NORWAY Law and Practice Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli, Wikborg Rein Advokatfirma AS
• whether the offence has been committed in order to promote the interests of the com - pany; and • the financial capacity of the company. In addition, according to case law, it is relevant to assess whether the company has taken appro - priate measures to remedy the violation after becoming aware of it (so-called self-cleaning). Individual and Corporate Liability for the Same Offence Individuals and companies may – and often will – be held liable for the same offence. However, whether a penalty is imposed on any individu - al person is a relevant factor when assessing whether a penalty should be imposed against the company (Section 28, letter g). Culpability Companies may also be penalised if the indi - vidual who committed the offence is not pros - ecuted or convicted. In fact, the wording of Sec - tion 27 allows for corporate liability even if the subjective culpability or accountability require - ments of the Penal Code are not met for the indi- vidual who committed the offence on behalf of the company. This would, in principle, mean that the Penal Code allows for penalising a company on the basis of strict liability; ie, even if no indi - vidual may be found guilty of, or charged with, the offence. In a Supreme Court judgment of 15 April 2021, the Supreme Court held that such a strict liabil - ity requirement was not in conformity with the European Convention on Human Rights (ECHR) and case law from the European Court of Human Rights. However, in HR-2023-1212-A, the court has now ruled that corporate punishment on an objective basis is not contrary to the ECHR, as long as it is not disproportionate. Following these
two judgments, several issues remain unclear, including what threshold should be applied for imposing strict liability. A proposal for changes to the corporate criminal liability provision is cur - rently under consideration; see 9. Assessment . Successor Liability Under Norwegian law, a successor entity may be held liable for criminal offences by the tar - get entity that occurred prior to, for example, a merger or acquisition. If a company undergoes “identity changes” after a criminal offence has been committed, criminal liability shall be placed at the company on behalf of which the offence was committed. This is cur - rently not further regulated by law and depends on a complex assessment, where the guidelines are set out in case law and legal theory. In summary, the main rule is that the criminal liability follows the company’s formal identity; ie, as it is established in accordance with the rules that apply to the type of company in ques - tion. This means that, for example, the transfer of shares in a company does not change which subject is criminally liable (Supreme Court Rul - ing of 2002 on p1722). In such cases, criminal liability would transfer with the target entity (ie, the entity being sold). In the event of an asset sale where the activity in the original company is transferred to another company but the original company still formally exists, the acquiring company will, on the other hand and as a general rule, not be held crimi - nally liable for any prior criminal offence. There may, however, be exceptions to this rule if the purchaser has taken over a complete division of a company with all activities, employees and contracts.
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