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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
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  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
NORWAY

Siri Teigum
Partner

ste@thommessen.no

Tel: +47 23 11 11 21 / +47 90 91 23 55

Eivind Vesterkjær
Partner

eve@thommessen.no

Tel: +47 23 11 11 23 / +47 90 96 68 43

Eivind Sæveraas
Associate Partner

eis@thommessen.no

Tel: +47 23 11 12 62 / +47 91 70 90 27

Heidi Jorkjend
Managing Associate

hjo@thommessen.no

Tel: +47 23 11 13 39 / +47 98 48 83 29

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes, the relevant merger control regulation is found in chapter 4 of the Norwegian Competition Act of 5 March 2005 ("the Competition Act") and the Regulation on Notification of Concentrations of 11 December 2013 ("the Notification Regulation"). 

2) Which authorities enforce the merger control regulation?

The Norwegian Competition Authority (Norwegian Competition Authority) is the primary enforcer of the Norwegian Competition Act. 

3) Relevant regulations and guidelines with links:

Links to the relevant instruments and guidelines are listed below:  

Original Norwegian version

Unofficial English translation

Konkurranseloven

The Norwegian Competition Act (Translation into English not available)

Forskrift om melding av foretakssammenslutninger mv

Notification Regulation (Translation into English not available)

 

Regnskapsloven

Norwegian Accounting Act (Translation into English not available)

The term 'turnover' in the Merger Control Regulation has the same meaning as "sales revenue" in the Norwegian Accounting Act.

Retningslinjer for melding av foretakssammenslutning

Guideline for full notification (Translation into English not available)

Retningslinjer for forenklet melding av foretakssammenslutning

Guideline for simplified notification (Translation into English not available)

No filing forms exist for full or simplified notifications.

Veileder til saksbehandlingen ved kontroll med foretakssammenslutning

Guideline on the administrative process for merger control (Translation into English not available)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Norwegian competition law is interpreted in accordance with EU competition law in this respect.

Generally, restrictions of competition that are ancillary to the merger are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. However, restrictions that go beyond what may be considered objectively necessary, proportionate and directly related to the merger may be caught by the general prohibition on anti-competitive agreements.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Financial businesses

For mergers involving financial businesses licensed in Norway such as banks, mortgage companies, finance companies, insurance companies, pensions companies, holding companies in financial groups, or securities funds, the parties must obtain approval from the Norwegian Financial Authority or the Ministry of Finance. This requirement is supplementary to the merger filing requirements to the Norwegian Competition Authority.

7) Are any parts of the territory exempted or covered by particular regulation?

The Competition Act does not apply to the territories of Jan Mayen, Bouvetøya, Dronning Maud Land or Peter I Øy. The territories do not have separate competition laws, and have no permanent residents.  

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

If the jurisdictional thresholds are met, it is mandatory to notify the Norwegian Competition Authority of the merger. In the event that the thresholds are not met, a notification to the Norwegian Competition Authority can be made voluntarily. The Norwegian Competition Authority may also order a notification if the thresholds are not met (within three months of the agreement between the parties). Voluntary notification can also be made in the event of a minority shareholding that does not confer control. 

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, the definition of a merger is similar to the definition in Council Regulation (EC) No 139/2004  (the "EC Merger Regulation") Article 3. According to section 17 of the Competition Act, a merger is deemed to arise where;

  1. two or more previously independent undertakings or parts of undertakings merge, or
  2. one or more persons already controlling at least one undertaking, or one or more undertakings, acquire direct or indirect control on a lasting basis of the whole or parts of one or more other undertakings. 

Also, the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a merger.

10) Is "change of control" of a business required?

Yes.

Generally, merger filing is only required if one or more businesses acquire control over another business. Change of control can result from one or several transactions.

Several transactions can only be considered as one and the same merger if control is acquired by the same business(es). In the case of a joint venture being split up between the parent companies, these may constitute several mergers. 

Transactions that result in the creation of a joint venture that, on a lasting basis, performs all functions belonging to an autonomous economic entity also constitute a merger.

11) How is “control” defined?

The notion of "control" is given the same meaning as under the Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings ("the EC Merger Regulation"). Therefore, "Control" and "Change of control" is interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

Under section 17 of the Competition Act, "control" is constituted by rights, agreements or any other means that, either separately or in combination, taking into consideration the fact or law involved, confer the opportunity to exercise decisive influence over an undertaking, particularly in the case of property rights or usufruct to whole or parts of the assets of the undertaking, or rights or agreements that confer decisive influence over the bodies of an undertaking in respect of their composition, voting or decision-making. 

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is subject to merger control in Norway.

If no control is conferred, the mandatory merger filing requirement under the Competition Act does not apply to acquisitions of minority shareholding. However, the Competition Authority may within three months after the parties' "final agreement" related to such acquisitions order the submission of a notification in accordance with Section 16a of the Competition Act. There is no threshold. The Competition Authority may in other words submit such an order regardless of the Norwegian turnover of the undertakings involved. It is however highly unlikely that Section 16a would be used towards an acquisition of a minority shareholding in a non-Norwegian company. This competence is rarely used in practice at all, even though there is one recent example (Sector Alarm/Nokas).

13) Joint ventures/joint control – which transactions constitute mergers?

Merger filing is mandatory if (a) the undertaking is jointly controlled by two or more parties independently capable of blocking actions determining the undertaking's key strategic business decisions, and (b) the joint venture performs all functions belonging to an autonomous economic entity on a lasting basis ("full function criteria"). 

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture, including through changes in control (from no control or sole control to joint control)
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities. On rare occasions a change in for example agreements between parent companies may also imply that an existing joint venture that is not "full-function" becomes "full-function" and thereby subject to merger control.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.
Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

A merger notification must be notified to the Norwegian Competition Authority if:

  1. At least two of the undertakings concerned each has an annual turnover in Norway exceeding NOK 100 million ; and
  2. The combined annual turnover in Norway of the undertakings concerned exceeds NOK 1 billion. 

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

No, as of now the thresholds set out in question 14 apply to all transactions that involve a merger. The Ministry is authorized under the Competition Act to issue regulations requiring mandatory merger filings below the threshold in certain markets, however this competence has not yet been made use of.

16) Rules on calculation and geographical allocation of turnover

Generally, the Norwegian Competition Authority follows the practice under EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

"Annual turnover" has the same meaning as "sales income" in the Accounting Act, and refers to all amounts generated from an undertaking's sale of goods and services that form part of the undertaking's ordinary business in the course of the preceding fiscal year, after the deduction of taxes and fees.  

The annual turnover in the preceding fiscal year is decisive for whether merger filing is mandatory. This is the case even if it is clear that the turnover for the current year will be higher or lower than in the preceding year. If the annual turnover of the preceding fiscal year is not yet available, turnover from the latest available accounts has been accepted in practice by the Norwegian Competition Authority. For newly established undertakings or undertakings that had a turnover equal to zero in the preceding year, the actual turnover thus far in the current year is to be taken into account. Turnover must be adjusted to take account of any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on.

Notification thresholds relate to the turnover of the ‘undertakings concerned’ – i.e., 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 Norwegian Competition Authority. The turnover of the selling company should not, however, be included in the turnover calculation. Note that if the seller will retain control of the company being sold, the turnover of the selling company should also be taken into account. 

Only the turnover generated through the delivery or production of goods and services in Norway is to be included in the assessment of whether the threshold values are fulfilled. The turnover generated in Norway is relevant independently of whether an undertaking is Norwegian or foreign. Even if one of the "undertakings concerned" does not have turnover in Norway, it is sufficient for it to form part of the merger filing requirement that a different undertaking within the same economic entity, normally a subsidiary, has generated turnover in Norway.   

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

17) Special rules on calculation of turnover for particular businesses

No such rules exist. However, even though the Norwegian Competition Act does not contain any specific rules equal to Article 5 (3) of the EU Merger Regulation related to credit institutions, other financial institutions and insurance companies it is assumed that turnover for such undertakings are to be calculated in the same way under the Norwegian Competition Act.

18) Series of transactions that must be treated as one transaction

Transactions that are interdependent because they are linked by conditions must be treated as one if control in each transaction is acquired ultimately by the same undertaking(s).

Furthermore, if the same parties enter into different transactions that are not interdependent regarding the sale of different businesses or different parts of a business, all such transactions within a two-year period must be treated as one and the same merger.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis.

In accordance with the European Commission’s Consolidated Jurisdictional Notice change of control may be considered temporary – and therefore not require merger filing – if a transaction is divided into steps.

20) Special industries, owners or types of transactions

N/A

21) Transactions involving only foreign businesses (foreign-to-foreign)

There are no exceptions from the mandatory notification as long as the thresholds are met. It is thus irrelevant whether the undertakings are foreign as long as they have generated the required turnover in Norway to trigger the thresholds.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities of the parties, but there is a simplified procedure available if there is no overlap.

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop shop" principle, the Norwegian Competition Authority does not have jurisdiction if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the Norwegian Competition Authority.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

If the jurisdictional thresholds are not met, the merger can be notified voluntarily. The same applies to minority shareholdings that do not confer control. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The Norwegian Competition Authority may choose to investigate transactions falling below the thresholds, and require a notification. An order by the Norwegian Competition Authority to submit a notification under these circumstances must be given within three months of the time of final agreement or acquisition of control, whichever occurs first. 

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

When an acquisition trigger merger filing obligations to the European Commission (or in theory the EFTA Surveillance Authority), the Norwegian Competition Authority will not consider the merger. However, the Norwegian Competition Authority may assist the Commission in their inquiry, or handle the case in whole or in part in case of a referral. A case will typically be referred to the Norwegian Competition Authority if it primarily affects Norwegian interests. 

In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the Norwegian Competition Authority will handle the strictly Norwegian aspects.

A referral of a merger from the European Commission may be requested either by the Norwegian Competition Authority or by the merging parties.

28) Referral to another jurisdiction

A case may be referred from the Norwegian Competition Authority to the European Commission’s jurisdiction. This transfer may be initiated by one of the affected EU Member States or the undertakings concerned. The Norwegian Competition Authority cannot itself initiate such a referral. 

The case may only be referred by request from the parties if it is subject to notification in a least three EU Member States in addition to Norway. 

The competition authorities in Denmark, Iceland, Sweden, Finland 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. 

Norway is part of the International Competition Network (ICN). The Norwegian Competition Authority is not a formal member of the European Competition Network (ECN), but attends meetings about policy issues and receives information that is exchanged in the network.

29) May the merging parties request or oppose a referral decision?

If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the Norwegian Competition Authority, provided that the merger may significantly affect competition in a distinct market in Norway. If the Norwegian Competition Authority does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the Norwegian Competition Authority, decide to refer a merger that has already been notified to the European Commission to the Norwegian Competition Authority. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

If a merger is not subject to EU merger control but is subject to merger control in Norway and at least three EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Norway or any EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

There is no deadline for filing. A transaction can be filed as soon as it is likely that it will be implemented, i.e. a final or binding transaction agreement is not a requirement. However, in practice the parties should at least have a signed letter of intent, or similar, since the main scope of the proposed merger must be agreed/clear. 

The Norwegian Competition Authority publishes the fact that a merger has been formally filed, including names of the parties involved. Therefore, in practice the formal filing usually occurs after signing final agreement or when the transaction for other reasons is already known in the public domain.

31) Pre-notification consultations

Pre-notification discussions are common in more complex matters, but not in the more 'straightforward' matters. 

Pre-notification discussions in more complex matters are generally encouraged as it enables the notifying party to address specific topics that the Norwegian Competition Authority might want to focus on (e.g. complex factual matters, areas/markets where there are potential material issues etc.), thus ensuring a more stringent and efficient procedure when the "clock starts". 

Often the parties will submit a number of draft notifications before the authority informs the parties that the notification appears to be ready to be formally submitted.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

A specific regulation provides for an exemption for public takeover bids from the automatic standstill obligation, corresponding to article 7 (2) of the EU Merger Regulation.

33) Forms available for completing a notification

There are no notification forms available. There are however two alternatives scopes of notification: Full notification and simplified notification. Under the simplified procedure the need for information and documentation is less than if a full notification is required, see topic 35.

A simplified notification may be possible in the following cases:

  1. The creation of a full function joint venture with limited expected activities in Norway (less than NOK 100 million in revenues and assets)
  2. Changes from joint control to sole control
  3. There is no horizontal or vertical overlap of the activities of the parties.
  4. There is a horizontal overlap but the combined market share post-merger does not exceed 20%
  5. There is a vertical overlap but the parties’ individual or combined market share on any related market does not exceed 30%.

34) Languages that may be applied in notifications and communication

According to a Norwegian Competition Authority guidance paper, the filing must be submitted in Norwegian. Exceptions have previously been granted for filings in English, usually in relation to simplified notifications.

Supporting documents in English and in Scandinavian languages are usually accepted. 

35) Documents that must be supplied with notification

There are two alternatives: Full notification and simplified notification (see topic 33). It is under both alternatives possible to ask the Competition Authority for concrete waivers. 

The following documents must be submitted with a notification:

  1. The latest version of the transaction agreement (not required in case of a simplified notification). 
  2. The latest annual report and financial statement of the undertakings concerned. 
  3. A proposal for a public (non-confidential) version of the notification.

In complex matters the Competition Authority will regularly request additional documentation, often within a short time of receiving the notification. This typically includes all internal documentation related to the merger as well as other documentation from board meetings, strategy documents and other documents related to competitors, assessments of the markets, competition on the markets, customer mobility etc. going back two to three years.

36) Filing fees

There are no filing fees in Norway.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Mergers may not be implemented before the Norwegian Competition Authority has received a notification and has finalized its review of the notified transaction (standstill obligation).

38) May the parties get permission to implement before approval?

Yes, the Norwegian Competition Authority may exempt from the prohibition on implementation before approval.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive market information from being shared and used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market. There are no guidelines on what may be considered acceptable preparatory steps. 

Preparation of integration of internal functions such as IT and HR is generally acceptable.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable. However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Norwegian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Norway.

It must be assessed on a case-by-case basis whether it is possible to carve out the Norwegian part of a transaction. If the Norwegian part of the transaction and the rest of the transaction are interdependent, it is advisable to request a specific permission to implement outside Norway from the Norwegian Competition Authority (see topic 38).

42) Consequences of implementing without approval/permission

The parties may be fined if the merger is implemented before approval is obtained. The amount of the fine will be fixed based on the nature, gravity and duration of the infringement, and the fine cannot exceed 10% of the parties’ worldwide turnover.

The Norwegian Competition Authority actively enforces breach of the standstill obligation. 

The process – phases and deadlines

43) Phases and deadlines

The procedures and timetables are set out in section 20 of the Competition Act. In addition, the Norwegian Competition Authority has issued guidelines on the administrative procedure of the merger control

Phase

Duration/deadline

Pre-notification phase: 

If a case is complex and presumed to lead to competitive concerns, the parties are encouraged to inform the Norwegian Competition Authority in advance and in due time. The Norwegian Competition Authority will then assess the need for pre-notification consultations, and the extent of such consultations. In the event of simple notification, it is rarely presumed that any pre-notification is necessary.

No set duration or timeline

Phase I: 

Within 25 working days following notification, the Norwegian Competition Authority must inform the parties in writing whether a decision to intervene is relevant. If the Norwegian Competition Authority finds that there are reasonable grounds to believe that the merger may significantly impede effective competition, the notice must clearly express this.  

If no such notice is issued within the time frame, the Norwegian Competition Authority cannot intervene. Furthermore, if no basis for intervention exists, the Norwegian Competition Authority will notify the party of the dismissal of the case.

If the parties offer commitments within 20 working days after the Norwegian Competition Authority has received the notification, the 25-day time frame is extended by 10 working days. 

       

25 working days

Extensions:

If commitments are offered within the ordinary time frame, the time frame is extended by 10 days. 

Phase II

If a phase II investigation is initiated, the Norwegian Competition Authority has 45 working days following the 25-day time frame to issue (a) a final decision affirming any proposed commitments and accepting the merger or (b) a statement of objections detailing why it considers to prohibit the concentration. 

The parties have 15 working days after the decision is issued to submit their comments. In the case of a statement of objection, the parties should consider proposing remedying commitments. 

The Norwegian Competition Authority has 15 working days to process the comments and reach a new decision. After having sufficiently assessed the comments, the Norwegian Competition Authority will normally arrange a meeting with the parties during this period to clarify any uncertainties between them.     

45 working days (which are added to the 25 working days applicable for phase I.)

Extension:

If the parties propose commitments after 55 working days following notification, the deadline is extended correspondingly, i.e. if the proposal is made on day 60 the deadline is extended with 5 working days.

The parties have 15 working days to submit comments following a decision from the Norwegian Competition Authority. The Norwegian Competition Authority then has 15 additional days to process the comments and reach a new decision. 

Appealing the decision: 

A decision reached by the Norwegian Competition Authority can be appealed within working 15 days after it has been issued. The appeal is issued to the Norwegian Competition Authority, but forwarded to the Norwegian Competition Complaint Board (NCCB). The NCCB must reach a decision within 60 working days after the receipt of the complaint.

15 working days 

The NCCB will issue its decision within 60 working days following the receipt of the appeal. 

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The substantive test is whether the merger will "significantly impede effective competition, in particular due to the creation or strengthening of a dominant position".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defence) and whether one of the parties is likely to fail as an independent business (failing firm defence).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The substantive test is the same for assessing joint ventures as with other mergers, but similar to article 2(4) of the EUMR, the Norwegian Competition Authority shall consider whether the joint venture has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent. Such coordination shall be appraised in accordance with section 10 of the Competition Act (corresponding to article 101 of the Treaty on the Functioning of the European Union).

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Norwegian Competition Authority expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the Authority will only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioural and with or without time limitations.

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, Norwegian Competition Authority may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition.

Publicity and access to the file

48) How and when will details about the merger be published?

Details about the merger (the identity of the involved undertakings and the markets affected) are published on the Norwegian Competition Authority's website as soon as the authority accepts that a complete notification has been submitted, including the non-confidential version.

Further on, the Norwegian Competition Authority will generally publish a non-confidential version of its decision here, and may publish any non-confidential guidance statements. Any information that is considered confidential must be marked as such by the parties in advance, including a statement as to why it should not be publicized. The parties are required to submit a proposal on the public (non-confidential) version of the notification.

In practice, reasoned decisions are however only published with respect to prohibition decisions, approval decisions with commitments and (on rare occasions) approval decisions without commitments following an extensive investigation. Most decisions approving a merger will therefore say little or nothing more than the identity of the parties and that the Authority has decided to close its investigation. This applies to most cases closed in phase I and early in phase II, which in practice is around 95% of all cases (the average case handling time in merger cases is between 10 and 15 working days). 

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties that the Norwegian Competition Authority may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority may redact third parties' confidential information, often including the identity of such third parties.

Third parties:

Third parties are regularly involved in merger procedures before the Norwegian Competition Authority, primarily as sources of information. As mentioned in topic 48, the Norwegian Competition Authority is required to publish on its website a brief notice of all mergers being notified. The notice contains information concerning the identity of the undertakings concerned, the transaction and the affected markets, in addition to the date of submission. The purpose of this notice is to encourage third-party comments.

Third parties may also ask for access to a non-confidential version of all notifications filed with the Norwegian Competition Authority. Third parties are not entitled to access business secrets in a notification or other documents prepared for the Norwegian Competition Authority’s internal use. Consequently, the parties have to enclose a proposal for a public version of the notification when submitting a notification. The Norwegian Competition Authority will also normally discuss the information identified as confidential with the parties before giving third parties access to the information.

Judicial review

50) Who can appeal and what may be appealed?

The notifying parties can generally appeal any decisions by the Norwegian Competition Authority to the Norwegian Competition Complaint Board including conditions contained in an approval decision – even if they are based on commitments proposed by the parties themselves.

Third parties may generally not appeal. 

As of 1 April 2017, an independent board of appeals handles appeals against decisions of the Norwegian Competition Authority. Before this date the appeals against the Norwegian Competition Authority’s decisions were handled by the Ministry of Trade, and the Council of State could also render decisions in merger cases involving questions of principle or interests of major significance to society. After the implementation of the board of appeals, however, the Council lost its prerogative.

Only decisions by the board of appeals can be subject to judicial review. No merger decisions have been brought before the courts to date, neither under the former nor under the current appeals regime.


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