NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
Both the NCA and the CAT make autonomous deci - sions 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 Merg - er 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 agri - cultural products. If this is the case, a notification in Norway covering these products may still be required, in addition to the EU filing. 2. Jurisdiction 2.1 Notification 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 typi - cally 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 Inves- tigate a Transaction ) or where the NCA has indicated its intention to use this power. 2.2 Failure to Notify Completion of a transaction subject to mandatory notification or where the NCA has ordered notifica - tion (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 imple - ment 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 Trans- action Before Clearance . 2.3 Types of Transactions Any transaction that meets the definition of a “con - centration” 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 concentra - tion 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 con - sidered 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’ agree - ments 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 noti - fication, 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 sin - gle economic entity will not constitute a concentration
under the Competition Act. 2.4 Definition of “Control”
The test for control under the Competition Act is iden - tical to that under the EUMR. The decisive question is whether a party acquires the possibility of exercis - ing decisive influence on the strategic decisions of a separate undertaking. The possibility of exercising
479 CHAMBERS.COM
Powered by FlippingBook