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

Antitrust: restrictive agreements and dominance

Section 10 of the CA mirrors Article 101 TFEU and Article 53 EEA Agreement. Moreover, Section 11 of the CA mirrors Article 102 TFEU and Article 54 EEA Agreement. Thus, Section 11 CA prohibits a company's unilateral abuse of a dominant position. Judgments of the EUCJ and the EFTA Court are directly relevant legal sources in the interpretation and application of the provisions.

Regarding public enforcement tools, the CA includes the possibility of commitment decisions mirroring that of Regulation 1/2003 in the EU.

i Significant cases

Four (ongoing or decided) cases merit mention.

NCA casesTelenor abuse case – telecom

On 21 June 2018, the NCA adopted an abuse case (Article 54 EEA/Section 11 CA) decision to fine the Norwegian telecom incumbent Telenor 788 million Norwegian kroner. This is the highest competition law fine ever imposed by the NCA. The case relates, in essence, to an alleged abuse by Telenor of its dominant position by engaging in conduct that impeded the entry of a third mobile network in Norway. Norway has been one of very few countries in Europe with only two mobile operators with own nationwide mobile networks, with Telenor as the dominant player. Mobile operators without their own network have to rent access to either Telenor's or Telia's network. Due to the lack of effective competition, Norwegian authorities still regulate the Norwegian mobile wholesale market. Therefore, the development of a third mobile network was key to achieving increased competition in this market. In 2007, Network Norway started the construction of a third mobile network together with Tele2. During the rollout of the network, Network Norway bought access to Telenor's network in the areas where the third mobile network did not yet have coverage. In 2010, Telenor changed the conditions in its network access agreement with Network Norway. It is in this regard that the NCA has found that Telenor abused its dominant position. Through the new agreement Telenor reduced the cost for the actual use of Telenor's network, but at the same time introduced a fee that increased with the number of Network Norway's end users. This fee was a cost that Network Norway could not avoid by increasing the use of its own network. This reduced Network Norway's incentives to continue the rollout of the third mobile network. The NCA decision was appealed by Telenor to the Competition Appeals Tribunal, which upheld the decision in a decision of 19 June 2019. This decision has been challenged at the courts, and the case is currently pending at the Gulating appellate court.

Ringnes abuse case

The NCA carried out a dawn raid at Ringnes, a brewery in the Carlsberg group, in 2017. No case information has been disclosed throughout 2018 and 2019. However, it has surfaced that the NCA has been concerned that agreements concluded by Ringnes with pubs and restaurants may have hindered other suppliers from selling beer to these pubs and restaurants, thereby weakening competition in the market in breach of Section 11 of the Competition Act prohibiting abuse of a dominant position. Ringnes proposed commitments, which were made public early 2020. According to the proposed commitments, Ringnes cannot require pubs and restaurants to buy all or a given minimum share of their requirements for beer from Ringnes. The proposed commitments also contain limitations on what kind of rebates Ringnes can include in its agreements. Finally, Ringnes must, if needed, surrender physical space in pubs and restaurants to beer from competitors. It is expected that the NCA will adopt a commitment decision based on the proposed commitments later in 2020, being the first ever commitment decision in an abuse case in Norway.

ESA casesWiderøe case – aviation

On 2 May 2018 ESA adopted a statement of objections informing Widerøe's Flyveselskap AS (Widerøe) of its preliminary conclusion that Widerøe may have abused a dominant position in Norway in breach of Article 54 EEA. Previously, airlines needed a specific satellite-based approach system to compete in public tender processes to service several Norwegian PSO routes. The system is called SCAT-1 and was installed at many regional airports in Norway for safety reasons. At the airports where this system was installed, PSO aircraft were required to have certain SCAT-1 receivers on board. Widerøe owns all of the available receivers. ESA's preliminary view is that Widerøe infringed Article 54 EEA by refusing to supply the SCAT-1 receivers to possible competitors. Consequently, according to ESA, Widerøe appears to have been the only airline able to win a number of the PSO tenders. The case is still ongoing.

Telenor abuse cases – telecom

On 1 February 2016, ESA sent a statement of objections to Telenor. The case concerns Telenor's conduct in three Norwegian markets: the market for wholesale mobile access and origination services, the market for mobile broadband services to residential customers and the market for mobile communications services to business customers. ESA takes the preliminary view that Telenor's pricing of access and origination services at the wholesale level likely impeded competing offers in the market for mobile broadband services to residential customers. In the market for mobile communications services to business customers, ESA is concerned that clauses in Telenor's contracts have impeded competition by making it very difficult for its customers to switch provider and by making it overly expensive for competitors to capture customers from Telenor.

On 24 June 2019, ESA issued a supplementary statement of objections to Telenor. On grounds of priority, ESA is now focusing its investigative efforts on the margins available to competitors in mobile broadband services offered to private users. ESA discontinued the part of the investigation into breakage fees and clauses in Telenor's contracts with business users. The case is still ongoing.

Dawn raids

Neither the NCA or ESA has published any information related to dawn raids in abuse cases in 2019.

ii Trends and outlook

In the 2018 Telenor case, the NCA has finally adopted a decision pursuant to Section 11 CA (abuse of dominance), a provision introduced into Norwegian law by the entering into force of the CA in 2004. Until the 2018 Telenor decision the NCA had not taken any abuse case decisions which were not later settled or quashed by the courts. (Two major cases that were settled or quashed are the SAS case of 2005 and the Tine case of 2011.) Thus, irrespective of the Telenor decision in 2018, it is safe to say that the enforcement of abuse of dominance cases by the NCA is low.

ESA has successfully enforced the similar provision of the EEA Agreement (Article 54) on several occasions, of particular note in the Posten case of 2010 (fines of approximately €11 million) and the Color Line case of 2013 (fines of approximately €19 million).

With regard to the application of Section 10 to vertical agreements, it could be noted that the NCA has not adopted any such decision after the entering into force of the CA in 2004.