infringement fine

An infringement fine is a financial penalty imposed on a contracting authority that has carried out an illegal direct award — awarding a contract without the required contract notice. Under the EU Remedies Directive (2007/66/EC), fines are one of the "alternative penalties" available when a court determines that overriding public interest requires the contract to remain in force rather than being declared ineffective.

How does an infringement fine work?

In the EU/EEA framework, the primary remedy for illegal direct awards is ineffectiveness — the contract is set aside entirely. However, where overriding reasons of general interest (such as public safety) justify keeping the contract in place, Member States must provide for alternative penalties that are effective, proportionate, and dissuasive. These include fines and shortening the contract duration.

In Norway, KOFA can impose infringement fines of up to 15% of the contract value under the Public Procurement Act § 12. The fine is mandatory when the breach is intentional or grossly negligent, and discretionary for ordinary negligence. Key factors in determining the amount include the severity of the breach, the contract value, whether the authority is a repeat offender, and the deterrent effect.

Key rules and deadlines

• Time limit: The right to impose fines lapses two years after the contract was signed
• Payment: The fine is due two months after the decision
• Judicial review: The decision cannot be appealed administratively, but can be challenged in court within two months
• Safe harbour: No fine can be imposed if the authority published a voluntary ex ante transparency notice and waited at least ten days before signing

Anyone can file a complaint about an illegal direct award — no legal standing is required. Tools like Cobrief can help suppliers monitor contract notices and spot potential breaches that may warrant a complaint.

Infringement fines are a cornerstone of procurement enforcement across the EU and EEA. By imposing real financial consequences for bypassing competition rules, they incentivise contracting authorities to comply with publication obligations and ensure a level playing field for all tenderers.