When must mergers and acquisitions be notified to the Norwegian Competition Authority?
Companies and other business enterprises have a duty to notify the Norwegian Competition Authority of any mergers, acquisitions and agreements by which they acquire control of other companies, if the turnover of the undertakings concerned exceeds certain turnover thresholds, see Section 18 of the Norwegian Competition Act. The Act uses the term “concentrations” about such mergers, acquisitions and agreements.
A concentration must be notified to the Authority if the combined annual turnover of the undertakings concerned exceeds NOK 1 billion in Norway.
However, there is no duty to notify a concentration if only one of the undertakings concerned has an annual turnover exceeding NOK 100 million in Norway.
Concentrations may not be implemented before the Norwegian Competition Authority has received a notification and has finalised its review of the notified transaction (standstill obligation).
Some types of concentrations unlikely to affect competition may be notified by way of a simplified notification, even though the transaction exceeds the above-mentioned thresholds.
The Norwegian Competition Authority can order an undertaking to notify a concentration that falls below the turnover thresholds. This can be done if the Authority has reason to assume that competition will be affected by the transaction or if other particular considerations indicate that the Authority should examine the case in more detail. No such order may be issued more than three months after a final agreement has been entered into or control has been acquired. Concentrations that are exempt from the notification requirement may be notified voluntarily to clarify whether the Authority will intervene against the transaction.
The period within which the Norwegian Competition Authority must have completed its assessment of mergers and acquisitions does not commence before the notification contains all the information required, any confidential information is marked and the Authority has received adequate justification for the information being deemed confidential.
Pre-notification contacts with the Norwegian Competition Authority
In large/complex cases, contact with the Norwegian Competition Authority prior to notification will normally be helpful. It is presumed that prior contact seldom will be needed in connection with simplified notifications. In each individual case, the need for, and the extent of, pre-notification contacts can be clarified with the Authority in advance.
To ensure an efficient review process, the Authority should be provided with an overview of the facts and the issues that the concentration is expected to raise as soon as possible. This will ensure that the next steps in the process can be organised as efficiently as possible. Furthermore, it is in the interests of both the parties and the Authority that the notification is complete when it is submitted. Dialogue ahead of its submission can contribute in that regard and prevent delays in the review process.
If the transaction is not yet publicly known, information that the Authority receives about the concentration during pre-notification contacts can normally be exempt from public disclosure. It should be noted, however, that information may become public at a later stage in the review process if the conditions for non-disclosure are no longer met.
The Norwegian Competition Authority’s review process
The Norwegian Competition Authority shall prohibit concentrations that will significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position.
If similar conditions are fulfilled, the Norwegian Competition Authority is empowered to prohibit acquisitions of holdings in an undertaking even if control of that undertaking is not achieved (minority shareholdings).
No later than 25 working days after notification has been received (Phase 1), the Norwegian Competition Authority must notify the parties that it may intervene. In its notice, the Authority must show that there are reasonable grounds to assume that the criteria for objecting to the transaction are fulfilled. If no such notice is given, the Authority will be unable to intervene.
If the parties propose modifying commitments in Phase 1, the Authority’s review process may be extended with 10 working days.
The Norwegian Competition Authority must, as soon as possible and no later than 70 working days after notification was received, accept modifying commitments proposed by the parties or issue a reasoned preliminary decision to prohibit the transaction.
If the parties propose modifying commitments in Phase 2, the Authority’s review process will be extended.
The parties have 15 working days to submit their response to the preliminary prohibition decision. The Norwegian Competition Authority must make a final decision no later than 15 working days after it has received the parties’ response. If the parties have proposed modifying commitments after the Authority has issued its preliminary decision, the deadline for making a final decision may be extended by 15 working days.
If the Norwegian Competition Authority finds no legal basis to intervene, the notifying parties will be informed in writing that the case is closed. In cases where the Authority has notified the parties that it may intervene, a brief explanation of why there are no grounds to intervene will be given.
A decision to intervene may be appealed within a period of 15 working days. The Norwegian Competition Authority must submit the Norwegian Competition Tribunal no later than 15 days after it has been received. The appeals board must decide on the appeal no later than 60 days after it has been received.
List of Norwegian Competition Authority decisions on concentrations >>
Inform the Authority about mergers and acquisitions
The Norwegian Competition Authority wishes to receive information about mergers and acquisitions that may harm competition. The turnover thresholds mean that not all concentrations that may harm competition are notified to the Authority. It is therefore important that the Authority is tipped off about such concentrations.
The Norwegian Competition Authority encourages those who inform the Authority about concentrations to state their names and contact details, though tip-offs may also be submitted anonymously. By providing contact details, you enable the Authority to obtain further information from you, should that become necessary.
In general, the Norwegian Competition Authority has a duty, upon request, to disclose information that it has received. An exception is made for confidential information, such as trade secrets. Questions about disclosure, confidentiality and anonymity may be answered by the Authority’s tip-off hotline.
To contact us you can use our phone number: +47 55 59 75 00.