Merger Control Enforcement Under The Thresholds ' Norway Taking The Lead, Will Other Authorities Follow?

• Published date: 27 January 2021
• Subject Matter: orporate/Commercial Law, Anti-trust/Competition Law, M&A/Private Equity, Antitrust, EU Competition
• Law Firm: Advokatfirman Cederquist
• Author: Mr Johan Lundberg

On 11 November, the Norwegian Competition Authority (the "NCA") blocked Schibsted's acquisition of Nettbil. At the time when the NCA ordered the parties to notify, the transaction had already been closed, but that did not stop the NCA. It must be noted that Schibsted did not do anything wrong; Nettbil's turnover was below the threshold triggering a mandatory merger notification.

The timing of the decision is interesting for several reasons. First, the acquisition, or rather the target's turnover, was too small to require a mandatory merger notification but the NCA exceptionally ordered the parties to notify the merger anyway (which the law allows). Second, the blocked merger relates to a digital market, namely the market for advertising platforms for used cars. Third, the reason for ordering the parties to notify the acquisition was that the NCA believed that the concentration constituted a "killer acquisition" whereby the burgeoning competition on the fairly new digital market would be severely stifled.

The merger pertained to the market for advertising platforms for used cars. Schibsted is the owner of Finn, the no 1 market player in Norway on this market. Nettbil is a relatively new entrant on the market in question but had positioned itself as the no 2 player with a significant growth during the last year. The market in question in Norway has few market players where Schibsted was, and is, the clear market leader. The transaction meant that Schibsted acquired its main competitor, effectively removing the competitive pressure Nettbil imposed on Schibsted.

Following the imposed notification the NCA subsequently blocked the transaction and ordered Schibsted to sell its stake in Nettbil. The NCA has emphasized the fact that it is possible for a single undertaking, in particular on a digital market, to quickly take a very large share of the market, which may reduce competition. As noted by the NCA, digital platforms are becoming more important for consumers why it is important with healthy competition between market players to ensure innovation and competitive prices for consumers. Moreover, there is also an increasing focus on digital markets, both nationally and...