Pre-emption right under the Creditors Recovery Act

Justices: Matningsdal, Matheson, Noer, Falch, Thyness

Oslo Vei AS, which in 2001 had had its business transferred to the former Oslo Veiveisen, also acquired the municipal pension scheme for the employees. In connection with the company's bankruptcy in 2012, Overføringsavtalens Sikringsordning, an undertaking established to secure the employees' pensions rights in the event of bankruptcy in companies with a municipal pension scheme, undertook to pay future adjustment premiums to the pension scheme. Overføringsavtalens Sikringsordning filed a claim against the bankruptcy estate corresponding to the current value of the regulation premiums – referred to as liquidation grants – and asserted a pre-emption right under section 9-3 (1) of the Creditors Recovery Act within the scope of section 9-3 (1) subsection 3. The Supreme Court, having conducted an oral hearing, concluded unlike the court of appeal that the expression "other remuneration for work" in section 9-3 (1) must cover pension premiums that the employees may request their employer to pay to an insurance scheme, regardless of whether the premiums are deducted from the salary or reported as salary. Other sources of law did not warrant any deviation from the most likely result based on the wording. The court of appeal had thus based its ruling on an incorrect interpretation of the law. It was not considered whether the employees' pre-emption right had been transferred to Overføringsavtalens Sikringsordning. The minority agreed with the court of appeal that the employees did not have a pre-emption right to any part of the claim. In line with the majority's opinion, the court of appeal's order was set aside. Dissenting votes 3-2.