Legislation

Merger control in Norway is governed by Chapter 4 of the Norwegian Competition Act 5 March 2004, No 12 (the “Competition Act”). The following regulations related to merger control have been enacted.

• Regulation on the Notification of Concentrations enacted 11 December 2013, No 1466 (the “Notification Regulation”);
• Regulation on the Measuring and Reduction of Infringements Fees, enacted 11 December 2013, No 1465;
• Regulation on the use of a trustee in merger cases, enacted 15 September 2008, No 1021;
• Regulation on the exception from the stand still obligation, enacted 9 March 2009, No 292; and
• Regulation on the process of cases for the Competition Appeal Tribunal, enacted 14 December 2018, No 2031.

Guidance

The Norwegian Competition Authority (NCA) has issued the following non-binding guidelines related to merger control:

• Guidelines on the submission of ordinary notifications;
• Guidelines on the submission of simplified notifications; and
• Guidelines on case handling in merger control cases.

Please note that, while these guidelines may provide useful general information on the notification and case handling process, the process is always adapted to the specifics of each case – eg, related to pre-notification, content of the notification, frequency of meetings, and various submissions.

The Competition Act and therefore the Norwegian merger control regime applies to all economic activity and does not distinguish between different sectors.

Some transactions may be subject to review from other Norwegian regulators in addition to merger control review. For example, Norway has implemented a foreign direct investment regime (see 9. Foreign Direct Investment/Subsidies Review). Furthermore, transactions in certain sectors, such as the energy and financial sectors, may require authorisation from sectoral regulators. These powers apply in parallel to the NCA’s powers under the Competition Act.

The NCA (Konkurransetilsynet) enforces the relevant legislation in the first instance. The NCA handles merger notifications and performs the necessary investigations. The NCA can prohibit a transaction, grant a conditional clearance or take no action, thus clearing a transaction unconditionally. The ultimate decision-maker in the NCA is the Director General, Ms Tina Søreide.

The NCA’s decisions can be appealed to the Norwegian Competition Appeal Tribunal (CAT) (Konkurranseklagenemnda).

Both the NCA and the CAT makes autonomous decisions and cannot be instructed by the government or any other bodies in their handling of individual cases.

If a transaction triggers a filing under the EU Merger Regulation (EUMR) then this relieves the NCA of jurisdiction and a separate notification is not required in Norway. The exception to this is if the transaction concerns products outside of the scope of the EEA agreement – eg, certain fishery, aquacultural and agricultural products. If this is the case, a notification in Norway covering these products may still be required, in addition to the EU filing.

Notification is mandatory if the thresholds are met (see 2.5 Jurisdictional Thresholds).

A voluntary notification can be made in cases where the thresholds are not met or for acquisitions of a minority position. Voluntary notifications are typically made when it is considered likely that the NCA will exercise its call-in power (see 2.5 Jurisdictional Thresholds and 2.11 Power of Authorities to Investigate a Transaction) or where the NCA has indicated its intention to use this power.

Completion of a transaction subject to mandatory notification or where the NCA has ordered notification (see 2.11 Power of Authorities to Investigate a Transaction) may be subject to a fine. While a failure to notify in principle is subject to sanctions, a failure to notify does not materialise before steps to implement the transaction have been taken, as there are no filing deadlines in Norway. See further details in 2.12 Requirement for Clearance Before Implementation and 2.13 Penalties for the Implementation of a Transaction Before Clearance.

Any transaction that meets the definition of a “concentration” falls within the scope of the Competition Act. The definition of a “concentration” is provided in Section 17 of the Competition Act, which effectively replicates Article 3 EUMR. In this regard, a concentration arises through a change of control on a lasting basis resulting from:

• the merger of two or more previously independent undertakings or parts of undertakings; or
• the acquisition, by one or more undertakings of direct or indirect control of the whole or parts of one or more other undertakings on a lasting basis.

The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a concentration.

The acquisition of control over assets can be considered a concentration if those assets constitute the whole or a part of an undertaking; ie, a business with a market presence, to which a market turnover can be clearly attributed. The NCA has – eg, in a previous case concluded in a specific case that the transfer of leases for shop spaces from one grocery chain to another constituted a concentration. Moreover, the NCA has indicated that the return of assets to the lessor at the end of a lease period may constitute a concentration under certain circumstances.

Acquisitions of control via – eg, shareholders’ agreements can be characterised as a concentration for the purposes of the merger control regime even without the transfer of shares or assets.

The NCA also has the power to review acquisition of shares not leading to control (minority acquisitions). Such transactions are not subject to mandatory notification, but may be called in for review, see further details in 2.11 Power of Authorities to Investigate a Transaction.

Internal restructurings or reorganisations within a single economic entity will not constitute a concentration under the Competition Act.

The test for control under the Competition Act is identical to that under the EUMR. The decisive question is whether a party acquires the possibility of exercising decisive influence on the strategic decisions of a separate undertaking. The possibility of exercising decisive influence can exist on the basis of rights, contracts or any other means, either separately or in combination, and having regard to the considerations of fact and law involved.

Consistent with the approach under the EUMR, control can be either be de jure or de facto.

• De jure control can be reached either by holding a majority of the voting rights or through shareholders’ agreements or similar, giving rights to control the undertaking or the ability to block strategic decisions via veto rights, which go beyond standard minority protections.
• De facto control can be reached by acquiring a share of the voting rights normally giving a majority at shareholders’ meetings while still below 50% or through other dependencies of the undertaking in question or by other means giving decisive influence over an undertaking.

There are no jurisdictional thresholds in Norway. Concentrations are however only subject to mandatory notification if the following turnover thresholds are satisfied:

• the parties’ combined operational revenues in the preceding financial year in Norway were NOK1 billion or more; and
• at least two of the parties involved had operational revenues of more than NOK100 million in Norway in the preceding financial year.

The NCA has the power to order the parties to submit a notification even if the above thresholds are not met. Moreover, the NCA may also order parties to notify transactions not leading to a change in control (minority acquisitions). In both instances, the NCA must order notification within three months of a binding agreement being reached or the transaction being completed (whichever occurs first). The NCA has full investigative powers once notification is ordered (see 2.11 Power of Authorities to Investigate a Transaction).

If a transaction triggers a filing under the EUMR then a filing will not be required in Norway even if the filing threshold is met (subject to the exception outlined in 1.3 Enforcement Authorities regarding products outside of the scope of the EEA Agreement).

According to the Notification Regulation, turnover must be calculated according to the principles of the Norwegian Accounting Act. In practice, the principles described in the European Commission’s Consolidated Jurisdictional Notice (the “EC Jurisdictional Notice”) may be applied. The parties should therefore normally use the turnover in Norway from their most recent audited accounts to assess whether the turnover thresholds are met. Turnover should be allocated geographically according to the principles in the EC Jurisdictional Notice.

Foreign currencies must be converted to Norwegian krone (NOK) according to the average exchange rates prevailing during the period covered by the financial accounts. There is no mandatory source of exchange rates. Either Norges Bank’s (Norway’s central bank) published rates or those of the European Central Bank may be used.

Section 5 of the Notification Regulation outlines which entities’ turnover should be taken into account for the purpose of assessing the turnover thresholds. This section essentially replicates Article 5(4) and 5(5) EUMR. As a result, it is necessary to take into account the entire group turnover of the acquiring group (where group companies form a “single economic entity”). The target’s turnover should also include the turnover of any controlled subsidiaries. There is, however, no need to take the seller’s turnover into account.

If a relevant entity’s turnover has increased or decreased due to recent acquisitions or divestments, and this is not reflected in their latest audited accounts, then the audited turnover should be adjusted to take the change into account before assessing the turnover thresholds.

There are no special rules for foreign-to-foreign transactions in Norway. Foreign-to-foreign transactions are treated in the same way as those involving Norwegian companies as long as the transaction may have potential effects in Norway. As such, the same notification thresholds apply, and foreign-to-foreign transactions below the thresholds may be called in for review. However, the NCA has indicated in a guidance paper that, even if the turnover thresholds are met, genuine foreign-to-foreign transactions that could not have any possible effect in Norway may fall outside the territorial scope of the Competition Act.

The thresholds for mandatory notification are purely turnover based and do not include a market share element (see 2.5 Jurisdictional Thresholds)

Joint ventures are subject to the merger control rules, and no separate thresholds apply. The assessment of joint ventures follows the same approach established under the EUMR, for example with respect to the assessment of full functionality and the determination of “undertakings concerned” for establishing which parent companies’ turnover should be taken into account when assessing the jurisdictional thresholds.

It is possible to benefit from the simplified procedure (ie, short form filing) when a transaction concerning a joint venture meets one of the two following criteria:

• the creation of a joint venture where both the value of assets transferred to the joint venture, and the value of any turnover related to those assets, is below NOK100 million; and
• a change of control over an existing joint venture, where a party holding joint control over the joint venture obtains sole control over the joint venture.

Full Jurisdiction Over All Transactions

The NCA has full power to investigate any transaction with a potential effect in Norway, regardless of turnover and control.

Transactions Below the Notification Thresholds and Minority Acquisitions

As mentioned in 2.5 Jurisdictional Thresholds, the NCA has the power to order parties to an acquisition of control to submit a notification even if the turnover thresholds are not met and also in respect of transactions not leading to a change in control (minority acquisitions). In such cases, the NCA has three months to order the parties to submit a notification, from the point at which a binding transaction agreement has been concluded or the transaction has been completed (whichever occurs first). This deadline runs independently of whether the NCA has been informed about the transaction or not.

Investigations in concentrations not meeting the thresholds are not unusual (the NCA has intervened in various such cases). In contrast, investigations of minority acquisitions are rare.

The NCA has also imposed a specific duty on several companies in selected sectors to disclose below-threshold transactions to the NCA, and for some of these companies to also disclose minority acquisitions. Companies subject to this duty must provide a short notice to the NCA about the transaction within three working days of final agreement. The NCA has stated that it will review these notices within three weeks to determine whether an order for notification may be warranted.

A full list of companies subject to this disclosure requirement is published on the NCA’s website. It includes companies operating in a range of industries, including, fuel, power production, waste, groceries, online classifieds, newspapers and EV charging, among others.

Parties that are not already subject to the disclosure requirement described above, but nevertheless consider they are at risk of the NCA ordering a notification, can notify a transaction voluntarily. This triggers the NCA’s deadlines.

All concentrations subject to mandatory notification are subject to the “standstill obligation” in Section 19 of the Competition Act. This states that a concentration meeting the notification thresholds cannot be implemented until the NCA has completed its handling of the case – ie, by clearing the transaction or by making a commitment decision allowing the transaction to be completed.

When the NCA initiates an investigation of an acquisition of control below the notification thresholds or an acquisition of a minority interest, the standstill obligation will only apply from the moment the parties receive the order for notification from the NCA. The standstill obligation also applies from the time when a notification is submitted voluntarily. If the transaction has already been completed at the stage when the standstill obligation comes into force, the NCA does not have the power to order the parties to reverse the transaction while the case is under review. However, the NCA has the power to require a divestment remedy as part of a decision to block the transaction. If such decision is appealed to the CAT, the NCA and the CAT have discretionary powers to impose hold-separate measures as a condition to grant deferred implementation of the decision on appeal.

If a party breaches the standstill obligation – ie, by implementing a transaction subject to mandatory notification or where notification has been ordered (see 2.5 Jurisdictional Thresholds) prior to receiving clearance from the NCA, the NCA can impose an administrative fine of up to 10% of the liable party’s annual aggregate turnover, provided that the infringement was grossly negligent or intentional. The NCA has previously fined Norway’s largest grocery chain NOK25 million for the transfer of several leases for shop spaces from a competitor before obtaining approval from the NCA.

In addition, as mentioned in 2.11 Power of Authorities to Investigate a Transaction, certain companies are under an obligation to disclose all acquisitions in specified markets to the NCA. Failure to make such disclosure can result in a fine of up to 1% of the liable party’s annual aggregated turnover. In recent years, the NCA fined one company NOK20 million for failing to satisfy this requirement (but later withdrew the fine). Another company was fined NOK3 million.

It is also possible to impose criminal fines and/or imprisonment for a period of up to three years (or up to six years if severely aggravating circumstances exist) on individuals for grossly negligent or intentional infringement of the standstill obligation. To date there have not been any cases where this power has been used.

It is worth noting that non-confidential versions of all sanction decisions under the Competition Act are made public.       

A general exception to the standstill obligation exists for the execution of a public bid or a series of transactions in securities. This only applies if the transaction is immediately notified to the NCA, and the acquirer refrains from exercising the voting rights associated with the securities or only does so to maintain the full value of their investment in accordance with a special exemption granted by the NCA.

Even if the above criteria do not apply, it is still possible for notifying parties to apply to the NCA for an exception, for example where the target is insolvent. While the NCA has issued conditional derogations from the standstill obligation under these conditions, the NCA is generally reluctant to grant exemptions. In cases where there is no significant overlap, the NCA instead appears to prefer an expedient handling of notifications.

Except for the circumstances explained in 2.14 Exceptions to Suspensive Effect, there are no general exceptions to the standstill obligation for notifiable transactions. This applies also to partial implementation of a transaction outside Norway, if it is considered to be part of the same transaction (Foretakssammenslutning) as the notified concentration. In such cases, carving out the Norwegian parts and implementing the transaction outside of Norway would require a derogation by the NCA from the standstill obligation. Such derogations are rarely granted and are only likely to be given if grave consequences of the standstill obligation can be demonstrated, the Norwegian parts of the transaction easily can be distinguished and “ring-fenced”, and the scope and effectiveness of any potential remedies is not reduced.

There are no deadlines for notification. However, closing of a notifiable concentration must not take place before clearance has been obtained (see 2.12 Requirement for Clearance Before Implementation and 2.13 Penalties for the Implementation of a Transaction Before Clearance).

It is not necessary to wait until a binding agreement has been signed before submitting a notification to the NCA. However, in practice this is the usual approach, as the NCA will publish a notice of all incoming notifications as well as a public version of the notification on their website shortly after notification, see 7.3 Confidentiality.

A transaction can be notified if the parties are able to demonstrate that the transaction is likely to proceed. In practice, the NCA will accept a signed term sheet, memorandum of understanding or the announcement of an upcoming public bid as evidence of this. The notifying parties must also be in a position to describe the transaction and, in particular, the post-closing control structure to the NCA.

There is no filing fee in Norway.

The following parties are responsible for filing a notification:

• the acquiror in acquisitions;
• the merging parties are jointly responsible in a merger; and
• the controlling parent companies are jointly responsible when establishing a full-function joint venture.

The information and documentation required in the filing is regulated through Section 18a of the Competition Act. Specifically, the following must be included in the filing:

• contact information of the merging parties or the acquiror;
• description of the merger/acquisition;
• description of the parties involved including group companies;
• names of the five most important competitors, customers, and suppliers in markets in Norway, or where Norway is a part of, where the involved companies and companies in the same group have horizontally overlapping activities;
• description of horizontally and vertically affected markets. A market is horizontally affected if at least two of the parties are active in the same product market and the parties’ combined market share exceeds 20%. Vertically affected markets are those where one party operates upstream or downstream of a market where another party operates and their combined market share exceeds 30% in each of the respective markets. The explanation should include a description of the market structure in the affected markets, a description of the involved companies’ main competitors, customers, and suppliers in the affected markets, and a description of any barriers to entry in the affected markets;
• a brief description of vertically overlapping markets where a merger is between a party operating upstream or downstream of a product market where another party operates, and the parties’ individual or combined market share exceeds 30% in at least one of these markets. The description of these markets should at least include the parties’ three most important competitors, customers, and suppliers;
• explanation of any efficiency gains;
• information on whether the merger is subject to review by other competition authorities;
• the latest version of the merger agreement with attachments; and
• the parties’ latest annual reports and financial statements.

The information requirements for a notification specified in the Competition Act are the minimum required for a notification to be deemed as complete by the NCA. The parties may add supplemental information or elaborate beyond the minimum requirements. There is no pre-defined form for the notification nor any specified routines for submitting the notification. The notification may – eg, be submitted through email or a secure download link. It is not necessary to provide notarisations, power of attorney, or similar.

Note that pre-notification or submission of a draft notification is not required in Norway but may be recommended in complex cases.

In addition, according to Section 18b Competition Act, parties must submit a non-confidential version of the filing and a document summarising the rationale for any confidentiality claims. The notification will not be deemed complete before this is submitted.

Filings must be submitted in Norwegian, but supporting documents can usually be submitted in English and other Scandinavian languages.

The level of detail required for simplified filings (see 3.11 Accelerated Procedure) is lower than that described above for full filings. The NCA is also willing to accept simplified filings in English.

After receiving a notification, the NCA must, according to Section 1 of the Notification Regulation, give the parties a notice within 15 working days if the notification is deemed incomplete. The NCA will then normally contact the parties and identify the information considered missing. Following this, the parties may either resubmit the notification including the missing information or supplement the notification with additional information in a submission to the NCA. No sanctions are imposed when a notification is deemed incomplete, but the NCA’s deadlines will not run before the notification is complete.

While the NCA has 15 working days to review completeness of the notification, this process normally takes only a few days. The NCA does not normally confirm in writing that the notification is deemed complete, but the publication of receipt of notification on the NCA’s website works as an informal confirmation of completeness.

Providing incorrect or incomplete information to the NCA is generally subject to an administrative fine of up to 1% of a liable party’s aggregate annual turnover, provided that the infringement was negligent or intentional. This also applies to the information provided in a notification. Fines are likely to be higher in cases where parties intentionally withhold or provide incorrect information.

A company was fined NOK7.5 million in 2020 for providing incomplete information in a notification, but the NCA’s decision was later annulled by the CAT due to shortcomings in the NCA’s fining decision. In 2009, a company was also fined NOK 50,000 for providing incomplete information in a notification.

It is possible to impose criminal fines and/or imprisonment for a period of up to three years (or up to six years if severely aggravating circumstances exist) on individuals for grossly negligently or intentionally providing wrongful or incomplete information to the NCA. To date there have not been any cases where this power has been used.

Phase I

Within 25 working days of receiving a complete notification, the NCA must decide whether to close the case or further investigate the transaction (enter Phase II). If the NCA decides to enter Phase II, it will provide a brief statement outlining its preliminary view of the case. A transaction is automatically cleared if no such statement is issued within the 25-day deadline. Note that uncomplicated transactions often are closed well before the 25-day deadline, with an average handling time of cases closed in Phase I at about ten to 12 working days.

The 25 working-day deadline can be extended by ten working days if the notifying parties propose remedies before working day 20. This extension does not affect the Phase II deadline.

Phase II

Within 70 working days of receiving a complete notification, the NCA must either close the case by issuing a clearance decision, accept proposed remedies, or issue a draft prohibition decision (similar to a Statement of Objections under the EUMR). If remedies are proposed by the notifying parties after working day 55, the 70-day deadline is adjusted to ensure the NCA has at least 15 working days to consider the remedy proposal, but not by more than 15 working days in total. Consequently, the latest the NCA can make its decision is 85 working days after receiving a complete notification.

Following a draft prohibition decision, the parties have 15 working days to submit their comments. The NCA must then issue its final decision within 15 working days of receiving the parties’ comments. This final decision deadline can be extended by an additional 15 working days if the parties propose remedies after the draft prohibition decision. A further 15 working-day extension is possible if requested or accepted by the notifying party/parties.

The maximum review time is thus 100 working days from submission of the complete notification if no extensions occur, or 145 working days if all possible extensions are used.

Please note that the NCA’s deadlines may be suspended if the parties to the transaction fail to respond to requests for information within the timeframe set by the NCA (see 3.10 Requests for Information During the Review Process). While this rarely occurs in practice, the NCA has recently indicated its willingness to stop the clock in such situations.

Pre-notification is generally not required in Norway and does not typically occur for simple cases. In contrast, pre-notification is normal (though not strictly necessary) for complicated cases – eg, cases with potential competition concerns or complicated market structures/dynamics. Moreover, the parties are generally not required to provide a draft notification to the NCA ahead of filing but may submit a draft as part of pre-notification discussions with the NCA. 

Pre-notification discussions are held in full confidentiality until notification is submitted unless the transaction is otherwise known to the public, the parties consent to the NCA reaching out to third parties, or in other exceptional circumstances.

The NCA has the power to request information at any stage during the review process, also during a possible pre-notification process. In simpler cases, requests are not usual, and are normally limited to short clarifications on specific points. In contrast, several extensive requests for information and data should be expected in complicated cases. In such cases, requests for internal documents are also usual. Such requests are normally comprehensive and cover all types of internal documents from e-mails to board documents with information potentially relevant for the case – eg, information related to the affected markets, competition, the notified transaction, etc. 

The NCA typically sends its requests in writing and provides a deadline. The NCA issuing an RFI does not automatically “stop the clock”. However, the NCA may reserve the right to pause the review timeline if the requested information is not provided by the NCA’s deadline. 

There is a simplified procedure (short-form notification) for certain concentrations. This includes:

• specific joint ventures (see 2.10 Joint Ventures);
• concentrations where no horizontal or vertical overlap exists between the parties’ businesses;
• concentrations where there is horizontal overlap, but the parties’ combined market share is below 20%; and
• concentrations where there is a vertical overlap, but the parties’ combined market share is below 30%.

If the NCA finds that the conditions for a simplified notification are not met, the NCA must inform the parties within ten working days of receipt of the notification.

The timeline for review of simplified notifications is in principle the same as for standard notifications (see 3.8 Review Process). The NCA will not commit to a shorter timeframe, but most simplified notifications are swiftly cleared, typically within two to three weeks. In situations where a swift clearance is critical for the parties and there are no competition concerns, the NCA may speed up the procedure, but will not commit to an accelerated procedure.

If the NCA wants to look deeper into a case initiated with a simplified notification, it may order submission of a standard notification, provided it informs the notifying party(ies) within 15 working days of receiving the simplified notification. The NCA’s deadlines are suspended until a complete standard notification is submitted. Orders for standard notifications are rare, and have only occurred twice over the last 20 years.

The substantive test is the SIEC test (significant impediment to effective competition), which follows the same principles as the EUMR.

The first step in the NCAs analysis is to determine on which product and geographic markets the merging parties are active, and then to determine if there are any overlaps between their activities on these markets. The NCA will then consider whether competition on any overlap markets could be affected by the transaction. While a structural analysis (such as market shares, structure of demand and supply, and barriers to entry or expansion) is important for the analysis, the NCA has increasingly focused on closeness of competition between the merging parties and their rivals in horizontal mergers.

There is no specific de minimis level below which competitive concerns are deemed unlikely, but as noted in the paragraph above, the NCA will take into account the overall market structure. So, if the parties have low market shares in a market with low concentration, then competition concerns are unlikely to arise.

Case law from previous NCA decisions, decisions from the CAT (and before the CAT was established in 2017, from the Ministry of Trade, Industry and Fisheries) and Norwegian courts are relevant for the NCA’s assessment of cases. While the NCA will typically consider case law when assessing substantive considerations such as market definitions, critical market shares, etc, the NCA will usually not consider itself bound by such case law and will consider each case on its own merits. In contrast, the NCA will follow rulings by the CAT and the courts where legal issues have been clarified, for example the Supreme Court’s clarification of the substantive test and its statements related to interpretation of internal documents in the Nettbil case.

As the material merger control rules and the substantive test are largely harmonised with the EUMR, case law and guidelines from the Court of Justice of the European Union and the European Commission will also be relevant for the NCA in its assessment. The NCA frequently refers to guidelines from the European Commission and case law from the EU. Although the NCA may take these guidelines and case law into account, this does not preclude it from adopting a different approach to market definitions and competition analysis. The NCA also often looks to the practice of other national competition authorities. In particular, the NCA often refers to guidance papers and case law from the UK.

All types of competition concerns may be relevant for the NCA’s review of a case (eg, unilateral effects, co-ordinated effects, conglomerate or portfolio effects, vertical concerns, effects on innovation, and elimination of potential competition). While horizontal unilateral effects are most frequently assessed, the NCA often also investigates possible co-ordinated effects and vertical issues where relevant. 

Efficiencies are in principle relevant for the NCA’s review of merger cases. For the NCA to take claimed efficiencies into consideration they must be well documented, preferably by verifiable documentation developed by the parties as part of the decision-making process leading up to the transaction. Further, it must be possible to demonstrate that the efficiencies are sufficient to reverse the possible negative effects on competition. Therefore, the NCA typically puts most emphasis on efficiencies leading to a reduction in variable costs.

In practice, the NCA takes a strict approach to the review of claimed efficiencies and will normally not clear a case with identified competition concerns solely based on efficiencies, although exceptions occur. Moreover, appreciable and well-documented efficiencies may indirectly have an influence the NCA’s approach, even if not being referred to in its decisions.

Section 16 of the Competition Act only allows the NCA to intervene where there is a significant impediment to effective competition. Therefore, only issues that may affect competition in any market are relevant for the NCA’s review. The NCA will however consider all aspects of competition, and not only price effects. Effects on quality, innovation, consumer choice, etc, may therefore be considered. It can also be noted that the Norwegian government stated that effects on media plurality may be a relevant competitive effect when the Norwegian Media Ownership Act was repealed in 2016.

Non-competition issues are relevant in the review of FDI filings, which are made separately from the competition filings (see 9. Foreign Direct Investment/Subsidies Review). In some sectors (eg, power production and financial services), approval from relevant regulatory bodies may also be necessary, taking issues other than competition into consideration.

Section 16(5) of the Competition Act essentially replicates Article 2(4) EUMR, and thereby imposes an obligation on the NCA to assess whether the creation of a joint venture (which meets the definition of a concentration) has the object or effect of co-ordinating the competitive behaviour of its independent parent companies. This assessment takes place according to the criteria in Section 10 of the Competition Act (Article 101 equivalent). If the co-ordination is considered contrary to Section 10, then the NCA must intervene in the transaction.

The NCA can block a transaction or require remedies if the SIEC test is satisfied.

The parties may propose remedies to relieve a potential SIEC at any stage during the NCA’s review. The NCA may only accept remedies as proposed by the notifying party/-ies and is not in a position to design remedies itself. The NCA will, however, normally give comments on the proposed remedies if it considers that the proposal may be adequate to resolve identified competition issues, often leading to an iterative process with several revised remedy proposals before the NCA issues a conditional clearance decision.

Remedies can be structural or behavioural, or a combination. Like most regulators in Europe, the NCA has a strong preference for structural remedies. Behavioural remedies are therefore only likely to be accepted under specific circumstances. For example, access remedies may be accepted in certain cases with vertical concerns.

When formally submitting a remedy proposal, the notifying party must, at the same time, submit a non-confidential version. This enables the NCA to market test the suitability of the remedies by consulting with third parties or giving them the opportunity to comment.

Remedies must be sufficient to remove the SIEC that the NCA has identified.

The parties may seek to discuss remedies informally with the NCA at any stage during the NCA’s review, and during pre-notification. The NCA may however not be willing to engage in such discussions before it has identified potential competition concerns.

A formal remedies proposal in Phase I must be made by working day 20 at the latest. In Phase II, there is no deadline for submitting remedies; for more details see 3.8 Review Process.

If the NCA finds that proposed remedies may be adequate to relieve identified competition concerns, it may initiate a “market test” (ie, testing the suitability of the remedies by consulting third parties), but is under no obligation to do so.

The NCA normally requires that remedies are implemented in full or in part before a transaction is completed.

For divestiture remedies, the NCA will normally require a binding agreement with a buyer that is deemed suitable by the NCA before closing of the main transaction is permitted. The NCA often appoints an independent trustee to oversee the process and provide advice to the NCA. The timing of the divestment process may depend on circumstances specific for each case. The NCA may require that the trustee takes control over the divestment process if the parties are unable to enter an agreement with a suitable buyer within the set timeframe.

Behavioural remedies will typically require ongoing, post-closing implementation and the notifying party will typically be monitored for compliance on an ongoing basis by an independent trustee. The NCA may, however, require that an initial implementation of the remedies is carried out before closing is permitted. Behavioural remedies must be set for a finite period, but the NCA has the power to prolong such periods if it finds that the competition concerns remain. Recently, the NCA has prolonged behavioural remedies in two cases.

When the NCA intervenes in merger cases, it will issue a full, reasoned decision to the notifying party/-ies. Third-party business secrets will be kept confidential, even for the parties. A non-confidential version of the decision will be published on the NCA website. The parties will be given the opportunity to identify confidential information in the decision before the non-confidential version is published. In cases with media attention, the NCA will also publish a press release shortly after the parties are informed about the decision.

When the NCA decides to close investigations in merger cases, the parties will normally only be informed through a short email. The parties will also receive a brief decision summarising the main arguments for closing the case when cases are closed in Phase II. Non-confidential versions of such decisions are also published on the NCA website.

The NCA may intervene in foreign-to-foreign mergers if an effect in a Norwegian market, or a market in which Norway is part, can be demonstrated. This may – eg, be the case if the parties have sales to Norway or Norwegian subsidiaries. The substantial test is the same as for domestic transactions.

“Pure” foreign-to-foreign mergers – ie, without any effect in Norway, are unlikely to attract the NCA’s attention and fulfil the substantial test. As explained in 2.8 Foreign-to-Foreign Transactions, according to a guidance paper published by the NCA, the NCA is of the view that foreign-to- foreign transactions without any possible effect in Norway (even if the notification thresholds are fulfilled – eg, through sales to Norway) may fall outside the territorial scope of the Competition Act (according to Section 5 of the Competition Act).        

The clearance decision will not specifically approve any ancillary restraints. A notifying party is therefore responsible for ensuring that all ancillary restraints are compatible with Section 10 and 11 (Articles 101 and 102 TFEU equivalents).

It is not possible to separately notify ancillary restraints under Sections 10 or 11 of the Competition Act. However, it may be possible to obtain informal input from the NCA during their review of the transaction. It is therefore important to describe all ancillary restraints clearly in the merger notification.

Third parties (such as customers, competitors or complainants) do not have any formal procedural intervention rights in the merger control review process in Norway. Third parties may however receive and be obliged to reply to requests for information. Third parties may also submit submissions of any kind if they have any views on or concerns about a transaction and request meetings with the NCA to give input.

According to the Freedom of Information Act, any third party has a right to access the NCA’s file during and after the NCA’s investigation and may request access to non-confidential documents of any kind in the file.

After receiving a notification in a case with potential competition issues, the NCA may initiate an informal “market testing”, where it contacts relevant customers, competitors or suppliers. In more complex cases, the NCA may also send formal requests for information to relevant third parties, typically customers and competitors. RFIs may also be sent to other public bodies – eg, regulators in transactions in a regulated market. RFIs to third parties can be comprehensive and require submission of detailed responses. The receiver will normally also be obliged to respond within a set timeframe.

When the NCA receives a notification it will create a case page on its website, to which it uploads a brief description of the parties to the concentration and the markets concerned by the transaction. The NCA also publishes a non-confidential version of the notification on the case page.

Under Norwegian administrative law, the NCA is obliged to preserve the confidentiality of information, including business secrets. Pre-notification talks and documents are kept strictly confidential until the transaction is known in the public or a formal notification is submitted (whichever occurs first) unless the parties consent to the NCA collecting information before formal filing takes place – eg, starting third-party outreach.

When submitting a formal notification, the notifying party must submit a non-confidential version of the filing at the same time, by highlighting all confidential information in their filing. They must also provide a document summarising the legal arguments for any confidentiality claims. The NCA will consider the filing incomplete if the confidentiality claims are insufficiently reasoned, which normally will impact upon timing of the review.

Third parties also have the right to access the NCA’s file during and after the review, see 7.1 Third-Party Rights.

Nordic Co-operation Agreement

There is a ratified agreement on co-operation in competition cases between Denmark, Finland, Iceland, Norway, and Sweden. Under this agreement, the competition authority of a signatory state may request the national competition authorities of the other signatory states to collect information on its behalf, including through inspections (dawn raids). For example, the NCA can ask the Swedish Competition Authority to collect information on its behalf. Confidential information may be shared between the national competition authorities unhindered for the purpose of applying antitrust rules and merger control, without obtaining permission from the undertakings involved.

ECN

As a non-member state, Norway is not a member of the European Competition Network (ECN) but takes part in the co-operation as an observer state. Norway also takes part in the co-operation in merger cases, and the NCA frequently informs other competition authorities about incoming merger cases through the ECN network. The NCA may also represent Norway in the Advisory Committee for merger cases which the European Commission must consult before adopting certain decisions in merger cases.

Case-to-Case Co-operation

In cases with potential cross-border effects, the NCA from time to time requests the parties to approve reciprocal sharing of relevant confidential information between the competition authorities involved. This may – eg, be relevant for cases related to the oil and gas industry, where transactions may affect both Norway and the UK, as many players have a presence on both sides of the North Sea.

Policy

The NCA represents Norway in several international organisations such as ICN (International Competition Network), ECA (European Competition Authorities) and the OECD Competition Committee and the working groups under this committee.

The notifying parties to an intervention decision (prohibitions or conditional clearance) can appeal the decision to the CAT. The parties may further bring the CAT’s decision before the Gulating Court of Appeals in Bergen, by way of a civil lawsuit. The NCA is not able to appeal the CAT’s decisions in merger cases. The appeal court decision may be appealed to the Supreme Court by both the parties involved and the NCA.

Other affected parties with a legal interest (which, depending on the case, could be – eg, the seller in a prohibited transaction or parties potentially harmed by the conditions in a conditional clearance case) can appeal an intervention decision to the CAT and bring the CAT’s decision for judicial review.

A decision to close a case without intervention cannot be appealed, neither by any parties involved nor by third parties.

The CAT and the courts may take a full review of an appealed prohibition case and adopt a new decision (including a conditional clearance), uphold the prohibition or repeal the NCA decision. In appeals over conditional clearance decision, the CAT may either uphold or repeal the NCA decision. In case of the repeal of a conditional decision, the NCA may adopt a new decision within 45 working days unless the CAT had found that the conditions for intervention were not fulfilled, where the CAT’s clearance decision is final.

Parties wishing to appeal an NCA decision to the CAT must do so within 15 working days of the NCA issuing its decision. The complaint is addressed to the CAT but sent to the NCA.

Within 15 working days of receiving the appeal, the NCA must pass it on to the CAT with its comments on the appeal.

Within 60 working days of receiving the appeal, the CAT must issue its decision.

Third parties cannot appeal a clearance decision.

The provisions of the Norwegian National Security Act (the “Security Act”) require that any direct or indirect acquisition of a “qualified ownership interest” in a company that is subject to the National Security Act, is notified to the Ministry with sectoral competence for the company or the National Security Authority (NSM, Nasjonal Sikkerhetsmyndighet) for approval.

Companies that process classified information, or which conduct activities which are of a significant importance for fundamental national functions or national security interests can be designated under the Security Act. Companies are notified by their relevant sectoral ministry or the NSM if they are designated under the Security Act. The number and identity of companies subject to the Security Act is not publicly available.

A “qualified ownership interest” includes the acquisition of (i) at least a third of the share capital or voting shares in a company, (ii) the right to become owner of at least one third of the share capital or voting shares in a company, or (iii) “significant influence” over the management of the company.

In June 2023, the Security Act underwent substantial amendments, some of which entered into force on 1 July 2023, with the rest expected to enter into force in late 2024 or early 2025. The revisions that have entered into force as of 1 July 2023 broaden the scope of businesses that will fall under the Security Act, as the threshold for a company to be made subject to the Security Act has been lowered.

The amendments that are expected to enter into force in late 2024 or early 2025 include:

• all companies that hold a supplier clearance (cf Section 9-3 of the Security Act) and participate in security-graded acquisitions are automatically subject to the notification regime of the Security Act. A supplier clearance is required for suppliers that may gain access to information graded “confidential” or above under the Security Act, or when necessary for other reasons; and
• expansion of the threshold for what constitutes a “qualified ownership interest”. The acquisition of any of the following in a target company designated under the Security Act will trigger a mandatory, pre-closing and suspensory obligation:
1. a direct or indirect acquisition at least 10% of the share capital or voting shares of the target company;
2. an investor’s increase to or above 20%, 1/3, 50%, 2/3, or 90% of the share capital or voting rights of the target company; or
3. an acquisition of a shareholding which confers “significant influence” over the target company.

The contemplated amendments also introduce a stand-still obligation and a prohibition on the sharing of information that may be used for security-threatening activities before approval has been obtained. Breach of the stand-still obligation will be subject to administrative fines.

There have not been any recent changes to the Competition Act regarding merger regulation.

In September 2024, the government proposed legislation introducing a market investigation tool in the Competition Act. If the proposal passes, then the NCA will have the power to investigate markets and implement behavioural and structural remedies if it finds that competition is significantly impeded, even if no breaches of the prohibition provisions are found. It is currently proposed that the NCA will not have the power to impose structural remedies that include an order to divest assets acquired in a concentration handled by either the NCA or the European Commission for a period of ten years from the decision date.

In September 2024, the government also formed a Committee to review the Competition Act, including the merger control provisions. The Committee will provide its report to the government by December 2025.

The NCA continues to be active in the field of merger control. In 2023, the Norwegian Competition Authority received 113 notifications, which reflected a notable decrease from the record number of notifications observed in prior years. In the first half of 2024, the Norwegian Competition Authority received 74 notifications, which suggests 2024 will be more in line with the number of notifications received in 2021 and 2022 (156 and 158 respectively).

In 2023, 108 of the 113 cases were cleared in Phase I, with an average processing time of only 10.4 working days from receipt of a notification to clearance for cases cleared in Phase I. The NCA reviewed five cases in Phase II, one of which was prohibited. The remaining four were cleared, with one cleared after receipt of a Statement of Objections (which is rare). So far in 2024, the NCA has referred two cases to Phase II, one of which has been cleared and one which has been prohibited.

The NCA has not imposed any recent fines concerning merger control.

Despite having the competence to call in mergers below the notification thresholds, the Norwegian Competition Authority has demonstrated a willingness to join Article 22 referral requests under the EU Merger Regulation. In December 2023 the Norwegian Competition Authority published a press release on its website explicitly supporting the use of Article 22 in respect of Illumina/Grail and noting that it is “important that such global mergers are investigated to protect both Norwegian and European consumers”. To date, the Norwegian Competition Authority has joined three such requests. There have not been any Article 22 referrals so far in 2024.

In recent years, the NCA has been increasingly focused on analysing closeness of competition. In particular, between the parties to a transaction and between the parties and their competitors. The NCA has often placed closeness of competition as a central rationale in its intervention decisions, especially when supported by statements from the parties’ internal documents.

The NCA normally requests a substantial amount of internal documents (including internal emails) from the parties in Phase II cases, and in Phase I cases that are candidates for referral to Phase II. This trend has been emerging for some years, and the requests for documents are normally very detailed and cover several areas, significantly increasing the burden on notifying parties. Internal documents are screened for any indications that the parties consider one another as significant competitors.

Due to the NCA’s power to call in transactions not meeting the turnover thresholds, the NCA often reviews and intervenes in transactions affecting only limited geographic areas – eg, the NCA in 2022 intervened against a transaction in the ready-mix concrete market only affecting a very limited rural area in Norway, despite the target business’ turnover being less than NOK20 million (EUR2 million).