A Q&A guide to competition law in Norway.
The Q&A gives a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures. In particular, it covers relevant triggering events and thresholds, notification requirements, procedures and timetables, third party claims, exclusions and exemptions, penalties for breach, and proposals for reform.
To compare answers across multiple jurisdictions visit the Competition law Country Q&A tool.
This Q&A is part of the PLC multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
Mergers and acquisitions (concentrations) are subject to control under sections 16 to 21 of Act No. 12 of 5 March 2004 on competition between undertakings and control with concentrations, as amended by Acts No. 100 of 17 December 2004 and No. 43 of 20 June 2008 (Competition Act).
The Competition Act sets out a pre-merger notification system for concentrations that meet certain thresholds (see Question 2).
Norway is a party to the Agreement on the European Economic Area 1992 (the EEA agreement). It has implemented Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation) as part of this agreement. Therefore, mergers with an EU or EEA dimension are governed exclusively by EU or EEA merger control provisions, and are not subject to national merger control. A one-stop shop approach applies under the EEA agreement.
In competition cases, Norwegian courts can:
Overrule any decision made by the competition authorities.
Refer cases to the European Free Trade Authority (EFTA) court (under a procedure similar to the procedure for preliminary references under Article 267 of the Treaty on the Functioning of the European Union (TFEU) for cases involving the EEA competition rules).
It is planned to amend the Competition Act (see Question 39).
The competition authorities are the:
King in Cabinet, as a regulatory authority.
Ministry of Government Administration and Reform (Ministry), as an appellate body and regulatory authority.
Norwegian Competition Authority (NCA) (see box, The regulatory authority).
The NCA is the main supervisory authority. The Ministry deals with complaints against individual NCA decisions relating to concentrations.
Concentrations are deemed to arise where control is obtained in a manner where either:
Two or more previously independent undertakings or parts of undertakings merge.
One or more persons that already control at least one undertaking, or several undertakings, acquire direct or indirect control on a lasting basis of the whole (or part of) one or more other undertakings.
The creation of a joint venture that performs, on a lasting basis, all the functions of an autonomous economic undertaking is a concentration (see Question 37).
A concentration must be notified if both:
The undertakings concerned have a combined annual turnover in Norway above NOK50 million.
Each of the undertakings concerned has an annual turnover in Norway of NOK20 million or more.
The NCA can also intervene on substantive grounds (see Question 7) in mergers that do not meet these thresholds and the King in Cabinet can intervene in cases of principal or major importance (never used in practice); but no later than 12 months following completion of the transaction.
It is proposed to substantially increase the applicable thresholds as part of the amendment of the Competition Act (see Question 39).
A concentration must be notified if it meets the relevant turnover thresholds (see Question 2).
Acquisitions of holdings that do not lead to control (that is, acquisitions that are not concentrations (see Question 2, Triggering events)) or that do not meet the turnover thresholds, are not subject to mandatory notification but can be notified voluntarily to clarify whether intervention might occur on substantive grounds (see Question 7). This would be appropriate for transactions where control is not initially obtained but options are acquired which allow the party(ies) to increase their shareholding in the undertaking concerned, leading to control at a later stage.
Furthermore, the NCA may order the submission of a notification if it becomes aware of a concentration it considers to be of interest, for example, in a market that the NCA is concerned about, regardless of whether the thresholds are met. Due to the exceedingly low thresholds, this has not yet occurred.
There is no deadline for notification. However, transactions that must be notified to the NCA are automatically suspended (the standstill obligation) pending the outcome of the NCA's investigation (see below, Obligation to suspend). If a standardised notification is submitted (see below, Form of notification), the transaction is suspended until the NCA's deadline for ordering the submission of a complete notification has expired (see Question 4). When a complete or voluntary notification is submitted, the standstill obligation applies to the first-phase investigation (see Question 4).
The NCA has published guidelines setting out how they prefer such informal contacts to take place which state that there is no need for informal contact in most unproblematic filings (that is, most filings submitted as standardised notifications). For complete notifications the parties should approach the NCA no later than ten business days before a notification is submitted. The initial meeting should be followed by a written review of the concentration and the issues arising.
The NCA has a general duty under the Competition Act to provide guidance to undertakings on interpreting the Act, its scope and its application to individual cases. However, the NCA will not consider theoretical transactions and there must be negotiations or draft agreements between the parties to obtain guidance in the pre-notification stage.
Both parties to a merger are jointly responsible for notifying. In an acquisition, the buyer must notify. Usually both parties to a joint venture notify.
Notifications must be submitted to the NCA.
Mandatory notifications must be made in writing, either by letter or by a form issued by the NCA. Voluntary notifications must satisfy the requirements for a complete notification.
The standardised notification is used to:
Inform the NCA of the concentration.
Provide the NCA with sufficient information to assess whether the transaction should be subject to further investigation. If so, the parties must submit a complete notification.
The standardised notification must include:
The names and addresses of the parties to the merger or the party or parties that acquire(s) control.
Information on the nature of the concentration.
Descriptions of the undertakings concerned and of undertakings in the same corporate group, including a description of the parties' business areas.
A description of markets in Norway, or of which Norway is a part, in which the undertakings concerned and undertakings in the same corporate group obtain a combined market share exceeding 20% as a result of the concentration.
Names of the five most important competitors, customers and suppliers of the undertakings concerned and of undertakings in the same corporate group in markets in Norway, or of which Norway is a part, where the parties' activities overlap.
Annual reports and annual accounts of the undertakings concerned and of undertakings in the same corporate group, unless they are publicly available.
In mergers, descriptions relating to undertakings in the same corporate group must cover corporate undertakings of both parties subject to the merger. In acquisitions, descriptions must cover corporate undertakings of the acquiring party only.
A complete notification requires the following additional information:
A more detailed market description of the markets affected by the concentration.
A description of the structure of any affected market.
An explanation of any barriers to entry present in the affected markets.
An explanation of any efficiency gains resulting from the transaction.
Whether the concentration is subject to the control of other competition authorities.
The most recent version of the agreement establishing the concentration.
Standardised notifications can be submitted in Norwegian, English, Swedish or Danish. A complete notification must, unless an exemption is granted, be submitted in Norwegian.
No filing fee is payable.
There is an obligation to suspend a transaction pending the outcome of an investigation when submitting a standardised notification. The standstill obligation will apply for compulsory and voluntary complete notifications. If no notification is made but the transaction could be subject to intervention, the NCA can order a complete notification and the standstill obligation will then apply.
If a standardised notification is submitted, the standstill obligation applies from the date when the NCA receives the notification until the NCA's deadline for ordering a complete notification has expired (15 business days after receiving the notification (see Question 4)).
If a complete or voluntary notification is submitted the standstill obligation automatically applies to the first-phase investigation (see Question 4). This means that when a compulsory or voluntary complete notification is submitted, the standstill obligation applies from the date that the NCA orders the submission of a complete notification (if applicable) for a period of up to 25 business days from the first business day after the NCA receives the notification.
There is no automatic standstill obligation for a second-phase investigation (see Question 4). The NCA may issue an interim order prohibiting implementation of the concentration, or order alternative measures, if both:
There are reasonable grounds for assuming that the concentration may create or strengthen a significant restriction of competition.
A temporary prohibition is necessary to ensure the effectiveness of any potential intervention contemplated by the NCA.
A public bid for a publicly listed company or a series of transactions in securities listed on a stock exchange can be partly implemented regardless of the general standstill obligation. The exemption allows the acquirer to obtain formal title to the securities and to perform its obligations under the securities legislation. This right is conditional on the acquirer immediately notifying the concentration to the NCA (section 18, Competition Act), and on the acquirer not exercising the securities' voting rights.
The NCA can also make exemptions from the standstill obligation in individual cases, at the parties' request.
The parties to a concentration must determine whether the relevant notification thresholds are met (see Question 2) and whether EU or Norwegian law applies (see Question 1, Regulatory framework). Once notified, the following procedure and timetable applies:
If a standardised notification is submitted, the NCA can order the submission of a complete notification no later than 15 business days, counted from the first business day after the receipt of the notification. If no action is taken within 15 business days, the transaction is automatically cleared.
If a compulsory or voluntary complete notification is submitted, the NCA conducts a first-phase investigation. Within 25 business days, it must decide either to:
clear the transaction (this is automatic if no action is taken within 25 business days or a clearance letter is sent to the parties); or
conduct a second-phase investigation.
If the NCA conducts a second-phase investigation, it has 70 business days from receiving a complete notification to present a reasoned preliminary decision on intervention to the parties. If a preliminary decision is not issued within the 70-day period, the transaction is automatically cleared. The parties must reply to the NCA's preliminary decision within 15 business days of the date that it is issued. After this 15-day period, the NCA must decide whether to intervene. The time limits are either:
15 business days of receiving the parties' reply; or
25 business days of receiving the parties' reply, if the parties offer commitments to modify the concentration.
If no decision is made within the applicable deadline, the transaction is automatically cleared. A clearance letter is normally sent to the parties to confirm the clearance.
If the NCA decides to intervene, it can either:
prohibit the transaction; or
approve the transaction subject to conditions.
For an overview of the notification process, see flowchart, Norway: merger notifications.
The NCA sometimes publishes a press release announcing its receipt of a notification or commencement of an investigation. It always publishes on its website the:
Receipt of a notification.
Names of the relevant undertakings.
Type of concentration.
Relevant markets.
Final decision.
See box, The regulatory authority.
The Ministry also publishes its decisions on its website, www.regjeringen.no.
See above, Publicity.
The following information is usually kept confidential:
The parties' market shares.
The details of the five most important customers, suppliers and competitors, if the information provided is based on the parties' estimates and strategies, that is, it is not publicly known.
The parties' agreement.
Business secrets.
See Question 7.
Information in a notification that is not considered automatically confidential (see above, Automatic confidentiality) is considered public knowledge. However, the parties can request that it be kept confidential. Before publication of a decision, they can comment on whether the decision contains any business secrets, and the NCA will generally – but not always – agree with the parties' assessment.
Third parties can submit comments on a concentration within 12 calendar days, calculated from the day after the date on which a standardised notification is submitted to the NCA. There is no time limit for third parties to submit comments on a concentration for which a complete notification has been submitted.
In addition, the NCA contacts the customers, suppliers and competitors named in a notification if the transaction is likely to involve a full-phase investigation (either automatically for a complete notification or at its discretion for a standardised notification). The NCA always invites third parties to comment during the first-phase investigation (that is, after a complete notification has been submitted).
The NCA also sometimes initiates a public inquiry into the concentration during its investigation.
Third parties can request access to public versions of documents such as the notification and public versions of any third party comments on file.
Third parties do not have a right to be heard beyond their ability to submit comments on notifications (see above, Representations).
The NCA intervenes in a proposed concentration if it will create or strengthen a significant restriction of competition contrary to the purpose of the Competition Act.
This analysis includes an assessment of:
The relevant product and geographic markets.
The undertakings' combined market share of the relevant markets.
Whether the transaction will create or increase entry barriers for potential competitors.
Whether the concentration's efficiency gains outweigh the reduced competition in the relevant markets.
During its investigation, the NCA can request any information it deems necessary to assess whether a concentration is compatible with the Competition Act, and obtain and exchange information (including confidential information) with competition authorities in other jurisdictions.
However, the NCA does not intervene if both of the following discretionary exceptions apply:
There is a well-functioning Nordic or European market.
The concentration or acquisition does not adversely affect Norwegian customers (there is no presumption that mergers that do not meet the notification thresholds do not affect Norwegian customers). The validity of this part of the exception may be questionable due to Norway's obligations under the EEA Agreement (for example, it may be contrary to the rules on free movement of capital and establishment).
New guidelines on the application of the Competition Act have not yet been published, but those published in 1996 in relation to the old competition legislation (Competition Act 1993) remain in force. These provide that a concentration is not generally submitted to a second-phase investigation (see Question 4), unless either the:
Aggregate market share of the parties in the relevant market is more than 40%.
Aggregate market share of the three largest undertakings in the relevant market, including the parties, is more than 60%.
In addition, there is a safe harbour from intervention if a concentration has a Herfindahl-Hirschman Index (the sum of the squares of the market shares of all businesses in the relevant market) of less than 1,800 post-transaction, unless extraordinary circumstances apply (for example, if there are particular entry barriers).
If a case involves public order principles or interests of major significance, the King in Cabinet can approve a concentration or an acquisition of shares that the NCA has previously prohibited. This has happened once, in 2006, when the Cabinet approved the merger of two poultry producers (Prior and Nordgaarden), previously prohibited by the NCA due to issues of agricultural policy. The Cabinet reached their conclusion despite the fact that Prior was dominant and further increased its dominance through the merger. The King's approval can be subject to conditions.
The NCA has wide powers of intervention if a concentration is found to create or strengthen a significant restriction of competition, including:
Ordering the disposal of shares or holdings acquired as part of a concentration or an acquisition.
Requiring the parties to meet behavioural or structural terms and conditions to alleviate the restrictions on competition.
Remedies can either be accepted as part of the parties' response to the preliminary intervention decision, or imposed at the end of a second-phase investigation (see Question 4).
The NCA has the right to appoint an administrator (nominated by the parties) who will monitor and ensure that the remedies are duly complied with (cf. FOR-2008-09-15-1021).
The NCA can impose administrative fines of up to 1% of the undertakings' annual worldwide turnover for failure to notify, delay in notifying or for providing insufficient information. The NCA has repeatedly fined parties for lacking or delayed notifications. Administrative fines can only be imposed on undertakings. So far, administrative fines have been quite low and set far below the upper limit, ranging from NOK10,000 to NOK50,000.
Non-compliance with the Competition Act can also lead to criminal fines for undertakings and individuals. There are no upper limits on criminal fines.
In addition, any individual who intentionally, or through gross negligence, violates the duty to notify can be imprisoned for up to three years.
If fines are not paid, the authorities can either:
Use the decision issuing the fine as a basis for debt enforcement proceedings.
Initiate bankruptcy proceedings.
If the standstill obligation applies and the transaction is implemented before it is approved, or the transaction is implemented after it has been prohibited, the NCA can impose administrative fines on the undertakings of up to 10% of their annual worldwide turnover.
Failure to observe a regulator's decision can lead to:
Administrative fines being imposed on the undertakings of up to 10% of their annual worldwide turnover.
Penalty fines being imposed on both undertakings and individuals.
Periodic penalty payments being imposed on both undertakings and individuals until the situation is remedied.
Imprisonment for up to three years of individuals who intentionally, or through gross negligence, breach their duty to observe.
The notifying parties can appeal an NCA decision to intervene in a transaction to the Ministry, within 15 business days of the decision. If a decision is appealed, approval cannot be granted until the appeal is complete. An NCA decision not to intervene in a concentration cannot be appealed, even by third parties.
A decision to conduct a second-phase investigation cannot be appealed.
Third parties cannot appeal a decision to clear a transaction as that decision is made under a non-opposition procedure. In theory, a third party could appeal a decision to prohibit a transaction or to approve it subject to conditions, but this is not done in practice.
Any restrictive provisions in the agreements (such as non-compete covenants) can be assessed together with the concentration. If they are considered to be directly related to, and necessary for, the transaction, they are cleared with the concentration.
If a provision is not deemed justified and necessary for the concentration, the NCA can make the approval of the concentration subject to the removal or amendment of that restrictive provision.
The principles in the Notice on restrictions directly related and necessary to concentrations (OJ 2005 C56/24) (Notice on Ancillary Restraints) apply.
The Competition Act does not specifically regulate any industry. However, there are regulations that exempt certain sectors or industries from the Competition Act, such as physicians, physiotherapists, psychologists, veterinaries, distributors of books (co-operating on fixed prices or literature subscriptions) and primary producers in the agriculture and fishing sectors.
The Competition Act harmonises Norwegian law with the EU and EEA prohibitions concerning agreements and concerted practices restricting competition (Article 101, TFEU and Article 53, EEA Agreement).
All agreements between undertakings, decisions by associations of undertakings and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in Norway are prohibited (section 10, Competition Act). Examples of agreements that restrict competition listed in the Competition Act include those that:
Directly or indirectly fix purchase or selling prices, or any trading conditions.
Limit or control production, markets, technical development or investment.
Share markets or sources of supply.
Apply dissimilar conditions to equivalent transactions with other trading parties, which places them at a competitive disadvantage.
Make the conclusion of a contract subject to the other parties accepting supplementary obligations which, by their nature or according to commercial use, have no connection with the subject of the contract.
The NCA, Ministry and King in Cabinet control restrictive agreements and practices (see Question 1, Regulatory authorities).
Breach of the prohibitions in the Competition Act can give rise to both civil and criminal sanctions (see Question 24).
Similarly to Article 101 of the TFEU and Article 53 of the EEA Agreement (Competition Act):
The regulations apply to all agreements between undertakings, decisions by associations of undertakings and concerted practices, whether written or oral.
There is a distinction between concerted practices (which are prohibited) and independent, parallel behaviour (which is not prohibited, but which may be caught by the prohibition against the abuse of a dominant position (see Question 27)).
As with Article 101 of the TFEU and Article 53 of the EEA Agreement, the prohibition does not apply to an agreement, decision by associations of undertakings or a concerted practice if all of the following apply:
It contributes to improving the production or distribution of goods, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit.
It does not impose on the undertakings concerned restrictions that are unnecessary to attain the above objectives.
It does not allow the undertakings to eliminate competition for a substantial part of the products in question.
The King in Cabinet can issue detailed block exemption rules. Block exemptions equivalent to those under Article 101(3) of the TFEU and Article 53(3) of the EEA Agreement have been adopted for:
Vertical agreements.
Specialisation agreements.
Vertical agreements and concerted practices in the motor vehicle sector.
Research and development (R&D) agreements.
Insurance agreements.
Technology transfer agreements.
New block exemption rules for vertical agreements and concerted practices in the motor vehicle sector have been implemented under Norwegian law. These are equivalent to the new rules set out in Regulation (EU) 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector. The new rules will enter into force on 1 June 2013. In addition, new block exemption rules for specialization agreements and R&D agreements came into force in 2012. Finally, new block exemption rules for vertical agreements and for insurance agreements, passed by the European Commission in 2010, have been implemented into Norwegian law during 2010.
The de minimis exclusion under Article 101 of the TFEU applies under the Competition Act. This means that there must be an appreciable restriction or effect on competition, for the provisions on restrictive agreements to apply.
The NCA has not published a de minimis notice, but it typically uses the Commission's notice for its assessment.
Fines cannot be imposed after ten years for infringements of the provisions under sections 10 and 11 of the Competition Act (the provisions regarding restrictive agreements and abuses of a dominant position) (section 29, Competition Act) (see Questions 13 and 27).
The statutory limitation period for other infringements is either:
Five years.
Ten years, where the infringement is considered serious or performed under aggravated circumstances.
These time limits are suspended once the NCA either:
Takes steps to secure evidence under section 25 of the Competition Act.
Informs an undertaking that it is suspected of infringing the Competition Act or decisions made under the Act.
There is no formal notification requirement. In line with EU rules, the notification system for individual exemptions has been abolished. It is the responsibility of the parties to an agreement to:
Ensure it complies with the Competition Act.
Assess it in its full economic and legal context, taking into account the scope of the exemption criteria and block exemptions.
It is possible to approach the NCA informally or confidentially to discuss a case. The NCA must provide guidance to undertakings on the interpretation of the Competition Act, its scope and its application to individual cases (paragraph 2, section 9, Competition Act).
There is no formal notification requirement (see above, Notification).
It is possible to approach the NCA informally (see above, Informal guidance/opinion).
There is no formal notification requirement, and thus no filing fee (see above, Notification).
The NCA can initiate an investigation on its own initiative.
Third parties can submit complaints to initiate an investigation and approach the NCA at any stage of the process, formally or informally, to try to influence the NCA's decision.
During its investigation, the NCA can question relevant third parties (such as customers or competitors) directly. Anyone (including third parties) must provide the NCA with the information it requires to perform its responsibilities under the Competition Act (section 24, Competition Act). This includes any type of information and access to the sources of that information.
Third parties that become involved in the proceedings, by submitting comments, do not have any rights to access documents or to be heard. This is because the Access to Information Act 1970 does not apply to cases concerning infringement of, among other things, section 10 of the Competition Act (which regulates restrictive agreements and practices) (section 26, Competition Act).
Third parties do not have any right to be heard (see above, Document access).
There is no procedure for obtaining informal guidance. This is done through informal discussion.
The NCA starts its investigation either on its own initiative or following a complaint. On this basis, the NCA either:
Requests information from the investigated party(ies).
Carries out a dawn raid.
During the investigation, the NCA carries out meetings and/or other communications with the investigated party(ies) to clarify the subject matter, or requests information.
Finally, the NCA either:
Closes the case.
Makes a decision ordering the party(ies) to bring an infringement to an end.
In addition, the NCA can:
Impose an administrative fine.
Bring charges by reporting the crime to the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim).
The details made public vary from case to case. Sometimes, the NCA publishes the fact that an investigation has been started. The Access to Information Act does not apply to cases concerning, among other things, a potentially restrictive agreement, as long as the case has not been brought to its conclusion (section 26, Competition Act) (see Question 19).
Investigated undertakings or persons by the NCA can access case documents on request, provided that this access does not harm or risk the investigation or third parties. The Access to Information Act does not apply to potentially restrictive agreements, so third parties do not have the right to demand access to the investigation documents before the case has been closed (section 27, Competition Act).
Once a case has been closed, anyone with legal interest in the matter can demand access to the documents. This right includes access to confidential information, provided this is not unreasonable to those to whom the information relates.
The parties, and third parties, can request that information be kept confidential.
When investigating potentially restrictive agreements or practices, the NCA can:
Request any information and access to sources it deems necessary to assess compatibility with the Competition Act.
Obtain and exchange information (including confidential information) with competition authorities in other jurisdictions. This power is used if it is necessary to meet obligations under a treaty with a foreign state or international organisation.
When there are justifiable reasons to assume that the Competition Act or decisions under the Act have been infringed, the NCA can, with prior court authorisation:
Demand access to premises, land, means of transport and other places of storage where evidence can be found.
Demand access to homes if there are special reasons to assume that evidence may be kept there.
Confiscate items that may be significant evidence for further examination.
Seal business premises, books or business documents during the investigation and for as long as deemed necessary.
There is no procedure through which the NCA can accept commitments from the parties instead of reaching an infringement decision.
The NCA can order undertakings or associations of undertakings engaging in a prohibited agreement or practice to end the infringement. The order can include any measure necessary to achieve this. Structural measures can only be ordered if there are no equally effective behavioural measures, or if behavioural measures are a greater burden to the undertaking.
Infringing undertakings or individuals responsible for infringement can be subject to both administrative and criminal sanctions.
An undertaking can be subject to administrative fines of up to 10% of its worldwide turnover if it (or someone acting on its behalf) intentionally or negligently violates the prohibition. The NCA can also impose periodic penalty payments until the situation has been rectified.
Criminal fines can be imposed on both undertakings and individuals instead of administrative fines (see Question 9, Failure to notify correctly).
If fines are not paid, the authorities can either:
Use the decision issuing the fine as a basis for debt enforcement proceedings.
Initiate bankruptcy proceedings.
Any person, including a director or manager of a relevant undertaking, who infringes the Competition Act is liable to a fine or imprisonment (although no-one has yet been imprisoned). Only criminal fines can be imposed on private persons. Civil fines only apply to undertakings.
When determining the amount of administrative fines, the NCA considers any assistance that an undertaking has provided in relation to its own or others' violations (section 31, Competition Act). A leniency programme was introduced on 12 August 2005, based on the Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C45/03). (See Question 39 for the new rules concerning the calculation of fines.)
Any part of an agreement that restricts competition is void. If it would be unreasonable to enforce the rest of the agreement, the whole agreement is void.
The Competition Act does not regulate third party claims. Claims for compensation must be based on non-statutory rules governing damages. These rules only allow for damages to cover economic loss suffered by the claimant. The Norwegian courts can rule directly on agreements, decisions or practices under sections 10 and 11 of the Competition Act, in addition to Articles 53 and 54 of the EEA Agreement.
Third parties, both natural and legal persons, who have suffered an economic loss can act as claimants.
See above, Third party damages.
Chapter 53 of the new Civil Procedures Act has introduced class actions. The discussions in the preparatory works indicate that third party damages resulting from violations of competition law are covered by the new class action rules.
The parties to an infringement, or any third parties, can appeal an NCA order to end an infringement or a decision rejecting a request to issue such an order to the Ministry. There is a time limit of 15 business days for filing an appeal.
Decisions imposing administrative or criminal fines, or imprisonment, can be appealed to the courts. The courts can assess all factual and legal aspects.
Third parties have rights of appeal (see above, Rights of appeal and procedure).
Any abuse by one or more undertakings of a dominant position in Norway is prohibited (section 11, Competition Act, corresponding to Article 102, TFEU and Article 54, EEA Agreement). Firstly, it must be assessed whether the undertaking in question holds a dominant position on a Norwegian market and, if it does, whether its behaviour, actions or omissions constitute an abuse of market power under the Competition Act.
The NCA, Ministry and King in Cabinet are the regulatory authorities responsible for controlling the abuse of a dominant position (see Question 1, Regulatory authorities).
There are no criminal sanctions.
Section 11 of the Competition Act marks a change from the system which existed under the Competition Act 1993 and is based on EU and EEA rules. The definition of market power and dominance, therefore, follows the outlines set out in EU and EEA case law and practice.
Generally, there is a presumption of dominance if an undertaking holds a market share of 40% to 45% or more of the relevant market.
Examples of abuse listed in the Competition Act include (section 11, Competition Act):
Directly or indirectly imposing unfair purchase or selling prices, or other unfair trading conditions.
Limiting production, markets or technical development to the prejudice of consumers.
Applying dissimilar conditions to equivalent transactions with other trading parties, therefore placing them at a competitive disadvantage.
Making the conclusion of a contract subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial use, have no connection with the subject of the contract.
There are no exclusions or exemptions available for an abuse of a dominant position.
It is not possible to notify abusive conduct to obtain a clearance from the NCA. However, it is possible to approach the NCA to informally discuss a case. The NCA must provide guidance to undertakings on the interpretation of the Competition Act, its scope and its application to individual cases.
This is the same as for restrictive agreements and practices (see Questions 18 to 21 and Question 23).
See Question 22.
Undertakings that abuse a dominant position are subject to periodic penalty payments and administrative fines of up to 10% of their annual worldwide turnover. If they do not pay these fines, the authorities can use the decision issuing the fine as a basis for debt enforcement proceedings, or initiate bankruptcy proceedings. There are no sanctions against individuals for an abuse of a dominant position.
See Question 25.
Regulation (EC) 1/2003 on the implementation of the rules on competition is relevant under the EEA Agreement and was implemented on 19 May 2005 by Act No. 11 concerning the implementation and enforcement in Norway of the competition rules of the EEA Agreement. There is no difference between the powers of national and EU regulators.
The application and enforcement of Articles 53 and 54 of the EEA Agreement and sections 10 and 11 of the Competition Act are likely to be similar, although some differences may occur due to disparities in the objectives of the rules, their scope and sources of law.
The Competition Act does not specifically regulate joint ventures. The creation of a joint venture performing, on a lasting basis, all the functions of an autonomous economic undertaking is a concentration, and its co-operative effects must be assessed under the merger control provisions in the Competition Act (see Questions 1 to 12).
The creation of a non-concentrative joint venture and co-operation through joint ventures are governed by the rules on restrictive agreements (see Questions 13 to 26).
The NCA does not directly participate in the European Competition Network (ECN), as Norway is not a member of the EU.
However, the EFTA Surveillance Authority and the NCAs of the EFTA states can participate in ECN meetings, although only for the purpose of discussing general policy issues (Protocol 23, EEA Agreement). The EFTA Surveillance Authority and the EEA/EFTA countries have established their own network for co-operating in the enforcement of cases that fall under the EFTA's scope.
In addition, the NCA has entered into several inter-agency agreements with other national competition authorities, such as the Nordic countries' competition authorities.
On 14 February 2012, the Competition Act Committee issued a preparatory document for the planned amendments to the Competition Act (cf. NOU 2012:7). The material rules will remain largely the same, which is natural due to the harmonization with EU/EEA competition law. The proposal therefore focuses on clarifying the current rules rather than opting for radical changes, subject to the proposal to substantially increase the very low notification thresholds (the current proposal is that the undertakings concerned must have a combined annual turnover in Norway above NOK1 billion and each of at least two of the undertakings concerned must have an annual turnover in Norway of NOK100 million or more).
With regards to the procedural rules, the document focuses on improved transparency and co-operation between the undertakings and the NCA through a stronger emphasis on the so-called state-of-play meetings, similar to those by the European Commission. The new rules may be adopted as early as in 2013.
On 19 December 2011, the regulation on calculation of fines and leniency was amended to fully harmonize the NCA's approach to calculation of fines with the approach followed by the European Commission. The new rules entered into force on 1 January 2012 but have not yet been enforced in practice. Thus, it remains to be seen whether national disparities will still continue in the future case law.
Description. Original language text of Norwegian legislation (up-to-date), including the Competition Act and regulations passed under the Competition Act.
www.konkurransetilsynet.no/en/legislation/The-Competition-Act-of-2004
Description. English-language translation of the Competition Act, and other related regulations. English translations are non-binding and meant for guidance only.
Head. Christine Benedichte Meyer
Contact details. PO Box 439 Sentrum
5805 Bergen
Norway
T +47 55 59 75 00
F +47 55 59 75 99
E post@konkurransetilsynet.no
W www.konkurransetilsynet.no
Outline structure. The market monitoring departments are responsible for supervising markets and evaluating and implementing measures to combat competitive restrictions.
Market Monitoring Department I is divided into:
Section M1: IT, telecommunications, media and postal services.
Section M2: finance, insurance and property.
Section M3: transport, health and medicines.
Market Monitoring Department II is divided into:
Section M4: groceries, primary industries and consumer goods.
Section M5: energy, industry and construction and building.
The Corporate Investigation Department operates dawn raids and other investigations. Currently, the NCA has offices both in Oslo and Bergen. However, the Oslo office will be moved to Bergen, and all communication (such as requests, applications and filings) are made to the Bergen office.
Responsibilities. The NCA investigates all cases under the Competition Act and handles all merger notifications.
Procedure for obtaining documents. Requests for documents are made in writing to the NCA. Decisions, legislation, general information, the submission of standardised notifications and press releases are published on the NCA's website (see above).
T +47 22 01 88 00
F +47 22 83 17 12
E christian.bendiksen@schjodt.no
W www.schjodt.no
Qualified. Norway, 2003; England and Wales, 2005
Areas of practice. Competition law; public procurement.
Recent transactions
T +47 22 01 88 00
F +47 22 83 17 12
E jmjl@schjodt.no
W www.schjodt.no
Qualified. Norway, 1998
Areas of practice. Competition law; EU/EEA regulatory compliance.
Recent transactions
