Power Play: The New Age Of Norwegian Anti-trust Enforcement?

• Published date: 08 September 2023
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Wiersholm
• Author: H'kon Cosma St'rdal, Elisabeth Lian Haugsdal, Karen Cecilie Gildberg, Ida Hestetun Dokken and Kristina Cavanna

Over the last few weeks, the Norwegian government has issued no less than three proposals which all widely expand the Norwegian Competition Authority's enforcement powers.

The proposals equip the NCA with:

1. A market investigation tool with extensive sanction options both behavioural and structural, without establishing an infringement of competition law
2. The right to appeal decisions from the National Competition Appeals Tribunal and bring legal actions before the Norwegian courts
3. The right to sanction individuals with administrative civil fines up to 43 MNOK for violations of the Norwegian Competition Act and to impose management quarantines

The proposals bring into question what kind of enforcement regime is necessary and desirable to ensure effective competition. The key takeaways from the proposals are set out below.

1. Proposal for new market investigation tool

A much-anticipated market investigation tool for the NCA

The Norwegian Ministry of Trade, Industry and Fisheries (the "Ministry") is planning to launch a new market investigation tool that allows the Norwegian Competition Authority ("NCA") to initiate investigations and impose behavioral or structural remedies on market participants without establishing an infringement of competition law in the relevant market. Companies should be aware that the proposal, if sanctioned, is likely to entrust the NCA with wide discretion to investigate markets and lead to greater uncertainty for businesses.

Key proposals

Key takeaways from the current proposal include giving the NCA authority to:

• Initiate investigations in markets where competition may be restricted without any grounds to believe the existence of a violation of ' 10 and 11.
• Adopt temporary measures where necessary
• Adopt formal remedial measures in markets where it can provide evidence that competition is significantly restricted or capable to be significantly restricted contrary to the object of the Norwegian Competition Act, including both behavioral and structural remedies
• Sanction companies for non-compliance with imposed remedial measures

The proposal could arguably lower the threshold for interventions and target tacit collusion and unilateral behavior by non-dominant undertakings not caught by the current prohibitions.

Similar market tools have over the past years been introduced in Iceland, the United Kingdom and have recently been proposed in Denmark and Germany. The UK Competition and Markets Authority ("CMA") has conducted market investigations since 2002, though with more complex governance, procedures and a decision-making structure than the current proposal from the Ministry.

The market investigation tool is envisaged to equip the NCA with the authority to effectively address structural and behavioral challenges in all concentrated markets. The proposition nevertheless seems particularly targeted towards digital markets and the grocery sector, two sectors in which the NCA has previously expressed concerns about the competitive conditions.

Wide discretionary powers to the NCA to investigate markets

The Ministry proposes different thresholds for initiation of a market investigation than for decisions to...