3.1 Introduction
In determining lawfulness and the threshold for negligence, the standards of behaviour applicable to the situation at issue serve as an important point of departure for the assessment. Such standards may follow from laws and regulations, standard business practice and customs, etc. The application of written and unwritten standards of behaviour to negligence assessments in tort law raises a number of questions, which have been the subject of much attention in legal literature and numerous court decisions.(1) See for example Viggo Hagstrøm, Offentligrettslig erstatningsansvar (TANO, 1987), pp. 272-353 and Viggo Hagstrøm and Are Stenvik, Erstatningsrett (Universitetsforlaget, 2015), pp. 75-92. The overall topic covers a variety of situations. On the one hand, negligence will clearly be established in cases where the wrongdoer has acted in breach of laws or regulations, which have been adopted with a view to avoiding this kind of damages arising, by prohibiting the behaviour exercised by the wrongdoer in that situation. On the other hand, situations may arise where the laws or regulations have other rationales than the avoidance of damages, or do not have the protection of individuals as their aim at all, and where the relevance of the breach to an assessment of negligence is less clear. Furthermore, the existence of standard business practices and standards raises specific questions, such as their dissemination and the level of acceptance by relevant market participants, as well as the courts’ view on the reasonableness of the standards.
In this article we will focus on what impact the standards for the conduct of energy regulatory authorities may have, on determining a possible basis for state liability. The most relevant rules for the conduct of the Norwegian energy regulatory authorities within the energy sector follow from EU law, and in particular from the directives and regulations included in the EU’s third energy market package from 2009. This package consists of the Electricity Directive 2009/72/EC, the Electricity Regulation (EC) No. 714/2009, the Gas Directive 2009/73/EC, the Gas Regulation (EC) No. 715/2009 and Regulation (EC) No. 713/2009 for the establishment of ACER.(2) The Norwegian Parliament gave its consent to the implementation of this package in the EEA Agreement on 22 March 2018. The decision of the EEA Committee to implement the package in the EEA Agreement will enter into force the day after all Contracting Parties have notified their consent in accordance with national Constitutional requirements. In the following we will assume that this decision enters into force with the effect that the third energy package is implemented into the EEA Agreement. The Directives and Regulations for both the electricity and gas markets set out comprehensive rules for transmission and distribution activities in each sector, including requirements for energy regulatory authorities. The electricity market legislation applies in full to the Norwegian electricity sector. Consequently, these provisions are or will be implemented in Norwegian law, and the exercise of public authority in breach of the rules will be unlawful. In cases where such unlawful exercise of public authority is considered invalid, there will, at the outset, exist a basis for liability.
The gas market legislation, on the other hand, does not apply in full to the gas pipeline infrastructure on the Norwegian Continental Shelf, as this is considered an upstream pipeline network within the meaning of the Gas Directive.(3) See the definition of “upstream pipeline network” in Article 2(2) of Gas Directive 2009/73/EC. Most of this infrastructure is owned by the joint venture Gassled. The Norwegian State has taken the view that EU regulation of gas transmission and distribution activities, including the requirements for regulatory authorities, does not apply to the regulation of Gassled, and that Gassled is only subject to the specific upstream pipeline network provision of the Gas Directives.(4) See Article 20 in Gas Directive 2003/55/EC and the corresponding provisions in Article 34 of Gas Directive 2009/73/EC. The Directives’ defininition of “upstream pipeline network” is not entirely clear. Furthermore, it is not clear from the wording and structure of the Directives whether the overall requirements for energy regulatory authorities only apply to regulators responsible for transmission and distribution systems, or also to regulators responsible for upstream systems. In what follows we will not discuss these questions of interpretation in more detail, but will instead assume that the rules at issue are not directly applicable to the Norwegian offshore gas infrastructure. On this basis, the question is whether the EU requirements may nonetheless have some relevance in determining the overall norms for regulatory conduct, and what consequences this has for the question of liability.
In the following, we will first consider some fundamental considerations behind the regulatory function below in section 3.2 before we review the requirements for regulators in more detail in sections 3.3 and 3.4. In section 3.5 we summarize our findings.