NORWAY Law and Practice Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli, Wikborg Rein Advokatfirma AS
4. Defences and Exceptions 4.1 Defences
4.3 De Minimis Exceptions There are no de minimis exceptions for the Anti- corruption Provisions of the Penal Code. 4.4 Exempt Sectors/Industries The Anti-corruption Provisions of the Penal Code apply to all natural and legal persons acting within the jurisdiction of the Penal Code (see 3.2 Geographical Reach of Applicable Legislation ), without exception. Consequently, no sectors or industries are exempt from these offences. 4.5 Safe Harbour or Amnesty Programme Under Norwegian law, there is currently no for - mal system of safe harbours or amnesty pro - grammes based on self-reporting or having in place adequate compliance procedures or remediation efforts. However, self-reporting may reduce the penalty imposed for the violation (see 5.2 Guidelines Applicable to the Assessment of Penalties , 6.2 Voluntary Disclosure Incentives and 7.4 Discre- tion for Mitigation and Aggravation ). Moreover, efforts to remedy the violation after becoming aware of it (ie, self-cleaning) are relevant when determining whether corporate liability should be imposed, and, if so, when determining the level of sanctions imposed (see 3.3 Corporate Liability and 5.2 Guidelines Applicable to the Assessment of Penalties ). It is also worth noting that ØKOKRIM is cur - rently drafting guidelines for the imposition of corporate penalties in international corruption cases. This work is based on recommendations from the OECD following a periodic evaluation of Norway’s enforcement of applicable bribery and corruption legislation.
The Penal Code does not contain any concrete defences that apply specifically to the Anti-cor - ruption Provisions. Any of the general defences within the Penal Code may apply as defences for violations of the Anti-corruption Provisions. For example, it would be a defence against violations of an Anti-corruption Provision if the violation is com - mitted on grounds of necessity (Section 17) or self-defence (Section 18). In respect of corporate criminal liability, some of the discretional elements to be considered when determining whether corporate liability should be imposed contain defence-related elements (Section 28, and see 3.3 Corporate Liability ). In particular, it would be relevant to assess whether the company could have prevented the offence by the use of guidelines, instruction, training, checks or other compliance measures (Sec - tion 28, letter c). A defence against liability for corruption violations committed “on behalf of” the company could therefore be to demonstrate that the company had in place an effective anti- corruption compliance programme at the time of the violation, and that the company could not reasonably have acted differently in its efforts to prevent the violation. It is important to note, however, that the assess - ment of such defence is subject to (prosecuto - rial/judicial) discretion and would not automati - cally absolve the company of corporate liability. 4.2 Exceptions As there are no formal defences available to vio - lations of the Anti-corruption Provisions of the Penal Code, there are no such exceptions.
309 CHAMBERS.COM
Powered by FlippingBook