Antitrust: restrictive agreements and dominance
Section 10 of the CA mirrors Article 101 TFEU and Article 53 of the EEA Agreement. Moreover, Section 11 of the CA mirrors Article 102 TFEU and Article 54 of the EEA Agreement. Thus, Section 11 CA prohibits a company's unilateral abuse of a dominant position. Judgments of the EUCJ and the EFTA Court are directly relevant legal sources in the interpretation and application of the provisions.
Regarding public enforcement tools, the CA includes the possibility of commitment decisions mirroring that of Regulation 1/2003 in the EU.i Significant cases
Four (ongoing or decided) cases merit mention.NCA casesTelenor abuse case – telecoms
On 21 June 2018, the NCA adopted an abuse case (Article 54 EEA/Section 11 CA) decision to fine the Norwegian telecoms incumbent Telenor 788 million Norwegian kroner. This is the highest competition law fine ever imposed by the NCA. The case relates, in essence, to an alleged abuse by Telenor of its dominant position by engaging in conduct that impeded the entry of a third mobile network in Norway. Norway has been one of very few countries in Europe with only two mobile operators with their own nationwide mobile networks, with Telenor as the dominant player. Mobile operators without their own network have to rent access to either Telenor's or Telia's network. Owing to the lack of effective competition, Norwegian authorities still regulate the Norwegian mobile wholesale market. Therefore, the development of a third mobile network was key to achieving increased competition in this market. In 2007, Network Norway started the construction of a third mobile network together with Tele2. During the rollout of the network, Network Norway bought access to Telenor's network in the areas where the third mobile network did not yet have coverage. In 2010, Telenor changed the conditions in its network access agreement with Network Norway. It is in this regard that the NCA has found that Telenor abused its dominant position. Through the new agreement Telenor reduced the cost for the actual use of Telenor's network, but at the same time introduced a fee that increased with the number of Network Norway's end users. This fee was a cost that Network Norway could not avoid by increasing the use of its own network. This reduced Network Norway's incentives to continue the rollout of the third mobile network. The NCA decision has been appealed by Telenor to the Competition Appeals Tribunal.ESA casesWiderøe case – aviation
On 2 May 2018, ESA adopted a statement of objections informing Widerøe's Flyveselskap AS (Widerøe) of its preliminary conclusion that Widerøe may have abused a dominant position in Norway in breach of Article 54 EEA. Previously, airlines needed a specific satellite-based approach system to compete in public tender processes to service several Norwegian PSO routes. The system is called SCAT-1 and was installed at many regional airports in Norway for safety reasons. At the airports where this system was installed, PSO aircraft were required to have certain SCAT-1 receivers on board. Widerøe owns all of the available receivers. ESA's preliminary view is that Widerøe infringed Article 54 EEA by refusing to supply the SCAT-1 receivers to possible competitors. Consequently, according to ESA, Widerøe appears to have been the only airline able to win a number of the PSO tenders.Trustly antitrust case – financial sector
On 25 October 2016, ESA opened proceedings against DNB, Nordea, Finance Norway and BankID for suspected breaches of Article 53 of the EEA Agreement. ESA is investigating whether these members of the Norwegian banking community engaged in concerted practices aimed at blocking a new market entrant, the Swedish company Trustly, from providing a new e-payments service in Norway. At present, Norwegian consumers are unable to benefit from a new service that is now available in most other EEA countries. ESA will investigate whether there are valid reasons for this under the EEA competition rules. The substance of the case fits with the implementation of the Payment Services (PSD2) Directive in 2018, pursuant to which it is likely that foreign e-payment service providers such as Trustly will obtain market access. The investigations are ongoing; however, informal signals from ESA may suggest that the case will be closed in early 2019.Telenor abuse cases – telecoms
On 1 February 2016, ESA sent a statement of objections to Telenor. The case concerns Telenor's conduct in three Norwegian markets: the market for wholesale mobile access and origination services, the market for mobile broadband services to residential customers and the market for mobile communications services to business customers. ESA takes the preliminary view that Telenor's pricing of access and origination services at the wholesale level likely impeded competing offers in the market for mobile broadband services to residential customers. In the market for mobile communications services to business customers, ESA is concerned that clauses in Telenor's contracts have impeded competition by making it very difficult for its customers to switch provider and by making it overly expensive for competitors to capture customers from Telenor. The case is still ongoing.Dawn raids
Neither the NCA or ESA has published any information related to dawn raids in abuse cases in 2018. The NCA conducted an abuse case dawn raid at the premises of the brewery Ringnes in January 2017. The case involves Ringnes' operations regarding the sale of beer to eateries in Norway. No further details have been made public in 2018.ii Trends and outlook
The NCA has finally adopted a decision pursuant to Section 11 CA (abuse of dominance), a provision introduced into Norwegian law by the entry into force of the CA in 2004. Until the 2018 Telenor decision the NCA had not taken any abuse case decisions that were not later settled or quashed by the courts. (Two major cases that were settled or quashed are the SAS case of 2005 and the Tine case of 2011.) Thus, irrespective of the Telenor decision in 2018, it is safe to say that the enforcement of abuse of dominance cases by the NCA is low.
ESA has successfully enforced the similar provision of the EEA Agreement (Article 54) on several occasions, of particular note in the Posten case of 2010 (fines of approximately €11 million) and the Color Line case of 2013 (fines of approximately €19 million).
With regard to the application of Section 10 to vertical agreements, it could be noted that the NCA has not adopted any such decision after the entry into force of the CA in 2004.