In line with international developments, the awareness of and willingness to pursue potential damages claims has also clearly increased in Norway, although the number of cases is still limited. Following competition investigations, potential claimants are regularly approached by Norwegian and international law firms eager to take on the case. However, the EU Antitrust Damages Directive (2014/104) is not implemented in Norway. Although Norwegian courts are placing considerable weight on EU and European Economic Area (EEA) law, Norway’s national law on damages still seems to prevail in the field of antitrust follow-on claims, firmly placing the burden of proof for any loss on the claimant.

Although most of the follow-on claims against the so-called truck cartel following the European Commission’s (EC) decision(s) seem to be before courts in the usual major jurisdictions and in Spain, a couple of major truck purchasers have decided to try their luck before Norwegian courts. The judgment in the case brought by the Norwegian postal service and group companies (“Posten”) against Volvo Group, DAF Trucks, Daimler AG, Iveco and MAN Truck & Bus is the first of its kind and, as such, is the leading case in Norwegian antitrust litigation. The original equipment manufacturers (OEMs) were acquitted of all claims in the first instance in February 2023. The case is now under appeal, and the court of appeal is expected to render its decision by the end of 2024 or in early 2025.

During 2023, the Supreme Court has also ruled on the ability to fund class actions through external funding (in a case relating to alarm services). The Supreme Court confirmed that the Dispute Act does not allow for the costs of external litigation funding – in an opt-out lawsuit – to be (indirectly) covered by the class members through a reduction in any compensation awarded.

There are a couple of follow-on litigation cases related to airfreight and trucks that are currently stayed before the district court in Norway, pending outcome in the ongoing infringement proceedings before the ECJ.

In 2020, the Norwegian Competition Authority (NCA) issued a statement of objections to the three grocery chains in Norway (NorgesGruppen, Coop Norge and Rema 1000), notifying that it is considering imposing fines totalling NOK21 billion. The NCA believe that the three grocery chains have co-operated illegally by using so-called price-hunting practices, allowing each other’s employees to access stores with a view to scan shelf prices. The NCA’s decision is expected during 2023. In the event that the NCA concludes and issues an infringement decision, it is probable that several entities will carefully assess the potential for damages claims. Depending on its outcome, the case may generate considerable interest for stakeholders in pursuing follow-on claims against the grocery chains.

The EU Antitrust Damages Directive (2014/104) is not implemented in Norway, and the Norwegian Competition Act does not contain provisions regulating the legal basis for a claim. Therefore, any claim due to a breach of competition rules must be based on non-statutory general tort principles (ie, culpa and dolus).

The courts in Norway are generalist courts that hear all types of cases, both civil and criminal. There are no specialist competition courts or specialist competition judges within the generalist courts.

The Norwegian courts are organised in a three-tier system. The initial level comprises 23 district courts. Decisions from the district courts can be appealed to one of the six appeal courts. Judgments from the appeal courts can be appealed to the Supreme Court.

Any claim for damages due to an antitrust infringement must be filed to the competent district court (or, under certain circumstances, the local conciliation board). Unless a competent district court can be derived directly from the Dispute Act, Oslo District Court is the competent court in international damages cases.

Decisions from the NCA are not formally binding on the court. The same applies to decisions of the national competition authorities in other jurisdictions.

There is no general principle that decisions from governmental bodies or authorities are binding upon Norwegian courts, and, as mentioned in 2.1 Legal Basis for a Claim, the EU Antitrust Damages Directive does not apply in Norway.

However, a final decision by a competent governmental body will normally be considered strong evidence. Further, the principle of harmonisation within the EU legal system implies that Norwegian courts shall assume that decisions from EU courts are correct unless they are dismissed due to ordre public (public policy), etc.

Under general Norwegian tort principles, the burden of proof is on the claimant. Oslo District Court recently stated (trucks cartel case) that in antitrust follow-on damages cases as well, the burden of proof rests firmly on the claimant. As mentioned, the case is under appeal and the extent of the claimant’s burden of proof is one of the legal questions under appeal.

As the EU Antitrust Damages Directive (2014/104) is not implemented in Norway, the question of pass-on defence is not governed by any statutory provisions, and no case law from Norwegian courts has dealt with this question specifically in relation to antitrust litigation yet.

Claims can be brought both by direct and indirect purchasers. The basis for a claim is the same as mentioned in 2.1 Legal Basis for a Claim; ie, general tort principles (culpa). The claimant must thus substantiate an economic loss.

Duration of Proceedings

In principle, the main hearing in civil cases shall be scheduled no more than six months after receipt of the statement of claim, unless special circumstances necessitate this. However, high-value and complex factual/legal disputes often exceed this timeframe.

As there are few antitrust cases of significance so far in Norway, and each of them have progressed over varying timeframes, it is difficult to give a general timeframe for antitrust proceedings. The status of select current antitrust cases are as follows:

• the air cargo case – the statement of claim was filed in 2012 and proceedings are currently stayed, pending an appeal to the ECJ;
• Posten v OEMs (trucks cartel) – after the statement of claim was filed in 2017, the case saw a decision from first instance at district court and is now pending appeal proceedings in 2024; and
• Tine v OEMs (trucks cartel) – the statement of claim was filed in 2019 and proceedings are currently stayed, pending an appeal to the ECJ.

Stay

Parties can apply for an order to stay proceedings. The preparatory judge can also hand down a stay order ex officio.

According to the Dispute Act, the court has wide discretionary power to stay proceedings. Relevant factors in this assessment are the legal costs involved and the consideration to avoid contradictory decisions from different courts (eg, different judgments in national courts compared to EU courts).

The possibility of class actions was introduced in Norway in 2008 through Chapter 35 of the Dispute Act. The conditions for class actions are that:

• several legal entities have a claim or obligation based on the same or substantially the same factual and legal basis;
• the claims can be decided by the court according to the same procedural rules;
• the class action is the most suitable way of handling the case; and 
• it is possible to designate a group representative according to regulations in the Dispute Act Section 35-9, whereby the group representative will be responsible for case costs.

There is the possibility for both opt-in and opt-out variations of a class action. Although the possibility for class actions has existed for 15 years now, there have not been many class action cases in Norway.

A class action can be brought on behalf of both indirect and direct purchasers.

The group representative can bring a class action. After receipt of the statement of claim, the court will initiate a certification process to make sure that the class action fulfills the criteria as mentioned in 3.1 Availability. If the claimant (group representative) fails to demonstrate that the criteria is fulfilled, the case will be dismissed by the court (an example of this is the recent case related to alarm services that is referred to in 1.1 Recent Developments in Antitrust Litigation).

There is no judicial oversight or involvement in the settlement of collective actions.

Strike-out judgments are not available in Norway. Summary judgments can only be granted at the district court stage if the claim or the defence is clearly unfounded in all respects. This is a high threshold and thus summary judgments are rare.

Norway is not a member state of the EU but has adopted the 2007 Lugano Convention, which regulates whether a Norwegian court has jurisdiction in a private competition case involving persons or entities domiciled in the EU/EEA. The Lugano Convention mirrors the Brussels regime in the EEA.

Outside the scope of the Lugano Convention, disputes in international matters may only be brought before the Norwegian courts if the facts of the case have a sufficiently strong connection to Norway. Whether a strong connection can be established is evaluated on a case-by-case basis.

The starting point is initiating legal action in the state where the defendant resides or has its seat. Thus, claims against persons or entities domiciled in Norway can be brought before Norwegian courts unless, for example, the parties have agreed in writing to another legal venue or the claim is subject to arbitration.

Foreign claimants (domiciled outside of the EU/EEA) may, if requested by the defendant, be compelled to provide security for the defendants’ legal costs before the case preparation can proceed (eg, by deposit or bank guarantee). If the claimant fails to provide security, the case will be dismissed.

Under Norwegian private law, choice of law is assessed on the basis of the so-called Irma Mignon formula, established by case law of the Supreme Court in 1923 and onwards. According to the formula, choice of law shall be determined on the basis of which jurisdiction the dispute has the strongest connection to.

The Rome I Regulation on choice of law within the EU/EEA is not implemented in Norway, but the Supreme Court has, in recent cases, put significant weight on the regulation due to the desire for uniform practice and predictability within the EEA.

According to the Norwegian Limitation Act, as a starting point, claims are time-barred three years after the infringement ceased.

However, a separate deadline of one year applies from the time the injured party gains sufficient knowledge of the damage occurred and can pursue the claim via legal action. As an example, claims based on an infringement which ceased January 2015 will, according to the main rule, be time-barred as of January 2018. However, if the claimant first gains sufficient knowledge of the claim in January 2020, the additional/extended limitation period will commence, meaning that legal action must be initiated within one year from the time of knowledge (ie, by January 2021).

The Norwegian Competition Act also prescribes a special limitation period for competition law infringements, independent of the general rules in the Limitation Act. According to Article 34 of the Competition Act, an additional extension of the limitation period is granted for within one year of a final decision from a competition authority or court, even if the claim is already time-barred.

Disclosure During Proceedings

The parties shall, as a main rule, provide such accounts and present such evidence as are necessary to fulfil their duties according to the Dispute Act. They also have a duty to give testimony and access to evidence. A party shall also disclose the existence of important evidence that is not in the party’s possession and of which the party has no reason to believe that the opposite party is aware.

Under Norwegian law, a petition for access to evidence must fulfil requirements of relevance, specification and proportionality; ie, the requested documents must be relevant to the case at hand, the petition must sufficiently specify the documents/information requested, and the petition must not require documents/information to an extent that is disproportionate to the documents/information that comply with the request. Norwegian law does not open for wider information requests like the US/UK rules on discovery/disclosure.

Normally, petitions for access to evidence are made by informal “provocations” set forth in pleadings by either party. If the counterparty does not comply, the court shall state by formal decision whether the party must present the requested evidence.

Seizure of Potential Evidence Before a Lawsuit is Filed (Pre-action)

Chapter 28 of the Norwegian Dispute Act provides the possibility for the legal questioning of parties/witnesses and seizure of evidence prior to a potential court case.

Seizure of evidence can take place when the evidence may be important in a dispute where the person presenting the petition may become a party (and/or party assistant) and there is a risk that the evidence may be lost or significantly weakened, or if, for other reasons, it is particularly important to get access to the evidence before proceedings are instituted.

The main rule is that the opposing party must initially be given the opportunity to make a statement before the court makes its decision on the securing of evidence. Also, the defendant has the right to be present during the execution of the seizure order.

However, if there is reason to fear that notification to the other party may prevent the evidence from being secured, the court may allow evidence to be secured before the other party is notified (dawn raid).

Communication between lawyers and their clients is subject to legal privilege. This also extends to in-house counsel and foreign lawyers.

According to the Norwegian Supreme Court’s practice, everything a lawyer obtains or gains access to on behalf of a client as part of a client relationship is subject to legal privilege. This also covers the existence of a client relationship, the client’s identity and other information that can directly or indirectly provide the basis for conclusions about the contact a lawyer has or has had with a client and others in connection with the assignment.

Communication with expert witnesses (ie, economic experts) engaged by legal counsel in the context of litigation is also protected by legal privilege.

Protection from disclosure for leniency and settlement agreements with the Norwegian Competition Authority is not clearly regulated in statutory law, nor has this question been explicitly addressed in the case law of Norwegian courts thus far. However, based on the relevant legal sources available, it is highly likely that leniency and settlement agreements with the national competition authority would be protected from disclosure.

However, Borgarting Court of Appeal stated in a 2020 procedural decision from the trucks cartel case (Posten v OEMs) that leniency and settlement information from the EU Commission could be withheld and/or redacted by the defendants based on EU law.

Norwegian courts are free in their assessment of evidence, which, in theory, means that witness testimonies can be given great or decisive importance in a case. However, in practice and according to Supreme Court case law, courts in civil cases often rely on written documents from the time before the dispute occurred if these contradict later witness testimonies.

In commercial proceedings, witness testimonies are often a supplementary form of evidence that elaborates on the documentary evidence presented.

The main rule is that witnesses give their statements orally, but written statements can be filed if all parties consent. Witnesses giving oral statements are subject to cross-examination.

As a starting point, everyone has a duty to give witness testimony if so requested, and witnesses can be compelled to give evidence. However, a witness does not have a duty to give evidence regarding information that is subject to legal privilege, trade secrets, sensitive personal information outside the scope of the proceedings, etc.

The Dispute Act gives the possibility for party-appointed expert witnesses as well as court-appointed ones. The parties do not need the court’s permission to present expert witnesses and expert reports.

All expert witnesses are subject to cross-examination unless this right is waived by the opposing party. According to the Dispute Act, expert witnesses are heard sequentially and have the possibility to ask questions to other expert witnesses. In principle, the presiding judge has the discretionary power to adopt alternative methods (“hot-tubbing”, etc), but this is seldom used in practice.

Norwegian damages law prescribes that the claimant shall be awarded its actual financial loss. Punitive damages are not recognised in Norway.

Since the claimant can only be awarded its actual financial loss, any passing on of the damages incurred to third parties shall be reduced from the awarded amount. The pass-on defence is thus available under Norwegian damages law.

Depending on the circumstances of the underlying case, a claimant may claim deprivation interest from the time the damage occurred, in accordance with principles developed in case law. Under certain conditions, the claimant will be entitled to depreciation interest to compensate his actual loss. An example where the court awarded compensation for depreciation is the “Full City case” (LB-2015174299): the court of appeal came to the conclusion that the Norwegian state was entitled to deprivation interest to reflect the state’s actual loss by prepaying for pollution costs that should have been paid for by the shipowners. Based on the facts of the case, the court set an interest rate at 2.5% per year to reflect the “normal price” of money, based on the banks’ deposit interest rates.

Penalty interests (at 11.75% as of 1 July 2023) will, according to statutory provisions, accrue after either a statement of claim has been sent to the defendant or court proceedings have been initiated.

The main rule under Norwegian law is that, if there are multiple offenders, the offenders are jointly and severally liable for damages caused by their infringement.

Joint and several liability implies that if several parties are liable for damage caused by them then a claim can be brought against any of the parties for the same amount as if that party had been liable for all the damage.

If a claimant has filed a claim for full compensation against one offender, the offender can initiate contribution proceedings against any other offenders that are jointly and severally liable for these damages as a part of the already pending proceedings.

Contribution claims can also be filed in separate proceedings.

The Dispute Act gives the possibility for arrest injunctions and regular injunctions. There is, however, no right for a claimant to receive an interim award of damages in competition damages cases.

Arrest injunctions can only be made for monetary claims and can only result in an asset being seized (real estate, vehicles, the freezing of a bank account, etc). A regular injunction cannot be filed for a money claim and can consist of a court order for the defendant to take, omit or submit to some action.

To be granted an injunction, the claimant must establish (i) a claim, and (ii) a reason for an injunction; eg, that the defendant’s actions give reason to fear that execution or fulfilment of the claim will otherwise be materially more difficult, or that it is shown to be necessary to order an injunction in a disputed matter to avoid material loss or inconvenience, or to avoid violent action.

Injunctions can be obtained without notice to the other parties if there is reason to fear that notification to the other party may prevent the injunction from being executed.

An injunction can be granted the same day if the court finds the matter to be urgent. Usually, a petition for injunction will be processed by the court within 4–5 working days.

As mentioned in 5.1 Disclosure/Discovery Procedure, a claimant can also request a pre-action order from the court to seize documents or other material (seizure of evidence). Such requests may also be granted without notice to the other party.

All courts offer in-court mediation, which is regulated by Chapter 8 of the Dispute Act. It is up to the parties if they want to accept in-court mediation. A substantial number of disputes are mediated in Norwegian courts each year, especially at the district court level.

In Chapter 7 of the Dispute Act, there are rules on out-of-court mediation, which the parties can agree to follow if they so choose. It is also possible for parties to have a private mediation without following the rules set out in Chapter 7 of the Dispute Act.

Parties can also agree that the dispute should be subject to arbitration.

Historically, there has not been a tradition for third-party litigation funding in Norway. However, over the past few years, third-party litigation funding has increased. There is no procedural legislation nor mandatory rules explicitly governing third-party funding in court proceedings.

As mentioned in 1.1 Recent Developments in Antitrust Litigation, in a recent decision, the Supreme Court was asked to rule on whether the Disputes Act allowed for the costs of external litigation funding – in an opt-out lawsuit – to be (indirectly) covered by the class members through a reduction in any compensation awarded. The Supreme Court found that the case should be dismissed because the funding arrangement did not satisfy the conditions for an opt-out class action.

As a main rule under the Dispute Act, the winning party has the right to full compensation of its necessary legal costs associated with the proceedings. The court has wide discretionary power to reduce the amount of legal costs awarded, depending on, inter alia, whether the claim was questionable, the balance of strength between the parties, etc.

As mentioned in 4.2 Jurisdiction/Applicable Law, foreign claimants (domiciled outside of the EU/EEA) may, if requested by the defendant, be compelled to provide security for the defendants’ legal costs before the case preparation can proceed (eg, by deposit or bank guarantee). This is not an alternative in domestic proceedings.

A judgment from a district court can be appealed to the competent court of appeal within one month after the judgment has been announced. Any party has the right to appeal on points of fact/evidence, points of law and procedural errors.

Further appeal of a judgment from a court of appeal to the Supreme Court is possible, but the Supreme Court will only hear disputes that possess potential legal value as precedent, or if the dispute is of particular interest to one or more of the parties involved.