NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
plete standard notification is submitted. Orders for standard notifications are rare, and have only occurred twice over the last 20 years.
when assessing substantive considerations such as market definitions, critical market shares, etc, the NCA will usually not consider itself bound by such case law and will consider each case on its own merits. In contrast, the NCA will fol - low rulings by the CAT and the courts where legal issues have been clarified, for example the Supreme Court’s clarification of the substantive test and its statements related to interpretation of internal documents in the Nettbil case. As the material merger control rules and the substantive test are largely harmonised with the EUMR, case law and guidelines from the Court of Justice of the European Union and the European Commission will also be relevant for the NCA in its assessment. The NCA frequently refers to guidelines from the European Commission and case law from the EU. Although the NCA may take these guidelines and case law into account, this does not preclude it from adopting a differ - ent approach to market definitions and competi - tive assessment. The NCA also often looks to the practice of other national competition authorities. In particular, the NCA often refers to guidance All types of competition concerns may be rel - evant for the NCA’s review of a case (eg, unilat - eral effects, co-ordinated effects, conglomerate or portfolio effects, vertical concerns, effects on innovation, and elimination of potential competi - tion). While horizontal unilateral effects are most frequently assessed, the NCA often also investi - gates possible co-ordinated effects and vertical issues where relevant. 4.5 Economic Efficiencies Efficiencies are in principle relevant for the NCA’s review of merger cases. For the NCA to take claimed efficiencies into consideration they papers and case law from the UK. 4.4 Competition Concerns
4. Substance of the Review 4.1 Substantive Test
The substantive test is the SIEC test (significant impediment to effective competition), which fol - lows the same principles as the EUMR. 4.2 Markets Affected by a Transaction The first step in the NCA’s analysis is to deter - mine on which product and geographic mar - kets the merging parties are active, and then to determine if there are any overlaps between their activities on these markets. The NCA will then consider whether competition on any over - lap markets could be affected by the transac - tion. While a structural analysis (such as market shares, structure of demand and supply, and barriers to entry or expansion) is important for the analysis, the NCA has increasingly focused on closeness of competition between the merg - ing parties and their rivals in horizontal mergers. There is no specific de minimis level below which competitive concerns are deemed unlikely, but as noted in the paragraph above, the NCA will take into account the overall market structure. So, if the parties have low market shares in a market with low concentration, then competition Case law from previous NCA decisions, deci - sions from the CAT (and before the CAT was established in 2017, from the Ministry of Trade, Industry and Fisheries) and Norwegian courts are relevant for the NCA’s assessment of cases. While the NCA will typically consider case law concerns are unlikely to arise. 4.3 Reliance on Case Law
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