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 Norwegian kroner must be notified, unless only one of the undertakings concerned has an annual turnover in Norway exceeding 100 million Norwegian kroner.
Since the CA entered into force in May 2004, the NCA has intervened in 47 cases, of which 15 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 2018, the NCA received 111 merger notifications, of which two triggered an intervention by way of approvals subject to conditions.
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 casesE-payments: Vipps, BankID and BankAxept – approved, subject to conditions
The Vipps, BankID and BankAxept merger was approved by the NCA 27 April 2018. The merger created the largest electronic payment and identification verification operator in the Nordic region. Access to BankID and BankAxept is, however, essential also for other players to compete effectively against the consolidated company. Thus, the merger was approved subject to the following conditions: (1) the consolidated company commits itself to offer BankID to third parties' payment solutions on non-discriminating terms; (2) the consolidated company commits itself to offer necessary services for the issuing of virtual BankAxept cards to third parties' payment solutions on non-discriminating terms; (3) the consolidated company is committed to offer BankAxept as a separate service; and (4) the decision is valid for three years with an option to renew.Fuel retail markets: St1/Statoil Fuel & Retail Marine approved, subject to remedies
On 20 June 2018, the NCA approved the acquisition of Statoil Fuel & Retail Marine by St1, subject to conditions. Both companies are active in markets related to marine gas oil, products to be used as fuel for maritime vessels. Against the background of appreciable overlap between the parties in Stavanger, Tromsø and Harstad, the parties accepted various structural commitments related to these local (geographical) areas.Mobile telecommunication services: Telia, Get and TDC, Phase II approval
On 8 October 2018, the NCA approved Telia's acquisition of Get and TDC Norway. In Norway, Telia mainly operates mobile and fixed telephony services. Get/TDC's main business in Norway is within fixed broadband access and TV services, but the company also has some business in mobile and fixed telephony. The NCA has in several cases expressed concerns related to the competitive situation in the Norwegian market for mobile telecommunications services. Against that background, the NCA market tested the proposed concentration and retained comments from approximately 40 customers and competitors in the affected markets. Based on the market testing the NCA concluded that, despite the fact that Telia and Get/TDC are two major players in Norway, they meet only to a small extent as direct competitors. Based on that the concentration was approved late in Phase II.Other cases
The notification of a joint venture (Nordic Port Services) between Greencarrier Shipping Logistics, DFDS Logistics and Seafront Group, notified on 20 September 2017, was withdrawn by the parties in January 2018. The withdrawal was based on a statement from the NCA conveying its preliminary view that it intended to block the concentration due to the transaction's impediment of competition in markets related to the port terminal services of sea containers.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: for example, in 2016 (97 merger cases) a Phase II investigation was launched in three cases, and all three cases ended with a prohibition decision. It remains to be seen whether this approach will be endorsed by the (new) Competition Appeals Tribunal.
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.