NORWAY Law and Practice Contributed by: Beret Sundet, Elin Moen, Olav Kolstad and Harald K. Selte, BAHR
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The clearance decision will not specifically approve any ancillary restraints. A notifying party is therefore responsible for ensuring that all ancillary restraints are compatible with Section 10 and 11 (Articles 101 and 102 TFEU equivalents). It is not possible to separately notify ancillary restraints under Sections 10 or 11 of the Competition Act. How - ever, it may be possible to obtain informal input from the NCA during their review of the transaction. It is therefore important to describe all ancillary restraints After receiving a notification in a case with potential competition issues, the NCA may initiate an informal “market testing”, where it contacts relevant custom - ers, competitors or suppliers. In more complex cases, the NCA may also send formal requests for informa - tion to relevant third parties, typically customers and competitors. RFIs may also be sent to other public bodies – eg, regulators in transactions in a regulated market. RFIs to third parties can be comprehensive and require submission of detailed responses. The receiver will normally also be obliged to respond When the NCA receives a notification it will create a case page on its website, to which it uploads a brief description of the parties to the concentration and the markets concerned by the transaction. The NCA also publishes a non-confidential version of the notification on the case page. within a set timeframe. 7.3 Confidentiality clearly in the merger notification. 7.2 Contacting Third Parties Under Norwegian administrative law, the NCA is obliged to preserve the confidentiality of information, including business secrets. Pre-notification talks and documents are kept strictly confidential until the trans - action is known in the public or a formal notification is submitted (whichever occurs first) unless the par - ties consent to the NCA collecting information before formal filing takes place – eg, starting third-party out - reach.
ments for closing the case. Non-confidential versions of such decisions are also published on the NCA web - site. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The NCA may intervene in foreign-to-foreign merg - ers if an effect in a Norwegian market, or a market in which Norway is part, can be demonstrated. This may – eg, be the case if the parties have sales to Norway or Norwegian subsidiaries. The substantial test is the same as for domestic transactions. “Pure” foreign-to-foreign mergers – ie, without any effect in Norway, are unlikely to attract the NCA’s attention and fulfil the substantial test. As explained in 2.8 Foreign-to-Foreign Transactions , according to a guidance paper published by the NCA, the NCA is of the view that foreign-to-foreign transactions without any possible effect in Norway (even if the notification thresholds are fulfilled – eg, through sales to Norway) may fall outside the territorial scope of the Competi - tion Act (according to Section 5 of the Competition Act). 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The clearance decision will not specifically approve any ancillary restraints. A notifying party is therefore responsible for ensuring that all ancillary restraints are compatible with Section 10 and 11 (Articles 101 and 102 TFEU equivalents). It is not possible to separately notify ancillary restraints under Sections 10 or 11 of the Competition Act. How - ever, it may be possible to obtain informal input from the NCA during their review of the transaction. It is therefore important to describe all ancillary restraints clearly in the merger notification.
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