NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
4.7 Special Consideration for Joint Ventures Section 16 (5) of the Competition Act essen - tially replicates Article 2 (4) EUMR, and thereby imposes an obligation on the NCA to assess whether the creation of a joint venture (which meets the definition of a concentration) has the object or effect of co-ordinating the competi - tive behaviour of its independent parent com - panies. This assessment takes place according to the criteria in Section 10 of the Competition Act (Article 101 equivalent). If the co-ordination is considered contrary to Section 10, then the NCA must intervene in the transaction. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The NCA can block a transaction or require rem - The parties may propose remedies to relieve a potential SIEC at any stage during the NCA’s review. The NCA may only accept remedies as proposed by the notifying party/-ies and is not in a position to design remedies itself. The NCA will, however, normally give comments on the pro - posed remedies if it considers that the proposal may be adequate to resolve identified competi - tion issues, often leading to an iterative process with several revised remedy proposals before the NCA issues a conditional clearance decision. Remedies can be structural or behavioural, or a combination. Like most regulators in Europe, the NCA has a strong preference for structural remedies. Behavioural remedies are therefore edies if the SIEC test is satisfied. 5.2 Parties’ Ability to Negotiate Remedies
must be well documented, preferably by verifi - able documentation developed by the parties as part of the decision-making process leading up to the transaction. Further, it must be possible to demonstrate that the efficiencies are sufficient to reverse the possible negative effects on com - petition. Therefore, the NCA typically puts most emphasis on efficiencies leading to a reduction in variable costs. In practice, the NCA takes a strict approach to the review of claimed efficiencies and will nor - mally not clear a case with identified competition concerns solely based on efficiencies, although exceptions occur. Appreciable and well-doc - umented efficiencies may, however, indirectly have an influence on the NCA’s approach, even Section 16 of the Competition Act only allows the NCA to intervene where there is a significant impediment to effective competition. Therefore, only issues that may affect competition in any market are relevant for the NCA’s review. The NCA will however consider all aspects of com - petition, and not only price effects. Effects on quality, innovation, consumer choice, etc, may therefore be considered. It can also be noted that the Norwegian government stated that effects on media plurality may be a relevant competitive effect when the Norwegian Media Ownership Act was repealed in 2016. Non-competition issues are relevant in the review of FDI filings, which are made separate - ly from the competition filings (see 9. Foreign Direct Investment/Subsidies Review ). In some sectors (eg, power production and financial ser - vices), approval from relevant regulatory bodies may also be necessary, taking issues other than competition into consideration. if not referred to in its decisions. 4.6 Non-Competition Issues
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