NORWAY Law and Practice Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli, Wikborg Rein Advokatfirma AS
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 fac - tor when determining impropriety. Only in excep - tional 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 mini - mum threshold amount that must be exceeded in order for hospitality expenditure, gifts and pro - motional expenditure to be considered “improp - er”. 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 contex - tual 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 con - sumed 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 pro - vision. “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 connec - tion 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 employ - ment or authority, including board positions, political duties or the performance of consul - tancy services. Normally, the improper advantage is provided in return for something that the receiver does or omits to do in the performance of their profes - sional duties, to benefit the active party or some - one they wish to favour. However, the advantage
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