Public Defence Procurement in Norway UrT 2024 no 2 p. 61

Norway is not a member of the European Union. However, in 2 May 1992, the agreement establishing the European Economic Area (the EEA Agreement) was signed by the EFTA states Norway, Liechtenstein and Iceland on the one side and the EU member states. The EEA agreement includes Norway to the internal market rules within the EU, and Norway has a duty to implement Regulations and Directives developed by the EU which falls within the internal market rules, cf. EEA agreement article 7.

The EU public procurement rules provide legal rights for suppliers in one EU member state to participate in a procurement procedure in another EU member state falls within the scope of the internal market rules. Consequently, the EU rules on public procurement also falls within the scope of the EEA agreement. Norway has therefore implemented the EU rules on public procurement into internal law. This is done through the general Act on Public Procurement (in Norwegian: Anskaffelsesloven, hereafter “LOA”) and four Norwegian Regulations: public procurement within classic sector (in Norwegian: “Anskaffelsesforskriften”, hereafter “FOA”), public procurement within the utilities sector (in Norwegian “Forsyningsforskriften”, hereafter “FOF”), public procurement of concession contracts (in Norwegian “Konsesjonskontraktforskriften”, hereafter “KOF”) and public procurement within the defence and security sector (in Norwegian: “Forsvars- og sikkerhetsanskaffelsesforskriften”, hereafter “FOSA”).

The fact that the Norwegian regulations on public procurement implements EEA-law (and consequently EU law), the Norwegian regulations are presumed to be in line with the EU regulations on public procurement. The European Court of Justice (“ECJ”) has in a number of cases stated that:

“when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of [EU law]”.

This principle, which under Norwegian law is referred to as the Principle of presumption, is also stated by the Norwegian Supreme Court in the following way:

“Norwegian law shall, to the extent possible, be interpreted in line with our obligations under international law”.

However, the principle of presumption cannot be stretched in case of clear contradiction with Norwegian law, even though the legislator has aimed to fulfil obligations under international law.

The Norwegian Ministry of Defence (hereafter the “Ministry”) has also made its own internal instruction for public procurements in the defense sector, called “ARF”. ARF is an internal instruction for the public defense sector and does not provide any legal rights or obligations for third parties, such as suppliers to the public defense sector. However, ARF includes important information concerning ethical aspects, and comments relating to use of exemptions. As a legal source, ARF has no significance since public procurements are governed by LOA and the four main regulations.

Line Voldstad, Morten Gullhagen-Revling, David Berset

PDF: Public Defence Procurement in Norway UrT 2024 no 2 p. 61
Volym: 2
Sida: 61
År: 2024