i Statutory provisions and public enforcers
The main statutory provisions in Norway are enshrined in the Competition Act of 2004 (CA). The substantive provisions of the CA mirror Articles 101 and 102 TFEU and Articles 53 and 54 EEA Agreement by, first, prohibiting cartels and anticompetitive agreements, and secondly, abuse of a dominant position. Norway is not a member of the European Union, but it is party to the EEA Agreement. Thus, Norway has implemented the EU and EEA competition rules and internal market rules, and has a state aid regime similar to that of EU Member States (Article 61 EEA Agreement mirrors Article 107 TFEU).
The main public enforcer of the CA is the Norwegian Competition Authority (NCA). Decisions adopted by the NCA can be appealed to the Competition Appeals Tribunal prior to being brought before the Norwegian appellate courts. The NCA is not a formal member of the European Competition Network, although it has informal points of contact.
The public enforcers of the provisions of the EEA Agreement are, in addition to the NCA, the European Commission and the EFTA Surveillance Authority (ESA). ESA is particularly important in relation to enforcement of the state aid provisions and Article 59 EEA Agreement (the award of special or exclusive rights – mirroring Article 106 TFEU). Decisions adopted by ESA can be challenged before the EFTA Court. Due to the case allocation rules of the EEA Agreement, ESA does not deal with merger cases or cartel cases affecting EU Member States.
ii NCA enforcement: 2018 overview and 2019 outlook
In 2018, the NCA adopted three substantive decisions, of which two decisions related to merger cases (approvals subject to conditions). The NCA also adopted one abuse case decision in a case against Telenor, the incumbent company in the Norwegian telecoms sector. The Competition Appeals Tribunal adopted one substantive decision in a complaint case related to a cartel decision of the NCA.
Public enforcement of the NCA 2014–2018
|Mergers – notifications||89||96||97||99||111|
|Mergers – interventions||3||5||3||1||2|
|Mergers – breach of standstill||5||2||0||1||0|
|Section 10 decisions (cartel provision)||0||2||1||2||0|
|Section 11 decisions (abuse of dominance)||0||0||0||0||1|
|Section 9e (challenges of public regulations)||0||0||0||0||0|
|Dawn raids (publicly known)||6||1||1||3||2|
According to the Norwegian government's policy instructions in the 2019 budget letter, the NCA's 2019 enforcement focus will particularly target competition in the grocery sector. The reason is that the Norwegian grocery sector is allocated among a few large chains. Moreover, due to the Norwegian customs regime for foodstuffs, it has proven challenging for foreign grocery chains to penetrate the Norwegian market. This focus on the groceries sector has continued from 2018, and one of the NCA's two 2018 dawn raids was indeed in the groceries sector.
ESA enforcement: 2018 overview
The EFTA Surveillance Authority (ESA) adopted six state aid decisions related to Norway in 2018; four 'no objection' decisions and two 'no aid' decisions. The number of aid measures reviewed by ESA has drastically decreased since the entry into force of the GBER with 31 GBER information sheets related to Norway in 2018. With regard to enforcement priorities, it should be noted that Regulation 2015/1589, establishing a possibility to prioritise state aid complaint cases, has yet to be incorporated into the EEA Agreement.
ESA adopted no competition law decisions in 2018. However, it issued one statement of objections and it is currently undertaking two major investigations:
- in parallel to the NCA, ESA has one major pending abuse of dominance case against Telenor in the telecoms sector pursuant to Article 54 EEA;
- ESA issued a statement of objections against Widerøe, a regional air carrier in Norway, for abusing its dominant position; and
- ESA opened antitrust proceedings pursuant to Article 53 of the EEA Agreement in the Norwegian financial sector in October 2016, including against the major banks and the key trade organisation (Finance Norway). It has been indicated that ESA could close this investigation in 2019.
ESA is in practical terms to some extent 'a second NCA' for Norway; that is, the EFTA and EEA states are Iceland and Liechtenstein, in addition to Norway. Thus, ESA's focal point is often (markets in) Norway, in contrast to the European or global competition scope of the European Commission.
iii Global public enforcement against Norwegian entities
In the global arena one Norway-linked case has stood out in recent years: the Maritime Car Carrier case. In this case, relating to the pure car truck carrier shipping sector, investigations have been opened in all major global jurisdictions, including the EU, the US and Japan. Two Norwegian shipping companies, Wilh Wilhelmsen Logistics (WWL) and Höegh Autoliners, have been subject to the investigations. The former company has filed for leniency and been fined in several jurisdictions. The latter has, to date, only been fined in the United States. The European Commission adopted its decision on 21 February 2018, imposing a fine of €207 million on WWL (there was no finding of wrongdoing against Höegh Autoliners). This is the largest ongoing cartel case with Norwegian addressees.
iv Private enforcement
On the legislative side, Directive 2014/104/EU on antitrust damages actions has yet to be incorporated into the EEA Agreement and implemented into Norwegian law. This is due to institutional issues that are unlikely to be solved in the near future. However, existing general Norwegian law mirrors roughly the provisions of the Directive.
The key private enforcement case currently pending in Norwegian courts is the Kristoffersen case. In this case, the world-renowned slalom skier Henrik Kristoffersen is challenging the sporting community framework in relation to the scope of an athlete's economic rights pursuant to EU and EEA law. The key novel issue is that the EFTA Court, in its judgment in Case E-8/16 of 16 November 2018, acknowledged that a restriction on an athlete's marketing rights is only lawful if that restriction pursues a legitimate aim, and such a legitimate aim can only be the principle of solidarity aiming at channelling economic means also to recruitment, education, children's and recreational sports. If a sports system does not channel means to such purposes, the entire system may be rendered illegal.
The most interesting ongoing damages action case in Norway is the case between Nye Kystlink and Color Group, currently pending before the Appellate Court with a reference to the EFTA Court in Case E-10/17 on certain questions related to limitation and the principles of equivalence and effectiveness. The litigation case has surfaced in the wake of the EFTA Surveillance Authority's decision in Case 59120 of 14 December 2011. The decision identified an infringement by Color Group and Stroemstad municipality of Articles 53 and 54 EEA related to long-term exclusive harbouring rights. The EFTA Court provided its guidance on EEA law in a judgment of 17 September 2018, and the national Appellate Court's decision is expected in 2019.
The substantive cartel provision in Section 10 of the CA mirrors Article 101 TFEU and Article 53 EEA Agreement, except for the criterion related to effect on trade between EEA States. Thus, Section 10 CA prohibits agreements and concerted practices that have an anticompetitive object or actual or potential restrictive effect on competition. Judgments of the European Union Court of Justice (EUCJ) and the EFTA Court are directly relevant legal sources in the interpretation and application of the provision.
The leniency policy pursuant to the CA is similar to that of Regulation 1/2003 in the EU, including the possibility of obtaining a marker:
- the first applicant may be granted full immunity from administrative fines;
- the second company may be granted a 30 to 50 per cent reduction;
- the third company may be granted a 20 to 30 per cent reduction; and
- subsequent companies may be granted a reduction in fines of up to 20 per cent.
In contrast to the EEA Agreement provisions, cartel behaviour in breach of the CA can also trigger criminal sanctions, including fines and ultimately imprisonment of individuals, in theory of a duration of up to six years in aggravating circumstances. On the one hand, criminal sanctions have yet to be applied in a cartel case in Norway, not to mention criminal sanctions against individuals. On the other, the NCA adopted specific guidelines in 2016 on criteria when they will consider reporting an individual offence to the Public Prosecution's office, and the instructing ministry has requested the NCA to consider imposing criminal sanctions on individuals in future cases. The leniency programme is not available to individuals. However, it is possible to anonymously enquire at the NCA whether they will request criminal sanctions against individuals as a prejudgment decision.
There is a settlement procedure available pursuant to the CA mirroring that of Regulation 1/2003, possibly reducing an administrative fine by 10 per cent. The provision entered into force in 2016 and has yet to be applied.
i Significant cases
The NCA adopted no cartel decisions in 2018. The NCA adopted two cartel decisions in 2017, which were upheld on appeal in 2018, albeit with a reduction in the fines.
Publishers case – exclusionary conduct2
In a judgment of 21 June 2018 the Oslo City Court upheld the NCA's decision of 22 March 2017, in which the NCA fined four publishers for illegal collusion with fines totalling 32 million Norwegian kroner. However, the Oslo City Court reduced the fines. The four publishers account for the majority of books supplied to Norwegian consumers. The NCA found that the cooperation between the publishers had the purpose of restricting competition in the mass market for books. This market includes retail outlets for books that are not traditional bookstores, such as kiosks, grocery stores and petrol stations. There are only two main distributors in this market in Norway, Interpress and Bladcentralen, the latter distributor being jointly owned by the four publishers. The publishers boycotted Interpress, with the effect that books were supplied only to Bladcentralen, the distributor owned by the publishers. Three of the four publishers have initiated a court review of the decision. The NCA conducted a new dawn raid on the said publishers in January 2018 in a case concerning a possible illegal exchange of sensitive information related to the joint venture Bokbasen AS. The joint venture is a distribution platform for e-books in Norway. The EFTA Surveillance Authority is in parallel investigating the Norwegian exemption from the CA related to the possibility to set fixed prices for books for an initial period after publication.
El Proffen case – bid rigging3
The collusion in this case took place in the spring of 2014 and was related to a public tender for the maintenance of electrical installations in public schools. Five members of El Proffen, a large chain of independent electricians, cooperated on the tender by submitting a joint bid on the invitation from the chain office, irrespective of the fact that each member could have offered on the tender. Thus, the (independent) members agreed on prices instead of competing to submit the best offer. In a decision of 4 September 2017, the NCA imposed fines totalling approximately 18 million Norwegian kroner on the chain – El Proffen – and the five members that participated in the joint bid. The decision was appealed to the Competition Appeals Tribunal, which upheld the NCA decision on 31 August 2018. However, the fines were reduced to 4.7 million Norwegian kroner.
The NCA carried out two cartel dawn raids in 2018. In January 2018, the NCA conducted a dawn raid at certain publishers (see the Publishers case above) concerning a possible illegal exchange of sensitive information related to the joint venture Bokbasen AS. The joint venture is a distribution platform for e-books in Norway. In April the NCA conducted dawn raids in the grocery sector. Moreover, the NCA carried out two cartel dawn raids in 2017, in June in the market for alarm and security services, and in December in the market for waste and waste treatment in Mid-Norway. These investigations are ongoing. There is no information in the public domain on additional ongoing cartel cases in Norway enforced by the NCA (i.e., cases where a statement of objection has been published or cases where public information on dawn raids have been conveyed). Neither the European Commission nor ESA carried out any cartel dawn raids in Norway in 2018.
ii Trends and outlook
For several years, the NCA's enforcement resources have to a large degree focused on merger control. However, cartel enforcement has not been limited to leniency cases. On the contrary, most recent cartel cases in Norway have been complaint cases related to collusion by way of bid rigging in local markets.
III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE
Section 10 of the CA mirrors Article 101 TFEU and Article 53 of the EEA Agreement. Moreover, Section 11 of the CA mirrors Article 102 TFEU and Article 54 of the EEA Agreement. Thus, Section 11 CA prohibits a company's unilateral abuse of a dominant position.4 Judgments of the EUCJ and the EFTA Court are directly relevant legal sources in the interpretation and application of the provisions.
Regarding public enforcement tools, the CA includes the possibility of commitment decisions mirroring that of Regulation 1/2003 in the EU.
i Significant cases
Four (ongoing or decided) cases merit mention.
Telenor abuse case – telecoms
On 21 June 2018, the NCA adopted an abuse case (Article 54 EEA/Section 11 CA) decision to fine the Norwegian telecoms incumbent Telenor 788 million Norwegian kroner.5 This is the highest competition law fine ever imposed by the NCA. The case relates, in essence, to an alleged abuse by Telenor of its dominant position by engaging in conduct that impeded the entry of a third mobile network in Norway. Norway has been one of very few countries in Europe with only two mobile operators with their own nationwide mobile networks, with Telenor as the dominant player. Mobile operators without their own network have to rent access to either Telenor's or Telia's network. Owing to the lack of effective competition, Norwegian authorities still regulate the Norwegian mobile wholesale market. Therefore, the development of a third mobile network was key to achieving increased competition in this market. In 2007, Network Norway started the construction of a third mobile network together with Tele2. During the rollout of the network, Network Norway bought access to Telenor's network in the areas where the third mobile network did not yet have coverage. In 2010, Telenor changed the conditions in its network access agreement with Network Norway. It is in this regard that the NCA has found that Telenor abused its dominant position. Through the new agreement Telenor reduced the cost for the actual use of Telenor's network, but at the same time introduced a fee that increased with the number of Network Norway's end users. This fee was a cost that Network Norway could not avoid by increasing the use of its own network. This reduced Network Norway's incentives to continue the rollout of the third mobile network. The NCA decision has been appealed by Telenor to the Competition Appeals Tribunal.
Widerøe case – aviation
On 2 May 2018, ESA adopted a statement of objections informing Widerøe's Flyveselskap AS (Widerøe) of its preliminary conclusion that Widerøe may have abused a dominant position in Norway in breach of Article 54 EEA. Previously, airlines needed a specific satellite-based approach system to compete in public tender processes to service several Norwegian PSO routes. The system is called SCAT-1 and was installed at many regional airports in Norway for safety reasons. At the airports where this system was installed, PSO aircraft were required to have certain SCAT-1 receivers on board. Widerøe owns all of the available receivers. ESA's preliminary view is that Widerøe infringed Article 54 EEA by refusing to supply the SCAT-1 receivers to possible competitors. Consequently, according to ESA, Widerøe appears to have been the only airline able to win a number of the PSO tenders.
Trustly antitrust case – financial sector
On 25 October 2016, ESA opened proceedings against DNB, Nordea, Finance Norway and BankID for suspected breaches of Article 53 of the EEA Agreement.6 ESA is investigating whether these members of the Norwegian banking community engaged in concerted practices aimed at blocking a new market entrant, the Swedish company Trustly, from providing a new e-payments service in Norway. At present, Norwegian consumers are unable to benefit from a new service that is now available in most other EEA countries. ESA will investigate whether there are valid reasons for this under the EEA competition rules. The substance of the case fits with the implementation of the Payment Services (PSD2) Directive in 2018, pursuant to which it is likely that foreign e-payment service providers such as Trustly will obtain market access. The investigations are ongoing; however, informal signals from ESA may suggest that the case will be closed in early 2019.
Telenor abuse cases – telecoms
On 1 February 2016, ESA sent a statement of objections to Telenor. The case concerns Telenor's conduct in three Norwegian markets: the market for wholesale mobile access and origination services, the market for mobile broadband services to residential customers and the market for mobile communications services to business customers. ESA takes the preliminary view that Telenor's pricing of access and origination services at the wholesale level likely impeded competing offers in the market for mobile broadband services to residential customers. In the market for mobile communications services to business customers, ESA is concerned that clauses in Telenor's contracts have impeded competition by making it very difficult for its customers to switch provider and by making it overly expensive for competitors to capture customers from Telenor. The case is still ongoing.
Neither the NCA or ESA has published any information related to dawn raids in abuse cases in 2018. The NCA conducted an abuse case dawn raid at the premises of the brewery Ringnes in January 2017. The case involves Ringnes' operations regarding the sale of beer to eateries in Norway. No further details have been made public in 2018.
ii Trends and outlook
The NCA has finally adopted a decision pursuant to Section 11 CA (abuse of dominance), a provision introduced into Norwegian law by the entry into force of the CA in 2004. Until the 2018 Telenor decision the NCA had not taken any abuse case decisions that were not later settled or quashed by the courts. (Two major cases that were settled or quashed are the SAS case of 2005 and the Tine case of 2011.) Thus, irrespective of the Telenor decision in 2018, it is safe to say that the enforcement of abuse of dominance cases by the NCA is low.
ESA has successfully enforced the similar provision of the EEA Agreement (Article 54) on several occasions, of particular note in the Posten case of 2010 (fines of approximately €11 million) and the Color Line case of 2013 (fines of approximately €19 million).
With regard to the application of Section 10 to vertical agreements, it could be noted that the NCA has not adopted any such decision after the entry into force of the CA in 2004.
IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES
i Market liberalisation
The government's efforts on liberalisation are aimed at particular two markets: rail passenger transport services and air navigation services.
Rail passenger transport services
The market pillar of the EU Fourth Railway Package will make it compulsory for EEA countries to open the market for domestic passenger services by December 2019, while competitive tendering for PSO will be obligatory in the majority of cases from December 2023. The government has already 'unbundled' train operations and infrastructure management, and has initiated the deregulation of the Norwegian market by way of placing various routes on tender through a phasing-in period from 2017 to 2022.
Air navigation services
The government has conveyed, although not particularly forcefully, that the markets for air navigation services will be liberalised. They have also stated that the incumbent service provider and owner of most of the airports in Norway, Avinor, may await the introduction of remote towers prior to placing the services on competitive tendering. Thus, it may take many years before the market is opened to other air navigation service providers.
ii Regulated industries
As in other EEA countries, as pursuant to EU and EEA secondary legislation, electronic communications (including telecom), the power industry and the postal sector are subject to additional sector-specific competition rules. The enforcement of these provisions did not raise particularly noteworthy issues in 2018.
iii Trends and outlook
As previously mentioned, in 2019 the NCA shall particularly focus on competition in the grocery sector. The background to this can be found in the fact that the Norwegian grocery sector is apportioned between a very few large chains with the attendant high risk of sub-optimal competition. Moreover, due to the Norwegian customs regime for foodstuffs, it has proven challenging for foreign grocery chains to penetrate the Norwegian market. The NCA carried out a dawn raid in this sector in April 2018.
Private versus public entities – competition on the merits
Norway has a very large public sector. On the governmental level, a commissioned report on competition between private and public entities was published 23 January 2018. The topic of public commercial entities is not as controversial in Norway as it is in many other countries. It has yet to be decided by the government whether it will adopt changes to the current legislation in this regard in addition to the requirements of general EU and EEA state aid law (i.e., to shield private commercial operations from being stifled by state-owned enterprises).
V STATE AID
Although not part of the EU, Norway has a state aid regime similar to that of EU Member States (i.e., Article 61 of the EEA Agreement mirrors Article 107 TFEU). Thus, the EEA Agreement prohibits state aid in order to prevent distortions of competition and negative effects on trade.
The prohibition is, however, subject to exemptions, recognising that government intervention can be necessary to correct market failure and for other purposes. To benefit from these exemptions the government must, as a rule, notify aid measures to ESA for prior approval. Aid measures may be implemented without prior approval when they comply with the General Block Exemption Regulation (GBER) or other specific rules. The main piece of Norwegian legislation on state aid, in addition to the main parts of the EEA Agreement having been incorporated into Norwegian law, is the State Aid Act of 1992. All procedural rules and the EEA block exemptions have been implemented into Norwegian law as part of the State Aid Act. Similar to the EU model, ESA may request that illegal and incompatible state aid is recovered from Norwegian beneficiaries.
ESA has substantial resources enabling it to monitor the Norwegian market. Regarding ESA enforcement versus European Commission enforcement, there is, however, one key difference: Regulation No. 734/2013 has, for institutional reasons, yet to be incorporated into the EEA Agreement. Thus, ESA's competences follow from the previous regulation, Regulation No. 659/99. The effects are, inter alia, that ESA cannot prioritise complaint cases in the same degree as the European Commission; nor can ESA request market information pursuant to the rules of Regulation No. 734/2013. That said, most cases are in any event notification cases that ESA has to handle within the applicable deadlines.
Moreover, a key observation from a factual perspective is that ESA is only monitoring Norway, Iceland and Liechtenstein, enabling ESA to allocate significant resources to the Norwegian market. In addition, Norway has a public affairs sector that in relative terms is much larger than that of most other countries.
With regard to private enforcement, national courts are empowered to enforce, inter alia, the state aid standstill provision and the block exemption provisions. However, private enforcement of the state aid framework has so far been limited in Norway.
i Significant cases
ESA adopted six state aid cases related to Norway in 2018, in addition to 31 Norwegian notifications pursuant to the GBER not requiring any ESA decision. All cases were notification cases (i.e., cases notified for the approval of legal aid). Conversely, ESA did not open any formal proceedings in 2018 based on a complaint.
The main areas for state aid in Norway are regional aid, aid to promote and make environmentally friendly solutions competitive, aid to CO2 capture technology related to oil and gas exploration, and aid to shipping in the form of a special tax regime. To this end, two significant cases from 2018 are as follows.
'Hurtigruten': the Coastal Route Contracts Bergen-Kirkenes (2021–2030)
Service compensation paid by the Norwegian government for the 'Hurtigruten', the shipping route between Bergen and Kirkenes, has been under state aid scrutiny on several occasions throughout the years. In March 2017, ESA approved state aid inherent in the current Coastal Route Agreement, but encouraged Norway to facilitate more competition. Norwegian authorities split the new tender competition into three smaller packages and awarded contracts to two transport companies. The new agreements apply as from 1 January 2021, have a duration of 10 years and entail total government payments of around 8 billion Norwegian kroner. According to the new agreements, the Norwegian government will compensate the company Hurtigruten for sailing seven ships and the company Havila for sailing four. The entities will be compensated to perform daily sailings from Bergen to Kirkenes throughout the year with calls at 34 ports. Following the competitive tender ESA adopted decision 072/18/COL on 16 August 2018 and concluded that there is no state aid involved in the new agreements.
Petroleum tax reimbursement case
ESA is currently in an informal investigation phase related to parts of the Norwegian petroleum tax scheme (i.e., the reimbursement system for exploration costs). Due to the extraordinary returns on production of petroleum resources, oil companies are subject to an additional special tax. In 2018, the ordinary company tax rate was 24 per cent and the special tax rate was 54 per cent, generating a marginal Norwegian petroleum tax rate of 78 per cent. The reimbursement system for exploration costs was introduced to reduce entry barriers and encourage economically viable exploration activity. Under the system, companies that are making a loss may choose between requesting an immediate refund of the tax value of exploration costs from the taxation authorities and carrying forward the losses to a later year when the company has a taxable income. If a company chooses the immediate payment option, the exploration costs cannot be deducted from income in later tax assessments. Based on a complaint, ESA is currently investigating whether the system could include illegal state aid.
ii Trends and outlook
With regard to enforcement priorities, Regulation 2015/1589, transferring a possibility on ESA to prioritise state aid cases, has yet to be incorporated into the EEA Agreement. However, ESA has in an unofficial capacity stated that it will, within the existing legal framework, not prioritise small cases not affecting competition in the marketplace to any appreciable degree: it will, inter alia, not prioritise complaint cases related to public sales of minor properties allegedly at below market price.
Another trend is the increased use of GBER block-exempted aid. Norway has made active use of the GBER, with 36 block-exempted aid measures in 2016, 43 block-exempted aid measures in 2017 and 31 block-exempted aid measures in 2018. The purpose of the GBER, introduced in 2014, is that only larger, more distortive and complex cases will remain subject to prior notification and detailed scrutiny by ESA. Within the scope of the GBER, the requirement is that larger aid awards are published on a publicly available website, and certain schemes require an evaluation plan under which ESA conducts monitoring exercises.
The focus of individually notified aid is on regional aid to Norway's outermost regions, aid to support the shift from being an oil and gas-producing country, and aid to support environmentally friendly choices.
Many European countries provide aid to promote the use of renewable energy in households. In Norway, however, renewable energy already accounts for 99 per cent of the total electricity production (mostly hydropower: almost 50 per cent of Europe's hydropower capacity is in Norway) Thus, this is not a focus of aid in Norway.
The agricultural sector is aid-intensive in Norway. This sector (as well as the fisheries sector) is, however, not covered by the EEA Agreement. Thus, agricultural aid in Norway is monitored only by national political control.
VI MERGER REVIEW
Section 18 et seq of the CA requires that concentrations meeting certain thresholds are notified to the NCA. Thus, concentrations where the undertakings concerned have a combined annual turnover in Norway exceeding 1 billion Norwegian kroner must be notified, unless only one of the undertakings concerned has an annual turnover in Norway exceeding 100 million Norwegian kroner.
Since the CA entered into force in May 2004, the NCA has intervened in 47 cases, of which 15 concentrations have been prohibited.
The procedure pursuant to the CA reflects roughly the EU Merger Regulation, albeit with substantially shorter pre-notification discussions. The main features are as follows: Phase I lasts 25 working days. A standard standstill prohibition applies until approval. There is no deadline for notifying a concentration. Concentrations that are unlikely to affect competition may be notified by a short-form notification, with market share thresholds mirroring the DG Comp Short Form CO. The notion of a 'concentration' mirrors that of the EU Merger Regulation, and the same holds true for the substantive test: the significant impediment of effective competition test. The Competition Authority publishes a notice of all notified concentrations on its website.
During 2018, the NCA received 111 merger notifications, of which two triggered an intervention by way of approvals subject to conditions.
Although Norway is not an EU Member State, it is covered by the one-stop shop of a Form CO filing to the European Commission pursuant to the EUMR. Two key particularities are that turnover in Norway (EFTA) is not relevant for the assessment of the European Commission's jurisdiction, and the European Commission's jurisdiction only covers products and services covered by the EEA Agreement (Article 8). Thus, exceptions include, inter alia, agricultural products, which may require a separate filing in Norway if national jurisdictional thresholds are met.7 There are also additional EEA and EFTA particularities in relation to the referral procedures between the European Commission and the NCA.
i Significant cases
E-payments: Vipps, BankID and BankAxept – approved, subject to conditions
The Vipps, BankID and BankAxept merger was approved by the NCA 27 April 2018.8 The merger created the largest electronic payment and identification verification operator in the Nordic region. Access to BankID and BankAxept is, however, essential also for other players to compete effectively against the consolidated company. Thus, the merger was approved subject to the following conditions: (1) the consolidated company commits itself to offer BankID to third parties' payment solutions on non-discriminating terms; (2) the consolidated company commits itself to offer necessary services for the issuing of virtual BankAxept cards to third parties' payment solutions on non-discriminating terms; (3) the consolidated company is committed to offer BankAxept as a separate service; and (4) the decision is valid for three years with an option to renew.
Fuel retail markets: St1/Statoil Fuel & Retail Marine approved, subject to remedies
On 20 June 2018, the NCA approved the acquisition of Statoil Fuel & Retail Marine by St1, subject to conditions.9 Both companies are active in markets related to marine gas oil, products to be used as fuel for maritime vessels. Against the background of appreciable overlap between the parties in Stavanger, Tromsø and Harstad, the parties accepted various structural commitments related to these local (geographical) areas.
Mobile telecommunication services: Telia, Get and TDC, Phase II approval
On 8 October 2018, the NCA approved Telia's acquisition of Get and TDC Norway. In Norway, Telia mainly operates mobile and fixed telephony services. Get/TDC's main business in Norway is within fixed broadband access and TV services, but the company also has some business in mobile and fixed telephony. The NCA has in several cases expressed concerns related to the competitive situation in the Norwegian market for mobile telecommunications services. Against that background, the NCA market tested the proposed concentration and retained comments from approximately 40 customers and competitors in the affected markets. Based on the market testing the NCA concluded that, despite the fact that Telia and Get/TDC are two major players in Norway, they meet only to a small extent as direct competitors. Based on that the concentration was approved late in Phase II.
The notification of a joint venture (Nordic Port Services) between Greencarrier Shipping Logistics, DFDS Logistics and Seafront Group, notified on 20 September 2017, was withdrawn by the parties in January 2018. The withdrawal was based on a statement from the NCA conveying its preliminary view that it intended to block the concentration due to the transaction's impediment of competition in markets related to the port terminal services of sea containers.
ii Trends and outlook
The NCA has for many years focused on competition in local markets, which has led to a higher number of prohibition decisions than in comparable jurisdictions with a more neutral focus. The same focus has led the NCA to have one of the highest global ratios of prohibition decisions compared to the number of launched Phase II investigations: for example, in 2016 (97 merger cases) a Phase II investigation was launched in three cases, and all three cases ended with a prohibition decision. It remains to be seen whether this approach will be endorsed by the (new) Competition Appeals Tribunal.
Most of the NCA's internal enforcement resources are allocated to merger control, with the effect that complex cases under Sections 10 and 11 (Articles 101 and 102 TFEU cases) are usually not subject to an in-depth investigation.
The NCA's 2019 enforcement focus will particularly target competition in the grocery sector.
Regarding antitrust enforcement, the major case of 2018 was the NCA decision of 21 June 2018, imposing a fine of 788 million Norwegian kroner on the Norwegian telecoms incumbent Telenor for abuse of a dominant position (Article 54 EEA/Section 11 CA).
On merger control, the NCA has retained its focus on local markets, which likely will generate outright prohibition decisions in cases raising concerns. It remains to be seen whether the NCA's approach will be endorsed by the Competition Appeals Tribunal.
The most significant issue in relation to public enforcement of the state aid rules is the increased use of block-exempted aid pursuant to the GBER.
Regarding private enforcement, the highest-profile current case in Norway is the Henrik Kristoffersen case, which is currently pending before the Oslo District Court.
No major, material changes to the CA are expected in 2018.
1 Odd Stemsrud is a partner at Advokatfirmaet Grette AS.
2 NCA decision V2017-18 of 22 March 2017.
3 NCA decision V2017-21 of 7 September 2017.
4 The provision also prohibits abuse of collective dominance as that concept is enshrined in EU and EEA competition law.
5 NCA decision V2018-20.
6 ESA decision 195/16/COL of 25 October 2016.
7 See, e.g., the decision in M.7015, Bain Capital/Altor/Ewos, Section 4 Paragraph 8.
8 NCA decision V2018-18 of 27 April 2018.
9 NCA decision V2018-19 of 20 June 2018.