Exercise of government authority

We protect business assets and apply legal safeguards


PUBLIC LAW ORDERS, EXERCISE OF GOVERNMENT AUTHORITY AND INDUSTRY REGULATION

Government regulation may pose a major threat to businesses. Local, regional and central government intervention can – overnight – cause high costs, reputational damage or, in the worst-case scenario, folding of the business. Thommessen’s role is to avert unwarranted intervention, protect business assets and ensure that legal safeguards are applied in full.

Industry regulation

Industry regulation may give rise to disputes regarding the right of establishment or approval. One example is the right to fishing or aquaculture licences. Another is ensuring market access on equal terms in business segments that are subject to price regulation, such as dairy product sales. In addition to in-depth industry knowledge, it is necessary to have expertise in general and special administrative law to convince a government body to change course, or to prevail with a validity challenge. Thommessen contributes to safeguarding the foundations for a viable business operation.

Exercise of government authority

The exercise of government authority may also interfere with existing operations. New rules, or new application of existing rules, may be introduced with little notice and require both interim measures and permanent solutions. When the civil service, with all of its resources, becomes a showstopper, it is necessary to seek assistance from those with a track record of successfully challenging civil service interventions. The solution may involve political lobbying or specialised legal arguments, or a combination of both.

Make the most of the right of access to information

Government bodies may also exercise other powers over individuals and businesses. Restrictive property clauses imposed under planning, zoning, building or conservation regulations give rise to lawfulness and compensation issues under traditional domestic law, but also protection issues under the European Convention on Human Rights (Protocol 1-1). Those suffering such direct or indirect intervention will encounter a plethora of multidimensional statutes and administrative regulations. It is of crucial importance to approach these from the appropriate angle from the very beginning. A key element is to make the most of the right of access to information. This requires specialised legal expertise.

The civil service may also, when exercising powers in a specific sector, overlook basic rights relating to data protection, privacy (natural persons and legal entities), fair hearing, etc. One example is dawn raids, where government bodies seek to seize or secure information. Swift intervention can minimise the scope of seizure and securing, as well as curtail or prevent the use of seized and secured materials. Failure to intervene swiftly may cause irreparable damage.

Another general challenge is that the civil service does not have much of a tradition for settling disputes. This may be the result of considerable (practically unlimited) resources, low risk for the civil servants involved, an unwillingness to lose face by climbing down and a potentially exaggerated fear of establishing a general precedent. In addition to motivating the civil service to change course by invoking legal measures, the solution may be found in outlining an outcome that does not set a general precedent or entail any unnecessarily political complications. Our extensive experience in challenging – and occasionally representing – government bodies means that we know how solutions can be attained.

BENCHMARK CASES


Hav Line Gruppen AS – Ministry of Trade, Industry and Fisheries

Thommessen is assisting Hav Line in a dispute with the Ministry of Trade, Industry and Fisheries regarding permission to operate the floating fish processor Norwegian Gannet and its associated fish reception facility in Hirtshals. We secured the continued operation of Hav Line by obtaining a preliminary injunction in January 2019, after the Ministry had sought to halt operations by overturning the Norwegian Food Safety Authority’s approval decision. The pending litigation involves judicial review of an administrative appeal decision in the form of a royal decree and the validity of a new provision in the Quality Regulations.

Fjord Line AS – Ministry of Finance/Ministry of Transport and Communications

Thommessen has assisted Fjord Line AS in relation to proposed amendments to the trading area restrictions of the Norwegian International Ship Register. The assistance has involved claims for access to licences held by Color Line AS, which holds a dominant position in the Scandinavian ferry market, and establishing a legal basis for equal treatment of the shipping companies involved. The matter was solved politically in 2019.

Pelagia AS/Themis Fiskeri AS – Ministry of Trade, Industry and Fisheries

Thommessen has assisted Pelagia AS/Themis Fiskeri AS in a dispute with the Ministry of Trade, Industry and Fisheries. The background was the Norwegian Fishermen’s Sales Organization for Pelagic Fish’s fishing ban decision and alleged sales ban decision, as well as a subsequent decision to confiscate sales proceeds. The Oslo District Court upheld our claim that the Ministry’s administrative appeal decision was invalid and that there was no legal basis for confiscation.

The team

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Siri Teigum

// PARTNER

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Svein Aage Valen

// PARTNER

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Jens Naas-Bibow

// PARTNER

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Eirik W. Raanes

// PARTNER

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Henning Harborg

// PARTNER

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Trond Hatland

// PARTNER

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Karl O. Wallevik

// MANAGING ASSOCIATE

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Knut H. Leknes

// MANAGING ASSOCIATE