NORWAY Law and Practice Contributed by: Elin Moen, Arne Torsten Andersen, Helge Stemshaug and Beret Sundet, BAHR
be informed through a short email. The parties will also receive a brief decision summarising the main arguments for closing the case when cases are closed in Phase II. Non-confidential versions of such decisions are also published on the NCA website. The NCA may intervene in foreign-to-foreign mergers if an effect in a Norwegian market, or a market in which Norway is part, can be demon - strated. This may – eg, be the case if the parties have sales to Norway or Norwegian subsidiaries. The substantial test is the same as for domestic transactions. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions “Pure” foreign-to-foreign mergers – ie, without any effect in Norway, are unlikely to attract the NCA’s attention and fulfil the substantial test. As explained in 2.8 Foreign-to-Foreign Transac- tions , according to a guidance paper published by the NCA, the NCA is of the view that foreign-to- foreign transactions without any possible effect in Norway (even if the notification thresholds are ful - filled – eg, through sales to Norway) may fall out - side the territorial scope of the Competition Act (according to Section 5 of the Competition Act). 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The clearance decision will not specifically approve any ancillary restraints. A notifying par - ty is therefore responsible for ensuring that all ancillary restraints are compatible with Section 10 and 11 (Articles 101 and 102 TFEU equiva - lents).
It is not possible to separately notify ancillary restraints under Sections 10 or 11 of the Com - petition Act. However, it may be possible to obtain informal input from the NCA during their review of the transaction. It is therefore impor - tant to describe all ancillary restraints clearly in the merger notification. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties (such as customers, competitors or complainants) do not have any formal procedur - al intervention rights in the merger control review process in Norway. Third parties may however receive and be obliged to reply to requests for information from the NCA. Third parties may also submit submissions of any kind if they have any views on or concerns about a transaction, and request meetings with the NCA to give input. According to the Freedom of Information Act, any third party has a right to access the NCA’s file during and after the NCA’s investigation and may request access to non-confidential docu - ments of any kind in the file. 7.2 Contacting Third Parties After receiving a notification in a case with poten - tial competition issues, the NCA may initiate an informal “market testing”, where it contacts rel - evant customers, competitors or suppliers. In more complex cases, the NCA may also send formal requests for information to relevant third parties, typically customers and competitors. RFIs may also be sent to other public bodies – eg, regulators in transactions in a regulated mar - ket. RFIs to third parties can be comprehensive and require submission of detailed responses.
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