NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
4. Substance of the Review 4.1 Substantive Test
the response has been identified and the reasons for exemption from public disclosure have been provided. The issuing of an RFI to the parties does not automati - cally “stop the clock”. However, the NCA may pause the review timeline if the parties do not fully respond to an RFI within the deadline set by the NCA. While such clock stops were previously very unusual, the NCA has used this power more frequently in recent years (see 3.7 Review Process ). 3.10 Accelerated Procedure There is a simplified procedure (short-form notifica - tion) for certain concentrations. This includes: • specific joint ventures (see 2.10 Joint Ventures ); • concentrations where no horizontal or vertical over - lap 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 par - ties within ten working days of receipt of the notifica - tion. The timeline for review of simplified notifications is in principle the same as for standard notifications (see 3.7 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 noti - fying 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. 4.2 Markets Affected by a Transaction The first step in the NCA’s analysis is to determine on which product and geographic markets the merg - ing parties are active, and then to determine if there are any overlaps between their activities on these markets. The NCA will then consider whether com - petition 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 close - ness of competition between the merging parties and their rivals in horizontal mergers. There is no specific de minimis level below which com - petitive 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. 4.3 Reliance on Case Law 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 assess - ment 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 mer - its. In contrast, the NCA will follow rulings by the CAT and the courts where legal issues have been clarified. As the material merger control rules and the substan - tive 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
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