NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
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, con - trol can either be de jure or de facto. • De jure control can be reached either by holding a majority of the voting rights or through sharehold - ers’ agreements or similar, giving rights to control the undertaking or the ability to block strategic decisions via veto rights, which go beyond stand - ard 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 influ - ence over an undertaking. 2.5 Jurisdictional Thresholds Concentrations are 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 bil - lion 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. There is no requirement for parties to have a local presence (eg, local entity) to trigger a mandatory noti - fication. Turnover generated by foreign entities sell - ing into Norway is counted towards the thresholds, however, see further details in 2.8 Foreign-to-Foreign Transactions and 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions . The NCA has the power to order the parties to sub - mit 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 bind - ing 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 Transac- tion ). 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 out - side of the scope of the EEA Agreement). 2.6 Calculations of Jurisdictional Thresholds According to the Notification Regulation, turnover must be calculated according to the principles of the Norwegian Accounting Act. In practice, the princi - ples described in the European Commission’s Con - solidated 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 turno - ver 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. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds 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 an exiting 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,
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