An extract from The Public Competition Enforcement Review, 12th Edition
The substantive cartel provision in Section 10 of the CA mirrors Article 101 TFEU and Article 53 EEA Agreement, except for the criterion related to effect on trade between EEA States. Thus, Section 10 CA prohibits agreements and concerted practices that have an anticompetitive object or actual or potential restrictive effect on competition. Judgments of the European Union Court of Justice (EUCJ) and the EFTA Court are directly relevant legal sources in the interpretation and application of the provision.
The leniency policy pursuant to the CA is similar to that of Regulation 1/2003 in the EU, including the possibility of obtaining a marker:
- the first applicant may be granted full immunity from administrative fines;
- the second company may be granted a 30 to 50 per cent reduction;
- the third company may be granted a 20 to 30 per cent reduction; and
- subsequent companies may be granted a reduction in fines of up to 20 per cent.
In contrast to the EEA Agreement provisions, cartel behaviour in breach of the CA can also trigger criminal sanctions, including fines and ultimately imprisonment of individuals, in theory of a duration of up to six years in aggravating circumstances. On the one hand, criminal sanctions have yet to be applied in a cartel case in Norway, not to mention criminal sanctions against individuals. On the other, the NCA adopted specific guidelines in 2016 on criteria when they will consider reporting an individual offence to the Public Prosecution's office, and the instructing ministry has requested the NCA to consider imposing criminal sanctions on individuals in future cases. The leniency programme is not available to individuals. However, it is possible to anonymously enquire at the NCA whether they will request criminal sanctions against individuals as a prejudgment decision.
There is a settlement procedure available pursuant to the CA mirroring that of Regulation 1/2003, possibly reducing an administrative fine by 10 per cent. The provision entered into force in 2016 and has yet to be applied.i Significant cases
The NCA adopted no cartel decisions in 2019.Verisure/Sector Alarm – statement of objections
The NCA issued a statement of objections in June 2019 against two home alarm companies. The NCA's preliminary assessment was that the companies had cooperated by agreeing not to approach each other's customers for the years 2011 to 2017. The NCA has indicated fines of 784 million kroner and 423 million kroner to Verisure and Sector Alarm, respectively. One of the parties, Sector Alarm, has already accepted the fine but has not admitted illegal collusion. A final decision is expected in 2020.
The only significant case reaching beyond Norway is the Farmed Atlantic Salmon case mentioned above. This case is being looked into by, inter alia, the European Commission and the US Department of Justice, albeit as publicly known not the NCA (recalling that the NCA still has jurisdiction since fisheries are not covered by the EEA Agreement).Dawn raids
The NCA carried out cartel dawn raids in two cases in 2019, in total at five different companies.
One of the dossiers is related to the ongoing surveillance of the groceries sector. In this sector, the NCA carried out a dawn raid in Spring of 2018 – and this dawn raid was followed by a second raid in November 2019. The investigation relates to prices and rebates between producers and the (few) groceries chains. In the wake of the November 2019 dawn raid, the NCA published a report on purchasing conditions for the grocery chains, showing considerable price differences in the Norwegian groceries sector. The NCA collected price information from 16 suppliers in total, analysing prices of about 2,900 products. The report showed that several suppliers offer the grocery chains Rema 1000, Coop and Norgesgruppen different purchasing conditions. In some cases, some suppliers operate with price differences of more than 15 per cent on products they sell to the grocery chains. The Norwegian groceries sector is highly concentrated, but the NCA has not made the exact scope of their investigation public.
The other dawn raid in 2019 was related to alleged bid-rigging in the recycling sector. The NCA later closed this case, in October 2019.
In October 2019, the NCA stated that it opened an investigation of possible anticompetitive practices in the retail fuel market. The NCA has followed this market closely for several years. As part of its monitoring, the NCA has requested market players submit market data twice a year, including their prices, sales volumes and purchasing terms. The initiation of the investigation was based on findings from the NCA's market monitoring of this market. There is no publicly available information on any dawn raid relating to these investigations.
Neither the European Commission nor ESA carried out any cartel dawn raids in Norway in 2019. However, as mentioned, the European Commission carried out dawn raids in February 2019 against units located in the EU of Norwegian companies in the Farmed Atlantic Salmon case.ii Trends and outlook
If one were to identify one sector during 2020 and beyond, it is the groceries sector. Apart from the investigations in this sector, the NCA has to a large degree allocated its limited enforcement resources to merger control.