Haugen Gruppen AS ("HG") is an importer of products of international grocery brands, and since the 1980s has served the three largest Norwegian grocery wholesaling groups Coop, NorgesGruppen and Rema. In 1991 HG and Norep AS ("Norep") entered into a "cooperation agreement". The 1991 agreement was in 2008 "revised and replaced" by a new "cooperation agreement". In both the 1991-agreement and the 2008-agreement, Norep was explicitly referred to as HG's "exclusive agent".
In November 2018 HG terminated the 2008-agreement on the basis that Coop, NorgesGruppen and Rema had decided to perform all physical handling of the products in their stores by themselves. According to HG, that decision made the services from Norep redundant.
Norep claimed compensation under the Norwegian Act of 19 June 1992 on commercial agents and commercial travellers (lov om handelsagenter og handelsreisende (agenturloven) 19. juni 1992) ("the Agency act"). The amount claimed was one year's commission based on a calculated average revenue of the previous five years. HG rejected the claim on the basis that the cooperation between the parties was not subject to the Agency Act. Norep then brought the matter to court.
Both the District Court and the Court of Appeal found that the Agency Act did not apply to the parties' relationship. The reason was that Norep could not be deemed a "commercial agent" as defined in the Agency Act Section 1, paragraph 1 (translation used in the opinion - our underlining):
"For the purposes of this Act, 'commercial agent' shall mean a person who, in the course of business operations under agreement with another party (the principal) has undertaken, on a continuing self-employed basis, to work to achieve the sale or purchase of goods on behalf of the principal by obtaining orders for the principal or by concluding agreements in the principal's name."
The Court of Appeal found that there was no doubt that Norep had "undertaken, on a continuing self-employed basis, to work to achieve the sale or purchase of goods on behalf of the principal". HG used Norep as its sales promoter, with Norep having direct involvement and meetings with retailers and wholesalers.
However, the Court of Appeal could not see that the criterion in the last part of the definition was fulfilled, i.e. "by obtaining orders for the principal or by concluding agreements in the principal's name". Firstly, the Court of Appeal found it most probable that orders from stores to wholesalers and from wholesalers to HG went electronically and directly to HG, without Norep as an intermediary. Secondly, the Court of Appeal did not find it probable that Norep concluded agreements in HG's name, as no documentation of written power of attorney, or agreements demonstrating that Norep did so, were submitted to the court.
Consequently, Norep was not deemed a "commercial agent" and therefore was not entitled to claim compensation upon termination of an agency agreement in accordance with the Agency act section 28.
Norep appealed to the Norwegian Supreme Court and leave to appeal was granted on 21 January 2021.