ROYAL NORWEGIAN MINISTRY OF TRADE, INDUSTRY AND FISHERIES EFTA Surveillance Authority (ESA)/EFTAs Overvåkningsorgan Werner Miguel Kühn Rue Belliard 35 B-1040 BRUSSEL Y our ref Our ref Date 14/6869-9 01.06.15 Observations from the Norwegian Government on the content of ESA’s letter of 17 February 2015 1. INTRODUCTION Reference is made to the letter from EFTAs Surveillance Authority (“ESA”) of 17 February 2015. The Ministry of Trade, Industry and Fisheries has cooperated with the Ministry of Justice, which is responsible for the legislation on access to information and with Posten Norway AS (“Posten”) answering the letter. The Norwegian Ministry of Trade, Industry and Fisheries notices that the principle conclusions drawn by ESA on the Norwegian legislation on access to information in the letter seem to come from the perception from ESAs side that there is a legislative conflict between the public procurement rules and the Norwegian Freedom of Information Act. In ESA’s opinion this conflict has the effect of preventing participants in a procurement procedure from being informed of the reasons for their exclusion in a pre-selection procedure. Thus, our starting point for answering this letter has been to carefully assess and explain the reasoning behind the material scope of the Freedom of Information Act, and how and why Posten falls outside the scope. Thereafter, we will explain how the obligation of a contracting entity to provide reasons has been implemented in Norway and in which manner candidates participating in a pre- Postal address Office address Telephone* <engelsk navn> Our officer PO Box 8090 Dep Akersgata 59 +47 22 24 90 90 Margrét Gunnarsdóttir 0032 Oslo Vat no. +47 22244830 [email protected] www.nfd.dep.no 912 660 680 qualification procedure can rely on effective legal review as required and presupposed by the EU public procurement rules. 2. THE RIGHT OF ACCESS TO DOCUMENTS HELD BY PUBLIC AUTHORITIES AND PUBLIC UNDERTAKINGS IN NORWAY 2.1 The legislation The legislation in force in Norway is Act of 19 May 2006 No. 16 relating to the right of access to documents held by public authorities and public undertakings (The Freedom of Information Act). It entered into force on 1 January 2009, but the previous legislation on access to information dates back to 1970. For ESAs convenience we have enclosed an unofficial translation of the Act, done by the Ministry of Justice (see Annex 1). Section 2-2 of the Freedom of Information Act is the legal base for Regulation of 17 October 2008 No. 1119 on the Freedom of Information Act. According to Section 1-1 of that Regulation the following legal persons are exempted from the scope of the Act: a) Norges sjømatråd AS, b) SIVA Eigedom Holding AS, c) Gassco AS, d) NRK Aktivum AS, e) Petoro AS, f) Posten Noreg AS1, g) Statkraft SF, h) Norsk Tipping AS, i) Eksportkreditt Norge AS. 2.2 The background for the scope of the Act and the Regulation In the following we will explain the background for the scope of the Act and the Regulation, hereunder the reasoning behind the scope. For that purpose we have worked with the Ministry of Justice and carefully examined the following documents from the consultation period and the hearing process for the legislation in question: Official Norwegian Report (NOU) from 2003, Proposition to the Odelsting nr 102 (2004-2005), Consultation Paper of 4. September 2007 on the Draft Regulation on Access to Information and the Royal Decree of 17 October 2008. In the Proposition to the Odelsting nr 102 (2004-2005) the Ministry of Justice thoroughly discusses the reasons behind the scope of the Act.2 There, the Ministry of Justice underlines 1 i.e. Posten Norge AS 2 Proposition to the Odelsting nr 102 (2004-2005), page 34-37. Page 2 that when it comes to defining the scope of the Act the core question under the hearing has been to which extent the Act should be applicable to independent legal persons. That includes wholly owned state companies, which had been transformed into limited companies or other corporate forms due to the Norwegian Government’s Ownership Policy. The Ministry of Justice further explains that in their opinion, the basis for the freedom of information should be that the public has right to access to documents in public administration and this right shall not depend upon if the legal person in question is organized as a part of the public administration, or as an independent legal person. However, the Ministry continues, the problem is to find a suitable method to exclude those legal persons that, due to their business activities, neither are subject to the principle of free access to documents after the legislation in force, nor should be subject in the future. The Ministry of Justice further explains in the Proposition that the main principle is that the Act should be applicable to any independent legal person in which the state (or public authorities) directly or indirectly has an equity share that gives it more than half of the votes in the highest body of that legal person, or has the right to elect more than half of the voting members in the highest body of that legal person. Nevertheless, there should be two types of exemptions from the main principle. Firstly, the Ministry of Justice explains, the Act should not apply to legal persons which mainly carry out business in direct competition with, and on the same conditions as private legal persons. As the Ministry of Justice underlines in the Proposition, it is a central element in the Ownership Policy of the Norwegian Government that public companies which carry out business in competition with private companies, shall meet the same conditions and set of rules on the market, as private businesses. To safeguard this central element of the policy it is necessary to exempt these public companies from being subject to the administrative burden of falling under the scope of the Freedom of Information Act. This exception entails that, inter alia, Statoil ASA and Telenor ASA fall outside the scope of the Act albeit the fact that the Norwegian state owns more than half of the shares which gives more than half of the votes in these companies. Secondly, where there are other particular grounds, the Act should also contain a provision authorizing the King to set regulations which exempt independent legal persons from the scope of the Act. However, the Ministry underlines that such an exemption in a regulation should be interpreted strictly. Legal persons should only be exempted if it is considered a necessary measure taken into account the type of the business, the situation in competition or other special considerations. In the Consultation Paper on the Draft Regulation on Access to Information 3 the Ministry of Justice proposed that the following companies shall fall outside the scope of the Act: Eksportutvalget for fisk AS, Gassco AS, NRK Aktivum AS, Petoro AS, Posten Noreg AS and Statkraft SF. The reasoning behind is business considerations. The Ministry continued by saying that Posten would probably fall outside the scope of the Act with reference to Section 3 The Consultation Paper of 4 September 2007 page 3 and page 18. Page 3 2-1 of the Act, second point (since they carry out business in direct competition with and on the same conditions as private legal person). For the sake of clarity, the Ministry of Justice decided that Posten nevertheless should also be included in the list in the Regulation. 2.3 Posten Norway AS - company structure, ownership and business Posten Norway AS is the ultimate parent company of all subsidiaries constituting the Posten Group, which again is wholly owned by the Norwegian Government through the Ministry of Transport and Communication. The Minister of Transport and Communication is the general assembly for the company. The Groups objective and purpose is to operate a postal and logistics business on a competitive basis. Companies of the Group are trading under the brands of Posten or Bring. In the Report to the Storting (white paper) Diverse and value-creating ownerships it is stated that Posten is a Nordic postal and logistics group which develops and supplies integrated solutions in postal, communications and logistics services. The markets for the Group’s services are growing strongly, driven by globalization and technological changes, which are altering consumer behavior and leading to increased competition. Due to a fall in the volume of letters, the company has undertaken significant reorganization of its postal business. At the same time, it has grown strongly in the logistics segment, primarily through acquisitions. The company’s strategy is to develop a Nordic, integrated and industrialized group. In the same report is also stated that the objective of the state’s ownership of Posten is to ensure nationwide provision of a universal service at a reasonable price and of good quality. This is the company’s social mission. The company is to be run on a commercial basis and with the aim of delivering a competitive return. Furthermore, reference is made to Posten’s application for an exemption for activities directly exposed to competition on markets to which access is not restricted (Article 30 of Directive 2004/17/EC). 2.4 Conclusion The scope of the Freedom of Information Act is clearly defined and based on transparent criteria. The assessment if a public company, in the same situation as Posten, falls under the scope of the Freedom of Information Act depends on if the company carries out business in direct competition with and on the same conditions as private legal persons, or is excluded with reference to Section 1 of the Regulation.