An extract from The Public Competition Enforcement Review, 12th Edition

Merger review

Section 18 et seq. of the CA requires that concentrations meeting certain thresholds are notified to the NCA. Thus, concentrations where the undertakings concerned have a combined annual turnover in Norway exceeding 1 billion kroner must be notified, unless only one of the undertakings concerned has an annual turnover in Norway exceeding 100 million kroner.

Since the CA entered into force in May 2004, the NCA has intervened in 50 cases, of which 16 concentrations have been prohibited.

The procedure pursuant to the CA reflects roughly the EU Merger Regulation, albeit with substantially shorter pre-notification discussions. The main features are as follows: Phase I lasts 25 working days. A standard standstill prohibition applies until approval. There is no deadline for notifying a concentration. Concentrations that are unlikely to affect competition may be notified by a short-form notification, with market share thresholds mirroring the DG COMP Short Form CO. The notion of a 'concentration' mirrors that of the EU Merger Regulation, and the same holds true for the substantive test: the significant impediment of effective competition test. The Competition Authority publishes a notice of all notified concentrations on its website.

During 2019, the NCA concluded in 111 cases and received 107 (new) merger notifications. Some 110 cases were approved in Phase I. Three cases triggered an intervention by way of approvals subject to conditions (two cases) and an outright prohibition (one case).

Although Norway is not an EU Member State, it is covered by the one-stop shop of a Form CO filing to the European Commission pursuant to the EUMR. Two key particularities are that turnover in Norway (EFTA) is not relevant for the assessment of the European Commission's jurisdiction, and the European Commission's jurisdiction only covers products and services covered by the EEA Agreement (Article 8). Thus, exceptions include, inter alia, agricultural products, which may require a separate filing in Norway if national jurisdictional thresholds are met. There are also additional EEA and EFTA particularities in relation to the referral procedures between the European Commission and the NCA.

i Significant casesNon-controlling minority shareholding: The Alarm case (Sector Alarm/Nokas) – conditions

In March 2019, the NCA adopted its decision in Sector Alarm Group AS/Nokas AS – the NCA's first ever decision related to a non-controlling minority shareholding. The case addressed home alarm markets in Norway. These markets are highly concentrated with mainly two players: Sector Alarm and Verisure (see also the SO in the 2019 cartel case between the same companies mentioned above). The contemplated transaction was based on Sector Alarm acquiring a 49.9 non-controlling stake in Nokas. Nokas could be perceived as a small 'maverick' for house alarms in Norway. The case was closed based on commitments related to a reduced ownership threshold of 25 per cent by Sector Alarm in Nokas and that Sector Alarm would not acquire the company Nokas Small Systems.

IT services: The Tieto/Evry merger approved, subject to conditions

The NCA announced 1 November 2019 that the merger between Tieto Oyj and Evry ASA, notified to the NCA on 15 September 2019, was approved subject to remedies. Both Tieto and Evry provides software and related IT services in Norway, with appreciable horizontal overlaps in the segment for e-case files and e-archives for the public sector. The parties proposed as a remedy that Evry's activities in this segment would be divested to an independent suitable buyer prior to completion of the transaction. Against this background, the transaction was approved 35 days after notification. The company Karbon Invest AS was approved as a new owner of EVRY's archives business in a separate NCA decision of 29 November 2019, and the standstill obligation on the merging parties was subsequently lifted.

Offshore accommodation services: Prosafe's acquisition of Floatel blocked

On 28 October 2019, the NCA issued a decision prohibiting Prosafe SE's acquisition of Floatel International Limited. According to the NCA, the contemplated transaction involved the two largest and closest competitors on the Norwegian market for offshore accommodation services: Prosafe and Floatel. Prosafe and Floatel are the only suppliers of modern semi-submersible accommodation units on the Norwegian continental shelf. Accommodation units offered by other suppliers on the Norwegian continental shelf are, in the opinion of the NCA, not fully comparable to those offered by the parties. Other suppliers are, therefore, not able to compete for all contracts. During the investigation, Prosafe proposed remedies with a view to remove the negative effects on competition that would result from the merger. However, the NCA's assessment was that the remedies as proposed were not sufficient to eliminate the competition concerns identified. The decision has been appealed and is currently pending review at the Competition Appeals Tribunal.

ii Trends and outlook

The NCA has for many years focused on competition in local markets, which has led to a higher number of prohibition decisions than in comparable jurisdictions with a more neutral focus. The same focus has led the NCA to have one of the highest global ratios of prohibition decisions compared to the number of launched Phase II investigations. In 2019, one in three interventions was a prohibition decision.

Most of the NCA's internal enforcement resources are allocated to merger control, with the effect that complex cases under Sections 10 and 11 (Articles 101 and 102 TFEU cases) are usually not subject to an in-depth investigation. One key exception is the NCA's focus on the groceries sector.