Enterprise penalty for employing a foreign national without a residence or work permit in Norway

Supreme Court judgment 15 April 2021, HR-2021-797-A, (case no. 20-182212STR-HRET), criminal case, appeal against judgment.

X AS (Counsel Brynjulf Risnes) v. The Public Prosecution Authority (Counsel Kristian Jarland)

Justice: Matningsdal, Falkanger, Kallerud, Ringnes, Østensen Berglund

A fine of NOK 30 000 was imposed on a company as an enterprise penalty, see section 27 of the Penal Code, for violation of section 108 subsection 3 (a) of the Immigration Act. The company had employed a general manager who did not have a residence or work permit in Norway. The Supreme Court assumed that objective culpability based on the wording in section 27 of the Penal Code is not in conformity with the punishment term in Article 6 (2) and Article 7 of the ECHR, as it is currently applied in ECtHR case law. Subjective culpability is therefore a requirement for punishment. Ordinary negligence is sufficient. It was assumed that the company's chair had acted negligently in connection with the employment. A fine of NOK 25 000 was imposed in the optional penalty writ, with a notice that if the fine was not accepted, a fine of NOK 30 000 would be requested in court. However, in the District Court, the Public Prosecution Authority requested a fine of NOK 500 000. The change was due to the failure to consider the Oslo Police District's fines regulations when issuing the optional penalty writ. The Supreme Court stated that the amount set forth in the penalty writ had to be attributed weight, although it was not binding on the court or the Prosecution Authority. When measuring the fine, the Supreme Court also emphasised that the foreign national had received an appropriate salary, and that tax had been deducted. The employment did not involve improper exploitation, and the chair had not acted with gross negligence. The fine was therefore set at the amount initially stated in the optional penalty writ.

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