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 2018. The NCA adopted two cartel decisions in 2017, which were upheld on appeal in 2018, albeit with a reduction in the fines.Publishers case – exclusionary conduct
In a judgment of 21 June 2018 the Oslo City Court upheld the NCA's decision of 22 March 2017, in which the NCA fined four publishers for illegal collusion with fines totalling 32 million Norwegian kroner. However, the Oslo City Court reduced the fines. The four publishers account for the majority of books supplied to Norwegian consumers. The NCA found that the cooperation between the publishers had the purpose of restricting competition in the mass market for books. This market includes retail outlets for books that are not traditional bookstores, such as kiosks, grocery stores and petrol stations. There are only two main distributors in this market in Norway, Interpress and Bladcentralen, the latter distributor being jointly owned by the four publishers. The publishers boycotted Interpress, with the effect that books were supplied only to Bladcentralen, the distributor owned by the publishers. Three of the four publishers have initiated a court review of the decision. The NCA conducted a new dawn raid on the said publishers in January 2018 in a case concerning a possible illegal exchange of sensitive information related to the joint venture Bokbasen AS. The joint venture is a distribution platform for e-books in Norway. The EFTA Surveillance Authority is in parallel investigating the Norwegian exemption from the CA related to the possibility to set fixed prices for books for an initial period after publication.El Proffen case – bid rigging
The collusion in this case took place in the spring of 2014 and was related to a public tender for the maintenance of electrical installations in public schools. Five members of El Proffen, a large chain of independent electricians, cooperated on the tender by submitting a joint bid on the invitation from the chain office, irrespective of the fact that each member could have offered on the tender. Thus, the (independent) members agreed on prices instead of competing to submit the best offer. In a decision of 4 September 2017, the NCA imposed fines totalling approximately 18 million Norwegian kroner on the chain – El Proffen – and the five members that participated in the joint bid. The decision was appealed to the Competition Appeals Tribunal, which upheld the NCA decision on 31 August 2018. However, the fines were reduced to 4.7 million Norwegian kroner.Dawn raids
The NCA carried out two cartel dawn raids in 2018. In January 2018, the NCA conducted a dawn raid at certain publishers (see the Publishers case above) concerning a possible illegal exchange of sensitive information related to the joint venture Bokbasen AS. The joint venture is a distribution platform for e-books in Norway. In April the NCA conducted dawn raids in the grocery sector. Moreover, the NCA carried out two cartel dawn raids in 2017, in June in the market for alarm and security services, and in December in the market for waste and waste treatment in Mid-Norway. These investigations are ongoing. There is no information in the public domain on additional ongoing cartel cases in Norway enforced by the NCA (i.e., cases where a statement of objection has been published or cases where public information on dawn raids have been conveyed). Neither the European Commission nor ESA carried out any cartel dawn raids in Norway in 2018.ii Trends and outlook
For several years, the NCA's enforcement resources have to a large degree focused on merger control. However, cartel enforcement has not been limited to leniency cases. On the contrary, most recent cartel cases in Norway have been complaint cases related to collusion by way of bid rigging in local markets.