Merger Control 2020

Last Updated July 13, 2020

Norway

Law and Practice

Authors



Advokatfirmaet Simonsen Vogt Wiig has a merger control and competition law team consisting of ten partners and lawyers in Oslo. The team has assisted in merger control investigations and filings in many different economic sectors, for instance, in telecoms, the airline industry, retail, software, aquaculture, petrol stations, etc and has been involved in every phase, ie, in Phase I, Phase II and appeal cases. In 2018, SVW's team assisted in some of the largest merger cases in Norway, including the merger of Telia and Get/TDC and St1's acquisition of Statoil Fuel & Retail Marine.

The Norwegian merger control rules are laid down in Chapter 4 of the Norwegian Competition Act (LOV-2004-03-05-12), known as the Act, the Merger Control Regulation (FOR-2013-12-11-1466) and the Fining Regulation (FOR-2013-12-11-1465). 

The Norwegian Competition Authority (NCA) publishes guidance and fact sheets in Norwegian and English on its web page.

The competition rules in the EEA agreement are also applicable for transactions affecting trade between EEA countries. The enforcement of the EEA competition rules is regulated in the Norwegian EEA Competition Act (LOV-2004-03-05-11). The European Commission is competent in cases falling under the EC Merger Regulation (ECMR), and also with regard to rendering decisions with effect in Norway.

There is no specific legislation regarding foreign transactions or investments, nor relating to particular sectors.

The NCA enforces the above-mentioned acts and regulations. Complaints concerning merger control decisions can be made to the Competition Appeals Board (CAB). The Ministry of Trade, Industry and Fisheries (the Ministry) handles complaints in cases where the CAB made the decision in the first instance.

Pursuant to Section 8 of the Act, the King in Council (in practice, the government) may order the NCA to handle a specific case. 

The EFTA Surveillance Authority (ESA) and the EU Commission investigate mergers that have a so-called "EFTA dimension" or a community dimension when certain turnover thresholds are met. 

So far, no merger with an EFTA dimension has been notified to the ESA. Consequently, in practice, all cases are handled by the NCA, or by the European Commission when the thresholds in the ECMR are met.

Notification is compulsory for all mergers and acquisitions that bring a "change of control" and exceed the national turnover thresholds. The creation of a joint venture also calls for a notification (see 2.10 Joint Ventures).

In mergers and acquisitions that do not meet the turnover thresholds, a voluntary notification may be filed. This is typically done when the parties are in doubt regarding whether the NCA will interfere with the transaction. The NCA is competent to intervene when the thresholds are not met, and has previously prohibited mergers below the thresholds.

Companies failing to notify a merger or acquisition may be sanctioned with administrative fines, under Section 29 of the Act. Eleven such administrative fines were rendered between 2012 and 2018, normally between NOK200,000 and 300,000 (approximately EUR20,000–30,000), but also up to NOK25 million (approximately EUR2.5 million). 

Sanctions against individuals, such as key employees involved, have never been used in merger cases, but negligent and intentional violations may lead to penal sanctions, normally criminal fines. Perpetrators may also be sentenced to up to three years' imprisonment, or even up to six years in aggravating circumstances.

All decisions sanctioning violations of the Act are made public.

All transactions that involve a concentration come under the purview of the Act. Pursuant to Section 17 of the Act, a concentration is deemed to arise where two or more previously independent undertakings or parts of undertakings merge, or where one or more persons already controlling one or more undertakings acquires direct or indirect control – on a lasting basis – of the whole or parts of one or more other undertakings.

Internal restructurings or reorganisations within a single economic entity are not considered to be a merger under the Act.

Operations such as shareholders' agreements come under the purview of the Act insofar as they lead to direct or indirect control on a lasting basis (see 2.4 Definition of "Control").

Control may be obtained through any form of rights, contracts or any other means that, either separately or in combination, confer the possibility of exercising decisive influence on an undertaking – with consideration of the relevant fact or law being taken into account – in particular by:

  • ownership or the right to use all or some of the assets of an undertaking; or
  • rights or contracts conferring decisive influence on the composition, voting or decisions of the organs of an undertaking.

As further stated in Section 17(4) of the Act, control is acquired by persons or undertakings that are the holders of rights or that are entitled to rights under the contracts concerned or, while not being the holders of such rights or entitled to rights under such contracts, that have the power to exercise the right deriving therefrom.

In principle, a notification is not required for the acquisition of minority interests, but the NCA may require a notification for such minority acquisitions, which may be prohibited if they could lead to, or strengthen, a substantial restriction of competition, contrary to the objectives of the Act. However, exact levels have not been specified in this regard.

Notification is required if the following two thresholds are met: 

  • the combined annual turnover in Norway of all the undertakings concerned exceeds NOK1 billion (approximately EUR102 million); and
  • the annual turnover in Norway of each of at least two of the undertakings concerned exceeds NOK100 million (approximately EUR10.2 million).

There are no special jurisdictional thresholds applicable to particular sectors. However, it should be noted that some specific companies, inter alia within the grocery shop market, have previously been obliged by the NCA to notify transactions that do not meet these thresholds. Such obligations are a consequence of specific orders to individual companies, and do not automatically apply to other companies in the same sector.

The annual turnover in the preceding fiscal year is decisive for the assessment of the notification requirement. The annual turnover from the year of the latest available accounts may also be submitted if the figures for the preceding fiscal year are not yet available, because the annual accounts have not been closed when the notification is submitted. Even if it is clear that the current turnover of the "undertakings concerned" (see 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds) will be higher or lower compared to the preceding fiscal year, the accounts for the preceding fiscal year should still be submitted, according to the guidelines of the NCA.

In such cases, temporary accounts for the latest fiscal year may also be included for information purposes, in order to ensure that the NCA's assessment is based on more accurate figures.

The NCA follows the European Commission’s Consolidated Jurisdictional Notice when deciding the geographic allocation of the turnover. The turnover is therefore allocated to the country where the service is actually provided or where the product is actually delivered. When products and services are delivered or provided in Norway, the turnover generated must be allocated to Norway, even if the headquarters or offices of the seller and/or the buyer are located in another country. 

Jurisdictional thresholds are not asset-based.

Sales booked in a foreign currency should be converted using the average rates from Norges Bank (Norway's central bank).

Notification thresholds relate to the turnover of the "undertakings concerned" – ie, the turnover of the merging parties and their subsidiary companies in merger cases, and the turnover of the acquiring company and the acquired company in acquisitions. Also, the turnover of all subsidiary companies of the undertakings concerned should be included when calculating whether the turnover meets the thresholds. In acquisitions, the turnover of all companies belonging to the same corporate group as the acquiring company (including associated companies, parent companies and subsidiaries) should also be included in the turnover calculation. In other words, the turnover of all companies forming a "single economic entity" with the acquiring company should be included in the turnover calculation.

The concept of a single economic entity is developed in EU case law and is enforced in the same manner by the NCA. The turnover of the selling company should not, however, be included in the turnover calculation.

Foreign-to-foreign transactions are subject to merger control rules insofar as the turnover thresholds are met, although the NCA has not yet intervened in any such transactions.

There is no local effects test, but the parties in a foreign-to-foreign transaction may use the simplified notification procedure when certain conditions are fulfilled. A local presence (eg, office facilities) is not required.

As the thresholds will never be met when a target has no sales in Norway, a filing is not required in such situations.

The thresholds do not relate to market share, but market share information must be included in the notification.

The creation of a joint venture performing all the functions of an autonomous economic entity on a lasting basis ("full-function" joint venture) is considered to constitute a concentration within the meaning of Sections 17(1)(b) and 17(2) of the Act, and is thus subject to merger control. Joint ventures that are not full-function fall outside the merger control regulations.

No special rules apply to determining whether the thresholds are met for joint ventures, but the NCA will generally follow the principles set out in the European Commission’s Consolidated Jurisdictional Notice.

In order to investigate a transaction below the jurisdictional thresholds, the NCA must instruct the parties to notify the authorities about the transaction in question. Such orders may be issued if the NCA has reason to believe that competition will be undermined, or if particular aspects require further investigation. In addition, as mentioned in 2.4 Definition of "Control", the parties may be instructed to file a notification in cases where control is not acquired (minority shareholdings). 

The notification order must be issued no later than three months after the conclusion of the agreement or the transfer of holdings.

A "standstill obligation" applies to all mergers and acquisitions that meet the turnover threshold, and entails that such transactions may not be implemented prior to clearance from the NCA (Section 19 of the Act).

Violations of the standstill obligation may be sanctioned with administrative fines (Section 29 of the Act), which has happened in multiple cases.

In 2017, the NCA imposed one fine of NOK300,000 (approximately EUR30,000) for a breach of the standstill obligation. This is in line with prior decisional practice over the past years. No fines have been issued for breach of standstill since 2017.

Fines have never been imposed in the case of foreign-to-foreign transactions.

The only general exception to the suspensive effect is the implementation of a public bid or a series of transactions in securities, where the NCA is immediately notified about the concentration and where the acquirer does not exercise voting rights according to the securities, or does so solely to preserve the full value of their investment and according to a special exemption from the NCA.

In other cases, the NCA may make an exception from the standstill obligation when this is requested by the notifying party, eg, in the case of a failing firm (Section 19 paragraph 2 of the Act).

Closing before clearance is not normally permitted, and is reserved for particular cases.

A transaction may be deemed legal if a global closing can be implemented without contravening the standstill obligation, by carving out the businesses in Norway. Whether or not a concentration pursuant to the Act has arisen is decisive for the legality of the business (see 2.3 Types of Transactions and 2.10 Joint Ventures). There are no specific exemption rules.

There is no time limit for notification of a transaction, provided that the parties have not started implementing the proposed concentration.

No specific document is required prior to notification. The NCA may be notified as soon as the parties are able to provide sufficient information to give an adequate and concrete description of the contemplated transaction.

No filing fees apply.

The acquirer is responsible for the filing. Where joint control is obtained, both parties are responsible for the filing.

A mandatory notification subject to Section 18(1) of the Act should include the following (Section 18a of the Act):

  • contact information of the parties to a merger or, in an acquisition, of the party or parties who gain control, including names and addresses;
  • a description of the nature of the concentration;
  • descriptions of the undertakings concerned and of undertakings in the same corporate group;
  • the names of the five most important competitors, customers and suppliers in markets in Norway, or in markets of which Norway is a part, in which the undertakings concerned and undertakings in the same corporate group have overlapping activities;
  • descriptions of horizontally-related markets if at least two of the involved parties are active in the same market and their combined turnover exceeds 20% of the market, and descriptions of vertically-related markets where the parties’ market share exceeds 30% on each of the respective markets; the description should include information on the structure of the relevant markets, as well as information on potential barriers to entry;
  • a description of efficiency gains (if any);
  • information on whether the transaction is subject to the jurisdiction of other competition authorities;
  • a copy of the latest version of the agreement, including appendices; and
  • annual reports and annual accounts of the undertakings concerned.

Section 18b also requires the parties to submit confidential information and to clearly mark information to be redacted in the documents. At the same time, the basis of the confidentiality must be provided, including proposals for public versions of the documents.

According to an NCA guidance paper, the filing must be submitted in Norwegian, although supporting documents in English and other Scandinavian languages are usually accepted. Exceptions have previously been granted for filings in English, usually for simplified notifications.

If the notification is incomplete, the missing information must be provided before the NCA can consider the transaction. An incomplete notification is not considered to be a violation and penalties do not therefore apply, unless the parties breach the standstill obligation.

The NCA's time limits do not start running until a complete notification is filed.

If the notification is incomplete, the missing information must be provided before the NCA will consider the notification as having been received. In practice, submitting an incomplete notification will therefore extend the NCA's time limits for intervening or clearing the concentration. This has implications for the possibility of closing the transaction, due to the standstill obligation. An incomplete notification is not considered to be a violation and penalties do not apply.

Submitting information that is misleading may, however, lead to penalties in the form of fines. In 2020, the NCA rendered a fine of NOK7.5 million (approximately EUR750,000) due to misleading information in a merger filing.

Prior to the notification, the parties concerned may request guidance from the NCA (Section 9(2) of the Act).

A two-stage procedure starts running when the notification is filed (Section 20 of the Act). The procedure is somewhat analogous to the one followed by the Commission in the EU, but the time limits are different.

Phase I

Phase I starts when a complete notification is filed, and normally lasts for up to 25 business days. This first stage is extended by ten business days – ie, to a total of 35 business days – when remedies are already offered in the filing, or if remedies are submitted, at the latest, 20 business days after the filing. This means that Phase I is always extended to 35 working days if remedies are proposed.

The reason for this is that the NCA may already issue a conditional clearance decision at this stage, within 35 business days. If no remedies are offered, the NCA will end this stage, either by clearing the transaction or by issuing a preliminary notice of possible intervention. A preliminary notice will take the procedure over to the second stage (Phase II).

Phase II

In Phase II, the NCA will normally either clear the transaction or issue a statement of objections, no later than 70 business days after the filing was submitted. If the transaction is not cleared, the parties will be given 15 business days to submit their comments to the NCA's statement of objections, and the NCA then has a further 15 business days to issue a final decision in the case (which may be extended by another 15 business days if so agreed). The final decision will be either a full clearance, a conditional clearance or a prohibition.

Information requests are relatively common, particularly in the second stage. The extent and nature of the requests will depend on the case. As long as the information is provided within the deadlines decided by the NCA, the clock will not be stopped (Section 20(6) of the Act).

Concentrations using the simplified procedure (see 3.11 Accelerated Procedure) will normally be cleared in the first stage, within 25 business days. In more complex and potentially problematic concentrations, the procedure may take significantly longer, often between 100 and 115 business days (approximately five months).

Parties may engage in pre-notification discussions with the NCA. The NCA does not formally encourage such pre-notification discussions, but they are relatively common in complex concentrations where the parties are aware beforehand that there might be potential issues. The process is treated confidentially to the extent that any of the information exchanged constitutes business secrets, as defined by the Public Administration Act.

It is more common for the notifying party to give the NCA a heads-up before the actual filing is submitted, so that the NCA can prepare for the filing and assemble the case team.

Requests vary from simple clarifications to extensive requests for highly detailed information, which may necessitate the involvement of an external economic consultancy. Requests for information are sent in writing (typically by e-mail) from the NCA, and the NCA will normally provide a reasonable deadline by which the request must be answered. Non-compliance with such deadlines does not automatically stop the clock, but the NCA may inform the parties in writing that it will stop the clock until the request has been answered.

In the fast-track procedure, the parties may already offer remedies in the notification, or within 20 business days of the notification being received by the NCA. The transaction may then be cleared in the first stage. The deadline for stage one clearance may, however, be extended from 25 to 35 business days from the receipt of the notification.

A simplified notification procedure may be used if certain criteria are fulfilled. According to the Merger Control Regulation, a number of concentrations may benefit from the simplified procedure.

Joint ventures may benefit from a simplified notification procedure when the joint venture's sales and/or sales of business areas transferred to the joint venture are less than NOK100 million in Norway, and when assets transferred to the joint venture have a total value of less than NOK100 million in Norway.

The simplified procedure may also be used for transactions where, together with other parties, a party acquires sole control of an undertaking previously controlled by the acquiring party. The same applies to transactions where one or more undertakings merge, or where one or more undertakings or persons acquires sole or joint control of another undertaking, and where:

  • none of the parties is active in the same product market or the same geographical market (ie, no horizontal overlap) or in a prior or subsequent part of a product market in which another party operates (ie, no vertical connection); or
  • two or more parties are active in the same product market and geographical market (horizontal overlap), but where the parties’ combined market share does not exceed 20%; or
  • one or more of the parties is operating in an upstream or downstream product market in which another party operates (vertical connection), and where the parties either individually or together have a market share not exceeding 30%.

Even if the criteria for filing a simplified notification are fulfilled and the notifying party has filed such notification, the NCA may order the filing of a standard notification within 15 business days after the receipt of the simplified notification. As far as is known, the fastest clearance granted under the simplified process was three business days after notification, but the parties involved should expect a case-handling time of at least two weeks, and usually more.

Due to a harmonisation with EU law in 2016, the substantive test is no longer an SLC test (Substantial Lessening of Competition), but rather an SIEC test (Substantial Impediment to Effective Competition).

The NCA therefore interferes in mergers and acquisitions that would significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position. A causal link between the transaction and the negative effects on the competition must, however, be established.

Whether or not the impediment of competition in the market can be regarded as "significant" will depend on a case-specific assessment of the relevant market affected by the proposed transaction. Relevant factors that must be assessed include entry barriers, potential competition and several other market parameters. Furthermore, it is also necessary to assess whether the efficiency gained from the concentration outweighs the restriction of competition in the relevant market.

All competition concerns will be subject to investigation, since there is, as such, no de minimis threshold below which competitive concerns are deemed unlikely. The key issue is whether the parties have high market shares and if they are deemed to be close competitors. In line with the case law from the European Commission, the NCA will attribute more weight to closeness of competition than concentration levels where the relevant market at issue is characterised by differentiated products or services. Market structure and concentration, entry barriers, co-ordinated effects, etc, are key factors in the assessment.

The relevant geographical and product market definitions will always be the starting point for the analysis if market shares indicate that a transaction may lead to the impediment of competition.

The NCA defines markets in a manner similar to the European Commission, and thus, like many other European authorities. Cases from similar markets are often taken into consideration, but local factual differences in market structures sometimes lead to different market definitions.

All competition concerns are taken into consideration in an investigation. Vertical concerns are seldom an issue, however, unless foreclosure effects are deemed likely, or if the parties have a high market share in markets upstream or downstream that may affect competition in the "value chain" of a particular market.

If a transaction implies gains in economic efficiency, compensating for the disadvantage of reduced competition, the transaction will – in theory – be approved, despite the negative effects for competition.

However, economic efficiencies must be merger-specific. According to the Commission's horizontal guidelines, efficiencies are merger-specific when they are a direct consequence of the merger and cannot be achieved to a similar extent by less anti-competitive alternatives.

Due to the amendment of the Act in 2016, a benefit for consumer welfare must also be proven. This means that all welfare benefits are no longer relevant, only the ones that benefit the consumer. In the case regarding the takeover of Phonero by Telia in November 2016 (mobile communications business), the NCA relied heavily on efficiency gains in its assessment. The case is an example of how crucial the efficiency argument is to the outcome of the matter.

Non-competition issues cannot be taken into account in the review process.

According to Section 16(5) of the Act, the NCA is required to examine co-ordination issues between joint venture parents. If the creation of the joint venture has the co-ordination of independent joint-venture parents as its object or effect, the NCA must consider whether the co-ordination is contrary to Section 10, which prohibits all agreements between undertakings, decisions by association of undertakings, and concerted practices that have as their object or effect the prevention, restriction or distortion of competition in Norway. If the co-ordination is deemed contrary to Section 10, the NCA must interfere with the transaction

If the result of the above-mentioned SIEC test is negative, the NCA shall intervene, according to the Act. The transaction may either be prohibited, or accepted with remedies proposed by the parties.

Where the NCA has concerns about a transaction, remedies may be accepted if they are considered sufficient to avert the restrictions on competition. Both divestitures and behavioural remedies will be considered, but the NCA clearly prefers structural over behavioural remedies. It has accepted behavioural remedies in many cases, however, often as 2fix it first2 solutions.

A Phase II investigation by the NCA is initiated with a notice of possible intervention, which will often indicate what competition concerns need to be addressed by possible remedies.

There is no particular legal standard that remedies must meet in order to be deemed acceptable.

The NCA has expressed a clear preference for structural remedies (divestments) in many recent cases, but it approaches this issue in a case-specific manner, looking to relevant Commission practice on remedies in the sector concerned, as seen in the case allowing TeliaSonera's acquisition of Tele2 (case V2015-1).

Remedies for addressing non-competition issues are never required.

The parties involved may suggest remedies at any time in the process, even in Phase I (ie, at the time of filing).

The NCA may discuss and indicate remedies, but will not formally propose them. In practice, remedies are sometimes negotiated and tested before they are formally proposed.

If the proposed remedies are found to be insufficient, the NCA must notify the parties that a prohibition decision may be rendered. The parties may then propose new or revised remedies, which will extend the deadline by which the NCA must render its final decision.

"Fix it first" remedies are sometimes required before closing. (See, for instance, V2018-19 – St1 Norge – Statoil Fuel & Retail Marine where the divestment of specific assets was required prior to closing of the transaction.) However, time limits for divestitures may also be accepted. By nature, behavioural remedies must generally be applied over time, including after the transaction. A monitoring trustee will normally be appointed in more complex cases.

Violations of remedies are subject to administrative fines (Section 29 of the Act).

A short-form formal decision is issued to the parties when a transaction is cleared, normally without any specific reasoning. Phase II clearances and prohibition decisions are longer and more detailed.

A public version of the decision is made available. Under the Norwegian Access to Information Act, the NCA must ensure that business secrets are redacted and not revealed when documents are disclosed to a third party. The NCA decides what constitutes a "business secret", but the parties involved have the opportunity to comment before access to third parties is granted.

No foreign-to-foreign transactions have recently been considered by the NCA.

A clearance decision does not cover related arrangements (see the preparatory works to the Act). Consequently, the parties involved are responsible for avoiding any conflict with the prohibitions in Sections 10 (anti-competitive agreements, decisions and concerted practices) and 11 (abuse of dominant position).

However, ancillary restraints directly related to a merger and necessary for the implementation of a transaction will be accepted in an exception to Section 10, and will thus be deemed legal according to the practice of the Court of Justice of the European Union (CJEU).

Since the NCA does not explicitly approve ancillary restraints, separate notifications are neither required nor possible. Nevertheless, informal guidance may be given when the NCA finds (potential) conflicts with Sections 10 and/or 11. Since clearance decisions are usually not reasoned, it is important for all ancillary restrictions to be described in detail in the notification in order to avoid future competition law risk.

Third parties are notified by public notice (on the NCA's website) and may contact the NCA to express their opinions and concerns, which will normally be taken into account if they are considered relevant.

Third parties such as competitors, customers and suppliers may also express their opinions, either through their own initiative or after being requested to comment by the NCA ('market testing' is common in more complex transactions). Although such comments may be made, third parties do not have any formal procedural rights.

The NCA will typically market test remedies offered in more complex cases. Written questionnaires and telephone interviews are frequently used, both during the review process and for market-testing remedies.

All decisions followed by a notification will be public, including relevant facts from the notification. "Business secrets", as determined by the NCA (see 5.7 Issuance of Decisions), will be kept confidential.

The competition authorities in Denmark, Iceland, Sweden and Norway may exchange information with each other through a Nordic co-operation agreement. This includes non-confidential information, confidential information that is necessary for an ongoing investigation, and notifications on general changes to a country's law. The authorities do not need to seek permission from the parties involved to share such information.

A proposal that is being handled by parliament in 2019 concerns a new co-operation agreement between the Nordic countries, see 9.1 Recent Changes or Impending Legislation.

The NCA's decisions in merger control cases can be appealed to the CAB within 15 working days of the decision being handed down. The NCA must then pass the complaint on to the CAB within 15 working days, and the CAB must issue a final decision within 60 working days of the complaint being received.

The parties may file a civil lawsuit against the CAB's decision before the Gulating Court of Appeal for review.

Only prohibition cases can be reviewed by the CAB, not clearance cases.

An appeal to the CAB must be lodged within 15 working days of the NCA rendering the decision. The NCA then has 15 working days to forward the appeal to the CAB, which must render its decision within 60 working days. No appeals have been decided to date and the CAB has therefore not yet rendered any decisions in merger cases. (The appeal in case V2019-22 – Prosafe SE – Floatel International Limited was withdrawn after a prohibition decision by the Competition and Markets Authority in the UK.)

It is not possible to appeal a clearance decision (Section 20a of the Act, in conjunction with Section 20(1)).

A new Nordic co-operation agreement between the national competition authorities came into force in 2019. The agreement will enable the competition authorities not only to access confidential information from the NCA, but also to ask the NCA to obtain more information and/or perform investigations (similar to the co-operation between the NCA and the ESA). The new agreement also covers Finland, the Faroe Islands and Greenland, in addition to the parties to the previous agreement (Norway, Denmark, Iceland and Sweden).

The Covid-19 pandemic has lead to certain preliminary changes to case handling and procedural rules that are not described in detail here. The main temporary changes, at the time of publication, is a general extension of 15 working days of the various deadlines in connection with merger filings.

The most recent prohibition of a merger vas in case Vedtak V2019-22 – Prosafe SE – Floatel International Limited (October 2019). No other prohibition decisions have been rendered over the past couple of years, but several transactions have been cleared subject to remedies over the past two years:  V2019-24 – Tieto Oyj – EVRY ASA, V2019-17 – Sector Alarm Group AS – Nokas AS, V2018-19 – St1 Norge AS – Statoil Fuel & Retail Marine AS and V2018-18 – Vipps AS – BankAxept AS/BankID Norge AS.

Economics is currently playing an even more important role in the assessment of complex merger cases, and the NCA is increasingly relying on economic analysis, such as the use of the Gross Upward Pricing Pressure (GUPPI) test and diversion ratios, in order to assess closeness of competition.

Competition between public undertakings and privately-held companies has been an issue, and the NCA published a report about this in 2018. In co-operation with the other Nordic countries, an extensive report was published in March 2016 regarding competition challenges in the waste management market, with the Nordic competition authorities recommending measures to increase the efficiency of waste management.

In 2015, the NCA published several reports about other industries. A report regarding the real estate development industry in Norway concluded that there are several issues limiting competition in the industry causing, inter alia, difficulties for smaller real estate developers to establish themselves in the market.

An examination of the taxi market resulted in a report calling for modernisation of the regulations: means tests and price regulations should no longer be used as policy instruments, according to the NCA. These changes could improve competition and innovation in the taxi market.

The mortgage market was also examined. One of the topics was whether the implementation of stricter capital requirements leads to diversified competition conditions between Norwegian and foreign (EEA) banks.

The jurisdictional thresholds were increased with effect from 2014, which has decreased the number of notifiable transactions to around 100 per year on average. However, the NCA's interventions in merger control cases have not decreased correspondingly.

In January 2019, the NCA stated that the duty of notification below threshold values will continue throughout 2020 for certain companies within the fuel, energy, waste, grocery, locksmith, newspaper and broadband industries. This decision implies that the NCA is paying special attention to these industries and, in particular, the companies covered by the duty of notification.

The Norwegian Parliament has adopted a new temporary law on exemptions from the procedural rules in the Competition Act due to the COVID-19 outbreak. The purpose of the law is to ensure that the competition authorities can perform their duties during the pandemic, most importantly, by extending the Norwegian Competition Authority's case handling timelines in merger control cases.

The most significant changes to the timelines are the following:

  • The deadline for Authority to impose a duty to notify minority stakes or below the thresholds: Three months after signing + 15 business days.
  • The deadline for Authority to decide in «Phase I» (full clearance or "Phase II" investigation): 25 business days after filing + 15 business days.
  • The deadline for Authority to issue a conditional clearance decision in "Phase I": 35 business days after filing + 15 business days.
  • The deadline for Authority to issue "Phase II" statement of objections (or clearance): 70 business days after filing + 15 business days.
  • Deadlines for parties to reply to the statement of objections, for Authority to issue its final decision and for specific extensions for new remedies offered late in "Phase II": All deadlines are extended with 15 + 15 business days.
  • Deadline for parties to appeal the Authority’s final decision in merger cases: 15 business days after final decision + 15 business days.

The Act entered into force with immediate effect on April 17th and applies until 31 October 2020.

Advokatfirmaet Simonsen Vogt Wiig

Filipstad Brygge 1
0252 Oslo

+47 21 95 55 00

+47 21 95 55 01

post.oslo@svw.no www.svw.no
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Trends and Developments


Authors



Wiersholm is one of Norway's leading and largest law firms, with more than 180 lawyers and 80 other employees based in Oslo. It combines unrivalled legal competence, commercial understanding, industry knowledge and drive to assist its clients in important and demanding matters. Through its international approach and network of law firms, Wiersholm is able to provide quality advice to its clients – anywhere in the world. Its competition law team consists of ten lawyers and is routinely involved in the most high-profile and groundbreaking merger cases in Norway. They are involved throughout the M&A process, providing strategic advice and handling the process vis-à-vis competition authorities, and often co-ordinate complex multi-jurisdictional cases. Recent experience includes representing major European alarm systems provider Sector Alarm in connection with their acquisition of a minority shareholding in major Scandinavian security provider NOKAS, as well as the alarms business segment of NOKAS, before the competition authorities.

Introduction

Norwegian merger control is influenced by EU law, and is based on the same legal principles and starting points. However, the Norwegian Competition Authority (NCA) has its own set of practices and procedures which makes notifying mergers in Norway distinct from the EU process.

A notable trend in Norwegian merger control is the NCA's increasing use of economic-based analysis and evidence instead of the more traditional focus on market shares and concentration levels. Moreover, we have seen an increased interest in mergers which might affect competition in the future, with the NCA reviewing acquisitions of small start-up companies.

Another trend is the NCA's tendency of placing increasing weight on the internal documents of the parties when analysing the effects of a transaction. The NCA also strictly enforces breaches of procedural rules such as breach of information requirements or the standstill obligation pending clearance.

While the NCA clears most mergers swiftly (within 25 working days), parties should expect a thorough and more time-consuming review of transactions the NCA perceives as potentially harmful (even when that transaction is below the filing thresholds). 

Under Norwegian merger control, the NCA has the ability to intervene against mergers falling below the merger filing thresholds and acquisitions of minority shareholdings. Decisional practice shows that the NCA is increasingly inclined to use this authority, thus necessitating additional risk analysis as part of the pre-merger preparations.

In what follows, we will first explain the legal starting points and statistics in Norway before we move on to describe, in greater detail, the current trends in Norwegian merger control. Recent years have been characterised by an efficient but active NCA focusing its attention on, in addition to traditional areas, mergers involving new or innovative target companies with a low turnover. 

Notifiable Transactions and Procedure Under Norwegian Merger Control Law

The Norwegian Competition Act Section 18 sets out the obligation to notify certain concentrations to the NCA. Generally, these are concentrations where (i) more than two of the involved undertakings have a turnover in Norway exceeding NOK100 million and (ii) the combined turnover of the involved undertakings exceeds NOK1 billion. Fulfilment of these thresholds mandates a merger filing to the NCA.

The NCA also has the power to require concentrations falling below these turnover thresholds to be notified within three months after signing or closing, whichever comes first. This possibility has proved practical in recent years, with the NCA increasingly monitoring and requesting filings below the thresholds.

In practice, most mergers are filed to the NCA through a "simplified notification" which is less extensive than a regular notification. This simplified process can be used if the parties' combined market share is below 20%, or the parties do not have a horizontal overlap. Accordingly, most buyouts by investments funds without a presence in the relevant product market can be filed through this swift process. In these cases, the NCA usually clears the transaction well within the 25 working days limit of Phase I.

The Number of Notifications and Decisions from the NCA Remains Stable

Since 2016, the number of transactions notified to the NCA has remained stable, with an average of 105 notifications each year. More than 50% of transactions are filed using the "simplified notification" procedure. 

About 97% of the notified transactions are cleared within 25 working days (Phase I). Only a handful are reviewed under the more complex and time-consuming Phase II investigation, usually less than four cases each year. The few Phase II investigations are mirrored by the small number of actual decisions issued by the NCA, with an average of three negative decisions annually since 2016, including decisions approving the concentration subject to commitments. In 2019, the NCA issued three material decisions: one prohibition, and two conditional clearances. These statistics show that the NCA has been successful in its strategy of streamlining the merger notification procedure and focusing on mergers that could potentially have a real impact on competition and the market structure.

A More Economic-Based Approach from the NCA

Since 2016, when Lars Sørgard became the head of the NCA, we have seen a noticeable shift towards a more economics-based approach in merger control. The Norwegian authorities have always been at the forefront of applying new economic approaches instead of the more "form-based" merger control analysis.

This is shown by the NCA placing less weight on market shares and concentration levels and focusing instead on the closeness of the competition. Previously, the parties' combined market share following the transaction was instrumental in whether the transaction would be approved. Even though the market share levels will still be analysed by the NCA today, small increments post-transaction is not a guarantee that the transaction will be approved if parties are close competitors.

Stakeholders should be aware that the NCA will usually employ price pressure analysis, such as GUPPI (gross upward pricing pressure index), to ascertain whether the transaction will harm competition. This makes notification of concentrations involving competitors a more complex process requiring economic analyses beyond levels of market share.

The more economic-based approach is reflected by the public statements made by the NCA and Mr Sørgard. Recent examples include several public appearances by the director stating that mergers and buyouts caused by the economic downturn following the COVID-19 pandemic will be analysed carefully to avoid large incumbents increasing their market power. The NCA is obviously following markets closely.

Moreover, the NCA and other Nordic competition authorities have been explicit in stating that they will not accept arguments related to the creation of "national" or "Nordic" champions, as has been discussed in other EU countries. Accordingly, any efficiency claims submitted by the parties must be based on sound economic evidence and demonstrably counteract any negative effects of competition caused by the transaction.

Increased Attention on Concentrations Below the Notification Thresholds

In the last two years, the NCA has issued three decisions requiring a transaction below the notification thresholds to be submitted for approval. The authority to issue such decisions, which was initially intended to allow the Authority to exercise control over mergers in more narrow markets, has now been extended to mergers that the Authority considers might have an impact on future competition. This creates more uncertainty when analysing the risk of intervention.

NOKAS/Sector Alarm

One example is the decision requiring Sector Alarm to notify the acquisition of NOKAS's household alarms business, despite NOKAS being a small player in the relevant market. The NCA argued that NOKAS had to be considered as a stronger future competitor since they had, in the past, shown the willingness and ability to enter the market for private household alarms. This decision included the NCA's assessment of Sector Alarm's acquisition of a minority shareholding in NOKAS, which is described further below.

Schibsted/Nettbil

The Schibsted/Nettbil decision was made along the same lines. In this decision, the NCA required the media company Schibsted to notify their acquisition of an online second-hand car company (Nettbil). The decision is interesting in several aspects. The Authority expressed concerns that the concentration could lead to a lessening of competition in the market for used car adverts and possibly remove Nettbil as a potential competitor to Schisbted's classified advertising business in the future.

The Nettbil case has not yet been decided. However, taken together with the Sector Alarm case, it reveals a tendency on the part of the NCA to assess the possibility that the merging parties might grow into stronger competitors in the future. If this tendency prevails, stakeholders should be aware that acquisitions that usually fall below the notification thresholds may have to be approved by the NCA.

Amedia Start Up/Nu Publishing

In this case, Amedia had acquired the local news company Nu Publishing with a presence in Northern Norway. The target company's revenue was well below the notification threshold, but the NCA observed that in the local news market in Northern Norway, a company's turnover figure is not necessarily an appropriate proxy for market power. Since Amedia already had a significant presence in the Northern Norwegian media market, the NCA expressed concern both for the competitive situation and media plurality. This case seems to fit well into the intended usage of the power to require smaller transactions to be submitted for approval as outlined in the preparatory works to the Competition Act. 

The case has not yet been decided but shows that the NCA is willing to exercise control over minor transactions that might affect competition in local markets. 

Minority Shareholdings

In contrast to most other jurisdictions, the NCA has the power to review acquisitions of minority shareholdings – ie, transactions that do not constitute a change of control. Previously, it was uncertain whether the NCA would make use of this power, as the theory of harm underpinning minority shareholdings is controversial and untested. However, in 2018, the NCA issued its first decision requiring the notification of a minority shareholding in Sector Alarm's purchase of 49.9% of the shares in NOKAS.

The NCA's main concern was that Sector Alarm, through the minority shareholding, would have the opportunity to influence NOKAS's market behaviour. Furthermore, the NCA argued that the transaction could also change the parties' incentives to compete post-transaction. The transaction was cleared with remedies in Phase II. According to the NCA's decision, Sector Alarm was only allowed to acquire 25% of the shares in NOKAS but was given the option to acquire an additional 24.9% of the shares. The option can only be exercised in the event Sector Alarms sells its shares or the NCA's decision expires (ordinarily after five years). The decision shows the NCA's willingness to intervene against transactions it perceives as harmful to competition, even absent an acquisition of control.

Clarification on the Counterfactual Scenario – Prosafe/Floatel

One of the most prominent cases in 2019 was the prohibition of the proposed merger between Prosafe and Floatel. The parties are the two largest providers of offshore accommodation vessels in Norway.

The NCA prohibited the merger based on the view that the transaction would lead to a significant lessening of competition in the market. One of the most striking aspects of the decision is the NCA's statements regarding the relevance of internal documents in determining the counterfactual situation. The parties had argued that the Norwegian market would decrease significantly; thus, the parties would not be competing for Norwegian clients in the future. The NCA rejected this line of reasoning, clarifying that the status quois the most likely counterfactual unless there is a "concrete basis in the facts and analyses" to deviate from this starting point. In this connection, the NCA stated that they would place significant weight on internal documents the parties had produced before the transaction was notified. Documents produced after this date, would not be given much weight, as the NCA believes there is a significant risk of those documents being tainted by the parties' interest in getting the transaction approved.

Accordingly, stakeholders should be aware that the NCA will study internal documents as a part of their analysis of how the market will develop in the future. As the Floatel case demonstrates, such documents will be especially relevant for the NCA's investigation of the parties' future conduct without the transaction. Moreover, the NCA will require convincing evidence for a counterfactual that deviates from the status quo. This might be especially relevant in notifications applying the "failing firm defence". 

Pre-notification Talks are Becoming More Common

In contrast to concentrations notified to the EU Commission, it has not been common to engage in pre-notification talks with the NCA. Recently, however, we have witnessed several cases where the parties have engaged in pre-notification talks and have been able to shorten the formal procedure with the NCA. The NCA now actively encourages pre-notification discussions in complicated or controversial cases.

A recent example from 2019 is the Tieto/EVRY case. This is the first case in which the NCA has been able to approve a merger with remedies without opening a Phase II investigation. Before notifying the concentration, the parties had engaged in pre-notification talks, which enabled them to offer appropriate remedies early in the process. The NCA approved the concentration within 35 working days from the time the concentration was reported.

The case demonstrated that it might be constructive to engage with the NCA early in the process in complex cases. Stakeholders get a glimpse of how the NCA will perceive the concentration and market, enabling the parties to devise acceptable remedies packages early on and avoid the more complex and demanding Phase II investigations, which are time-consuming and draining to the parties.

Complex Proceedings if the NCA Decides to Open Phase II Investigations

The vast majority of notified mergers are cleared without questioning or extensive information requests from the NCA. However, cases which the NCA decides to investigate further have become more complex and demanding, and typically include substantial information requests that require much time and effort from the parties.

The NCA will typically ask for minutes of the meetings of the board of management, the board of directors, the supervisory board and the shareholders' meeting at which the transaction has been discussed, or excerpts of those minutes relating to the transaction. Additionally, the NCA will require any documents, including presentations, analysing or assessing the transaction's rationale, market shares and market conditions. As highlighted above, the NCA tend to use internal documents actively in their assessment of the case. Accordingly, stakeholders should be precise when formulating internal strategies to avoid misunderstandings during the notification process

Recently, the NCA issued new guidance for the submission of the parties' internal documents subject to an information request. The document mostly contains procedural rules, but clarifies that the NCA will not require that the parties document the search using specific programmes, only an explanation of how the parties carried out the information gathering process. As of now, the NCA has not adopted the stricter method applied by US and Canadian authorities requiring parties to document in detail how the parties complied with the information request. 

Increased Attention to Procedural Matters

The NCA has shown an increased willingness to enforce procedural rules, issuing substantial fines for even small infringements. Additionally, there have been several cases in recent years where the NCA have issued fines for gun-jumping – ie, completing a notifiable concentration prior to approval.

A recent example is a decision from 2020 where the NCA fined Vygruppen NOK7.5 million for failure to provide correct information. The NCA observed that Vygruppen, in a notification regarding the creation of a joint venture (JV), had stated that they would not be able to prevent competitors of the JV from distributing services of the parent companies. Following a tip-off from one of the JV's future competitors, the NCA found this information to be incorrect. The decision shows that stakeholders must be careful when drafting notifications, as the NCA punishes inaccuracies strictly.

Surprisingly, despite the substantial amount of decisions, the NCA's approach towards EU case law – especially the Commission's decision in Alticeand the ECJ's judgment in Ernst & Young/KPMG – has still not been communicated by the NCA.It is uncertain how the NCA will act, especially how they will apply their former Stenstrup Stordrange decision from 2009, which emphasised actions that make the transaction harder to reverse. However, the newer EU case law clarifies that gun-jumping has a more direct link to the condition of "change of control". Norwegian competition law, including merger control, is heavily influenced by EU practice and designed to be a reflection of the EU Merger Regulation. It would be natural for the NCA to adjust its practice to be in line with the latest developments in the EU, but the NCA has so far refrained from issuing guidance on whether it will align its future practice to the developments within the EU.

Case Referrals to the EU Commission Are Still uncommon

Despite Norway not being a part of the EU, the EEA Agreement provides that specific concentrations may be referred to the EU Commission by the parties or the relevant competition authorities, including the NCA.

The opportunity to make case referrals is supposed to streamline the notification process of concentrations which fall within the jurisdiction of several EU and EEA states' competition authorities. If the Commission accepts the referral, the national competition authorities lose their competence to review the concentration.

In Norway, this opportunity is still seldom used. However, the NCA made a referral in 2020 in the case concerning Mastercard's acquisition of NETS, which involved the fast-moving market for digital payment services. This case seems to be a prime candidate for referral to the Commission as it involves an EEA-wide market in the digital sector. 

Undertakings with a Duty to Inform the NCA about Any Concentration Is Expanded to New Markets

The NCA can require undertakings active in any market to inform it about all acquisitions, regardless of the notification thresholds. This allows the Authority to exercise control over markets they believe are especially vulnerable and enables them to look further into transactions they perceive as problematic. 

The latest market covered in this wat is the one for accounting software. Interestingly, this is the first time the NCA requires a company to report on a digital market. Together with the Nettbil case, this might indicate a new interest in digital markets.

The other markets covered by the duty to inform are those that the NCA has been concerned about for some years. These include fuel, power production, waste management, locksmith services, laundries, grocery stores, broadband, newspapers, alarm systems, garden centres and concrete. Accordingly, it can be expected that the NCA will analyse any transactions in these markets carefully.

Wiersholm

Dokkveien 1 (6th floor)
0250 Oslo
Norway

+47 210 210 00

+47 210 210 01

firma@wiersholm.no www.wiersholm.no
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Law and Practice

Authors



Advokatfirmaet Simonsen Vogt Wiig has a merger control and competition law team consisting of ten partners and lawyers in Oslo. The team has assisted in merger control investigations and filings in many different economic sectors, for instance, in telecoms, the airline industry, retail, software, aquaculture, petrol stations, etc and has been involved in every phase, ie, in Phase I, Phase II and appeal cases. In 2018, SVW's team assisted in some of the largest merger cases in Norway, including the merger of Telia and Get/TDC and St1's acquisition of Statoil Fuel & Retail Marine.

Trends and Development

Authors



Wiersholm is one of Norway's leading and largest law firms, with more than 180 lawyers and 80 other employees based in Oslo. It combines unrivalled legal competence, commercial understanding, industry knowledge and drive to assist its clients in important and demanding matters. Through its international approach and network of law firms, Wiersholm is able to provide quality advice to its clients – anywhere in the world. Its competition law team consists of ten lawyers and is routinely involved in the most high-profile and groundbreaking merger cases in Norway. They are involved throughout the M&A process, providing strategic advice and handling the process vis-à-vis competition authorities, and often co-ordinate complex multi-jurisdictional cases. Recent experience includes representing major European alarm systems provider Sector Alarm in connection with their acquisition of a minority shareholding in major Scandinavian security provider NOKAS, as well as the alarms business segment of NOKAS, before the competition authorities.

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