Anticompetitive agreements

Assessment framework

What is the general framework for assessing whether an agreement or concerted practice can be considered anticompetitive?

Section 10 of the Competition Act mirrors Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement. In practice, the case law of the European Court of Justice, the General Court, the European Commission, the European Free Trade Association (EFTA) Court and the EFTA Surveillance Authority relating to these provisions is relevant when enforcing Section 10 of the Competition Act. While the Norwegian Competition Authority (NCA) has yet to issue guidelines on the application of Section 10 of the Competition Act, it has published guidelines on project cooperation.

Technology licensing agreements

To what extent are technology licensing agreements considered anticompetitive?

Technology licensing agreements will typically be considered anti-competitive if they involve cooperation on prices or market sharing. Technology licensing agreements between non-competitors will be viewed more favourably than similar agreements between competitors, and potential competition concerns increase with increasing market shares.

A block exemption regulation for technology transfer agreements has been adopted to exempt agreements from Section 10 of the Competition Act if they satisfy the criteria set out by that regulation. Norwegian block exemptions normally mirror the corresponding EU and EEA framework in place at any given time. However, the Norwegian block exemption for technology transfer agreements has not yet been updated to reflect EU Regulation 316/2014/EC and still reflects EU Regulation 772/2004/EC.

The NCA has not issued its own guidelines on the application of Section 10 on technology licensing agreements. In practice, the European Commission's guidelines and case law from the European Commission, the European Courts, the EFTA Surveillance Authority and the EFTA Court will be relevant in the interpretation and application of Section 10 to technology licensing agreements. 

Co-promotion and co-marketing agreements

To what extent are co-promotion and co-marketing agreements considered anticompetitive?

Co-promotion and co-marketing agreements between competitors may have anti-competitive effects. Potential competition concerns increase with increasing market shares. The NCA has not issued its own guidelines on the application of Section 10 of the Competition Act to co-promotion or co-marketing agreements. In practice, the European Commission's guidelines and case law from the European Commission, the European courts, the EFTA Surveillance Authority and the EFTA Court will be relevant in the interpretation and application of Section 10 to such agreements.

Other agreements

What other forms of agreement with a competitor are likely to be an issue? How can these issues be resolved?

In general, all agreements that have an impact on actual or potential competition between parties or affect the competitive position of third parties may potentially be an issue under Section 10 of the Competition Act. Examples include production agreements between competitors and R&D agreements. For as long as such agreements on the balance are pro-competitive, they will be permissible. Confidentiality provisions and access restrictions may in appropriate cases be necessary or helpful to resolve competition concerns.

Issues with vertical agreements

Which aspects of vertical agreements are most likely to raise antitrust concerns?

A block exemption regulation for vertical agreements has been adopted to exempt agreements from Section 10 of the Competition Act if they satisfy the criteria set out by that regulation. The regulation reflects the EU Block Exemption Regulation on Vertical Restraints (330/2010). Consequently, vertical agreements between non-competitors will normally be exempt from Section 10 provided that the parties do not have market shares exceeding 30%, with the exception of agreements that have as their object certain hardcore restrictions identified in Section 4 of the Norwegian regulation which corresponds to Article 4 of the EU Block Exemption Regulation on Vertical Restraints (eg, resale price maintenance, market and customer sharing and certain restrictions within selective distribution systems).

The European Commission's guidelines and case law from the European Commission, the European courts, the EFTA Surveillance Authority and the EFTA Court will be relevant in the interpretation and application of Section 10 of the Competition Act in regard to vertical agreements.

Patent dispute settlements

To what extent can the settlement of a patent dispute expose the parties concerned to liability for an antitrust violation?

The NCA is likely to analyse patent dispute settlements having regard to Section 4.3 of the European Commission's guidelines on technology transfer agreements. In this regard it will likely consider whether the settlement agreement is a legitimate way to secure a mutually acceptable compromise in a genuine legal disagreement or whether it arises from an anti-competitive objective. The NCA is also likely to scrutinise whether the settlement contains individual terms that go beyond what is objectively necessary to achieve the intended purpose. 

Joint communications and lobbying

To what extent can joint communications or lobbying actions be anticompetitive?

Joint communications or lobbying activities will in practice rarely fall within the ambit of Section 10 of the Competition Act if they relate to laws or policies. However, if such activities result in the exchange of sensitive commercial information or the alignment of market strategies or otherwise affect the market conduct of two or more undertakings, Section 10 may come into play.

For example, in 2002 the NCA reported two participants in a trade association to the prosecutor for financial crime on allegations of violation of the prohibition against price fixing that applied at the time (the Competition Act did not enter into force until 2004). The two undertakings were the only players on the mill market in Norway at the time and, through their trade association, had given feedback to the authorities on a prospective regulatory change that they argued would lead to higher prices. The authorities nevertheless adopted the change and shortly thereafter both members of the trade association introduced higher prices. The two companies accepted a fine from the prosecutor.

Public communications

To what extent may public communications constitute an infringement?

Like the European Commission, the NCA has taken an interest in the potential anti-competitive effect of public statements. After a sector inquiry into the financial sector several years ago, the NCA made it clear that banks' public statements about future changes to their interest rates may be problematic under the Competition Act, but no individual cases were investigated on this basis. The NCA is likely to be similarly sceptical towards public communications in other sectors.

Exchange of information

Are anticompetitive exchanges of information more likely to occur in the pharmaceutical sector given the increased transparency imposed by measures such as disclosure of relationships with HCPs, clinical trials, etc?

In general, increased transparency in a sector may increase the risk of anti-competitive exchanges of information.

In early 2019, the NCA advised against a proposal from certain health politicians to make the net prices for pharmaceuticals negotiated between manufacturers and Norwegian health authorities available to the general public pursuant to the rules on transparency in the public sector, due to concerns over the resulting increased risk of collusion between manufacturers.