In its complaint to the Ministry of Petroleum and Energy, Statnett points out that the enterprise has not acted intentionally or negligently and that neither the Energy Act nor the provisions of the Act contain any specific requirements regarding such cable connections. Statnett is of the opinion that the NVE’s handling of the case and interpretation of the regulations are characterised by hindsight.

The decision to issue an infringement fine presupposes that Statnett has ”intentionally or negligently” violated the Energy Act and appurtenant regulations. This means there must be a basis for claiming that Statnett’s supervision and preparedness have not been in line with an expectation or duty of care which applied prior to the problems with the cable. The infringement fine further presupposes that it is possible to blame Statnett for not having adhered to such a duty of care.

Statnett points out, however, that neither the Energy Act, nor its provisions stipulate specific requirements to the licensee. There are no regulations or specific instructions for how to carry out supervision and monitoring of an oil-filled cable connection in practice. Nor are there any guidelines regarding which level of preparedness is assumed for such connections.

Statnett points out that the NVE has put significant effort into specifying the requirements for reparation preparedness following the events on the Oslofjord connections. But no such requirements existed in 2008.

The NVE has also based its decision on the fact that the cable connections were repaired too late. 
The repair work was delayed as a result of mines along the cable route over the Oslofjord. Statnett points out that the reason it took such a long time to clear the route of mines was due to factors outside the enterprise’s control. In addition to the Directorate for Civil Protection and Emergency Planning (DSB), both the NVE and the Ministry of Petroleum and Energy were involved in the efforts to clear the mines as quickly as possible. From Statnett’s point of view, it is incomprehensible that the NVE is now of the opinion that Statnett could have done more to speed up the process. If the NVE was aware of any suitable steps which could have been taken vis-a-vis the correct authorities during the process, it would be logical to expect the NVE to bring these to Statnett’s attention, Statnett points out.

Statnett disagrees strongly with the NVE’s characterisation of the operation of the cable connections. According to the NVE, Statnett’s follow-up of the cable connections was highly negligent. Such assessments are surprising when the NVE does not elaborate further on what Statnett actually has in the way of systems and follow-up, as it is worded in Statnett’s appeal. It is also surprising in light of the duty of care which must be derived from recommendations and industry practice. The characteristics show that the NVE’s approach cannot be based on a common understanding of care assessments. They also show that the NVE has not understood the causes of the problems, how the cable connections should and must be operated, or the assessments Statnett conducted in connection with the repair of the cable connections.

NVE’s decision to impose this fine is partly associated with security of supply, where the NVE emphasises that the situation could have become strained if the supply situation had been different. However, Statnett took the relevant, robust power balance into consideration when assessing whether there were reasons to risk repairs in the winter season with the associated increased risk of total breakdown of the whole cable. Statnett had full control of the security of supply throughout. This was never at risk, and the power balance did not indicate increased risk exposure during the repair process.

The other factor NVE emphasises heavily, is a calculated socio-economic loss as a result of reduced transmission capacity in the assessment of ”the severity of the infringement”. It is news to Statnett that consideration for the market as such should be emphasised in this way. Traditionally, the main objective has been to ensure that the power system is working and being utilised optimally, and that all consumers’ needs for electricity are being met. The market has been a means in this connection. The NVE’s fine almost implies that consideration for overseas trade and the market should no longer be secondary to consideration for security of supply.

Statnett claims there is no basis for attaching blame to the enterprise in this case. It is in any case not of such a character that a reaction involving a fine is logical or natural. This is particularly true because the regulations do not stipulate specific requirements to licensees, and the accusation of breach of regulations is in reality hindsight in this case.