I ENFORCEMENT POLICIES AND GUIDANCE

The primary statutory framework in Norway concerning cartels is the Norwegian Competition Act of 5 March 2004 No. 12 (Act), Chapter 3, Section 10. Pursuant to Section 10 of the Act, cartels are prohibited. The main aim of the Act is to further competition for the benefit of consumers and to regulate anticompetitive behaviour. New amendments to the Act came into force on 1 January 2014.

Norway is part of the European Economic Area (EEA). Through the EEA Competition Act, Norway is entitled and obliged to apply the EEA Agreement Article 53, where trade between Norway and other EEA Member States is affected. Norway is not an EU Member State. However, Section 10 of the Act corresponds with the Treaty on the Functioning of the European Union (TFEU) Article 101 (1) and the EEA Agreement Article 53. The wording in Section 10 of the Act is largely a verbatim reproduction of these Articles.

Pursuant to the preparatory work of the Act, Section 10 shall be interpreted and applied in accordance with the case law of the Court of Justice of the European Communities, the EFTA Court and the administrative practice of the European Commission and the EFTA Surveillance Authority (ESA). The NCA relies heavily on the EU Commission’s notes and guidelines and its own guidelines are to a large extent equal to these documents. Although there are some differences between Norwegian competition law and EU competition law, these mainly relate to provisions concerning procedural questions.

The cartel prohibition applies to ‘undertakings’ as defined in Section 2 of the Act and encompasses all entities that practise commercial trade within either the private or the governmental sector, including both corporations and self-employed persons. The definition of an undertaking also encompasses infringements of the Act performed by persons acting on behalf of their employer or contributing to a company’s infringement. The cartel prohibition applies to cooperation between two or more independent undertakings. Thus, cooperation within the same economic unit is not within the scope of Section 10.

The cartel provision prohibits agreements or resolutions between two or more undertakings that have as their object or effect the prevention, restriction or distortion of competition in the market to an appreciable extent, unless the conditions for exemption are satisfied. The prohibition applies regardless of the form of the agreement and it does not have to be a legally binding agreement. The prohibition encompasses both written and oral agreements and applies to cooperation between undertakings in either horizontal or vertical relation to one another.

Agreements or resolutions that are prohibited pursuant to Section 10 will be declared null and void between the parties.

The Norwegian Competition Authority2 (NCA) enforces competition legislation and is responsible for investigating cases of cartel conduct. The NCA is a subordinated entity of the Ministry of Trade, Industry and Fisheries3 (Ministry). However, as of 1 April 2017 the appellant authority for decisions made by the NCA is the newly established (Competition) Appeals Board. The NCA’s decision to impose administrative fines must now be appealed to the Appeals Board. Decisions by the Appeals Board can be appealed at the Norwegian courts, but the appeal will be heard directly by the appeal court and not brought before the city court. Both the Appeals Board and the NCA are located in Bergen.

The authority to reverse decisions by the NCA and the Ministry (namely, cases involving questions of principle or interests of major significance to society) can also be brought before the Appeals Board. However, such questions will very rarely apply to standard cartel cases.

Sanctioning a cartel agreement is subject to a dual-track system: either an administrative or civil law track, or a criminal law track. Hence, civil sanctions pursuant to Section 12 entail (1) orders to bring an infringement to an end; (2) structural measures; (3) interim measures; or (4) the imposition of administrative fines, pursuant to Section 29. The criminal sanctions (fines or imprisonment) are pursuant to Section 32. Following the amendments of 1 January 2014, criminal sanctions only apply to individuals and not to undertakings. Therefore, undertakings will only be subject to administrative fines and civil procedures. If the NCA reports an individual for criminal prosecution, the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) will investigate possible infringements in accordance with the Criminal Procedure Act.4

II COOPERATION WITH OTHER JURISDICTIONS

Pursuant to Section 7 of the Act, and in accordance with Norway’s agreements with certain foreign states and international organisations, the NCA is obliged to provide those states and organisations with any information necessary to enforce the competition rules of either Norway or the state or organisation concerned, in order to meet the obligations undertaken by Norway in such agreements. Thus the NCA may, upon application by an authority in a state with which Norway has entered into an agreement on legal assistance in competition law matters, order an undertaking to provide information, documents and other materials.

A Nordic agreement on cooperation in competition matters was signed between Denmark, Iceland and Norway on 16 March 2001 and joined by Sweden on 15 February 2004. The agreement provides for notification of information concerning cases of interest, and the exchange of both non-confidential and confidential information between the signatories. When confidential information is exchanged, the agreement provides for an obligation of secrecy on the part of the receiving authority, and restrictions on use and further distribution.

The ESA may perform investigations and request information when applying Articles 53 and 54 of the EEA Agreement. According to Article 3 of the EEA Competition Act,5 the ESA may request the assistance of the NCA during information requests, or searches or dawn raids performed by the ESA. A number of such raids have been conducted.

The EFTA states have not been included in the European Competition Network (ECN). However, the ESA and the competent authorities of the EFTA States also participate in ECN meetings, with a view to ensuring effective enforcement of the EEA competition rules and their uniform interpretation and application across the EEA. Hereby, the NCA participates in ECN meetings from time to time.

Denmark, Iceland, Sweden and Norway have entered into a Nordic agreement on cooperation in competition matters. The main object of this agreement is to provide for notification of information concerning cases of interest and to exchange both confidential and non-confidential information regarding mergers, cartels and abuse of dominant position. If confidential information is exchanged, the agreement provides for an obligation of secrecy on the part of the receiving authority, and restrictions on use and further distribution.

The NCA also participates in events held by international organisations such as the International Competition Network and the Organisation for Economic Co-operation Development, and in the legal development concerning competition policy.

The Extradition of Criminal Offenders Act6 prohibits the extradition of Norwegian nationals. Under Norwegian law, extradition requires an offence punishable under the law of both countries (dual criminality) that is of a certain degree of seriousness (one year’s imprisonment). Specific regulations apply between the Scandinavian countries.7

III JURISDICTIONAL LIMITATIONS, AFFIRMATIVE DEFENCES AND EXEMPTIONS

i Jurisdictional limitations

When determining the scope of the Act, it is of vital importance whether an agreement has actual or potential effects in Norway. Thus, the Act does not contain any territorial limitation. As a consequence, there is no general condition that one or all of the participating undertakings are seated within the Norwegian borders or are Norwegian nationals or companies. Furthermore, it is not necessary that the anticompetitive conduct occurs within the Norwegian borders, as long as the conduct is liable to have effects within Norway (including Svalbard).

The conduct of a subsidiary may be imputed to its parent company, either by joint and several liability or sole responsibility. The NCA is of the opinion that the Act fully incorporates EU practice, under which there is a rebuttable presumption that parent companies direct the actions of wholly owned subsidiaries in this regard. In a court case decided at the end of November 2015 (NCC Roads AS), the Appeal Court found that if and to the extent to which a subsidiary is liable, EU precedence is directly relevant.

ii Affirmative defences

If anticompetitive conduct leads to increased efficiency and increased consumer welfare that, in total, is sufficient to outweigh the restrictive practice, Section 10(3) provides for an exemption from the general cartel prohibition. The exemption is given under the justification that if the effect of anticompetitive conduct will be to the benefit of the consumer and thereby the positive effect outweighs the negative effects, the conduct will not be prohibited.

The responsibility for assessing whether certain anticompetitive conduct is exempt lies with each participating undertaking. The NCA cannot grant a dispensation from the general cartel prohibition. Further, the burden of proving that the conditions in Section 10(3) are met lies with the participating undertaking.

In order for affirmative defences to apply to anticompetitive agreements or cooperation between undertakings, the conduct in question has to:

  • a contribute to the improvement of production or allocation of products or the furtherance of technology or economic development. Hereby, only socioeconomic efficiency that leads to cost savings is emphasised; and
  • b ensure a fair share of the resulting benefit for consumers, including business customers. The joint effect of the consumer benefit is based on an assessment involving only the relevant market.

Furthermore, cooperation between undertakings must not:

  • a impose on the undertakings involved any restrictions that are not indispensable to the attainment of these objectives (set out under point a, above). One must assess whether the restriction is necessary to achieve the efficiency gains, that is, whether it is possible to achieve the same efficiency gains through other conduct less restrictive on the competition; and
  • b afford the possibility of eliminating competition for the undertakings involved in respect of a substantial part of the products in question. This entails a minimum requirement regarding the level of competition, which cannot be derogated from even if the cooperation results in substantial efficiency gains.

Pursuant to Section 10(4), the King of Norway may, according to regulations, determine the rules applicable to certain groups that shall be exempted under Section 10(3) (block exemptions). Individual regulations equal to those of the EU have been adopted, which include regulations applicable to coordinated conduct concerning motor vehicles, research work, agreements concerning research and development, and specialisation agreements.

iii Exemptions

Pursuant to Section 3(1), the Act does not apply to terms and conditions relating to work or employment.

Section 3(2) states that the King may determine exemptions relating to certain markets or industries. Through regulations as of November 2014, there are three sector-specific exemptions comprising:

  • a cooperation within the agricultural and fishing industry;
  • b certain categories of agreement related to the sale of books; and
  • c certain categories of agreement within the private sector of health and care services.

IV LENIENCY PROGRAMMES

The Penal Code provides that cooperation may be taken into account as a mitigating circumstance when a criminal matter is adjudicated. In 2016, Norway implemented a cartel settlement procedure modelled on EU rules. In return for settling, the companies get a 10 per cent fine reduction and the decision will be less detailed. (See Section VIII). Outside these rules, there are no specific provisions concerning ‘plea bargaining’ in the Act. While in practice, ‘plea bargaining’ may occur both in administrative and criminal cartel investigations, the circumstances and details surrounding such bargaining seldom become publicly known.

The conditions for obtaining leniency, which until 2014 were governed by the Leniency Regulation, are now included in new Sections 30 and 31 of the Act covering, respectively, complete leniency and partial leniency.

The competence to grant leniency lies with the NCA. Only undertakings can be beneficiaries of the leniency programme, and therefore leniency will not encompass individuals who are subject to criminal prosecution. In practice, the NCA has previously issued statements to individuals that it will abstain from prosecution. The scope of the leniency provisions is further defined through the regulation on the calculation of and leniency from administrative fines.8

i Immunity

To attain full leniency, an undertaking must be the first to submit information and evidence about a cartel that would otherwise be unknown to the NCA. The informant must cease its cartel activities and must cooperate completely with the NCA. Also, the undertaking must not have sought to coerce other undertakings into participating in the infringement. The information must either enable the NCA to secure evidence or dawn raids according to Section 25, or provide the NCA with evidence sufficient to prove an infringement of Section 10 of the Act.

ii Partial leniency

Partial leniency can be attained whether the information is given to the NCA before or after the initiation of proceedings. However, it is a condition that the undertaking provides the NCA with evidence that considerably increases the possibility of proving an infringement of Section 10 of the Act. Furthermore, the informant must cease its activities no later than from the time the evidence is provided. The undertaking must cooperate fully and the cooperation must last throughout the entire procedure.

The first undertaking to meet the conditions in Section 31 of the Act will be granted a reduction of the fine of between 30 and 50 per cent. The second will be granted a reduction of 20 to 30 per cent and all others will be given a reduction of up to 20 per cent. Hence, there is no limit to the number of undertakings that can be granted partial leniency.

iii The leniency application

There are no specific formal requirements for an application for leniency. However, the applicant must present the NCA with necessary proof, including both documents and allegations, and therefore the application is most likely to be in writing. Accordingly, the NCA will provide the undertaking with a written acknowledgement of receipt. If the applicant meets the conditions set out in either Section 30 or 31, the NCA will grant leniency by a formal decision.

An undertaking can be deprived of the right to leniency if the NCA later discovers that the undertaking has not put forward all the evidence that is known to the undertaking, or the undertaking complicates or hinders the NCA’s investigation.

iv Marker system

The new Section 30(2c) adopted in 2014 introduces a marker system intended to closely mirror the European Commission’s practice. The marker constitutes the only material change to the leniency conditions as previously defined under the Leniency Regulation.

The main scope of this system provides that, where justified, an application can be accepted on the basis of limited information. The applicant is then granted time to elaborate on the information and evidence to qualify for immunity. Thus, the ‘marked applicant’ is urged to furnish proof of cartel activity, which can lead to immunity.

V PENALTIES

i Civil or criminal offence

In the event of an undertaking, or someone acting on its behalf, whether it is intentionally or by negligence violating Section 10 of the Act, such conduct can be sanctioned under Section 29 by fines or under Section 32 of the Act with fines or imprisonment (Section 32 only being applicable to individuals). The severity of the violation has to be assessed from case to case, but participation in a ‘hardcore’ cartel is illegal per se and can be considered both a civil, or administrative, offence and a criminal offence.

Pursuant to Section 29(2), the fine is determined by the NCA and is based upon an overall assessment, considering the undertaking’s annual turnover, and the severity and durability of the infringement, as well as leniency. The Regulation on the calculation of administrative fines and leniency elaborates the calculation of fines, the rules being based on the European Commission’s 2006 Guidelines. In practice, the calculation of administrative fines for cartel activity has been of a rather modest size in Norway compared to, for example, the European Union. However, recent developments show that the NCA has significantly raised the level of imposed fines (see Section VIII), which is also in accordance with the preparatory works of the Act.

In its more recent decisions, the NCA has frequently included a reference to its considerable ‘discretionary powers’ and the need to measure out ‘sufficient’ fines. Further, it is stated that, accordingly, no undertaking shall be able to pre-calculate a reaction.9 As the latest fines are calculated based on a general verbatim reiteration of the law, it is difficult to assess how and to what extent future fines will deviate from the level prescribed by the EU Commission.

The NCA can press criminal charges against any individual indulging in infringements of Section 10 of the Act. Prosecution of individuals will only take place if the NCA presses charges or in cases of ‘material public importance’ (Section 33 of the Act). Cases are handled by Økokrim, which can be granted case-specific surveillance powers by a court order during investigations against individuals. Depending on the results of Økokrim’s investigation, the defendant will have the matter adjudicated by the court. Once convicted, misconduct may be punished with fines or imprisonment of up to three years, although cooperation from those convicted can affect the extent of the punishment. Under severely aggravated circumstances of cartel conduct, the punishment may be imprisonment of up to six years.

Since Norway adopted the EU Regulations in 2004, only companies have been prosecuted. This has been an accepted strategy by the NCA and the police. Under the previous regime there were instances where individuals received fines on the basis of involvement in cartel activity, but there are no examples of imprisonment. From the preparatory work for the newest amendments to the Act, it is clear that the Ministry intends criminal sanctions to be used to a greater extent than is reflected in today’s practice. This has been met with reluctance by the NCA and certain scholars, as they fear that a more active approach in this respect will undermine the effect of the leniency regime. The NCA has issued guidelines on ‘when and how to press charges against individuals’.10 Under these guidelines the NCA will, as a rule, press charges against the participants of a cartel. However, the NCA may, for example, issue a statement that no charges will be pursued against individuals who report cartel activity and fully cooperate with the NCA during the ‘investigation and the following legal procedure’. Individuals can, by themselves or through counsel, apply for an ‘immunity statement’.

For individuals under investigation for anticompetitive conduct that is subject to criminal prosecution, the general principle of protection against self-incrimination is in accordance with the Norwegian Criminal Act.11 However, it is debatable at what point of the investigation this protection applies and to what extent. Hence, pursuant to Section 24 of the Competition Act, individuals are required to provide information or data at the request of the NCA. If they do not, they will find themselves in breach of this duty, which can result in both administrative and criminal sanctions. Pursuant to the European Convention on Human Rights (ECHR), however, an individual has the right not to be punished twice.

The protection against self-incrimination under the ECHR and its application to Section 24 of the Competition Act was touched upon during the latest revision of the Act. The Ministry indicated that as the NCA now has the legal competence to request the prosecution of individuals, any information-gathering by the NCA that ‘is intended to obtain data regarding the actions of an individual’ will result in that individual being protected by Article 6 ECHR. However, circumstances where an individual falls within the scope of the ECHR, thus expunging the obligation to answer questions from the NCA, were not included in the revised Act.

VI ‘DAY ONE’ RESPONSE

The NCA is afforded extensive investigative powers by the Act, which are broadly similar to those of the European Commission. There are some differences, but as a result of the new amendments to the Act, the legal position of any undertaking that is subject to investigation is strengthened and bring the system is now more in line with EU rules. The investigations are subject to civil procedures, although the sanctions such investigations might lead to are considered a criminal sanction under the ECHR. However, if the NCA connects Økokrim to an investigation, criminal proceedings might be instigated instead.

To secure evidence, a search of premises is most likely to be carried out pursuant to Section 25, and is further detailed through the regulation regarding investigation and dawn raids.12 The search is executed by employees of the NCA, consisting of a mixture of specialised investigators, lawyers, economists and occasionally forensic IT specialists. When necessary, the NCA may require police assistance. The search is carried out unannounced (dawn raid) and may be a search of both business and residential premises.

To instigate a search of premises, the NCA must have an order of the court. To search business premises it is sufficient that the NCA can give an account for a real suspicion that there is an infringement of the Act. The threshold for searching, for example, a private house, is more qualified and requires a ‘special reason’ to assume that evidence is being kept there. The court order must describe the scope of the search, entailing a description of the dawn raid’s purpose, what types of infringements the NCA is investigating and the markets the NCA is looking into. A court order to search premises can also be given if necessary for the NCA to meet Norway’s obligations under agreements with foreign states or international organisations.

When carrying out a dawn raid, the NCA is empowered to search premises, land, means of transport and other places that may be found relevant, and to confiscate items, such as documents and electronic storage media, that may be significant as evidence. Confiscating and copying electronic devices such as laptops and smartphones is regularly done during a dawn raid. Furthermore, the NCA has the right to secure premises overnight, order the production of specific documents or information, and carry out compulsory interviews with individuals. The NCA also has the right to demand extradition of documents. Before the amendments to the Act entered into force, the NCA normally confiscated original documents; now the NCA mainly takes copies of the relevant documents. Original documents will only be confiscated if they have a particular evidential value that may not be visible on a copy or have the same effect. In such cases, the undertaking will normally be provided with a copy.

Pursuant to Section 24 of the Act, both in general and during a dawn raid, anyone has a duty to provide the NCA with the information they might require in order for the Authority to perform its tasks. The right to demand such information also applies if it is necessary to enable the NCA to meet Norway’s obligations under the agreements with foreign states or international organisations.

The instigation of a search is normally not subject to complaints or appeal by those affected by the search. However, if the investigation results in the confiscation of evidence, the legality of the confiscation can be tried before the court.

In accordance with Norwegian public administration law, any party is entitled to be represented by a legal counsel. Whether the undertaking is represented by an external or an in-house lawyer, the legal privilege pursuant to the Criminal Procedure Act applies. If the undertaking invokes that certain information is legally privileged, the relevant document or hard drive will be sealed and the dispute will be held before the court. The undertaking is also entitled to be represented by legal counsel during a dawn raid. The NCA is not obligated to delay the search, but will normally wait approximately 30 minutes for the undertaking’s legal counsel to reach the premises.

Pursuant to Section 27 of the Act, employees of the NCA have a legal obligation to maintain secrecy in regard to the identity of the undertaking and its representatives and those who may have provided the NCA with information about a possible infringement.

VII PRIVATE ENFORCEMENT

In regard to private enforcement, one can pursue a claim for damages in accordance with the general principles of the law of damages. The liability lies with the undertaking causing the damages through its anticompetitive behaviour and in cases where cartel activities have been established, it will not be difficult to establish a legal basis for a claim. However, it is not sufficient to establish anticompetitive behaviour; a claimant also has to prove an economic loss caused by the anticompetitive behaviour. Finally, there has to be a causal link between the liability and the incurred economic loss. The calculation of damages is based upon the proven economic loss.

The burden of proof lies with the claimant. A decision made by the NCA or the ESA establishing an infringement of the Act does not automatically establish a right for damages. However, needless to say, an established infringement will be important in the court’s assessment.

Anyone with a legitimate legal interest can demand access to the NCA’s files in closed cartel cases to facilitate follow-on damages actions, in accordance with Section 27a of the Act. However, this right does not apply to information about leniency applications and other related documents, such as corporate statements.

In accordance with the rules of limitation, a claim for damages has to be brought before the court no later than three years from the time the injured party acquired knowledge of the damage and the undertakings causing the damage.

In addition, Section 34 of the Act warrants a special provision to pursue a claim for damages as a consequence of an infringement of the Act, within one year of a decision made by the NCA or a final and enforceable judgment.

Although there have been relatively few cases of private enforcement of antitrust law so far, the numbers of both Section 10 cases and Section 11 cases (abuse of dominance) seem to be increasing. Among others, a few high-profile cases of private litigation came as follow-up to two infringement decisions by the ESA.13 One of the cases (Posten Norge/Schencker) was settled for a non-disclosed amount in 2015. The Act does not contain specific provisions on damages actions for breach of the competition rules, although the preparatory work makes it clear that infringements shall give rise to liability for damages.

In the absence of relevant case law, it is currently not possible to establish principles as to the relevance of, for example, the passing-on defence. Presumably Norwegian courts will address this on a case-by-case basis. The burden of proof for passing on will be on the offender. Specific provisions concerning class actions are provided for in the Civil Procedure Act. Infringements of competition law are referred to as an area particularly suitable for the application of the provisions concerning class actions. However, bringing a claim under these provisions still requires that one or a few parties assume the risk involved with litigation, as the provisions do not provide for the risk to be borne by law firms, for example.

VIII CURRENT DEVELOPMENTS

As described above, the Act was amended and revised in 2014. Some of these changes are procedural, but nevertheless have a practical impact. One example is that until 2014, the court order allowing the NCA to conduct a dawn raid was not very detailed. Going forward, the court orders will be more informative; they must state the purpose of the NCA’s raid, the category of infringement that is under investigation and the relevant market in question.

The procedure for seizing evidence has also changed to be more in line with EU practice. Under the previous regime the NCA could seize originals of documents and allow the undertaking to make copies. Under the current rules, the NCA shall only seize originals if they contain material of evidentiary value and otherwise make copies of the material if further investigations are necessary. When taking electronic copies of servers and other electronic evidence, the undertaking now has the right to be heard. In the case of disagreements as to whether the evidence the NCA wants to copy is subject to confidentiality, these disagreements shall be brought before a court for final decision.

The NCA has settled a few recent cases based on an agreement with the undertakings without reaching a formal decision. However, the NCA has previously not had the competence to reach formal settlement decisions. Accordingly, the NCA could not sanction an undertaking if it did not comply with the settlement. The informal agreement between the NCA and the undertaking under investigation therefore raised questions regarding the legal effects of the ‘settlement’. Since 1 January 2014, the NCA can enter into formal settlements parallel to ‘Article 9 decisions’ from the European Commission.

When these rules were enacted, the commission preparing the changes also discussed whether a formal settlement procedure (equal to that of the EU) should be introduced into Norwegian law.14 This procedure has now been implemented in a new Section 29a in the Act. Under this procedure, the NCA will invite one or more undertakings to a settlement meeting, where the NCA will present the case and the facts. The undertakings then have 15 working days to accept a settlement, which may result in a 10 per cent reduction in the administrative fee.

In 2016, the Supreme Court decided not to hear the NCC Roads case. Thus the Appeal Court’s decision dated 29 June 2015 is final. In 2013, NCC Roads and Veidekke were given administrative fines for participating in a cartel regarding asphalt tenders in mid-Norway over a period of four years. Veidekke was given full immunity and NCC appealed the decision. The case is interesting as it confirms that the level of fines, as well as the parental liability, is equal to that of the EU. NCC Roads was ordered to pay a fee of 150 million kroner (increased from the 140 million kroner initially imposed by the NCA due to recidivism). The result was a dramatic change from the City Court, which in its ruling reduced the fine to 40 million kroner. As regards parental liability, the Appeal Court accepted that the AKZO doctrine (with a rebuttable presumption of parental liability in wholly owned subsidiaries) applies directly in Norwegian law.

In the long-awaited Follo Taxi decision, the Norwegian Supreme Court clarified on 22 June 2017 that two independent undertakings that are in a position to submit individual bids, or that could easily attain such a position, would breach the Norwegian Competition Act if they submitted a joint bid. Such agreements are therefore to be regarded as anticompetitive agreements ‘by object’. The Supreme Court disregarded the fact that the bid cooperation took place openly, but noted that it may be easier to show an anticompetitive object if the cooperation is hidden. The Court also disregarded the fact that the cooperation enabled the taxi companies to bid for a larger part (higher capacity) than they would have done otherwise. The Court only noted that any capacity advantages had to be assessed in the context of the Competition Act, Section 10(3) allowing for restrictions of competition if the undertakings are able to prove efficiencies. The ruling is in line with the NCA’s guidelines on joint tendering, which take a rather strict stand on such cooperation. The Supreme Court judgment and the NCA guidelines may indicate that joint tendering will be subject to a more intense scrutiny in Norway than in the rest of Europe. The judgment also leaves some questions unanswered, particularly in regard to tenders where the parties, when considering capacity, risk or strategy, have a need to cooperate with one or more competitors. In the Norwegian market, where players are relatively small but getting bigger (especially civil construction contracts), some scope for joint bidding, where both undertakings could potentially submit an individual bid, should be granted. Enterprises entering into joint bidding arrangements in Norway should seek legal advice and ensure a careful assessment and documentation of whether or not the cooperation in effect leads to otherwise non-achievable cost efficiencies, or other efficiencies benefiting the consumer.

1 Carl Arthur Christiansen is a partner and Catherine Sandvig is a senior attorney at Ræder,
Attorneys-At-Law.

2 See www.konkurransetilsynet.no.

3 Prior to 2013, the Ministry of Education and Church Affairs.

4 Act of 22 May 1981 No. 25.

5 Act of 5 March 2004 No. 11.

6 Act of 13 June 1975 No. 39.

7 Act of 20 January 2012 No. 4.

8 Regulation of 11 December 2013 No. 1465.

9 See e.g., rational under paragraph 352 and 353 in the NCC case: http://kt.no/globalassets/vedtak-og-uttalelser/vedtak-og-avgjorelser/2013/offentlig-versjon-av-vedtak-v2013-3.pdf.

10 Guidelines dated 14 June 2016 – see http://kt.no/globalassets/filer/faktaark/veileder---personstraff.pdf.

11 Act of 22 May 1902 No. 10.

12 Regulation of 11 December 2013 No. 1491.

13 Case No. 59120 Color Line and Case No. 34250 Posten Norge.

14 Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Articles 7 and 23 of Council Regulation.