Legislation and jurisdictionRelevant legislation and regulators
What is the relevant legislation and who enforces it?
The relevant legislation for merger control in Norway is Chapter 4 of the Norwegian Competition Act of 5 March 2004 (the Competition Act) and the Regulation on Notification of Concentrations of 11 December 2013 (the Notification Regulation). Both the Competition Act and the Notification Regulation were amended with entry into force on 1 July 2016, as further described in the questions below.
The Norwegian Competition Authority (NCA) is the primary enforcer. The Ministry of Trade and Fisheries (the Ministry) handled all appeals against decisions of the NCA until 1 April 2017. As of that date, however, a new Board of Appeals handles the appeals against decisions of the NCA made after that date, according to the Act of 15 April 2016 (in force partly on 1 July 2016 and partly on 1 April 2017) amending the Norwegian Competition Act. The board is independent, although it is administratively subordinated to the Ministry. The decisions of the Board of Appeals may be directly appealed to the Court of Appeal.
Previously, the Council of State could render decisions in merger cases involving questions of principle or interests of major significance to society. In doing so the Council of State could take into account policy considerations other than the effect of the transaction on competition. However, as of 1 April 2017 the Council of State’s prerogative in rendering decisions in merger cases has been removed.Scope of legislation
What kinds of mergers are caught?
The merger control rules of the Norwegian Competition Act apply to ‘concentrations’, the same concept as found in the EU Merger Regulation (EUMR). According to section 17 of the Competition Act, a concentration is deemed to arise where two or more previously independent undertakings or parts of undertakings merge, or one or more persons already controlling at least one undertaking, or one or more undertakings, acquire direct or indirect control on a lasting basis of the whole or parts of one or more other undertakings.
What types of joint ventures are caught?
The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a ‘concentration’ and is therefore subject to the merger control rules of the Competition Act. This concept of ‘full-function joint venture’ is the same as under the EUMR.
Is there a definition of ‘control’ and are minority and other interests less than control caught?
The concept of ‘control’ is the same as under the EUMR. As defined in section 17 of the Competition Act, ‘control’ is constituted by rights, contracts or any other means that, either separately or in combination, and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by ownership or the right to use all or part of the assets of an undertaking, or rights or contracts that confer decisive influence on the composition, voting, or decisions of the decision-making bodies of an undertaking.
Control is acquired by persons or undertakings that are holders of or entitled to rights under the contracts concerned, or have the power to exercise the rights deriving therefrom.
Acquisitions of minority shareholdings that do not confer control are not subject to the mandatory merger filing requirement of the Competition Act. However, it follows from section 16a of the Competition Act that the NCA may intervene against acquisition of holdings in an undertaking even if the acquisition will not lead to control of that undertaking. An order by the NCA to submit a notification of an acquisition of a minority shareholding must be given within three months of the time of final agreement. According to the preparatory works, this provision does not cover board or management representations as such, which are to be appraised in accordance with section 10 of the Competition Act (corresponding to article 101 of the Treaty on the Functioning of the European Union). The same presumably applies for contractual arrangements.
If an acquisition has been made through successive purchases, the NCA may intervene against the transactions that have taken place within two years from the date of the most recent acquisition.
Under the present Competition Act, which entered into force on 1 May 2004, the NCA has only intervened once against an acquisition of a minority shareholding that did not confer control. This happened in March 2019, when the NCA intervened against Sector Alarm’s acquisition of 49.99 per cent in the vertically integrated competitor Nokas.Thresholds, triggers and approvals
What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
A concentration must be notified to the NCA if:
- at least two of the undertakings concerned each have an annual turnover in Norway exceeding 100 million kroner; and
- the combined annual turnover in Norway of the undertakings concerned exceeds 1 billion kroner.
The principles for calculation of turnover in Norway are the same as under the EUMR.
The NCA may choose to investigate transactions falling below the thresholds, and require a notification. An order by the NCA to submit a notification under these circumstances must be given within three months of the time of final agreement or acquisition of control, whichever occurs first. In the above-mentioned case of Sector Alarm, the NCA also ordered Sector to submit a notification for the acquisition of sole control over Nokas’ security alarm portfolio, although the acquisition fell below the threshold. This decision was also later upheld by the Board of Appeals.
If the turnover thresholds of the EUMR are met, Norwegian competition authorities will not have the authority to review the merger and no notification is required in Norway, except for transactions involving markets for products that fall outside the scope of the EEA Agreement. The rules of the EUMR on referral of cases between the Commission and national competition authorities are largely applicable to Norway through Protocol 24 of the EEA Agreement.
Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
The Competition Act contains a mandatory obligation to notify a concentration to the NCA, provided that the jurisdictional thresholds are met (see question 5). If the jurisdictional thresholds are not met, the concentration can be notified voluntarily. The same applies to minority shareholdings that do not confer control (see question 4).
Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
Neither the Competition Act nor the Notification Regulation contains particular rules or exceptions for foreign-to-foreign transactions. The turnover thresholds for notification apply regardless of whether the undertakings concerned are established in Norway. However, the Competition Act does contain a ‘local effects test’, as it only applies to transactions that have effect, or are liable to have effect, within Norway or in a market of which Norway is a part.
The NCA has confirmed that a merger filing is not required where a transaction does not meet this test. As regards the meaning of local effects, the NCA has taken the position that only effects on competition are relevant and that such effects must pertain to a market within Norway or a wider market that includes Norway. Accordingly, transactions that only affect markets outside Norway will not meet the local effects requirement.
Are there also rules on foreign investment, special sectors or other relevant approvals?
There is no general legislation in Norway applicable to foreign investments. Within some sectors there is special legislation on concessions, limitations on ownership, etc, in particular within the finance, aquaculture and energy sectors. The Norwegian Media Authority’s control over media ownership was abolished as of 1 July 2016, rendering review of changes in media ownership the exclusive responsibility of the Competition Authority.
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.
Substantive assessmentSubstantive test
What is the substantive test for clearance?
The NCA shall intervene against a concentration if it significantly impedes effective competition (SIEC test), in particular as a result of the creation or strengthening of a dominant position and does not entail efficiencies that outweigh the losses resulting from restricted competition. This substantive test was introduced on 1 July 2016, and is harmonised with that of the EUMR. According to preparatory works, decisional practice under the EUMR is directly relevant under the Norwegian Competition Act.
Until 1 July 2016, the NCA was to intervene against a concentration if it created or strengthened a significant lessening of competition (SLC test). In principle, if a significant restriction of competition were deemed to have existed pre-merger, there was no de minimis threshold with respect to concentrations that would entail a further reduction of competition. Under the current SIEC test, the threshold for intervention is arguably higher in such cases. However, according to the preparatory works, the change from the SLC to the current SIEC test is not regarded as having any practical significance for which concentrations the NCA will intervene against.
The former SLC test was based on the total welfare standard, meaning there was no requirement that the efficiencies in question were passed on to consumers. However, under the current SIEC test the consumer welfare standard applies, which implies that efficiencies must be passed on to consumers to be relevant.
Under the SIEC test, the NCA also has to assess whether the transaction will generate any efficiency gains that will outweigh any competition concerns, as well as assessing the parties’ arguments relating to a potential ‘failing firm’ defence. The NCA’s practice indicates a high threshold for clearing concentrations on efficiencies or the failing firm defence.
Is there a special substantive test for joint ventures?
Section 16 of the Competition Act contains a special substantive test for joint ventures. Similar to article 2(4) of the EUMR, the NCA shall consider whether the joint venture has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent. Such coordination shall be appraised in accordance with section 10 of the Competition Act (corresponding to article 101 of the Treaty on the Functioning of the European Union).Theories of harm
What are the ‘theories of harm’ that the authorities will investigate?
The NCA will investigate possible unilateral, coordinated, vertical and (theoretically) conglomerate effects of the concentration (see question 19).
Under the former substantive test, the NCA stated that the notices of the European Commission will be largely relevant in the assessment under the Competition Act. Subsequent to the introduction of the SIEC test on 1 July 2016, the notices and decisional practice of the European Commission in the field of merger control have direct relevance.
See question 4 regarding common ownership concerns.Non-competition issues
To what extent are non-competition issues relevant in the review process?
Non-competition issues cannot be taken into account by the NCA or the Board of Appeals when reviewing merger cases. Up until 1 April 2017, the Council of State could, however, do so in cases involving questions of principle or interests of major significance to society (see question 1). The Council of State has previously allowed mergers on grounds of agricultural and industrial policy considerations. However, as of 1 April 2017, the Council of State’s prerogative in rendering decisions in merger cases has been removed.Economic efficiencies
To what extent does the authority take into account economic efficiencies in the review process?
The NCA’s practice indicates a high threshold for clearing concentrations on efficiencies. In intervention decisions, alleged efficiencies are typically mostly dismissed by the NCA. However, some Phase II clearance decisions do refer to efficiencies as part of the grounds for clearing the concentration, although the level of scrutiny of efficiencies may not have been as high as in intervention decision. In the anomaly decision A2017-1, the NCA cleared Telia’s acquisition of Phonero based on efficiencies, although having found the concentration to significantly impede effective competition.
Remedies and ancillary restraintsRegulatory powers
What powers do the authorities have to prohibit or otherwise interfere with a transaction?
If the conditions for intervention are fulfilled (see question 19), the NCA must either prohibit the concentration or accept and make binding the remedies presented by the notifying party or parties.Remedies and conditions
Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
Both structural and behavioural remedies may be offered as remedies. In general, divestitures are considered more likely to succeed than behavioural remedies. See also questions 18 and 24.
What are the basic conditions and timing issues applicable to a divestment or other remedy?
A remedy must be considered by the NCA as being sufficient to alleviate the competition concerns raised by the transaction. See question 18 for timing issues.
What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
Since the entry into force of the current Competition Act in 2004, the NCA has intervened against four transactions in which both parties were headquartered outside Norway.
In a case relating to oil drilling services, the NCA required the divestiture of Norwegian subsidiaries of one party. The concentration in question was later cleared by the Ministry on appeal. In a case regarding ticket services, the NCA accepted behavioural remedies. The Ministry later overruled this remedy, and instead imposed a structural remedy (divestment of the acquirer’s subsidiary in Norway).
In a case concerning laboratory services, the NCA also imposed a structural remedy (divestment of the acquirer’s subsidiary in Norway). Finally, in May 2012 the NCA accepted behavioural commitments in a case concerning two Sweden-based suppliers of car spare parts, both having significant activities in Norway.Ancillary restrictions
In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?
Ancillary restrictions are covered by the clearance decision. Ancillary restrictions are treated in the same way as under the EUMR. A clearance of the concentration is deemed to cover ancillary restraints.
Restrictions are considered as ‘ancillary’ if they are directly related to the concentration and necessary to its implementation. A further condition is that the concentration, together with the ancillary restrictions, does not significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, see question 19.
Involvement of other parties or authoritiesThird-party involvement and rights
Are customers and competitors involved in the review process and what rights do complainants have?
Third parties such as customers and competitors in particular are regularly involved in merger procedures before the NCA, primarily as sources of market information for the NCA.
The NCA will normally conduct relatively extensive investigations, including written requests for information addressed to third parties, in particular in cases that go to Phase II. Furthermore, the NCA will usually turn to third parties if in doubt as to whether or not to close the case during Phase I.
The formal rights of third parties and complainants are limited to a right to see non-confidential versions of the documents in the NCA’s case file. If so requested, affected third parties will normally be allowed a meeting with the NCA to express their views.Publicity and confidentiality
What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
The NCA is obliged by law to protect business secrets and other confidential information. However, as the general rule in Norwegian public administration law is that all documents are public, only the information that is considered business secrets, such as market shares and strategic information, is kept confidential.
Any business secrets must be clearly marked in the notification and other documents submitted during the process, and any secrecy claims must be substantiated (see also question 16). Furthermore, a proposal for a public version of the document being submitted must be included.
The NCA is required to publish some basic information about every notification on its website.Cross-border regulatory cooperation
Do the authorities cooperate with antitrust authorities in other jurisdictions?
The NCA is part of the network of European Competition Authorities (ECA) and exchanges basic information about notified concentrations within this network on a regular basis. The NCA has close contact with other Nordic competition authorities, both on a general basis and in individual cases where such contact is advantageous to the NCA’s case handling, including in individual merger cases.
Last year, a new cooperation agreement between the Nordic (Danish, Finnish, Icelandic, Swedish and Norwegian) competition authorities also entered into force, expanding the level of cooperation. The Nordic competition agencies may now, to a greater extent, exchange confidential information with each other, and have easier access to formally request information from companies located in another Nordic country.
The NCA is also a member of the EFTA Network of Competition Authorities (the members are the EFTA Surveillance Authority and the national competition authorities of the EFTA states party to the EEA Agreement: Norway, Iceland and Liechtenstein). The NCA is regularly invited to participate in meetings and working groups of the European Competition Network of the EU Commission. However, these networks are not primarily established to be forums for discussions about individual merger cases.
Furthermore, the NCA is a member of the International Competition Network. The NCA also regularly participates in meetings and discussions within the OECD involving competition issues.
Judicial reviewAvailable avenues
What are the opportunities for appeal or judicial review?
As of 1 April 2017, an independent Board of Appeals handles appeals against decisions of the NCA. Before this date the appeals against the NCA’s decisions were handled by the Ministry, and the Council of State could also render decisions in merger cases involving questions of principle or interests of major significance to society. After the implementation of the Board of Appeals, however, the Council lost its prerogative.
The Board of Appeals has not yet handled an appeal against a merger decision of the NCA. The most recent appeal handled by the Ministry was in January 2017. The Ministry upheld the NCA’s decision to prohibit the acquisition by the owner of the largest pizza restaurant chain of its main competitor. In August 2016 the Ministry upheld the NCA’s decision to prohibit the acquisition by a timber and wood pulp company of a close competitor. Before this appeal the Ministry had not handled any appeals since 2012, when they assessed a case concerning the main garden centre operator in Norway.
Since 1 April 2017, the merger decisions of the NCA can only be appealed to the Board of Appeals. Only decisions by the Board of Appeals can be subject to judicial review. No merger decisions have been brought before the courts to date, neither under the former nor under the current appeals regime.Time frame
What is the usual time frame for appeal or judicial review?
A decision to intervene (prohibition or remedies decision) by the NCA may be appealed to the Board of Appeals within 15 working days. The NCA must forward the appeal to the Board of Appeals within 15 working days after receiving it, and the Board of Appeals must provide its decision no later than 60 working days after its receipt of the appeal. The same rules applied to appeals dealt with by the Ministry prior to 1 April 2017.
Enforcement practice and future developmentsEnforcement record
What is the recent enforcement record and what are the current enforcement concerns of the authorities?
Since the entry into force of the present Competition Act on 1 May 2004, the NCA has intervened in a total of 45 merger cases (as at May 2019). Of these, 30 received approval with remedies; the remaining 15 were blocked. A minority of these cases were appealed to the Ministry. Of the 45 intervention decisions of the NCA, four concerned transactions in which both parties were headquartered outside Norway (see question 27).
In the past 10 years, the NCA has, inter alia, focused on the following markets in which competition in the NCA’s view faces special challenges: the end-user market for electric power, the TV market, the retail fuel market, the telecoms market, the grocery market, and the dairy products market. Merger cases within these sectors are probably monitored with particular attention.
Lately, the NCA has paid particular attention to the following markets: retail banking, books, telecoms, taxis, security services and the grocery market. In the budget letters from the Ministry for 2019, the Ministry mentions that the grocery market should be given special attention, as in previous years.
The NCA has in 2018 also continued its focus on effective competition in local markets and on its use of quantitative methods (eg, diversion ratios and Gross Upward Pricing Pressure Index (GUPPI) analyses). In principle, the focus on effective competition in local markets has seemingly not been affected by the increased notification thresholds that were introduced as of 1 January 2014.Reform proposals
Are there current proposals to change the legislation?
There are no current proposals to change the legislation, as the Competition Act has gone through a major revision during the last couple of years.
As of 1 July 2016, the substantive test for clearance was harmonised with that of the EUMR (ie, by having the NCA prohibit concentrations that significantly impede effective competition (SIEC test), in particular as a result of the creation or strengthening of a dominant position). This included introducing a consumer welfare standard.
Several amendments to the Competition Act and the Notification Regulation, mentioned above, entered into force on 1 July 2016, including the introduction of the SIEC test for clearance of mergers (see question 19). Most of these amendments have moved the Norwegian merger regime closer to EU harmonisation.
As of 1 April 2017, the Board of Appeals handles the appeals against decisions of the NCA. The board is independent, although it is administratively subordinated to the Ministry. The decisions of the board may be directly appealed to the Court of Appeal. As of the same date, the Council of State’s prerogative in rendering decisions in merger cases was removed.
Update and trendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?Key developments of the past year36 What were the key cases, decisions, judgments and policy and legislative developments of the past year?
The NCA blocked no mergers in the past year (May 2018 to May 2019) but cleared two mergers subject to commitments. This number is higher than in 2017 when only one merger was cleared subject to commitments, but low compared to 2016 when the NCA blocked three mergers. The relatively low number of interventions during the past year is probably a matter of coincidence based on case-specific circumstances.
The first intervention decision is St1 Norge’s acquisition of the marine gasoil provider Statoil Fuel & Retail, which was cleared on structural remedies in June 2018. Both parties were larger providers of gasoil in Norway and the NCA considered them as close competitors. The NCA identified three local regions where the acquisition would lead to a significant impediment to effective competition. The acquisition was cleared on condition that St1 Norge did not acquire control in two regions and to sell its existing base in the last.
The second intervention decision is Sector Alarms’ acquisition of a minority shareholding in the vertically integrated competitor Nokas, which was cleared on structural remedies in March 2019. The deal consisted of two acquisitions with the security alarm provider Sector Alarm as the acquiring party. The first of a minority stake of 49.99 per cent in Nokas, and the second a takeover of Nokas’ limited household and SME security alarm portfolio. The NCA intervened against both acquisitions, which is the first time the NCA has intervened against a minority shareholding, as well as a merger falling below the filing threshold. In essence, the NCA only considered the horizontal aspects of the case and intervened based on the number of competitors allegedly being reduced from three to two, leading to an upwards pricing pressure and facilitating tacit coordination with its remaining competitor. The acquisition was cleared on condition that Sector dropped the acquisition of the security alarm portfolio and agreed to reduce its minority stake in Nokas to 25 per cent.