NORWAY Law and Practice Contributed by: Ida Marie Windrup, Kristine Hjertenæs, Markus Nilssen and Daniel Jovanovic, BAHR
the equity ratio of the whole corporate group. Moreover, this rule is only relevant if net interest for the Norwegian group exceeds NOK25 mil- lion. For standalone companies, the same EBITDA- based rule applies, but only to a calculated net interest on loans from related parties (or loans guaranteed by related parties) exceeding NOK5 million. Disallowed interest deductions can be carried forward for up to ten years. All interest must be based on arm’s length terms. General anti- avoidance rules also govern the use of tax posi- tions. Norwegian tax advice should be obtained early when setting up a holding structure for acquiring a Norwegian company from abroad. Specialised rules for interest deduction exist for companies within the oil tax and tonnage tax regimes, which differ from the standard tax rules. Several industries in Norway are regulated to a varying degree, including banks, financial insti- tutions and insurance companies, aquaculture and oil production. Concession requirements vary and must be considered on a case-by-case basis. Effect on Transaction Concession requirements can prevent the acqui- sition of a target until concession is achieved. For example, acquisition by a buyer (or several buyers acting in concert) of 10% or more of the share capital or voting rights, or a stake that oth- erwise gives the owner “significant influence” 9. Takeover Finance 9.1 Regulated Targets Regulated Industries
over a Norwegian bank, financial institutions and insurance companies will be subject to a concession. Additionally, according to the Norwegian Com- petition Act, transactions involving a merger or acquisition of control (a “concentration” ) must be notified to the Norwegian Competition Authority ( Konkurransetilsynet ) if: • the undertakings involved in the transaction have a combined annual turnover in Norway equal to NOK1 billion or more; and • at least two of the undertakings concerned each has an annual turnover exceeding NOK100 million. Additionally, the Norwegian Competition Author- ity has the competence to order a notification of non-controlling minority shareholdings and transactions falling below the turnover thresh- olds if it has reason to believe that a transaction may affect competition in Norway. This order must be issued within three months from sign- ing or closing (whichever comes first). An automatic standstill period applies until the Competition Authority has issued a final deci- sion. If the turnover thresholds of the EU Merger Regulation (EUMR) are met, the NCA will not have jurisdiction to review the concentration and no notification is required in Norway. Note however that for some product markets not cov- ered by the EEA Agreement – eg, fish and certain agricultural products, a notification in Norway may still be required, even if the thresholds in the EUMR are met, in addition to an EU filing. 9.2 Listed Targets Norwegian and foreign companies listed on a regular market in Norway are, with a few exemptions, subject to regulations pursuant
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