NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
2.5 Jurisdictional Thresholds Concentrations are subject to mandatory noti - fication if the following turnover thresholds are satisfied: • the parties’ combined operational revenues in the preceding financial year in Norway were NOK1 billion or more; and • at least two of the parties involved had opera - tional revenues of more than NOK100 million in Norway in the preceding financial year. There is no requirement for parties to have a local presence (eg, local entity) to trigger a mandatory notification. Turnover generated by foreign enti - ties selling into Norway is counted towards the thresholds, however, see further details in 2.8 Foreign-to-Foreign Transactions and 5.7 Pro- hibitions and Remedies for Foreign-to-Foreign Transactions . The NCA has the power to order the parties to submit a notification even if the above thresh - olds are not met. Moreover, the NCA may also order parties to notify transactions not leading to a change in control (minority acquisitions). In both instances, the NCA must order notifica - tion within three months of a binding agreement being reached or the transaction being com - pleted (whichever occurs first). The NCA has full investigative powers once notification is ordered (see 2.11 Power of Authorities to Investigate a Transaction ). If a transaction triggers a filing under the EUMR then a filing will not be required in Norway even if the filing threshold is met (subject to the excep - tion outlined in 1.3 Enforcement Authorities regarding products outside of the scope of the EEA Agreement).
The NCA also has the power to review acqui - sition of shares not leading to control (minority acquisitions). Such transactions are not subject to mandatory notification, but may be called in for review, see further details in 2.11 Power of Authorities to Investigate a Transaction . Internal restructurings or reorganisations within a single economic entity will not constitute a con - centration under the Competition Act. 2.4 Definition of “Control” The test for control under the Competition Act is identical to that under the EUMR. The decisive question is whether a party acquires the pos - sibility of exercising decisive influence on the strategic decisions of a separate undertaking. The possibility of exercising decisive influence can exist on the basis of rights, contracts or any other means, either separately or in combina - tion, and having regard to the considerations of fact and law involved. Consistent with the approach under the EUMR, control can be either be de jure or de facto. • De jure control can be reached either by hold - ing a majority of the voting rights or through shareholders’ agreements or similar, giving rights to control the undertaking or the ability to block strategic decisions via veto rights, which go beyond standard minority protec - tions. • De facto control can be reached by acquiring a share of the voting rights normally giving a majority at shareholders’ meetings while still below 50% or through other dependencies of the undertaking in question or by other means giving decisive influence over an undertaking.
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