Remedies

Compensation

What forms of compensation are available and on what basis are they allowed?

The calculation of damages suffered by the claimant is primarily based on general tort law. As such, damages are calculated on the basis of the difference between the financial position of the claimant after the infringement occurred and the hypothetical financial position the claimant would have been in if the competition law infringement had not occurred. The financial status of the affected party has to be considered as a whole; therefore, not only its losses in income or profit and lost investment may be taken into account, but also any benefits received as a consequence of the anticompetitive behaviour.

Norwegian damages law does not provide for punitive damages such as triple damages (see question 29).

The principle of natural restitution not only leads to pecuniary compensation but may, particularly in cases of abusive refusals to supply, lead to the defendant being ordered by the court to contract with the claimant and supply him or her with the requested goods or services.

Other remedies

What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?

Norwegian procedural law provides for different interim measures based on Chapter 34 of the Dispute Act. In the event of an immediate risk that the financial situation of the defendant will deteriorate, the claimant can request a court to seize assets of the defendant. Furthermore, courts can issue interim measures ordering the defendant to perform a certain action, such as supplying the claimant with certain goods, if the claimant would otherwise lose important customers. The standard of proof is lower than for the principal claim on the merits. An applicant for interim relief must provide prima facie evidence that he or she has a claim and that the realisation of such a claim is impossible or severely jeopardised without the interim remedy (urgency). As a general rule, an interim remedy shall not result in the fulfilment of the final remedy.

Punitive damages

Are punitive or exemplary damages available?

No. Norwegian law does not provide for punitive or exemplary damages. Only compensatory damages can be sought. The claimant must prove a causal link between the culpable behaviour and the damage incurred. Only the net financial loss of the claimant will be compensated.

Interest

Is there provision for interest on damages awards and from when does it accrue?

A claim for damages will attract interests according to the Norwegian Act on Interest on overdue Payments.

The accrual of statutory interest is triggered by the monetary claim becoming due. The date from which interest may be claimed, is defined in the relevant statute. If the due date has been fixed in advance (eg in a promissory note or in a contract, interest is calculated from this date). If, on the other hand, there is no such date fixed in advance, the accrual of interest starts 30 days after a demand for payment has been sent to the debtor in writing.

Statutory interest is calculated as a percentage of the outstanding amount. The interest rate is normally reviewed bi-annually (1 January and 1 July). The interest rate is considerably higher than the market rate. The reason for this is partly to add a punitive element so as to encourage prompt payment, partly to avoid the issue of compound interest. Therefore, compound interest cannot be claimed, neither as damages. However, if the creditor suffers additional economic loss, that is, a loss that is not covered by the interest rate, this may be claimed in tort as a separate loss (see section 3(3) of the Interest on overdue Payments Act).

Consideration of fines

Are the fines imposed by competition authorities taken into account when setting damages?

No. Fines imposed by competition authorities should not be taken into account when determining damages, albeit no clear precedents to this effect yet exist.

Legal costs

Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?

The main rule in civil litigation in Norway is that the losing party shall compensate the other party its necessary costs associated with the case. The parties present their claims at the end of the oral hearing and in the judgment the court decides whether the winning party shall be awarded costs, and if so, the amount (which is often lower than the claimed amount). The successful attorney’s fees are ultimately agreed between him or her and the client. It follows from the Norwegian Bar Association’s Code of Ethics (which is legally binding) that the amount payable to a lawyer cannot be calculated as a percentage or a proportion of the outcome or value of the case. However, ‘no win no fee’ is allowed, as are differentiated fees depending on the outcome, discretionary success fees etc.

The general rule is that unsuccessful claimants are obligated to compensate the winning party its necessary defence costs and attorneys’ fees. However, if the winning party is to blame for the initiation of the case (eg, by refusing a reasonable settlement offer) or the court for other reasons finds it reasonable to not impose such an obligation upon the unsuccessful claimants, the court may choose not to require the defendant to compensate the winning party’s defence costs and attorney’s fees.

These rules also apply to class actions. For class actions, the Dispute Act section 35(13)(1) also provides that the court shall determine the class representative’s and the legal counsel’s fees and coverage of expenses.

Class members in opt-in actions will be liable towards the class representative for costs imposed on the representative for remuneration and refund of disbursements insofar and to the extent that such liability is a condition for registration.

Class members in opt-out actions will not have any liability towards the class representative (or towards the other party in the action for that matter) for costs.

Joint and several liability

Is liability imposed on a joint and several basis?

To the extent that parties have colluded, the parties are, as a general rule, jointly and severally liable for the ‘group act’ constituting the infringement of EU competition law. As long as liability is established, each party is, in principle, liable for the consequences of the group act. The fact that one party may be less culpable than the others, does not affect his or her liability with regards to the aggrieved party.

However, varying degrees of culpability among the group members (as well as other factors) may be taken into account in the distribution of liability as between the group members (section 5(3)(2) of the Norwegian Torts Act).

A party who has benefited from, but not participated in, infringements of EU, EEA or Norwegian competition law will, under Norwegian law, likely not be held liable in tort. A tort claim in this context will have to be based on culpa, and a mere economic benefit will not in itself be sufficient to establish negligence on his or her part.

This implies that there will, as a general rule, be no liability for third parties (ie, non-members of the cartels mentioned) who have merely followed an overall price trend set or influenced by the cartel, unless negligence or culpability is shown. In order to establish culpability, one will at least have to show that the third party had some knowledge of the cartel’s price setting or the cartel’s influence on the price. In addition, there will have to be an element of blame.

However, depending on the circumstances, there may be a basis for a claim for unjust enrichment. There is, so far, no authoritative case law firmly establishing such liability in this context.

Contribution and indemnity

Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted?

If one member of the cartel is found liable for the damages caused by the group, it is indeed possible to claim contribution from the other group members. The claim for contribution is, however, subject to limitation. If the claim for contribution has been served within one year of payment to the main creditor, the limitation period will be interrupted.

Furthermore, there are some other particular rules relating to the limitation of such claims. Section 8 of the Limitation Act provides as follows:

‘If several debtors are liable to the creditor and one of them discharges his debt before the limitation period has expired in respect of him, the period of limitation for his recourse claim against a co-debtor shall be one year after the discharge of the debt. Nevertheless, the claim shall not become statute barred before the expiry of the limitation period to which he would be entitled if the discharged claim had been transferred to him. If the creditor’s claim against the co-debtor had lapsed at the time of discharge of the debt, the recourse claim can only be asserted if the co-debtor has been notified within reasonable time of the discharge of the debt. If, prior to the discharge of the debt, the period of limitation has been interrupted or prolongation has been agreed under section 28, it shall be further required that the co-debtor has been notified of this within a reasonable period of time’.

The method for the determination of the extent to which contribution may be claimed, is set out in section 5(3)(2) of the Norwegian Torts Act. According to this provision, the extent of a contribution claim shall be determined ‘with regard to the basis for responsibility and to other relevant circumstances’. The wording of the statutory provision is vague and offers no clear guidelines as to what factors should be taken into consideration.

In case law, it is well established that each case must be assessed on an individual basis. All the relevant circumstances may be taken into account, and there is no fixed method for the assessment of the contribution. The assessment is, therefore, quite discretionary, leaving all powers with the judge. The jurisprudence offers no clear guidelines for the assessment of the relevant factors.

However, Supreme Court practice seems to indicate that the dominant factor in all cases will be the degree of culpability. Therefore, if a party is more to blame than the others, this will normally carry great weight in the assessment. Furthermore, the courts seem to have regard to the chain of events, so that a party whose position is more dominant than the others, will often have to take a greater burden than the others. Finally, the courts take into account purely individual factors, such as ability to pay, and the extent of insurance coverage.

The objective of the provision is to secure a solution that is equitable and fair in the individual case. It is therefore difficult to give any general guidelines for the assessment.

Passing on

Is the ‘passing on’ defence allowed?

The Norwegian rules regarding the passing on defence are somewhat unclear and there is no authoritative case law. The burden of proof as to whether antitrust damages have or have not been passed on, must, according to general principles, rest with the plaintiff. However, in recent legal theory, the view has been voiced that this burden of proof must be reversed; the rationale being that this will secure efficiency and leave the aggrieved party with a more enforceable remedy. In our view, both these positions are arguable, and it will not be possible to say that one is more firmly established than the other.

Other defences

Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?

If the plaintiff has been able to prove the existence of an intentional or negligent infringement, actual injury and the causal link between the two, no specific grounds of justification as regards liability exist as such.

However, the amount of the damages, can be reduced if the plaintiff has contributed, by fault or negligence, to the injury sustained. Also, if the plaintiff has benefited from the infringement, this would have an impact on the amount of the damages.

Alternative dispute resolution

Is alternative dispute resolution available?

In principle, arbitration proceedings are available under Norwegian law. However, such proceedings are only admissible if an arbitration clause has been agreed between the parties, which requires an agreement between the parties.