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 development can be rapid. The requirements are detailed and general, industry- and sector-specific or cross-industry and cross-sector, and are set out in laws, 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 all sectors of the business community with regulatory matters and, over the years, have represented both large and small players in litigation concerning administrative law in the business sector. This includes, among other things, cases concerning state aid, procurement law, framework conditions, marketing, financial and banking regulatory matters, planning and building law disputes, licensing cases and supervisory cases before Norwegian courts and the EFTA Court.
Public law decisions, exercise of public authority and business regulation
Framework conditions and regulations can pose a major threat to the business sector. Intervention by local, county and central government authorities can – overnight – result in significant costs, damage to reputation or, in the worst case, spell the end of a business.
Thommessen’s role 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 general and specific administrative law is required to persuade a public body to reverse its decision or to succeed in a validity review.
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 a ‘showstopper’, assistance is required from those who have actually managed to turn the administration around or influence it in the past. The solution may lie just as much in political lobbying as in 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, in conservation or building cases raise questions regarding legal basis and compensation under traditional national law, but also regarding protection under the European Convention on Human RightsConvention (TP 1-1).
Those affected by such direct or indirect interventions will find it easy to get lost in the jungle of laws and regulations. The trick is to get it right from the start. A key element is to make full use of the right of access. This 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 public authorities’ “dawn raids” involving demands for the seizure or securing of information. Through swift intervention, the extent of the seizure or securing can be minimised, and the use of the material restricted or denied. Without such intervention, irreversible damage may occur.
Another general challenge is that the administration has a poorly developed tradition of reaching settlements. This may be due to access to vast (unlimited) resources, low risk for those involved on the public sector side, fear of loss of 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 strain.
