Changes to the Norwegian Energy Act and the Norwegian Data Centre Regulation – What does this mean for the data centre industry?

Section 3-8 of the Energy Act on prioritisation of withdrawal customers in the interests of national security

The new Section 3-8 of the Energy Act empowers the King (i.e. the King in Council/the Government) to require grid companies to prioritise grid connection or a capacity increase for a specific withdrawal customer where necessary to safeguard national security interests. The background to the new provision is the serious security policy situation Norway is facing, as well as the grid connection queues that exist in many parts of the country.

In a previous newsletter, we wrote about the proposal for a new Section 3-8 of the Energy Act, which was circulated for public consultation in 2025. Some amendments have been made to the adopted provision as opposed to the suggestion.

The following points are particularly important to note about the new Section 3-8:

• Decisions under Section 3-8 may result in third parties losing their reserved capacity. However, the general rule will continue to be the ordinary grid connection process, and the provision is intended to operate as a narrow exception.
• Advisory statements must be obtained from other ministries before a decision is made. The Norwegian Ministry (Det Kongelige Energidepartementet) clarifies in the preparatory works that this also includes obtaining information from relevant grid companies and affected third parties.
• Connected customers cannot be deprived of capacity that has been brought into use. The Ministry states the following in the preparatory works (unofficial translations): 
  
  
  1. “it is not sufficient that the customer has made investments, as long as the customer is not connected and has brought the capacity into use.”
  2. A grid connection agreement must be in place, and metering data must have been submitted to Elhub. When assessing the extent of capacity that has been brought into use, it is stated that “it is natural to consider the capacity agreed in the grid connection agreement, as well as whether the customer has installed the necessary equipment to enable a certain withdrawal volume.”
  3. “Connected customers that have received a reservation for increased offtake may lose the reservation for the increased offtake. An example could be operators with phased development that are already connected with a certain volume, but that have one or more phases with reservations."
      
• The provision contains no specific statutory basis for damages and does not establish a compensation scheme for third parties. The Ministry states the following on damages (unofficial translations):

“Third parties that, as a result of a decision to prioritise another withdrawal customer in the interests of national security, have their grid connection postponed, may suffer a disadvantage or a financial loss. For the party or parties that suffer a financial loss as a result of a decision under the new provision, three different recipients of a claim for damages can in principle be envisaged: the grid company, the State, or the party that benefits from the decision. On the basis of the consultation paper and the consultation responses, the Ministry finds reason to address the question of damages in these three relationships. 

Any disputes between the grid companies and their customers must be resolved on the basis of the specific contracts and the general rules of contract law. Overall, however, the Ministry assumes that there will normally be no basis for directing a potential claim for damages against the grid companies, since a decision to prioritise grid connection will be made by the King and will thus lies outside the grid companies’ control. The Ministry does not find it appropriate to discuss these issues further here. 

In the consultation paper, the Ministry assumed that compensation under general rules on damages may become relevant, normally from the operator that is given priority grid connection or a capacity increase. The Ministry does not propose a specific statutory basis for imposing an obligation on the party that benefits from the decision to compensate any financial losses suffered by the party or parties that are passed over. The State will not be liable in damages for valid decisions under the proposed statutory provision. The legislature is free to grant the administration powers within the framework of the Constitution. The Ministry has addressed the relationship between the legislative proposal and overriding obligations under the Constitution, the ECHR and the EEA Agreement in sections 3.4 and 3.5. As long as the legislative proposal and the specific decision remain within the overriding framework, a decision that satisfies the conditions in the proposed Section 3-8 of the Energy Act will be valid. A valid decision will not constitute a basis for liability towards third parties that suffer a financial loss as a result of the decision. 

The Ministry has also considered whether a specific compensation scheme should be proposed, but has concluded that this is not appropriate at this time. The authorities’ responsibility to cover the costs of third parties that are passed over by decisions under the new provision will therefore be limited to situations where this is necessary in view of the protection afforded by the Constitution and the ECHR.”

It is important to note that the Ministry takes the view that the possibilities for compensation will be limited, but that disputes between grid companies and customers must be resolved on the basis of the specific contracts entered into. In our view, data centre operators must take the new Section 3-8 into account in their risk assessments and in their agreements, for example by including reservations and liability disclaimers. 

Amendments to the Data Centre Regulation for “data centre operators” (cf. Section 1-5 no. 38 of the Electronic Communications Act)

Data centre operators must prepare for additional compliance obligations following the amendments to the Data Centre Regulation. The most significant changes are as follows: 

• New provision regarding up-to-date customer information: Data centre operators must at all times have updated and accessible information about customers who have access to data centre services (cf. Section 1-5 no. 37 of the Electronic Communications Act). This includes, among other things, information on names, contact details and the location of the customers' physical equipment.
• New provision on the obligation to disclose customer information and response time requirements: Data centre operators are required to disclose customer information regarding one or more specified customers to Nkom, NSM, PST and the police and the prosecuting authority where specific conditions are met. The conditions vary depending on which authority requests the information, but the primary considerations are national security and the prevention and investigation of crime. Response time requirements are also introduced, both during and outside business hours.
• Clarification of the requirement for a physical representative in Norway: The data centre operator must have a physical representative in Norway with the authority and knowledge required to respond to requests from the authorities. That person’s contact details must be included in the registration with Nkom.
• Additional registration obligation: The registration with Nkom must also include the name of the owner of the building in which the data centre is located, as well as the contact details for the physical representative in Norway mentioned above.  
• Administrative fines in additional cases: Administrative fines may be imposed for intentional or negligent breaches of the new obligations.

The amendments are unlikely to entail significant administrative or financial consequences for data centre operators, but customers may need to be notified, and customer agreements may need to be adjusted.

Do you need advice? CMS Kluge has extensive experience with regulatory matters in the energy and data centre sectors. Please feel free to contact our team for an informal discussion of what the new changes mean for your business.