NORWAY Law and Practice Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli, Wikborg Rein Advokatfirma AS
The Affiliation Requirement (“on Behalf of”) A corporate entity may be held criminally liable when a penal provision is violated by a person “acting on behalf” of a “company”. The term “company” is interpreted broadly, and includes companies, associations, foundations, organisa - tions and public bodies. According to case law and the preparatory works to the Penal Code, a person would be “acting on behalf” of the com - pany only if both the offender and the act have a certain connection with the company. Complicity According to Section 15 of the Norwegian Penal Code, a penal provision also applies to any per - son (including companies, in accordance with Section 27 of the Penal Code) who contributes to (aids and abets) the offence, unless otherwise provided. Prosecutorial and Judicial Discretion The imposition of corporate liability is subject to discretion (prosecutorial and of the courts) (Sec - tions 27 and 28). This means that even if the conditions of Section 27 are satisfied, there is no general presumption of corporate liability under Norwegian law; ie, the imposition of a corporate penalty depends on all the circumstances of the case. When deciding whether to impose liability on a company (and if so, the level of sanctions), the prosecutors and courts will conduct a broad overall assessment primarily based on the (non- exhaustive) list of factors set out in Section 28, including: • the severity of the offence; • the preventative effect of the penalty; • whether the company could have prevented the offence by use of guidelines, instruction, training, checks or other measures;
has transferred the entirety of its operations to Norway (Section 5, second paragraph). Thus, the Anti-corruption Provisions have extraterrito - rial reach. Notably, such acts committed abroad may be prosecuted in Norway pursuant to the Penal Code, even if the activity does not constitute a criminal offence under local law. This is a con - sequence of the amendments made to Section 5 of the Penal Code as of 1 July 2020, which exempted foreign violations of, inter alia, the Anti-corruption Provisions from the general requirement of dual criminality. For example, the amendment makes clear that Norwegian com - panies may be held responsible for violations of the Anti-corruption Provisions committed by a foreign national acting on behalf of the company abroad, also when such actions would not con - stitute a criminal offence in the country in which they took place. The Penal Code also generally applies to acts that Norway has a right or an obligation to prose - cute pursuant to agreements with foreign states or otherwise pursuant to international law (Sec - tion 6). In addition, Section 7 of the Penal Code provides that when the criminality of an act is contingent on, or affected by, an actual or intended effect, the act is also deemed to have been committed at the place where the effect has occurred or Corporate criminal liability for violations of the Anti-corruption Provisions follows from the gen - eral provisions included in Sections 27 and 28 of the Penal Code. The Supreme Court has stated that corruption offences lie, within the core area of corporate criminal liability. was intended to be caused. 3.3 Corporate Liability
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