Investigation

Commencement of investigation

How is an investigation into a suspected breach of competition law started?

The Norwegian Competition Authority (NCA) normally starts an investigation of a suspected breach of competition law by either sending a request for information or initiating a dawn raid.

According to section 24(1) of the Norwegian Competition Act, all natural and legal persons are required to provide the NCA with the information that the agency requires to carry out its responsibilities under the Competition Act and international law. A request for information is not limited to the party or parties which are directly involved but may be addressed to anyone who is in possession of relevant information relevant to the case, such as (eg, suppliers, competitors, customers and consumers). It is not uncommon for the NCA to request information from a broad range of natural and legal persons as part of its investigation. 

A request for information may require the recipients to provide information in writing or orally within a set deadline. Furthermore, the NCA may demand that the recipients submit all types of information and carriers of such information, cf. section 24(2) of the Competition Act. The NCA may, for example, demand that original documents be handed over, or that the parties submit information that is stored electronically on servers etc. The obligation to provide information may also include the storage medium itself. 

If an undertaking fails to supply complete and correct information pursuant to the request for information, the NCA may impose a daily penalty payment or an administrative fine under section 28 and 29 of the Competition Act. Furthermore, individuals that intentionally or in gross negligence disregard the request for information may be held criminally liable, cf. section 32 of the Act. 

Failure to comply with the request for information may result in a fine or even criminal liability, cf. sections 28 to 30 of the Competition Act. 

A request for information may in certain cases not be the appropriate instrument in order to start an investigation. An example would be where the NCA suspects that the undertaking in question may destroy, or withhold, evidence upon receiving a request for information, or where the undertaking refuses to cooperate. In these instances, it is likely that the NCA will start its investigation by conducting an unannounced inspection (dawn raid) at the premises of the undertaking(s). According to section 25 of the Competition Act, the NCA has the power to carry out dawn raids where there are ‘reasonable grounds’ for suspecting an infringement.

During a dawn raid, the NCA’s inspectors may access the undertaking’s premises and other properties, residences or means of transportation where there may be evidence of infringement. The inspectors may also confiscate items that may be relevant as evidence and seal the premises for as long the investigation lasts and it is considered necessary. 

Legal and natural persons that fail to comply with these obligations during a dawn raid may face the same civil or criminal sanctions as mentioned above.

Limitation period

What are the limitation periods for investigation of competition infringements?

The limitation period for the imposition of fines for violations of sections 10 and 11 of the Competition Act is 10 years. For other infringements of the Act, the limitation period for the imposition of fines is five years. A limitation period will be interrupted where the NCA take investigative steps under section 25 of the Act or informs a company that they are suspected of having infringed the Act.

Information-gathering powers

What powers does the competition authority have to gather information?

Pursuant to section 24 of the Competition Act, individuals and companies are under a general obligation to provide the NCA with information that it specifically requests. The NCA usually issues written requests for information, but these can also be oral. Failure to comply with a request made by the NCA can result in the imposition of administrative fines.

If an undertaking fails to supply complete and correct information pursuant to the request for information, the NCA may impose a daily penalty payment or an administrative fine under section 28 and 29 of the Competition Act. Furthermore, individuals that intentionally or in gross negligence disregard the request for information may be held criminally liable, cf. section 32 of the Act. 

Failure to comply with the request for information may result in a fine or even criminal liability, cf. sections 28 to 30 of the Competition Act.

Dawn raids

For what types of infringement will the competition authority launch a dawn raid? Are there any specific procedural rules for dawn raids?

Corporate monitorships are available under the Competition Act as a means to supervise and report on commitments. Monitorships can be used both for antitrust infringements as well as merger control decisions. Appointment of a monitoring trustee and the scope of the monitorship will be set out in the decision, including the duration of the monitorship. A company placed under monitorship must comply with the requests of the monitor, and a refusal to do so will amount to a violation of the underlying decision, potentially resulting in administrative fines.

Dawn raids – rights and obligations

What are the company’s rights and obligations during a dawn raid?

The NCA can carry out a dawn raid if there are reasonable grounds to believe that the Competition Act or a decision adopted by the NCA has been infringed. Typically, dawn raids are reserved for serious violations of the Competition Act, such as cartel behaviour or abuse of dominance. In absolute terms, dawn raids are used quite sparingly by the NCA; however, they remain an important part of the NCA’s enforcement measures.

The procedural rules pertaining to dawn raids are set out in section 25 of the Competition Act. The scope of the dawn raid can extend to all business premises, vehicles and other storage areas as well as private homes if there is reason to believe that evidence of an infringement is located there. The NCA has the power to seize any items that may be of evidential value. When it comes to documents, the NCA will usually take copies unless the original version has special evidential value. If an original document is seized by the NCA, a copy of the document will be provided to the company. The company must also be provided with a copy of all electronic information seized by the NCA. A company or its representatives are entitled to be present when the NCA begins to go through seized electronic documentation.

Refusal to cooperate

What are the penalties and other consequences for refusing to cooperate with the authorities during an investigation?

Failure to cooperate with the NCA in the course of its investigation can lead to serious consequences, including fines and even imprisonment in cases of intentional refusal or gross negligence.