NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
have the power to order the parties to reverse the transaction while the case is under review. How - ever, the NCA has the power to require a divest - ment remedy as part of a decision to block the transaction. If such decision is appealed to the CAT, the NCA and the CAT may impose hold-sep - arate measures as a condition to grant deferred implementation of the decision on appeal. 2.13 Penalties for the Implementation of a Transaction Before Clearance If a party breaches the standstill obligation – ie, by implementing a transaction subject to man - datory notification or where notification has been ordered (see 2.5 Jurisdictional Thresholds ) prior to receiving clearance from the NCA, the NCA can impose an administrative fine of up to 10% of the liable party’s annual aggregate turnover, provided that the infringement was grossly negli - gent or intentional. The NCA has previously fined Norway’s largest grocery chain NOK25 million for the transfer of several leases for shop spac - es from a competitor before obtaining approval from the NCA. In addition, as mentioned in 2.11 Power of Authorities to Investigate a Transaction , cer - tain companies are under an obligation to dis - close all acquisitions in specified markets to the NCA. Failure to make such disclosure can result in a fine of up to 1% of the liable party’s annual aggregated turnover. In recent years, the NCA fined one company NOK20 million for failing to satisfy this requirement (but later withdrew the fine). Another company was fined NOK3 million. It is also possible to impose criminal fines and/ or imprisonment for a period of up to three years (or up to six years if severely aggravating circum - stances exist) on individuals for grossly negligent or intentional infringement of the standstill obli -
gation. To date there have not been any cases where this power has been used. It is worth noting that non-confidential versions of all sanction decisions under the Competition Act are made public. 2.14 Exceptions to Suspensive Effect A general exception to the standstill obligation exists for the execution of a public bid or a series of transactions in securities. This only applies if the transaction is immediately notified to the NCA, and the acquirer refrains from exercising the voting rights associated with the securities or only does so to maintain the full value of their investment in accordance with a special exemp - tion granted by the NCA. Even if the above criteria do not apply, it is still possible for notifying parties to apply to the NCA for an exception, for example where the target is insolvent. While the NCA has issued conditional derogations from the standstill obligation under these conditions, the NCA is generally reluctant to grant exemptions. In cases where there is no significant overlap, the NCA instead appears to prefer an expedient handling of notifications. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Except for the circumstances explained in 2.14 Exceptions to Suspensive Effect , there are no general exceptions to the standstill obligation for notifiable transactions. This applies also to partial implementation of a transaction outside Norway, if it is considered to be part of the same trans - action ( Foretakssammenslutning ) as the notified concentration. In such cases, carving out the Nor - wegian parts and implementing the transaction outside of Norway would require a derogation by the NCA from the standstill obligation. Such dero -
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