Abuse of dominanceDefinition of abuse of dominance
How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?
Section 11 of the CA is drafted in line with article 102 of the TFEU, namely, it includes a non-exhaustive list of possible abuses that are identical to the list of possible abuses under article 102 of the TFEU and article 54 of the EEA. In the Tine case from 2011, the Norwegian Supreme Court confirmed that the notion of abuse in section 11 of the CA mirrors that of article 54 of the EEA and 102 of the TFEU.
In the assessment of whether an activity constitutes abuse, the purpose of the CA, namely to ensure economic efficiency and consumer welfare, is of the utmost importance. Moreover, as under the EU and the EEA rules it is clear that the concept of abuse is an objective one. No case laws from Norway establish a particular conduct as subject to a per se prohibition, but the interpretation of section 11 of the CA mirrors that of article 102 of the TFEU and article 54 of the EEA, and will follow relevant developments on this point.Exploitative and exclusionary practices
Does the concept of abuse cover both exploitative and exclusionary practices?
Yes.Link between dominance and abuse
What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominated market?
In relation to this question, the case law related to the application of article 102 of the TFEU and article 54 of the EEA offers important guidance. Consequently, dominance, abuse and potential economic benefit do not necessarily need to occur in the same market. Furthermore, the Norwegian Competition Authority (NCA) in its guidelines holds that showing a link between dominance and abuse is no requirement (eg, a dominant undertaking if entering into an exclusive purchasing agreement could abuse its position even though its dominant position in itself was irrelevant for closing that agreement).Defences
What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?
It is possible to invoke efficiency gains. Moreover, although not expressed in section 11 of the CA (as article 102 of the TFEU), it is possible to defend an allegedly abusive practice on the basis that the conduct in question is necessary to protect legitimate interests (objective justification and proportionality). If exclusionary intent is shown, it appears that such defences cannot be relied upon, see the NCA’s decision V2007-2, Tine v NCA, page 81.