NORWAY Law and Practice Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli, Wikborg Rein Advokatfirma AS
Aggravated Corruption Elements to be taken into consideration in deter - mining 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 assign - ment; • the act resulted, or could have resulted, in a considerable financial advantage; • there was a risk of considerable harm; and • false accounting information or documenta - tion 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 corrup - tion shall be considered “aggravated”. The Anti-corruption Provisions of the Penal Code do not include a definition of “public offi - cial”. 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.
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 7.5 Recent Landmark Investigations or Decisions . 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 pro - vided (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.
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