NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
5.5 Conditions and Timing for Divestitures The NCA normally requires that remedies are imple - mented in full or in part before a transaction is com - pleted. For divestiture remedies, the NCA will normally require a binding agreement with a buyer that is deemed suitable by the NCA and that all applicable regula - tory approvals necessary for implementation of the remedies have been obtained before the closing of the main transaction is permitted. The NCA often appoints an independent trustee to oversee the process and provide advice to the NCA. The timing of the divest - ment process may depend on circumstances specific for each case. The NCA may require that the trustee takes control over the divestment process if the par - ties are unable to enter an agreement with a suitable buyer within the set timeframe. Behavioural remedies will typically require ongoing, post-closing implementation and the notifying party will typically be monitored for compliance on an ongo - ing basis by an independent trustee. The NCA may, however, require that an initial implementation of the remedies is carried out before closing is permitted. Behavioural remedies must be set for a finite period, but the NCA has the power to prolong such periods if it finds that the competition concerns remain. Recent - ly, the NCA has prolonged behavioural remedies in two cases. 5.6 Issuance of Decisions When the NCA intervenes in merger cases, it will issue a full, reasoned decision to the notifying party/-ies. Third-party business secrets will be kept confidential, even for the parties. A non-confidential version of the decision will be published on the NCA website. The parties will be given the opportunity to identify confi - dential information in the decision before the non-con - fidential version is published. In intervention cases, the NCA will normally publish a press release shortly after the parties are informed about the decision. When the NCA decides to close an investigation in Phase I, the parties will only be informed through a short, non-reasoned email. When closing an inves - tigation in Phase II without remedies, the parties will receive a brief decision summarising the main argu -
considers that they may be adequate to resolve identi - fied competition concerns, often leading to an iterative process involving several revised remedy proposals before the NCA issues a conditional clearance deci - sion. Remedies can be structural or behavioural, or a com - bination. Like most regulators in Europe, the NCA has a strong preference for structural remedies. Behavioural remedies are therefore only likely to be accepted under specific circumstances. For example, access remedies may be accepted in certain cases with vertical concerns. When formally submitting a remedy proposal, the notifying party must, at the same time, submit a non- confidential version, otherwise the submission is not deemed complete. This enables the NCA to market test the suitability of the remedies by consulting with third parties and giving them the opportunity to com - ment. 5.3 Legal Standard Remedies must be sufficient to remove the SIEC that the NCA has identified. 5.4 Negotiating Remedies With Authorities The parties may seek to discuss remedies informally with the NCA at any stage during the NCA’s review, and during pre-notification. The NCA may however not be willing to engage in such discussions before it has identified potential competition concerns or unless a formal proposal has been put forward. A formal remedies proposal in Phase I must be made by working day 20 at the latest. In Phase II, there is no deadline for submitting remedies; for more details see 3.7 Review Process . If the NCA finds that proposed remedies may be adequate to relieve identified competition concerns, it may initiate a “market test” (ie, testing the suitability of the remedies by consulting third parties), but it is under no obligation to do so.
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