Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
There is no deadline for filing. As long as the transaction is not implemented, it is up to the parties to decide when to submit the notification.
The NCA may impose fines of up to 10 per cent of the undertaking’s turnover for not filing. In practice, the NCA will fine the undertaking for closing before clearance if it has failed to notify (see question 12).
Which parties are responsible for filing and are filing fees required?
In the case of mergers, the obligation to notify rests with the merging parties jointly. If two or more undertakings acquire joint control over one or more other undertakings, the obligation to notify rests with the acquiring undertakings jointly. If a single undertaking acquires control over one or more other undertakings, the obligation to notify rests with the acquiring undertaking. No filing fees are required.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
The automatic standstill rule applies to all concentrations that are subject to notification to the NCA, until the NCA has concluded its handling of the case.
The NCA has granted a number of exemptions from the standstill obligation on a case-by-case basis. This includes several cases concerning acquisitions where the target has been in financial difficulties and the value of the target business could be significantly diminished if the parties could not begin implementation prior to the NCA’s clearance.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
Infringement of the standstill obligation may entail significant fines. Such fines may be imposed to transactions where the parties are fully integrating their business, as well as transactions where only partial integration has taken place. The NCA may issue a fine of up to 10 per cent of the undertaking’s turnover. In February 2014, the NCA issued a record high fine of 25 million kroner for infringement of the prohibition against implementation. Other than that case, and one case where a company was fined 700,000 kroner in December 2014, the fines have been well below 1 million kroner. The latest fine, from May 2017, was 300,000 kroner.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
In principle, sanctions also apply to cases involving closing before clearance in foreign-to-foreign mergers. So far, however, no sanctions have been applied in such cases.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
The Competition Act does allow for an exemption from the prohibition against implementation of concentrations on a case-by-case basis. By obtaining such exemption, the parties to a foreign-to-foreign merger may be allowed to close the transaction as long as Norwegian markets (or markets of which Norway may be a part) are not affected. An exemption on this basis has so far only been granted in one case.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
A specific regulation provides for an exemption for public takeover bids from the automatic standstill obligation, corresponding to article 7(2) of the EUMR.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
The level of detail required in a notification depends primarily on the existence of affected markets (overlap between the undertakings concerned), and the position of the undertakings concerned on those markets. The requirements are relatively extensive if the undertakings concerned have a combined market share of more than 20 per cent in a market, or more than 30 per cent in two markets that are vertically connected. These market share thresholds were harmonised with those in Form CO of the Implementing Regulation under the EUMR as of 1 July 2016.
The notification is to include the following categories of information:
- contact information;
- description of the transaction;
- descriptions of the undertakings concerned;
- descriptions of affected markets (see thresholds mentioned in the paragraph above), including as a minimum a description of the market structure, lists of the most important competitors, customers and suppliers, and a description of barriers to entry;
- account of any efficiencies;
- whether the concentration is subject to notification to other competition authorities;
- latest version of the agreement constituting the concentration, including any attachments; and
- annual reports and annual accounts of the undertakings concerned.
The notification must be submitted in Norwegian.
Any business secrets must be clearly marked in the notification, and all confidentiality claims must be substantiated for the notification to be regarded as complete. Furthermore, a proposal for a public version of the notification is to be included with the notification. The NCA is required to publish some basic information about every notification on its website.
The Notification Regulation includes a system of Simplified Notification. On conditions similar to those of the ‘Simplified Procedure’ under the EUMR, the notifying parties may submit a Simplified Notification.
If the parties do not satisfy the above-mentioned requirements for the notification, the deadlines for NCA’s handling of the case will not start running until the information requirements are met, see question 18. Section 32 of the Competition Act also contains a legal basis to fine or (in the most severe cases) sentence an imprisonment, if the parties or others provide the NCA with incorrect or incomplete information. So far, only one undertaking has been sanctioned for submitting incorrect or incomplete information. In this case from 2009, the NCA imposed a fine of 50,000 kroner on the undertaking. Our understanding is that the threshold for the NCA applying such sanctions is very high.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
There is no obligation to consult with the NCA before filing a merger notification. In complex cases, it is, however, often advisable to approach the NCA at an early stage and present the main issues and available data, and to enter into pre-notification discussions. Confidentiality is respected, so that discussions may take place before the deal is signed. Traditionally, pre-notification has historically not been very common in Norway, but following the changes to the filing system in 2014, the NCA has promoted pre-filing discussions.
For more information on the different phases of the investigation, see question 18.
What is the statutory timetable for clearance? Can it be speeded up?
Upon submission of a notification, the NCA has 25 working days to give notice that intervention may take place (Phase I). The NCA must briefly state its reasons for doing so. If no notice of possible intervention is given, the transaction is cleared. In non-problematic cases, it is the NCA’s practice to clear the case before expiry of the deadline in Phase I by way of an informal notice.
If the notifying parties present remedies within 20 working days of submission of the notification, the initial deadline of the NCA is extended by 10 working days. In such a case, the NCA may accept and make binding the remedies within the extended deadline. However, no remedy decisions have been made in Phase I according to this procedure.
If the NCA does give notice of possible intervention, it has 70 working days (ie, 45 additional working days) (Phase II) from receipt of the notification to either accept and make binding any remedies presented by the notifying parties or issue a reasoned draft prohibition decision. If the notifying parties present remedies later than 55 working days after submission of the notification, the deadline of the NCA is extended accordingly.
The parties have 15 working days to submit their comments to a draft prohibition decision. After the parties submit such comments, the NCA has 15 working days to issue its decision. If remedies are presented after the NCA has issued its reasoned draft prohibition decision, the deadline of the NCA to issue its decision after comments from the parties can be extended by 15 working days. As of 1 July 2016, the NCA can, on request or approval from the parties, extend its final deadline to issue its decision with 15 additional working days. In such cases the maximum timetable for clearance is 145 working days.
The deadlines of the NCA are primarily prolonged owing to incomplete notifications and presentation of remedies by the parties. The NCA has a strict approach to marking of business secrets and substantiation of confidentiality claims, and has on numerous occasions not accepted notifications as complete on those grounds.
In cases where the NCA considers intervention in Phase II, and where acceptable remedies are not presented at an early stage, the NCA will usually exhaust its deadlines before making a final decision. The review process in such cases could take about six months if remedies are submitted during the in-depth investigation.