Circumstances in which the directors or officers of a company or corporation can be held personally criminally responsible for the activities of their company.
1. Under Norwegian law, as in most other countries, the general rule for implementing a penalty upon a person is that said person wilfully has conducted the act, and in many cases also with the intention of conducting a crime. However, if a provision aims at violations consisting of omission to act, simple negligence is sufficient. Obligation to act are of course central in the legislation regulating company and corporate matters, making this a practical issue.
Generally, penalty for omission to act - clauses will be implemented on persons in charge of the company, divisions or entities, but there is also a legal basis in the General Civil Penal Code of 1902 for including also subordinates.
2. This being the situation, there are no general provision instituting a personal criminal responsibility unless the requirements as to personal guilt has been fulfilled.
3. Areas where directors and officers may be held criminally responsible for company and corporate acts are in various aspects of an enterprise’s activities. Directors and officers may be held criminally responsible for acts and omissions relating to tax assessment and tax declarations, value added taxes, worker protection and working environment matters, pollution of the environment, competition and price regulation matters, company law and accounting law requirements, matters related to securities and various other areas. Common for all such responsibilities is that the director or officer in question, individually must be regarded as having committed a violation of the regulation in question, either wilfully, by gross negligence or simple negligence, depending on the requirements in the relevant acts.
4. Chapter 3a in the General Civil Penal Code of 1902 has a provision saying, after having been amended in 1991:
§ 48 a. When a penal provision is contravened by a person who has acted on behalf of an enterprise, the enterprise may be liable to a penalty. This applies even if no individual person may be punished for the contravention.
By enterprise is here meant a company, society or other association, one-man enterprise, foundation, estate or public activity.
The penalty shall be a fine. The enterprise may also by a judgment be deprived of the right to carry on business or may be prohibited from carrying it on in certain forms, cf. section 29.
The main criteria is accordingly that criminal liability of enterprises may only be implemented where there is a violation of a penal provision, either in the General Civil Penal Code or a special provision in a specific act. This provision covers both so-called anonymous and cumulative mistakes. There is accordingly no requirement that an actual person has to be held liable. Also acts were the directly guilty is not found, or smaller acts and omissions that combined form a violation of the penalty provision in question, are covered by this provision.
As the main reason for chapter 3a is to prevent future violations, it is in principle sufficient that there is an objective violation of the provision in question. Force majeure actions and pure accidents do not form a basis for liability.
Chapter 3a has most commonly been applied in matters relating to working protection and working environment, pollution of the environment and competition law matters.