This country-specific Q&A provides an overview to merger control laws and regulations that may occur in Norway.
It will cover jurisdictional thresholds, the substantive test, process, remedies, penalties, appeals as well as the author’s view on planned future reforms of the merger control regime.
This Q&A is part of the global guide to Merger Control. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/merger-control-3rd-edition
Norwegian competition law is based on the Act No. 12 of 5 March 2004 on competition between undertakings and control of concentration (the ‘Competition Act’), and the Act No. 11 of 5 March 2004 concerning implementation and enforcement of the competition rules of the European Economic Area (EEA) Agreement, etc. (the ‘2004 EEA Competition Act’). This legislation is enforced by the Norwegian Competition Authority (the ‘NCA’), the Norwegian Ministry of Trade, Industry and Fisheries, the Competition Appeals Board and the national Courts. The Competition Appeals Board was established in 2017 and is the administrative appellate body for the NCA's decisions with effect from 1 April 2017, including merger cases.
The Competition Act applies to terms, agreements, and actions/transactions which have an impact in Norway. Thus, the NCA may intervene in cartel agreements concluded outside Norway and/or transactions between foreign entities insofar as they affect markets in Norway. Norwegian competition law is, to a large extent, harmonized with EU competition law. In the field of merger control, the Competition Act was further harmonized with the Merger Regulation 139/2004 ('ECMR') in 2016, when the substantive test under the Norwegian merger control regime was changed from a SLC test (Substantial Lessening of Competition) to a SIEC test (Significant Impediment of Effective Competition).
Is mandatory notification compulsory or voluntary?
Notification is mandatory if the turnover thresholds are fulfilled.
Is there a prohibition on completion or closing prior to clearance by the relevant authority? Are there possibilities for derogation or carve out?
A stand-still obligation applies until final clearance for all transactions. Infringements of the stand-still obligations can be sanctioned with administrative fines, and there are several examples of this in the NCA's practice. Derogations from the stand-still obligation are possible under particular circumstances, but the NCA has to render a formal decision. Exception decisions from the NCA are relatively rare and appears to be limited to exceptional circumstances, such as for instance "failing firm" and bankruptcy risk for the target company.
What types of transaction are notifiable or reviewable and what is the test for control?
All concentrations involving change of control are notifiable insofar as the turnover thresholds are met. A concentration shall be deemed to arise where: (a) two or more previously independent undertakings or parts of undertakings merge; or (b) one or more persons already controlling at least one undertaking or one or more undertakings acquire direct or indirect control on a lasting basis of the whole or parts of one or more other undertakings. Asset purchases are also notifiable insofar as the assets constitute a business with a market presence to which a turnover can be clearly attributed. Control is obtained through any form of rights, contracts or any other means, which either separately or in combination, confer the possibility of exercising decisive influence on an undertaking by:
(a) ownership or the right to use all or parts of the assets of an undertaking; or
(b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
In which circumstances is an acquisition of a minority interest notifiable or reviewable?
Minority transactions which do not bring about a change of control are not covered by the mandatory notification requirement (note, however, that there may be a change of control even if less than 50% of the shares change hands based on e.g. a shareholder's agreement setting out that the buyer has an option to "veto" strategic decisions). However, the NCA may impose filing by decision also for minority transactions which do not bring about a change of control. Such decisions must be rendered by the NCA at the latest three months after the acquisition has become public, or the agreement was entered into.
What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)? Are there different thresholds that apply to particular sectors?
A concentration must be notified when the following turnover thresholds are met:
(i) the undertakings concerned have a combined annual turnover in Norway above NOK 1 billion; and
(ii) each of at least two of the undertakings concerned has an annual turnover in Norway of NOK 100 million or more.
Please note that the NCA may order the parties to file transactions below the thresholds, and also minority shareholdings, up to three months after the agreement was entered into or the transaction became public. Such orders are relatively rare, but happen from time to time.
How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?
The relevant turnover for the assessment of the notification requirement will be the ‘annual turnover’ in the preceding fiscal year. This is the case even if it is clear that the turnover in the current fiscal year will be higher (or lower) due to "organic" growth or decline. On the other hand, this turnover shall be adjusted to take into account any mergers or de-mergers that took place before the concentration, but after the precedings fiscal year was closed.
Only turnover in Norway is relevant for calculating the thresholds. Allocation of turnover is done in the same manner as under the ECMR and in line with the Commission's Consolidated Jurisdictional Notice. Consequently, the turnover is generally allocated to the country where the product is actually delivered or where the service is actually provided. Where products and services are delivered or provided in Norway, the turnover generated from those products and/or services must therefore be allocated to Norway, regardless of the fact that the headquarters or offices of the seller and/or the buyer are located elsewhere.
Is there a particular exchange rate required to be used to convert turnover and asset values?
Yes. The official exchange rate of Norges Bank (the Central Bank) is applied by the NCA.
In which circumstances are joint ventures notifiable or reviewable (both new joint ventures and acquisitions of joint control over an existing business)?
The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (‘full-function’ joint venture) is considered to constitute a notifiable concentration. Thus, an agreement establishing a full-function joint venture amounts to a structural change and is assessed under the notification regime.
Are there any circumstances in which different stages of the same, overall transaction are separately notifiable or reviewable?
In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?
For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?
What is the substantive test applied by the relevant authority to assess whether or not to clear the merger, or to clear it subject to remedies? Are there different tests that apply to particular sectors?
The SIEC test applies across all sectors.
Are factors unrelated to competition relevant?
Are ancillary restraints covered by the authority’s clearance decision?
For mandatory filing regimes, is there a statutory deadline for notification of the transaction?
No, but full stand-still applies until final clearance.
What is the earliest time or stage in the transaction at which a notification can be made?
The NCA has accepted filings on the basis of letter of intents in previous cases. The NCA will assess the likelihood of whether an agreement is binding. As the main rule, for the NCA to accept filing before the transaction agreement has been signed by the parties, all material aspects of the transaction must to a large extent be "final" (e.g. the scope of the acquisition).
Is it usual practice to engage in pre-notification discussions with the authority? If so, how long do these typically take?
Yes. Pre-notification discussions are common in more complex matters, but not in the more 'straightforward' matters. Pre-notification discussions in more complex matters are generally encouraged as it enables the notifying party to address specific topics that the NCA might want to focus on (e.g. complex factual matter, areas/markets where there are potential issues etc.), thus ensuring a more stringent and efficient procedure when the "clock starts".
What is the basic timetable for the authority’s review?
Twenty-five business days after the filing of a complete notification is the lapse of phase I. Phase II shall be concluded within 70 business days after notification. The more detailed timeline is as follows:
- twenty-five working days after receipt of the notification, the NCA must clear the transaction or issue a Phase II notice (extended to 35 days if the parties offer remedies in phase I within the first 20 working days, which opens for phase I conditional clearance).
- seventy working days after receipt of the notification, the NCA must issue a draft notice of intervention (‘statement of objections’) against the transaction to the notifying party (extended correspondingly if the parties offer remedies between the 55th and 70th working days after receipt of the notification; e.g. the deadline is 71 working days if remedies are first offered on day 56 and so on). If it becomes clear that no such intervention is considered necessary, the NCA is under an obligation to clear the transaction as early as possible.
- fifteen working days (ninety-five days from notification) after receipt of the draft notice of intervention, the parties must issue their own comments on the draft to the NCA.
- fifteen working days (110 days from notification) after having received the parties’ comments to the draft notice, the NCA must make its final decision in the matter.
Under what circumstances may the basic timetable be extended, reset or frozen?
The "clock" may be stopped until a filing is deemed complete. Lack of replying to the NCA's information requests in a timely manner will also stop the clock. The timetable may only be extended if the NCA decides to open phase II proceedings. Finally, in phase II proceedings where the parties have offered new (or amended) remedies after the NCA's 'statement of objections', the basic timetable may be extended with up to 30 days (15 + 15 working days).
Are there any circumstances in which the review timetable can be shortened?
Yes. In simpler deals, the NCA usually clears before the formal deadline.
Which party is responsible for submitting the filing?
The party or parties acquiring control are responsible for the filing.
What information is required in the filing form?
The notification must include the following information:
(a) names and addresses of the parties to the merger or the party or parties who acquire control;
(b) information on the nature of the concentration;
(c) descriptions of the undertakings concerned and of undertakings in the same corporate group;
(d) names of the five most important competitors, customers, and suppliers in markets in Norway, or of which Norway is a part, in which the undertakings concerned and undertakings in the same corporate group have overlapping activities;
(e) descriptions of horizontally and vertically affected markets. A market is deemed horizontally affected if at least two of the involved parties are active on the same relevant market and their combined market share exceed 20%. Vertically affected markets are those markets where the parties’ individual or combined market share exceed 30% on each of the respective vertically related markets. The description shall include information on the market structures of the relevant markets, the most important competitors of the undertakings concerned and of customers and suppliers in the relevant markets as well as information on potential barriers to entry;
(f) brief description of vertically related markets where the parties' individual or combined market share on at least one of the vertically related markets exceeds 30%, which at least shall cover the parties' most important competitors, customers and suppliers.
(g) description of possible efficiency-gains;
(h) information on whether the transaction is subject to the jurisdiction of other competition authorities;
(i) a copy of the latest version of the agreement, including appendices;
(j) annual reports and annual accounts of the undertakings concerned.
In addition to the list above, the notifying party must also include a reasoned proposal for a non-confidential version of the notification insofar as the notification contains business secrets. Since this is almost always the case, this is in practice an additional requirement.
Which supporting documents, if any, must be filed with the authority?
See Q 23.
Is there a filing fee?
Is there a public announcement that a notification has been filed?
Yes, on the NCA's website.
Does the authority seek or invite the views of third parties?
Yes, market testing is common.
What information may be published by the authority or made available to third parties?
Full access to file is granted to interested third parties, with the exception of confidential information that is not in the public domain (typically agreements, strategy documents, accounting information, list of the parties' customers and suppliers etc.).
Does the authority cooperate with antitrust authorities in other jurisdictions?
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 ("ESA") and the national competition authorities of the EFTA States can participate in ECN meetings, although only for the purpose of discussing general policy issues (Protocol 23, EEA Agreement). ESA and the EEA/EFTA countries have established their own network for cooperating on 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. The NCA may exchange information with the competition authorities in other countries in order to fulfil national obligations set out in international agreements. However, any further disclosure of the information by the recipient authority must be authorized by the NCA, and the information must only be used for the specific purpose defined.
What kind of remedies are acceptable to the authority?
Structural remedies and "fix it first" solutions are the most common, although behavioral remedies have been accepted in numerous cases. There is, however, a general tendency and development in the NCA's practice of preferring structural and "fix it first" remedies over behavioral remedies, although behavioral remedies is still accepted in individual cases.
What procedure applies in the event that remedies are required in order to secure clearance?
The Competition Act provides that the NCA does not powers to suggest or impose remedial actions. Accordingly, the merger control procedure underlines the parties’ ability to propose remedies in the form of binding commitments as early as possible during the notification procedure. The NCA can either accept or refuse the commitments offered by the parties. They cannot issue a conditional clearance which includes commitments that go beyond what the parties have offered. Thus, insofar as the NCA does not find that the proposed commitments are sufficient, new commitments must be offered by the parties.
The underlying principle is that the NCA must clear a transaction as soon as possible on the commitments suggested by the parties, or present a formal notice of intervention. If none of the commitments offered are considered by the NCA to be sufficient to do away with the competitive concerns in question, the NCA is under an obligation to prohibit the transaction.
What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?
Administrative fines. The range depends on the specific circumstances.
What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?
Can the authority’s decision be appealed to a court?
Yes. However, after the Competition Appeals Board (administrative body) was established with effect from 1 April 2017, appeals against the NCA's decisions must first be brought before the Appeals Board. Only if the Appeals Board does not render a decision within 6 months after the appeal was lodged may the parties choose between waiting for the Appeals Board's decision or bring the case before the courts directly without waiting for the decision.
The decision of the Appeals Board itself may also be appealed to the court by the parties to the transaction. Note that this is only an option for the parties, and not for the NCA.
What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?
The NCA is more concerned with closeness of competition than market concentration per se. Local markets are often scrutinized and economic analysis is becoming increasingly important. The SIEC test and a consumer welfare standard is applied. The NCA recently approved a concentration based on a pure efficiency gains defense, and although rare, the matter signals that in-depth analysis may be key to obtain clearance in more complicated matters.
Are there any future developments or planned reforms of the merger control regime in your jurisdiction?
No major changes are expected for the time being.