The business sector is subject to a network of regulations of various kinds, which impose requirements on the business itself or its activities, but also grant rights to business operators.
The density and complexity of regulation are increasing, and the pace of regulatory change can be rapid. Requirements may be detailed and general, industry- and sector-specific or cross-industry and cross-sector, and are set out in statutes, regulations, decisions, directives and ordinances.
The penalties for breaches of the rules can be severe, and compliance with regulatory requirements can be critical to a business’s operations. Administrative regulations can also have significant commercial implications, for example in matters concerning the lawful organisation and operation of companies, permits for resource utilisation, access to support schemes or exemptions from onerous requirements.
At Thommessen, we assemble a team with the sector-specific expertise the case requires and the litigation experience needed to ensure the best possible representation.
Our solicitors assist businesses across all sectors with regulatory matters and, over the years, we have represented both large and small players in administrative law disputes. This includes cases concerning state aid, procurement law, regulatory framework conditions, marketing, financial and banking regulatory matters, planning and building law disputes, licensing and supervisory matters before the Norwegian courts and the EFTA Court.
Public law decisions, exercise of public authority and business regulation
Regulatory framework conditions and regulations can pose a significant threat to business operations. Intervention by local, county or central government authorities may, at short notice, result in substantial costs, reputational damage or, in a worst case scenario, the closure of a business.
Thommessen’s objective is to prevent unlawful interference, safeguard the company’s assets and ensure that legal certainty guarantees are fully upheld.
Business Regulation
Business regulation can give rise to disputes concerning the right to establish a business or obtain approval.
One example is the right to licences in the fisheries or aquaculture sectors. Another example is ensuring market access on equal terms in price-regulated sectors, such as the sale of dairy products.
In addition to in-depth industry knowledge, expertise in both general and sector-specific administrative law is required to persuade a public body to reverse its decision or to succeed in judicial review proceedings.
Thommessen helps to secure the basis for continued operations.
Exercise of public authority
The exercise of public authority can also have a disruptive impact on ongoing business operations. New regulations, or new interpretations of "old" regulations, can be implemented at short notice, requiring both interim measures and permanent solutions.
When the administration, with all its resources, becomes an obstacle to business operations, assistance is required from advisers who have experience in challenging administrative decisions and influencing outcomes. The solution may lie as much in political engagement as in the detailed legal work, or a combination of both.
Exercising the right of access
Public bodies may also exercise other forms of authority over private individuals and undertakings. Restrictions on property rights through planning regulations, conservation measures or building decisions raise questions regarding legal basis and compensation under traditional domestic law, as well as protection under Article 1 of Protocol No. 1 to the European Convention on Human Rights.
Those affected by such direct or indirect interventions may find the regulatory landscape difficult to navigate. Early engagement is critical to achieving the correct outcome. A key element is to make full use of rights of access to information and participation. Doing so requires specialist legal assistance.
When exercising authority within a specific sector, the public sector may also overlook fundamental rights relating to data protection, privacy (of natural and legal persons), protection against prejudgement, and so on.
One example is authorities' "dawn raids" involving demands for the seizure of information. Through prompt intervention, the scope of the seizure or securing can be minimised, and the use of the material restricted or prevented. Without such intervention, irreversible harm may be done.
Another general challenge is that the administration has a poorly developed tradition of reaching settlements. This may be attibutable to access to vast (unlimited) resources, low risk for those involved on the public sector side, fear of loss of face or prestige, and a frequently held view of the principled nature of the cases. In addition to motivating the administration to change course through the use of legal means, the solution may lie in outlining an outcome that safeguards the principled aspects and does not create unnecessary political controversy.
