corruption because they were internal documents that the engineer had access to by virtue of his position. However, the Court of Appeal did not conclude that providing such documents in exchange for such an advantage constituted aggravated corruption.

Fines imposed on individuals for violations of the Anti-corruption Provisions have been in the range of NOK6,000 to NOK450,000 (statistics from Transparency International Norway for 2003–2021). The longest prison sentence in a corruption case is the maximum sentence of 21 years in case against a former policeman (the Jensen case). Note, however, that the sentence also included other serious charges (ie, not just corruption charges).

In respect of corporate criminal liability, the highest penalty imposed on a company for violation of the Anti-corruption Provisions is the NOK270 million fine imposed on Yara International ASA in 2017. In addition to the fine, an amount of NOK25 million was confiscated.

The enforcement of the Anti-corruption Provisions has not been officially assessed in 2022. However, in May 2021, the Ministry of Justice and Public Security published an evaluation, conducted by Knut Høivik (PhD), of the Norwegian legislation governing corporate criminal liability (Sections 27 and 28 of the Penal Code) and the Anti-corruption Provisions (Sections 387, 388 and 389 of the Penal Code) (the “Høivik Evaluation”). This Høivik Evaluation is still under review by the Ministry (see 8.2 Likely Changes to the Applicable Legislation of the Enforcement Body).

In his study, Høivik conducted a comprehensive evaluation and proposed a revision of the rules on corporate liability in light of the fact that it is 30 years since the general legal basis for corporate liability was introduced in 1991. Furthermore, Høivik assessed whether there is a need for changes to the Anti-corruption Provisions to ensure an effective fight against corruption in line with Norway’s international obligations.

In brief, the Høivik Evaluation provided, inter alia, the following suggestions for legislative changes:

• introduce requirements regarding subjective guilt (culpability) for corporate criminal liability;
• clarify which connection should be required between the company and the offence(s) in order for the company to be criminally liable;
• remove the discretionary nature of corporate criminal liability;
• clarify that indirect corruption through the use of intermediaries is covered by the Anti-corruption Provisions;
• criminalise gross negligent complicity to corruption;
• limit the scope of the “trading in influence” to only cover influencing public decisions;
• introduce regulatory requirements for preventative anti-corruption work and rules specifically addressing the effect of companies self-reporting and co-operating with the enforcement authorities; and
• make changes to ensure that fines are calculated in a transparent and more predictable manner, including changes to provide more information to the public about the use and terms of penalty notices.

The Ministry of Justice and Public Security has not (yet) provided their views of the Høivik Evaluation (as further commented on in 8.2 Likely Changes to the Applicable Legislation of the Enforcement Body).

The Høivik Evaluation, mentioned in 8.1 Assessment of the Applicable Enforced Legislation, is still under consideration by the Norwegian Ministry of Justice and Public Security. The evaluation was sent on a public hearing (consultation round) from 12 October 2021 to 11 January 2022. Within this timeframe, any natural or legal person had the opportunity to provide the Ministry with their comments on the evaluation and the changes proposed therein.

The Ministry has not (yet) presented any propositions to the Norwegian Parliament based on the Høivik Evaluation’s suggestions for changes to the legislation governing the Anti-corruption Provisions (Sections 387, 388 and 389 of the Penal Code) and corporate criminal liability (Sections 27 and 28 of the Penal Code). The Ministry has not confirmed whether such proposition(s) will be prepared and has not provided any time frames for when such follow-up may happen.