NORWAY Law and Practice Contributed by: Hedvig Moe, Pål Lieungh, Espen Randen and Elin Ibsen Gustavsen, Advokatfirmaet Thommessen AS
There are no distinct or separate statutory definitions of these terms under other legislation. 1.4 International Frameworks and Treaty Obligations Norway’s defence regulatory framework rests on both national legislation and international commitments. The Defence Act and Security Act – including the FDI regime – are based on national legislation. As a founding member of NATO, Norway’s defence policy and capability planning are aligned with NATO’s deterrence and defence posture. Through the EEA Agreement, Norway is party to the EU’s procurement directives – including EU Directive 2009/81, imple - mented through FOSA – as well as the general pro - curement directives (2014/23, 2014/24, 2014/25). EEA Agreement Article 123 – corresponding to TFEU Article 346 – provides the essential security interest exemption. The Intra-Community Transfers Directive (2009/43) is implemented through the export control framework. Norway participates in the Wassenaar Arrangement, and its dual-use control lists directly reflect the Wassenaar and other multilateral regime lists. Norway is a state party to the Arms Trade Treaty. UN Security Council arms embargoes and sanctions are implemented through dedicated national regula - tions, administered by DEKSA. 2. Procurement and Government Contracts in the Defence Sector 2.1 Defence Procurement Legislation All public procurements with a value of NOK500,000 or more are subject to the Public Procurement Act (LOA), unless exempted by specific exemptions (see below for further information). The procurement regulations – including the general Regulation on Public Procurement (FOA) (implement - ing EU Directive 2014/24), the Regulation on Defence and Security Procurements (FOSA) (implementing EU Directive 2009/81), the Regulation on Procure -
ments in the Supply Sector (FYF) (implementing EU Directive 2014/25) and the Regulation on Concession Contracts (implementing EU Directive 2014/23) – are sorted under LOA. FOSA applies to contracts for defence materiel and components, classified material, works, goods and services directly related to such materiel and its life cycle, and classified works and services for defence purposes. FOSA requires restricted procedures or negotiated procedures with prior publication, and permits competitive dialogue for particularly complex contracts. The most significant exemption is EEA Agreement Article 123 (TFEU, Article 346), permitting Norway to derogate from procurement rules entirely where nec - essary to protect essential security interests relating to arms, ammunition and war materiel, or where dis- closure of information would be contrary to essen - tial security interests. If invoked, the procurement is exempted from both LOA and the applicable regula - tion in whole. FOSA also excludes R&D cooperation projects between EEA states, contracts governed by international organisation rules, and contracts for sta - tioning troops abroad where local supply is operation - ally necessary. Additionally, the Security Act imposes supplementary requirements for classified procurements which over - lay the procedural rules in FOSA (see 2.4 Restricted and Classified Procurement ). For all defence procurements, the internal Guidelines on Acquisitions in the Defence Sector ( Retningslinjer for anskaffelser i forsvarssektoren (RAF)) also apply, including to procurements exempted under Article 123. RAF is an internal instrument and does not confer rights, nor impose obligations, on third parties. 2.2 Contracting Authorities and Entities Subject to Defence Procurement Rules The procurement legislation applies to all contracting authorities – whether central government ministries, subordinate agencies, county authorities or municipal - ities – and it is the nature of the procurement, not the identity of the contracting authority, that determines which regulatory regime applies. Any public body pro -
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