NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
NCA may take these guidelines and case law into account, this does not preclude it from adopting a dif - ferent approach to market definitions and competitive assessment. 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. 4.4 Competition Concerns 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 elimina - tion of potential competition). While horizontal unilat - eral effects are most frequently assessed, the NCA often also investigates possible co-ordinated effects and vertical issues where relevant. 4.5 Economic Efficiencies 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-mak - ing process leading up to the transaction. Further, it must be possible to demonstrate that there is a caus - al effect between the concentration and the claimed efficiencies, and 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 sole - ly based on efficiencies, although exceptions occur. Appreciable and well-documented efficiencies may, however, indirectly have an influence on the NCA’s approach, even if not referred to in its decisions. 4.6 Non-Competition Issues 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 com - petition filings (see 9. Foreign Direct Investment/Sub- sidies Review ). In some sectors (eg, power production and financial services), approval from relevant regu - latory bodies may also be necessary, taking issues other than competition into consideration. 4.7 Special Consideration for Joint Ventures Section 16 (5) of the Competition Act essentially rep - licates 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 con - centration) 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 (Arti - cle 101 equivalent). If the co-ordination is considered contrary to Section 10, then the NCA must intervene in the transaction. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions According to Section 16 (1) of the Competition Act, the NCA shall prohibit a concentration if the SIEC test is satisfied. However, if the NCA finds that remedies proposed by the notifying parties fully address the restrictive effects of the concentration, the NCA is obliged to approve the concentration subject to such remedies (Section 16 (2)) (see 5.2 Parties’ Ability to Negotiate Remedies ). 5.2 Parties’ Ability to Negotiate Remedies The notifying 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, nor - mally provide comments on proposed remedies if it
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