5 Conclusion
Above, we have explored the possible basis of state liability in a case of changed tariffs, where no definite right to a specific tariff level can be ascertained, and the setting of tariffs is consequently subject at first instance to the discretion of the relevant government authority.
We have shown that while public liability will usually require breach of some objective standard of legality, Norwegian law also recognises a more general requirement of due care and proportionality in the exercise of government power, which may provide a possible basis for liability irrespective of the validity of a government act.
The regulation of tariffs in net bound services, such as in the energy sector, while necessarily subject to regulatory discretion, does also, and for precisely that reason, raise particular concerns in relation to the interests of infrastructure owners, and their reasonable expectations as to some measure of predictability and stability of future tariffs. This has led to distinct EU standards and criteria for the setting of tariffs in energy transmission and distribution networks, with respect to both electricity and gas. But the imposition of these standards and criteria also reflect more general concerns, which might provide for at least some basis of reasonable expectations regarding a certain level of fairness, predictability and stability in the regulation of tariffs.
Finally, we have shown how Norwegian law may be seen as recognising a distinct liability for breach of legitimate expectations. Although liability on such grounds ordinarily requires breach of a clear and unambiguous assurance or representation, it does not rule out, as a ground for liability, such general and reasonable expectations as an infrastructure owner may have, under an existing regulatory or policy framework, that changes in tariffs will take due account of its interests, and not be unfair, arbitrary or disproportionate. There is nevertheless little doubt that the threshold for government liability will generally be higher in the absence of distinct criteria or standards, such as under the EU rules on electricity and gas.