NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
2.3 Types of Transactions Any transaction that meets the definition of a “concentration” falls within the scope of the Competition Act. The definition of a ”concen - tration” is provided in Section 17 of the Com - petition Act, which effectively replicates Article 3 EUMR. In this regard, a concentration arises through a change of control on a lasting basis resulting from: • the merger of two or more previously inde - pendent undertakings or parts of undertak - ings; or • the acquisition, by one or more undertakings of direct or indirect control of the whole or parts of one or more other undertakings on a lasting basis. The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a concentration. The acquisition of control over assets can be considered a concentration if those assets con - stitute the whole or a part of an undertaking; ie, a business with a market presence, to which a market turnover can be clearly attributed. The NCA has – eg, in a previous case concluded in a specific case that the transfer of leases for shop spaces from one grocery chain to another con - stituted a concentration. Moreover, the NCA has indicated that the return of assets to the lessor at the end of a lease period may constitute a concentration under certain circumstances. Acquisitions of control via – eg, shareholders’ agreements can be characterised as a concen - tration for the purposes of the merger control regime even without the transfer of shares or assets.
NCA of jurisdiction and a separate notification is not required in Norway. The exception to this is if the transaction concerns products outside of the scope of the EEA agreement – eg, certain fishery, aquacultural and agricultural products. If this is the case, a notification in Norway covering these products may still be required, in addition to the EU filing. 2. Jurisdiction 2.1 Notification Notification is mandatory if the thresholds are met (see 2.5 Jurisdictional Thresholds ). A voluntary notification can be made in cases where the thresholds are not met or for acquisi - tions of a minority position. Voluntary notifica - tions are typically made when it is considered likely that the NCA will exercise its call-in power (see 2.5 Jurisdictional Thresholds and 2.11 Power of Authorities to Investigate a Transac- tion ) or where the NCA has indicated its intention to use this power. 2.2 Failure to Notify Completion of a transaction subject to manda - tory notification or where the NCA has ordered notification (see 2.11 Power of Authorities to Investigate a Transaction ) may be subject to a fine. While a failure to notify in principle is subject to sanctions, a failure to notify does not materi - alise before steps to implement the transaction have been taken, as there are no filing deadlines in Norway. See further details in 2.12 Require- ment for Clearance Before Implementation and 2.13 Penalties for the Implementation of a Transaction Before Clearance .
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