The main developments in competition law and policy 2024 – Norway
Introduction and summary
While Norwegian competition law is largely based on EU regulations through the EEA Agreement, this blog post provides an overview of the country-specific developments in Norway for the year 2024.
The main developments can be summarized as follows:
The NCA has reached a final decision in the price hunting case
- , imposing the largest fine ever in Norway to the three largest grocery chains for cooperating in the use of price hunters to check prices in competitors’ stores. This blog post gives an overview of Norway’s country-specific competition law developments for the year 2024.While Norwegian competition laws are largely based on EU regulations, the EEA Agreement provides a good overview of Norway’s country-specific competition law developments for the year 2024.
- The major developments can be summarized in the following way:The NCA reached a final ruling in the price hunting case
- and imposed the largest fine in Norway ever on the three biggest The NCA closed the part of the case in 2024 that dealt with a possible restriction on competition by object. Thus, the NCA fined the grocery chains based on the cooperation having an restrictive effect on competition.The Norwegian legislator are in the process of granting the NCA a new market investigation tool similar to several other European countries and the Competition and Markets Authority (CMA)’s tool in the UK.The NCA has only initiated one investigation
- over the last two years, but private enforcement is on the rise, reflecting a broader international trend that has been developing over the past few years. Notably, the Court of Appeal recently heard a damages claim stemming from the Commission’s 2016 Trucks cartel, after the Norwegian District Court’s decision of rejecting
- Posten’s claims for compensation.The EFTA Court has issued an advisory opinion
in a case related to alleged abuse of dominance, which notably facilitates easier access to evidence containing trade secrets in the private enforcement of competition law.
As for mergers, the NCA prohibited another merger and required notification for a below-threshold merger. The NCA has a history of strict merger control. The NCA imposed record-high fines on Norwegian grocery chains
In August 2024, the Norwegian Competition Authority imposed its largest fines to date, totaling NOK 4.9 billion
(approximately EUR 420 million), for cooperating in a way that increased transparency in the grocery market. According to the NCA this practice increased transparency between the chains without benefiting the consumers. The NCA concluded that the cooperation led to impeding incentive to decrease prices and thereby harming the competition. The NCA’s final ruling is less than one quarter of the initial fines that were issued in December 2020 in the Statement of Objection, which totaled approximately NOK 21 billion. This is equivalent to approximately EUR 1.8 billion. The NCA’s initial working hypothesis at that time was that the practice amounted as a restriction by object. The NCA’s final decision, however focuses on the anti-competitive effects, which is why the fine was significantly reduced. This shift may potentially be linked to the Competition Appeals Tribunal (CAT)’s reversal of the NCA’s decision in the Bokbasen case in late 2023, where the NCA’s “by object” decision was quashed.The decision mark the first ever decision on anti-competitive effect from the NCA and concludes a six-year-long investigation
. The NCA’s decision may be a temporary milestone, but the three grocery chains deny any wrongdoing. They have also announced their intention to appeal. This suggests that this is just a temporary step in a long-running legal battle. The grocery chains can appeal the case to the Competition Appeals Tribunal within six months.
The NCA Closes Another Investigation Relating to Suspicion of Exchange of Competitively Sensitive InformationThe NCA has since 2018 conducted several investigations with suspicion of illegal exchange of competitively sensitive information, including in industries such as grocery
, fuel
, construction services
, publishing, moving services, waste management, shipping, trade association and finally, in 2021, the pharmacy sector. In June 2024, the NCA concluded that it had found no grounds to continue and closed the investigation, marking it as one of five investigations with suspicion of exchange of competitively sensitive information where the NCA has not found sufficient ground to continue. The ongoing investigation into the market for moving service is still awaiting an official decision. The NCA has, however, underlined that it will continue to monitor the Norwegian pharmacy sector, which it views as highly concentrated and provides essential goods to society. Prohibition of abuse of dominance (Section 11 of the Norwegian Competition Act / Article 54 EEA / Article 102 TFEU)Procedural Issues Related to Attorney-Client Privilege in an Ongoing Investigation
The NCA continues its investigation into a pension company
(KLP) for abuse of dominance, which commenced in 2022. The outcome of this case is not known at this time. In the course of the investigation, however, some procedural issues arose, namely the scope of the attorney-client privilege. In order to enforce EU/EEA Competition Rules, the Commission and EFTA Surveillance Authority have the right to seize a firm’s communications with their in-house attorneys. In several European countries, similar provisions are found in the national legal systems. The Norwegian District Court confirmed in March that the seizure ban under Norwegian law applies to in-house attorneys, even when the NCA enforces EEA competition laws. The court found that this restriction has only a minimal impact on NCA’s ability enforce EEA rules and does not violate Regulation 1/2003 Article35 no. 1. Furthermore, the court found that it is consistent with EU principles of non-discrimination and effectiveness.
The Competition Authority has appealed the ruling and requested that the case be referred to the EFTA Court for an advisory opinion. The Gulating Court of Appeal has recently determined
there are no grounds for dismissing the appeal, but the timeline of when the court will be hearing the case is still uncertain. Foodora entered into exclusive agreements with restaurants, which led the NCA in 2021 to investigate whether Foodora abused its dominant position. Foodora asked the NCA to end its investigation if it amends its agreements and does no longer enter into agreements with restaurant that contain exclusivity provisions, or other forms of exclusionary practice, such as charging restaurants a higher rate because they also choose to work with other platform companies. The NCA informed on 10 December 2024 that the NCA considers the competition on the food ordering platform market to have improved significantly, more specifically due to the rise of the competitor Wolt and some smaller players, and has therefore decided to waive Foodora’s restrictions.
Merger control
The NCA Concludes Two Phase II Investigations, Approving One Acquisition While Prohibiting the OtherIn July 2023, Norwegian Air Shuttle ASA announced its intention to acquire Wideroes Flyveselskap AS. The NCA concludes two Phase II investigations, approving one acquisition while prohibiting the other
In July 2023, Norwegian Air Shuttle ASA announced its intention to acquire Wideroes Flyveselskap AS. In September 2023, the NCA initiated a Phase II investigation
, and later that year the NCA informed that it intended to prohibit the acquisition. After reviewing the responses of the parties, the NCA determined that there were not enough grounds to prohibit the purchase. The NCA approved the acquisition
after an official decision was published in January 2024. This approval is one of six phase-II investigations that the NCA has approved since 2020, where it concluded there were not enough grounds to intervene. These include Sport 1’s purchase of Gresvig Retail Group; Axess Logistic’s purchase of Auto Transport Service
; SKion Water International’s acquisition Enwa
; Nordea Bank’s acquisition Danske Bank
; and TGS’ acquisition of PGS
. Thus, merging parties should note that the opening of a phase II does not represent a deal-breaker.In May this year, Norva24 Vest notified the acquisition of Vitek Miljo to the NCA. Both parties offer pressure washing and emptying services as well as other related services. They are the two biggest players in this market, in the former Hordaland County. In September of this year, NCA intervened to prevent the acquisition. The NCA stated that the other players on the market were less competitive with the parties and that there were high barriers to entry into the market. It also said that the concentration of the market would be increased significantly as a result. The NCA requires notification of a merger below the threshold The NCA is authorized to require merger notifications in cases where concentrations do not meet the national turnover thresholds (the “call-in option”) This order must be issued no later than three months following the conclusion of a final agreement or the acquisition of control, whichever comes first. In 2024, only one transaction was subject to such mandated notification.The proposed transaction involves Infomedia A/S and Retriever Aktiebolag, two leading companies in media monitoring and analysis in the Nordic region, creating a new jointly owned holding company. Both companies have Norwegian subsidiaries that, in 2023, reported a combined turnover of approximately NOK 210 million, well below the mandatory notification threshold.The NCA has determined that the establishment of a joint venture is likely to eliminate competitive pressure between these two players in a market already characterized by high concentration. The NCA’s preliminary opinion is that the concentration may have both horizontal and vertical anticompetitive effects. This led to the imposition of the notification requirement in relation to the transaction. The notification has, however, not yet been submitted, so it remains to be seen if the Parties uphold the transaction.It should also be mentioned that the NCA has tended to actively join referral requests from EU Member States to the European Commission pursuant to EUMR Article 22. The latest referral case was the proposed acquisition of Figma by Adobe.
Regulatory and policy developmentsProposal of a Norwegian Market Investigation Tool
The Norwegian Parliament has decided to implement a new market investigation tool
aimed at enhancing the powers of the NCA to address competition challenges in various markets, even in the absence of specific violations of competition law. This tool will enable the NCA to impose sanctions on markets that have conditions that restrict competition, like high concentration levels or entry barriers. Businesses operating in Norway need to prepare for possible changes in the competitive landscape as the legislative process unfolds. Although the proposal has sparked significant industry pushback, primarily due to concerns over legal certainty, procedural safeguards, and the necessity of such a tool, the Parliament decided on 16 December 2024 to adopt the legislative proposal.
Thommessen has published a detailed article on the new market investigation tool, available in Norwegian here
.
New Committee Established to Modernize the Competition Act
This year marks the 20th anniversary of the enactment of the Norwegian Competition Act. A new committee has been formed to conduct a thorough review of the Act, as it has been more than a decade since its last revision. The committee aims to simplify and modernize law in response to changes in case law, EU/EEA regulation, and broader societal change. It will also assess the effectiveness and efficiency of the CAT, and determine whether any changes are needed to the appeals procedure. The committee will also examine the NCA’s rules of procedure, regulatory mandate and sanctions. The Norwegian Parliament adopted a new Electronic Communications Act in November 2024, replacing the 2003 Act. The Act implements EU directives and regulation, including the Electronic Communications Directive 2018/1972, BEREC Regulation 2018/1971 and the Accessibility Directive 2019/882. Its primary goal is to balance competition with fair access to services.From a competition law perspective, it is important to highlight that the Act imposes obligations on providers of electronic communications networks and services that are designated as having a “strong market position”. This designation is given to providers who can operate independently from competitors, customers and consumers. They may do so unilaterally or collectively. In essence, they are “dominant” in EU competition law. The Act also allows for the imposition of broadband delivery obligations, and the regulator can impose specific obligations, such as the shift from copper to fiber during the transition from older to newer infrastructure.
Overall, the new Act has significant implications for large providers of electronic communications networks and services. The Court of Appeal’s Hearing of Posten Norge’s Claim for Damages
This fall, the Borgarting Court of Appeal reviewed a judgment of the Oslo District Court
concerning a damages case brought by Posten Norge, the Norwegian postal service owned by the Norwegian Government, a customer of manufacturers involved in the “EU Trucks” case.
The Oslo District Court based their judgment on the Settlement Decision of the European Commission (AT.39824) which concluded that Article 101 Due to the fact that the Damages Directive (2014/104/EU) has not yet been implemented into Norwegian law, there is no presumption of harm in follow-on cases in Norway. According to Norwegian law, it was the Plaintiff’s burden to prove actual economic loss, and establish a causal connection between the infringement of the contract and the economic loss. The District Court found that Posten Norge did not meet this burden. Consequently, the truck manufacturers were acquitted.
The Court of Appeal was composed of three legal judges and two expert judges, the latter two possessing economic expertise. The District Court had only one judge. The three-month appeal hearing included three weeks of evidence on econometric analysis, where a number expert witnesses presented their reports. The Court of Appeal will render its judgment in March 2025. Lassenteret AS vs Assa Abloy Opening Solutions Norway. Lassenteret accused Assa Abloy Opening Solutions Norway of abusing its dominance
on the market for mechanical lock systems. Lassenteret sent Assa Abloy several requests for information to prove it abused its dominant position. However, since the documents contained trade secrets, a district court referred a number of questions to the EFTA Court. In cases of alleged abuses of a dominant role, the court will need to assess the interests of both parties before imposing an obligation to provide evidence that is trade secret. The ruling confirms that national court confidentiality regimes can be established, similar to “clean teams”, and that the Trade Secrets Directive doesn’t prevent this. Furthermore, it is important to highlight that the EFTA Court places a greater emphasis on the principle of effectiveness than the Norwegian Supreme Court did in the 2023 alarm antitrust case (case V2020-32 and case V2019-18
).
