Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Trends and climate
Have there been any recent changes in the enforcement of anti-corruption regulations?
The present anti-bribery laws have been in place since 2003, when Norway amended the Criminal Code to comply with the anti-corruption conventions of the European Council and the Organisation for Economic Cooperation and Development (OECD).
In 2005 Norway revised its criminal law and the new code came into force in October 2015. Although the redaction was amended slightly, the regime did not undergo substantive changes.
The Criminal Code is shaped mostly to comply with the European Council’s and the OECD’s anti-corruption conventions. However, the following provisions of the code reach further than the obligations under these conventions:
- The law makes no distinction between corruption in the private sector and corruption in the public sector.
- Intention to bribe is not a condition in the law.
- An advantage must be ‘in connection with’ the passive party’s position.
There is no requirement that an actual advantage has been obtained or even risked. Similarly, subsequent rewards fall within the scope of the law.
Trading in influence is also criminalised. This regulation has a wider scope than the EU convention. It provides that the advantage must have been made in connection with a position. The passive party need not have had the capacity to influence the person in the relevant position. There is no distinction between corruption in the private sector and corruption in the public sector.
Are there plans for any changes to the law in this area?
There are no plans to change the Criminal Code.
However, two significant changes are being considered in relation to other legislation.
First, there is ongoing work to revise the Criminal Procedure Act completely. These changes will affect all areas of criminal law, including corruption.
The other, more relevant change under consideration is the proposal to reorganise the National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim), which is the main source of specialist skills for the police and the prosecuting authorities in the combat against corruption. Under the present regime, Økokrim both investigates and prosecutes corruption cases – unlike under the general system, where police and prosecution are separate. This structure has been widely criticised as no external or independent review is conducted, and prosecutors are directly involved in investigations. The proposed change will give police districts the responsibility to investigate corruption cases, with Økokrim as a resource to assist in more complex cases. Further, Økokrim will not prosecute cases – this will be left to the district attorneys.
Which authorities are responsible for investigating bribery and corruption in your jurisdiction?
The Norwegian system is based on the accusatory principle and both the police and the courts consist mainly of generalists.
The police have the primary responsibility to investigate all types of crime. As a general rule, the local police will initiate and investigate a claim. Once the investigation is complete, the matter will be sent to the prosecutor’s office, where an assessment will be made on whether to indict. The district attorney can choose to return the case to the police for prosecution in court or try the case himself or herself. The latter approach is usually taken in corruption cases.
The National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) is one of few special branches that exist in the Norwegian system. It is a central unit for investigating and prosecuting financial and environmental crime cases. Økokrim can initiate its own investigations or take over the investigation or prosecution in cases related to this type of crime. The extent to which this happens will depend on the complexity of the case and Økokrim’s capacity at the time.
The Økokrim Financial Intelligence Unit is a key player in the national regime for implementing EU Directive 2015/849 on preventing the use of the financial system for the purposes of money laundering or terrorist financing and the associated predicate offences (eg, corruption, tax crimes and fraud).
Økokrim prosecutors have the authority to indict charges and prosecute in the courts. Økokrim also has its own district attorneys who are involved in investigations. This has led to criticism for a lack of distance and a lack of a system of checks and balances between investigators and prosecutors.
All indictments regarding corruption are tried in general, non-specialised courts.
What are the key legislative and regulatory provisions relating to bribery and corruption in your jurisdiction?
Section 387 of the Criminal Code came into force in October 2015 and is the central provision regarding corruption. Although the wording is slightly different from the previous Criminal Code, no material changes were intended.
The University of Oslo has provided an authorised translation of the previous Criminal Code, but no translation of the new code. Section 276(a) of the previous code states:
“Any person who
a)For himself or other persons requests or receives an improper advantage or accepts an offer thereof in connection with a position, office or assignment, or
b)Gives or offers any person an improper advantage in connection with a position, office or assignment
shall be liable to a penalty for corruption.
Position, office or assignment in the first paragraph also mean a position, office or assignment in a foreign country.
The penalty for corruption shall be fines or imprisonment for a term not exceeding three years. Any person who aids and abets such an offence shall be liable to the same penalty.”
Section 388 increases the penalty to a maximum of 10 years’ imprisonment. Generally, when deciding whether a corruption is gross, importance will be attached to:
- whether the act was committed by or in relation to a public official or any other person in breach of the special confidence placed in him or her by virtue of his or her position, office or assignment;
- whether the act has resulted in considerable economic advantage;
- whether there was any risk of economic or other considerable damage; or
- whether false accounting information was recorded, or false accounting documents or annual accounts were prepared.
Trading in influence is regulated under Section 389 of the Penal Code. The structure and wording is similar to the Criminal Code, but provides the additional intention to influence the exercise of another person’s position, office or assignment. The penalty for breach of Section 389 is a fine and up to three years’ imprisonment.
What international anti-corruption conventions apply in your jurisdiction?
Norway has ratified, without reservations, the European Council Criminal Law Convention on Corruption (173/1999) and the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Section 387 of the Criminal Code provides that any person who offers or demands an improper advantage in connection with a position, office or assignment will be liable to a penalty for corruption. Active and passive corruption both fall under the scope of this section.
‘Position, office or assignment’ can be widely interpreted and includes the private and public sector, paid and unpaid positions, persons with or without decision-making authority, directors and politicians.
The law does not require that the advantage benefits the person requesting it. It can be for anyone, including a company that the person works for or another person. No relation is required. Further, the advantage need not have material value and can include club memberships, school admissions or similar advantages.
The law applies once an offer is given or a request is made. Although the demand or offer must reach the other person, receiving an offer is not a criminal act – it must be accepted, explicitly or tacitly. Actions before this can be considered to be criminal attempts.
It is not a requirement that the person in position intended to give anything in return. Advantages in the form of rewards for previous actions or omissions also fall within the scope of the law.
An ‘improper’ advantage requires clear blameworthy action. The assessment of this is based on many factors, including:
- the economic value of the advantage;
- the area to which the arrangement is related (eg, the type of business or public service – the latter is generally more strictly considered);
- the intention of the arrangement (especially if the intent to influence the exercise of a position is proven);
- the positions of the involved persons;
- the transparency of the arrangement;
- whether internal regulation has been breached for the position, office or assignment; and
- the business’ moral administrative practice or custom in the country or area.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
There are no such restrictions in the law.
However, the preparatory work (Ot prp nr 78 (2002-2003)) states that gifts and other advantages of little value will fall outside the scope of the law, provided that such gifts are customary. The test for this is whether the advantage goes against that which is considered acceptable in the public opinion.
Critics argue that the law does not provide a sufficiently clear description of the criminal act (see Article 6 of the EU Convention on Human Rights) and that the discretionary powers in applying the law extend too far.
What are the rules relating to facilitation payments?
In principle, facilitation payments fall within the scope of the Criminal Code. In the preparatory works, the issue was considered in light of Article 5 of the European Council Anti-corruption Convention.
The Department of Justice explicitly refused to give a declaration that an intent to influence is a prerequisite for liability pursuant to Article 36 of the convention. The law is in line with this.
However, as part of the broader assessment of whether a payment was ‘undue’, the court will consider whether such intent was present and the extent to which the payment was connected to a service entitled under law. These factors will also be considered in the overall assessment. The amount paid will likely be of significant importance.
Scope of liability
Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction?
Yes, personal liability follows directly from Section 388 of the Criminal Code. With regard to companies, Section 27 of the code states that if a person acting on behalf of a company commits a crime, the company is liable to a penalty. This includes all acts of corruption. It is not a requirement that any individual is identified or criminally liable.
Companies will be subject to a fine, loss of permits or confiscation.
Section 28 outlines the factors to be considered when deciding whether a company is liable for a penalty. It applies an overall assessment of factors such as:
- the preventive effect of such liability (ie, the normative effect);
- the gravity of the criminal act (if a leader or director is involved, the company will likely be liable);
- whether someone acting on behalf of the company is personally liable (if so, the need for company liability is reduced);
- the extent to which internal guidelines, instructions, training and control measures were in place and could have prevented the criminal act (similar to the classic defence structure);
- whether the act was committed with an intent to be advantageous for the company;
- whether the company has profited or could profit from the criminal act;
- the company’s financial strength;
- whether an individual has been held liable or the company has received any other penalty (primarily to safeguard against double liability for owners of small companies); and
- whether criminal liability is mandatory pursuant to an international convention which Norway has entered into.
Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances?
Yes, this can be considered as criminal complicity. Section 15 of the Criminal Code extends the scope of all criminal acts, unless otherwise stated, to complicit acts. Individuals or companies must meet all of the criteria in Section 387 of the code. Companies must also meet all of the criteria in Section 28.
Can foreign companies be prosecuted for corruption in your jurisdiction?
Sections 4 and 5 of the Criminal Code regulate the prosecution of foreign companies for corruption.
Section 4 provides the territorial principle, which includes the Norwegian bi-lands, different installations on and outside the continental shelf, the Norwegian economic zone and Norwegian ships, aircrafts and installations.
Section 5 provides the nationality principle, extending criminal liability beyond Norwegian territory for acts committed by Norwegian nationals and domiciles. In the context of corruption, Section 5 extends criminal liability of foreigners for acts committed off territory to acts connected to matters of vital national interest.
In addition, Section 7 extends the scope of criminal liability beyond the place where the act was committed to include places affected by the act and where effect was intended.
Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
Chapter 2 of the Employment Act regulates whistleblowing. The general principle is that employees have the right to give information on any act “worthy of criticism”. Corruption falls within the scope of this. There is a prerequisite of good faith and some procedural requirements must be followed in order to receive the protection offered to whistleblowers.
Repercussions are prohibited. Companies, employers and leaders of companies can be held criminally or financially liable for repercussions.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
Pursuant to Section 78 of the Criminal Code, self-reporting must be taken into account on sentencing. It is not mandatory to reduce the sentencing. If the self-reporting amounts to a full confession, it will generally lead to a more lenient sentencing. In practice, reductions vary from 10% to 35% depending on the date of the confession, whether the confession is maintained and the extent to which the confession could simplify the investigation and the trial.
Dispute resolution and risk management
Is it possible for anti-corruption cases to be settled before trial by means of plea bargaining or settlement agreements?
Norway has no plea-bargaining system.
Fines can be handed down by the prosecutor. These can be accepted with or without a guilty plea, including during trial. This system offers the possibility for pre-trial settlement, as well as settlement during trial.
If the fine is not accepted, the prosecutor will bring the case before the courts in standard criminal proceedings.
The prosecutor can choose to bring the case to trial, even if only a fine is prescribed.
The law does not provide for settlements with regard to the application of the law (eg, pleading guilty to avoid more serious charges).
Are any types of payment procedure exempt from liability under the corruption regulations in your jurisdiction?
As a general rule, Norway has no system of defences. However, Section 28 of the Criminal Code has some elements of a defence regulation. A company can establish a system with internal guidelines, instructions, training and control measures. If the system is deemed sufficient and enforced, it will be considered in the overall assessment of the company’s liability under Section 28. However, this will not guarantee to exclude a conviction, even if the system is very good.
What other defences are available and who can qualify?
No other defences are available.
What compliance procedures and policies can a company put in place to assist in the creation of safe harbours?
No procedures can be put in place to ensure safe harbours. However, with a dynamic and enforced set of internal guidelines, instructions, training and control measures, the outlook of a safe harbour is improved, provided that the personnel responsible for compliance are not involved in any wrong doing, and that the tone from the top is clearly compliant.
Record keeping and reporting
Record keeping and accounting
What legislation governs the requirements for record keeping and accounting in your jurisdiction?
The Annual Reports Act and the Accounting Act are the general laws applicable to any entity for record keeping and accounting.
What are the requirements for record keeping?
In principle, the central requirements for record keeping are:
- to record correctly and in a timely manner all transactions with traceability from all documents via specifications to accounting;
- to record and state correctly the financial status and performance;
- to produce true and timely financial statements prepared for audit; and
- to keeping all documentation for a minimum of five years, including annual reports, audit reports, all specifications, documentation for traceability and accounting balances.
What are the requirements for companies regarding disclosure of potential violations of anti-corruption regulations?
At present, there is no such requirement regarding the disclosure of potential violations.
However, there are proposals for a new criminal process code. The committee drafting the proposal code has suggested limiting the right not to be compelled to testify to physical persons only. If this proposal is passed, all legal entities and their employees and representatives will be excluded from protection against self-incrimination. Protection for individuals is not changed by this proposal.
The proposal includes no obligation to self-report.
What penalties are available to the courts for violations of corruption laws by individuals?
Individuals who violate the corruption laws are subject to a maximum of six years’ imprisonment or fines. In cases of gross corruption, the penalty is increased to a maximum of 10 years’ imprisonment. In cases with more than one count, the penalty is a maximum of nine years’ imprisonment or 15 years’ imprisonment for gross corruption.
Companies or organisations
What penalties are available to the courts for violations of corruption laws by companies or organisations?
Companies or organisations that violate the corruption laws are subject to fines, damages and confiscation. No maximum penalty is stated in the law.