Competition, state aid, public procurement and FDI in Norway: 2023 in review

Competition law

Antitrust enforcement – important clarifications concerning information exchange and third party financing

Antitrust cases

Since 2017, the majority of the NCA’s investigations have concerned suspected illicit exchanges of information, and all ongoing investigations pertaining to the prohibition against anti-competitive agreements are related to such concerns. There is, therefore, no doubt that in recent years the NCA has been focused on information exchange infringements. The NCA has demonstrated a continued focus on illicit information exchange in 2023 and, amid inflationary pressures and heightened public interest in price increases, has also voiced concerns about the potential harms of unilateral public price signaling. 

Arguably the key highlight of 2023 in Norwegian antitrust enforcement was the CAT’s decision to annul in its entirety the NCA’s ruling in the Book Publishers II case. In November 2022, the NCA had ruled that the practice by Norway’s four largest book publishers of uploading information such as forthcoming prices and release dates to the industry’s online portal, Bokbasen, constituted a restriction of competition by object. The NCA imposed a fine of EUR 48 million on Bokbasen and the publishers for the infringement. In reaching its decision to annul the NCA’s ruling and the fine, the CAT undertook a thorough examination of both the legal and factual elements and concluded that the prices that had been uploaded were current and binding on the publishers, as the legal and commercial reality indicated that the publishers were committed to those prices. The CAT therefore concluded that the exchange of information did not amount to a restriction by object. 

The CAT’s decision provides important guidance on how to evaluate information exchange under the ‘by object’ box. Firstly, sharing future prices, volumes, and strategies through private channels is normally considered a restriction by object. Secondly, sharing other sensitive information, including current prices, may be deemed a restriction by object if shared through a private channel, unless the information is genuinely public. Thirdly, exchange of public information may be classified as a restriction by object if it pertains to future and non-binding prices that are of no value to customers or consumers.  

In the wake of the CAT’s decision in the Book Publishers II case, the NCA announced that it is shelving the allegation of a restriction by object in the high-profile ‘price hunter’ case. This case concerns the practice by the three largest grocery chains in Norway of not hindering competitors’ access to each other’s stores for the purpose of collecting real-time shelf prices. In the Statement of Objections (“S.O.”) the grocery chains were threatened with approximately EUR 1.8 billion in fines, being the highest fines ever proposed in Norway and reaching the maximum possible amount of 10% of the companies’ annual turnover. The NCA has stated that it is still investigating whether the practice restricted competition by effect and recently announced that it would reduce the amount of the fines to approximately EUR 0.42 billion to reflect the fact that the practice is no longer investigated as a by object infringement. 

While the NCA has proven to be an eager enforcer in recent years, no new investigations were initiated in 2023. In addition to two information sharing investigations, the NCA currently has one ongoing investigation under the prohibition against abuse of dominance in a finance-related market, which has been active since a dawn raid in 2022.  

Follow-on damage claims

In 2023, the anticipated rise of follow-on damage claims litigation in Norway materialized, with two significant court decisions drawing considerable attention from the legal and business communities.  We expect this trend to continue in 2024 through the Court of Appeal hearing in the Posten case, as further detailed below, and the court hearing for Telia’s damages claim against incumbent telecom operator Telenor, which is scheduled for December 2024. 

Posten case (truck cartel)  

In February 2023, Oslo District Court delivered a landmark ruling in a first-of-a-kind damages claim brought before Norwegian courts by incumbent postal operator, Posten Norge, seeking damages from four truck manufacturers following the European Commission’s 2016-decision in the Truck Cartel case, AT.39824. 

The court found that economic loss due to price coordination cannot be presumed but instead must be assessed on a case-to-case basis where the claimant has the burden of proof. The court acknowledged the likelihood of the infringement impacting transaction prices, but nonetheless found that this alone did not suffice to establish economic loss for Posten. Extensive econometric regression analyses were presented by economic experts from all sides during 11 days of court proceedings. The court, acting without expert judges, expressed difficulty in comprehending the complex analyses and ultimately deemed none of the parties’ analyses were sufficiently reliable. As a result, the court dismissed Posten’s claim. Given the significant doubt expressed by the court regarding the analyses, Posten has unsurprisingly appealed the decision which is scheduled to be heard by the Borgarting Court of Appeals during the autumn of 2024.  

In parallel to the Posten claim, dairy producer Tine has also filed a damages claim relying upon the European Commission’s truck cartel decision. The claim has so far been on hold pending the outcome of Scania’s appeal to the EU Court of Justice, which Scania lost on 1 February 2024. 

For further details, please see our newsletter about the district court judgment.  

The alarm case

In 2019 and 2021 Norwegian home alarm companies Sector and Verisure were fined a total of 108 million euros by the NCA and CAT respectively for engaging in market sharing practices. Following the final decision, the Alarm Customer Association (Nw.: Alarmkundeforeningen) was established to pursue damage claims against Sector and Verisure on behalf of over 400,000 consumers. The claim was structured as an opt-out damages claim. To finance the litigation, the association entered a contract with a third-party litigation finance firm, which would receive a portion of the payouts contingent upon the success of the claim.  

On 5 June 2023, the Supreme Court issued a decision rejecting the proposed financing model. The Court determined that, under the current framework of the Norwegian Dispute Act, it is not permissible for opt-out class actions to be financed by third parties when the financing agreement involves an upfront deduction from the total damages awarded. The class action members could not be held responsible for litigation costs through a reduction mechanism agreed between the Association and the litigation financing firm. The Court seemed to recognise the potential advantages of permitting this type of funding to facilitate consumer claims, but nevertheless concluded that the principle of effectiveness could not justify overriding a clear interpretation of the Dispute Act, and that any change would therefore be for the legislator to implement. Without an alternative financing model, the claim was subsequently dissolved. 

This ruling sets an important precedence for the structuring of opt-out claims, especially those involving consumer claimants. Going forward, the most feasible structure for opt-out claims that involve consumers will likely involve non-profit entities and publicly funded organizations acting as group representatives (for example the Norwegian Consumer Council).  

For further details, please see our newsletter about the Supreme Court judgment.  

Merger control – first Norwegian Supreme Court review of a merger prohibition, one prohibition decision and four cases cleared after phase II investigation 

First time review by the Norwegian Supreme Court of a merger prohibition decision 

In 2023, the Supreme Court concluded that the NCA’s decision, and the CAT’s subsequent decision, to prohibit Schibsted’s acquisition of Nettbil, did not satisfy the legal standard for a prohibition decision. In reaching this conclusion the court found that Nettbil’s C2B car auction platform and Schibsted’s online classified business FINN.no did not operate in the same market, and emphasized that products with large differences in price presumably belong to separate markets. This was particularly relevant in this case as Nettbil’s service included an array of additional services and eliminated risk for private individuals, which in addition to serving as distinguishing factors also contributed to a large difference in price between the two platforms. 

The Court ruled that the evidence presented by the NCA was insufficient to counter this presumption. The customer surveys conducted by the NCA merely confirmed that the two services were alternatives, and the internal documents of the parties did not evidence substitution or significant competitive pressure.  

The Supreme Court also presented several important legal clarifications. First, with respect to the level of scrutiny, the Court held that while courts should not supplant the NCA’s economic assessment, courts must nevertheless review how the authority has assessed evidence of an economic nature. Second, the Court clearly rejected the state’s argument that the threshold for intervention was met if the negative effects were more than non-appreciable (above the de minimis threshold). The Supreme Court held that the threshold for a prohibition under the SIEC-standard is high: the damage to competition must be qualified and assessed on a case-by-case basis. Third, the standard of proof in merger control cases is on the balance of probabilities and it is for the authority to demonstrate that a merger “most likely” will lead to a SIEC. The mere possibility is insufficient. Fourth, the Court emphasized the high probative value of internal documents albeit held that the documents must be assessed in light of their purpose and context. The Supreme Court criticized the NCA for its overly narrow interpretation of internal documents.  

For further details, please see our separate newsletter.  

The NCA continued its policy of active merger enforcement in 2023 – with one prohibition decision and four phase II clearances 

The NCA received 113 notifications in 2023, a notable decrease from the record number of notifications observed in 2020 and 2021. The authority continued to demonstrate its efficiency, with an average review period of only 11.9 working days from receipt of a notification to clearance for non-complicated notifications. While there is little tradition for pre-notification dialogue for non-complicated mergers, extensive requests for internal documents are becoming more and more common for more complicated mergers.  

The NCA continues to be willing to intervene against transactions that relate to smaller markets, as demonstrated by its decision to block ØB Group’s acquisition of AS Betongvarer. AS Betongvarer’s turnover in 2022 of NOK 17.2 million (EUR 1.5 million) fell below the mandatory filing thresholds in the Norwegian Competition Act. However, following correspondence with the NCA, ØB Group submitted a voluntary notification on 14 December 2022. Both parties were active within ready-mix concrete plants on the Folgefonna peninsula in Western Norway. Following close review of transport costs, sales and tender data, as well as a study of the cover areas of the merging parties’ and competitors’ plants, the NCA concluded that parties were the sole competitors in the Folgefonna peninsula market and prohibited the transaction on 10 May 2023. 

During the review process, the parties had claimed that the NCA had misinterpreted various internal documents. In light of the Supreme Court’s decision in Schibsted/Nettbil, it is therefore noteworthy that the NCA took great care to rebut this claim, including with reference to a second review of the relevant internal documents after the NCA had issued its S.O.  

ØB Betong’s proposed acquisition of AS Betongvarer was the only prohibition decision that occurred in 2023. In contrast, the NCA cleared four notifications following phase II reviews. An S.O. was only issued in one of these cases . This demonstrates that an NCA phase II investigation does not necessarily result in an S.O. being issued or a prohibition outcome. Indeed, since 2014, of the 41 cases investigated in phase II, 12 cases were cleared before an S.O. was issued, and 4 cases were cleared following an S.O.  

One notable clearance after an S.O. had been issued occurred in 2023 and involved the low-cost carrier ‘Norwegian’ which was seeking to acquire the regional airline Widerøe. The NCA expressed concerns related to non-coordinated effects on three overlapping domestic routes and indirect flights between 17 city pairs, as well as coordinated effects in the overall domestic market for air passenger transport as a result of the reduction from three to two domestic operators. The NCA also expressed concerns related to vertical foreclosure due to Widerøe’s provision of ground handling services at three domestic airports.  The merger garnered significant interest from the media and from the Norwegian competition law community with various experts, including the former director general of the NCA, writing newspaper articles arguing for or against possible anti-competitive effects. After the parties’ response to the S.O, the NCA cleared the transaction without remedies on 21 December 2023. 

Despite having the competence to call in mergers below the notification thresholds, the NCA has demonstrated a keen willingness to join Article 22 referral requests under the EU Merger Regulation. To date, the NCA has joined three such requests, including in 2023 for the EEX/Nasdaq referral by the Danish and Finish competition authorities.

Legislation

NCA gains competence to appeal certain CAT decisions

On 1 July 2023, a legislative change entered into force providing the NCA with the competence to appeal CAT decisions concerning anticompetitive agreements and abuse of dominance to the Gulating Court of Appeal. Appeals of merger control decisions remain outside the competence of the NCA.  

Proposal for a new market investigation tool

As a part of the ongoing debate on whether current antitrust legislation is fit for the modern economy and inspired by the market investigation tools in UK and in Iceland, the Government launched a public consultation in March 2023 regarding a proposal for a new market investigation tool. The proposal consists of the following steps:  

1. Information gathering: The proposal empowers the NCA with wide powers for information gathering. Any person, natural or legal, must comply with any request for information. Non-compliance with requests can be sanctioned with fines. 
2. Opening market investigation: Based on the gathered information, the NCA can decide to open an investigation if it considers that there are factors which suggest that “competition is restricted or at the risk of being restricted”. While the NCA is obligated to conduct a public consultation on the draft decision to open a market investigation, the final decision to open an investigation cannot be contested through an appeal.  
3. Market investigation: The NCA will assess if there are circumstances which “significantly restricts or are capable of significantly restricting competition”. During the market investigation, the NCA will rely on its general competence to order any legal or natural person to provide such information as is required by the NCA to perform its tasks under the Norwegian Competition law. 
4. Procompetitive remedies or commitments: The NCA can impose both behavioural and structural remedies where necessary to eliminate or reduce the restriction of competition. The NCA may also impose interim measures during the market investigation. If an undertaking under investigation offers commitments, the NCA may issue a decision making the commitments binding for the undertaking.  

Most respondents to the public consultation expressed primarily negative views on the proposal, and only the NCA, the Norwegian Consumer Council, the Norwegian Agriculture Agency and the Norwegian Better Regulation Council were mostly positive. In particular, many respondents were concerned that potential remedies could be too invasive, considering that the affected undertakings have not violated the law. Respondents were also concerned with a perceived lack of legal safeguards.  

After the public consultation deadline expired in June 2023, the Government has not provided any updates on the advancement of the proposal. 

New forms of sanction against individuals – administrative fines and directors’ disqualification 

The threat of criminal sanctions for individuals has so far been dormant under the Competition Act except in two known recent cases where the NCA reported individuals for prosecution. In 2023, the Government conducted a brief public consultation on a proposal to grant the NCA competence to sanction individuals with administrative fines for infringements of certain provisions of the Competition Act. The proposal includes the possibility to impose a maximum fine of NOK 43 million (approx. MEUR 3.8), or alternatively three times the profits that have resulted from the infringement whichever is higher, as well as disqualification orders for up to five years. Critics have voiced concerns that the proposal has not been sufficiently researched and considered.  

The public consultation deadline expired in June 2023. The Government has not provided any subsequent updates on the advancement of the proposal.  

Continued scrutiny in the grocery market

On 1 January 2024, a new regulation entered into force that restricts grocery chains from imposing restrictive covenants on properties that prevent competitors from using them.  

The Government also initiated a public consultation on a proposed regulation that aims to prohibit price discrimination from suppliers and wholesalers with “relative market power”. The proposal targets scenarios where the customer is dependent on the supplier/wholesaler and there is therefore a resulting significant imbalance in bargaining power. In addition, there are several reports which have been published or are in production and which discuss various aspects and potential causes for concern within the grocery sector, including vertical integration and the effects of own private labels.  

Minor amendments to the Competition Act and new Act on the sale of books

Some amendments to the Competition Act entered into force in January 2023. Most importantly, from 1 January 2023 all fines imposed in decisions by the NCA are subject to interest rates equal to the base rate for overdue payments under Norwegian law, with the addition of 1 percentage point.  

A new Act on the sale of books entered into force in January 2024, which mandates fixed prices for resellers for the first 12 months, and which contains an exemption from the prohibition against anticompetitive agreements. The mandatory fixed price concerns every publishing format, including e-books and audio books.  

Foreign Direct Investment

In 2023, the Norwegian Parliament passed comprehensive amendments to the Norwegian National Security Act (“NSA“). The proposal has only partially been enacted by the Norwegian Government, with full implementation expected to take place in 2024 alongside certain accompanying regulations. 

When fully enacted, the revised act will broaden the scope of national security filing obligations by most notably (i) lowering the scope of reportable obligations to include acquisitions of a 10 % ownership interest (from more than one third) and (ii) significantly expanding the scope of entities subject to the reporting obligation by including all entities which hold a supplier facility clearance, and which participate in security graded procurements. The revised act will also introduce a new stand-still obligation, sanctions for failures to notify and gun-jumping, and a proposed ban during pre-merger proceedings of exchanges of information that can be used for security threatening activities and that concern entities subject to the NSA’s notification rules. 

Following the Russian invasion of Ukraine, Norwegian authorities remain concerned with matters of national security. An increasing number of entities are therefore in parallel being subjected to the NSA by virtue of decisions issued by Norwegian Ministries and the Norwegian Security Authority. 

The revised NSA and its consequences are further described in BAHR’s newsletter of 28 April 2023. 

Separately, a working group set by the Norwegian Ministry of Trade, Industry and Fisheries proposed the implementation of a more traditional FDI screening mechanism for certain sectors modelled on recently implemented FDI regimes in other EU countries. The working group recommended that a traditional FDI screening mechanism would supplement and function in addition to the NSA.  

State aid

Norwegian municipalities use state aid rules for claw-back in real estate transactions

2023 saw several cases where municipalities attempted to claw back payment in real estate transactions, arguing that prices did not meet the market investor test. 

Notably, in 2023 the Supreme Court issued one of only few judgments concerning State aid since the entry into force of the EEA Agreement in 1994. The focal point of the case was the attempt by the Oslo municipality to reclaim alleged overpayment to a private counterparty, arguing that the agreed sales price in an already closed property transaction was above market terms. The Court ruled against the municipality, as the municipality had incorrectly based its valuation on the time of signing of the purchase agreement and not the time when the agreement became binding for the parties, as the agreement would only become binding at a later time once the city council had given its consent. More importantly, the Supreme Court in an obiter dictum found that Norwegian law allows for the recovery of aid provided through mutually binding agreements, both under the previous act on State aid procedures and under the new act that entered into force on 1 January 2023. 

In the same vein, ESA has also investigated two complaints lodged by municipalities that have been party to property transactions involving alleged State aid during 2023. One of these progressed to a formal investigation. The municipality had by mistake failed to retrieve payment for the property sale, and the claim had subsequently expired under Norwegian procedural rules. Conveniently, according to the State aid rules, ESA may order repayment of aid awarded up to ten years ago, thereby opening a path for recovery in circumstances where recovery is otherwise time-barred.  

These cases show that private parties to property transactions involving public counterparts run the risk of complaint procedures and possibly claims for repayment up to ten years after the transaction has been closed. As the purpose of the recovery mechanisms is to restore market balance, it is challenging to mitigate this risk through contract drafting. 

Energy and environment

Following the European Commission’s adoption of the Temporary Crisis and Transition Framework (TCTF) in 2023, ESA has applied the TCTF in two cases, both relating to investments in offshore wind. One of them concerned ESA’s approval of an aid scheme for investment in small-scale floating offshore wind installations with a budget of up to NOK 4 billion (approx. EUR 353 million). In the second case, ESA approved State aid in relation to a competition for the right to build and operate offshore wind installations in an area in the Southern North Sea. ESA considered that the aid did not fulfil the criteria in the European Commission’s guidelines for State aid for climate, environmental protection, and energy (CEEAG), but that the requirements under the TCTF were fulfilled. ESA’s decision illustrates that TCTF provides Norwegian authorities with increased opportunities to establish measures in support of the green transition.  

Norwegian authorities implemented the General Block Exemption (GBER) Green Deal Amendment in December 2023. The implementation enabled the Government to implement its proposal for differentiating the CO2 tax on waste incineration between emissions subject to the quota obligation and non-quota emissions respectively. The differentiation came into effect on 1 January 2024. 

While the thresholds for de minimis aid have been enacted in the EU, the amendments to the De Minimis Regulation and the Services of General Economic Interest De Minimis Regulation have not been implemented into the EEA Agreement so far. We expect this to happen early in 2024. 

Liability for damages in addition to the obligation to repay state aid?

In October 2023, the Eidsivating Court of Appeal handed down a judgment where three fitness centres were awarded damages for a municipality’s breach of the State aid rules. The Court found that a competing fitness centre owned by the municipality had received illegal aid, and that the illegal aid had kept the fitness centre from closing down and thus inflicted a loss on the neighbouring fitness centres due to the sustained competition faced by them. This is the first time Norwegian courts have awarded damages due to the State’s breach of EEA-state aid rules. The case has been appealed to the Supreme Court, where a final judgment is expected in late 2024.  

Formal investigations closed and new investigations opened

In May 2023, ESA opened a formal investigation into the state-owned rail operator Vy on the basis of three separate complaints. Norwegian authorities have, since the EEA Agreement came into force in 1994, provided compensation for unprofitable railway passenger services as a service of general economic interest. The compensation at issue originates from 2018 when Vy (then known as NSB) was directly awarded a contract for the operation of various railway passenger services, not subject to competition at the time. The case is handled as “new aid”, although ESA in an earlier case from 2017 against Vy dealt with the aid as “existing aid”.  

In September 2023, ESA closed its investigation into possible overcompensation for waste collection services in Tromsø. Interestingly, for one of the measures alleged to be aid, ESA was not able to conclude that the compensation was not on market terms due to a lack of relevant benchmarks, even though no ex-ante assessment had been made.  

ESA also closed its investigation into the Katapult scheme, which concerns aid to innovation clusters under a scheme exempted under GBER. ESA’s initial concerns began after the aid was monitored in ESA’s annual monitoring exercise. Having received more information in 2023, ESA found that its initial concerns were unfounded and that the scheme was in line with the GBER and thus compatible with the EEA Agreement. ESA continues to monitor selected aid schemes annually.  

Foreign Subsidies Regulation

The EU’s Foreign Subsidies Regulation (“FSR”) was introduced 12 October 2023, with the aim of preventing distortions in the internal market as a result of subsidies granted by foreign states. To address this issue, the Regulation mandates notification of “financial contributions” for transactions and public procurements if certain thresholds are met. The concept of “financial contributions” is interpreted broadly, encompassing various forms of public benefits, such as subsidies, loans, or contracts (including those awarded after public tenders). 

Norwegian companies have “third country” status under the FSR despite Norway having incorporated EU State aid and public procurement rules into domestic law. Norwegian companies are therefore subject to the notification obligation, and several Norwegian suppliers involved in public tenders in the EU have already triggered notifications. We expect that this trend will only continue as the extensive size of the Norwegian public sector means that many Norwegian companies have commercial relationships with Norwegian state or municipal entities.  

So far, the FSR has not been incorporated into the EEA Agreement or Norwegian law, meaning that the FSR does not apply for transactions and public procurements in Norway. It appears that the FSR will not be incorporated for the foreseeable future, as the Regulation mandates that the European Commission take into account inherent elements of EU trade policy in its enforcement – elements which are not found in the EEA Agreement. 

Public procurement

In November 2022, the Norwegian government appointed a procurement committee tasked with reviewing public procurement regulations and proposing changes. Some noteworthy proposals included in the first partial committee report, NOU 2023:26 New Act on Public Procurements, include increasing the threshold for applying EU procurement regulations from NOK 100,000 to NOK 300,000 and elevating and moving substantive rules from separate regulations to the Public Procurement Act. The Committee has also proposed substantially altering the rules that govern procurements below the EEA threshold values, such as by suggesting that EEA directive principles should not apply to procurements below EEA thresholds, which will instead solely be governed by the principles of Norwegian national administrative law. 

Overall, the proposed amendments could offer public contracting authorities much-needed flexibility for procurement activities, while also benefitting suppliers by accommodating less complex tender procedures in certain instances. However, the proposed amendments could also slightly reduce predictability for tender award outcomes and lead to fewer opportunities to demand review of tender procedures. 

The first partial committee report also includes proposed clarifications for provisions on social considerations, concentrated on provisions on climate and environmental considerations. Specifically, the clarifications are intended to accommodate declared political objectives to use public procurements as a tool to promote climate and environmental policy objectives. To satisfy these objectives the committee has proposed five measures to promote the green transition: 

1. Clarify that one of the objects of the Act are to contribute to the efficient and sustainable use of society’s resources. 
2. Introduce standardized minimum EU requirements for priority areas, which can be complemented by national minimum requirements for certain sectors. 
3. Establish a separate statutory provision on the green transition. 
4. Impose an obligation on contracting authorities to have routines for green restructuring. 
5. Highlight the role of innovation in public procurements. 

These five measures are intended to replace the climate and environmental provision that took effect on January 1, 2024, adopted with the same objective of reinforcing climate and environmental requirements in public procurements and thereby reducing the overall climate impact or environmental burden of procurements. The current provision, the Norwegian Procurement Regulation section 7-9, stipulates that, as a general rule, contracting authorities must consider climate and environmental considerations as an award criteria with a minimum weighting of 30%. The Committee believes that this static rule is not the most effective instrument for achieving climate goals, as the rule limits flexibility for tender procedures, and may potentially conflict with the Act’s primary objective of promoting efficient use of society’s resources. 

While the current provision is somewhat rigid, contracting authorities are permitted to substitute the award criterion with requirements in the specification if it is evident that doing so will lead to better climate and environmental effects. If the procurement has an insignificant climate impact and environmental burden, the contracting authority may disregard the provision entirely. Should contracting authorities choose to deviate from the main rule of 30% weighting (or prioritization), either by setting climate and environmental requirements in the specification or by disregarding the provision altogether, they must justify and document such deviations in the procurement documents. 

The committee is currently working on a second partial report that, among other topics, will address rules governing the contracting authority’s liability for regulatory breaches, enforcement of procurement regulations and rules governing bid rejection. The second part of the report will be presented on May 4, 2024.  

It will be particularly interesting to see the committee’s assessment of the liability rules. This is accentuated by the fact that in 2023, the Norwegian Supreme Court issued two rulings regarding liability. While the two rulings did not clarify all questions regarding the liability rules, the rulings did provide important guidance. The two rulings are also particularly noteworthy considering that public procurement cases only rarely reach the Norwegian Supreme Court. Since the initial Procurement Act of 1999 was introduced, the Supreme Court has only heard five cases related to public procurement.  

The first of the two cases in 2023, HR-2022-19964-A (Flage Maskin), concerned a claim for damages due to an alleged wrongful exclusion. There has been, and still is, significant uncertainty in Norwegian law regarding the liability standard for breaches of procurement rules, especially in exclusion cases. The Court found that the contracting authority had not erred when excluding the claimant from the tender competition, and the liability standard was therefore not addressed. However, the judgment did offer interesting guidance on the contracting authority’s discretion in determining and assessing qualification requirements, as well as how the qualifications of suppliers and their subcontractors are considered during the assessment. 

The judgment establishes that when interpreting the qualification requirements, one must consider the tender documentation in its entirety. Furthermore, the judgment affirms that suppliers cannot acquire the necessary competence to qualify through project management of third parties. The experience of the supplier shall be evaluated based on its actual contribution in previous projects. Therefore, it is particularly important for suppliers who do not qualify by themselves, to identify and obtain commitment declarations from subcontractors, which they rely on to meet the qualification requirements before submitting a bid. 

The second case in 2023, HR-2023-206-A (Perpetuum), concerned the question of whether an unsuccessful supplier should be awarded damages due to procedural errors in the tender process, when other errors were later discovered and, in any event, led to the cancellation of the tender. The Court did not find that any right to damages in the given scenario were present and issued a judgment that critics claim will make the enforcement of the procurement regulations more challenging. Critics point out that the judgment might encourage contracting authorities to identify and bring forward additional procedural faults as a means to avoid compensation claims from suppliers. 

The case was referred back to the Court of Appeal for reconsideration. The Court of Appeal found that there was indeed an obligation to cancel the tender and consequently, the claim for damages was finally dismissed. 

As the landscape of Norwegian procurement law continues to evolve, the introduction of new environmental requirements, the comprehensive review undertaken in the recent NOU report and the latest judgments from the Supreme Court, collectively signal a period of changes and the necessity of clear guidance.