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Content last updated: 29-08-2019

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

As a contracting member state to the EEA Agreement, concentrations related to Norway may be subjected to control by the European Commission for cases falling under the Merger Regulation or the EFTA Surveillance Authority if the turnover thresholds set out in Protocol 24 to the EEA Agreement are satisfied and if the Merger Regulation is not applicable.

Further, the national merger control rules of Norway set out in the Norwegian Competition Act are largely based upon the corresponding rules of the EU Merger Regulation.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

If the thresholds described in the EU Merger Regulation or Article 57 of the EEA Agreement are met, the transaction will only have to be notified to the European Commission or the EFTA Surveillance Authority (ESA), save for markets and products falling outside the scope of the EEA Agreement.

Consequently, the Norwegian Competition Authority will as a general rule be precluded from applying the Norwegian merger control rules to the transaction. The rules of the Merger Regulation on referral of cases between the Commission, ESA and national competition authorities are applicable to Norway through Protocol 24 of the EEA Agreement.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory if the thresholds described in Section 2.3.1 under the Merger Screening Schedule are met. Concentrations falling below the treshholds are not subject to mandatory filing. However, the Norwegian Competition Authority may require a notification within 3 months of final agreement and potentially intervene against the transaction. This is also the case for acquisitions of minority shareholdings that do not confer control. In both instances the parties may choose to voluntarily notify the transcation to the Authority.

2.2 Suspensory effect

2.2.1  Must completion of the transaction await clearance by the relevant authorities?

Concentrations shall be notified to the Norwegian Competition Authority prior to its implementation/completion. A standstill obligation applies to all concentrations that are subject to mandatory filing until the clearance is given by the Norwegian Competition Authority.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

According to section 17 of the Competition Act, a transaction is caught by the merger control rules if it results in a change of control on a lasting basis resulting from:

a) the merger of two or more previously independent undertakings or parts of undertakings; or

b) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The creation of joint ventures performing on a lasting basis all the functions of an autonomous economic entity resulting in permanent structural market change, i.e. a so-called "full function" joint venture.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

"Control" corresponds to the EU merger rules and may be achieved either by rights, contracts or any other means that, either separately or in combination, and having regard to the considerations of fact and law involved, confer the possibility of exercising decisive influence on an undertaking.

In particular, decisive influence is conferred, de jure or de facto, by ownership or the right to use all or part of the assets of an undertaking, or rights or contracts that confer decisive influence on the composition, voting, or decisions of the decision-making bodies of an undertaking.

Only transactions that bring a lasting "change of control" to the undertakings concerned and in the structure of the market are covered. Thus, transactions resulting only in a temporary change of control, such as for instance a transitory transaction, are not covered.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

While a mandatory filing obligation does not apply to acquisitions that do not confer control, e.g. acquisition of minority shareholdings, the Norwegian Competition Authority may require a notification within 3 months after final agreement. While intervention is rare, the Norwegian Competition Authority may intervene in transactions concerning acquisitions of minority shareholdings, even if the acquisition will not lead to control of the undertaking. In 2019, the Norwegian Competition Authority intervened in Sector Alarm Group AS' acquisition of a minority shareholding in Nokas AS.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1?

In a merger, the "undertakings concerned" are each of the merging entities.

In an acquisition of control, the undertakings concerned may vary depending on the characteristics of the transaction.

In case of acquisition of sole control, the undertakings concerned are the acquiring undertaking consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) and the target undertaking (i.e. not including the seller).

In case of acquisition of joint control of a newly created joint venture, the undertakings concerned are each of the undertakings jointly acquiring control. The same applies where one undertaking contributes a pre-existing subsidiary or a business (over which it exercises sole control) to a newly created joint venture.

In case of acquisition of joint control over a pre-existing undertaking or business, the undertakings concerned are each of the undertakings acquiring joint control, and the pre-existing acquired undertaking.

In case of entry of a new shareholder in a pre-existing joint venture, which leads to a change in the quality of control for the remaining controlling shareholders, the undertakings concerned are the newly entering controlling shareholder alongside with the remaining controlling shareholders.

In case where a pre-existing, full-function joint venture acquires control over another undertaking, the undertakings concerned are the joint venture (i.e. not including the parent companies) and the target undertaking. Where a joint venture is mere acquisition vehicle, the undertakings concerned are in such situation the parent companies to the joint venture and the target undertaking.

- In case of change from joint control to sole control, the undertakings concerned are the undertaking acquiring the sole control and the joint venture. The other "existing" shareholder (i.e. the seller) is not considered an undertaking concerned. 

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Whichever date is earlier of the date of conclusion of the binding legal agreement; the announcement of a public bid or the acquisition of a controlling interest or the date of the first notification to the Norwegian Competition Authority.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

A concentration must be notified to the Norwegian Competition Authority if:

The combined annual turnover in Norway of the undertakings concerned is NOK 1,000,000,000; and

at least two of the undertakings concerned each have an annual turnover in Norway exceeding NOK 100,000,000.

If the transaction satisfies the thresholds of the EU Merger Regulation, the Norwegian Competition Authority is blocked from reviewing the transaction under national merger rules based on the "one-stop-shop" principle. However, this does not apply to products that fall outside the scope of the EEA Agreement.

The lists of products to which the EEA Agreement applies is given in:

a) Chapters 25 to 97 of the Harmonized Commodity Description and Coding System, excluding the products listed in Protocol 2;

b) Protocol 3 to the Agreement.

In principle, a transaction may be subject to mandatory merger filing to the EFTA Surveillance Authority (ESA) provided that turnover thresholds set out in Protocol 24 to the EEA Agreement are satisfied and that the Merger Regulation does not apply. However, the thresholds are such that the European Commission in practice handles all cases, and to date, no concentrations with an "EFTA dimension" have been notified to ESA.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

At least two of the undertakings concerned each must have an annual turnover in Norway exceeding NOK 100,000,000, and as such the threshold cannot be triggered by only one party.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

No.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

The Norwegian Competition Authority may choose to investigate transactions falling below the thresholds, and may require notification of the transaction, provided that the Authority finds reasonable reason to assume that competition will be affected, or if special considerations indicate that a closer investigation is required. The Norwegian Competition Authority has required notification and intervened in transactions falling below the thresholds in the past

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are not sector-specific or other ex ante merger control rules under the Norwegian merger control rules.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions meeting the above thresholds have to be notified to the Norwegian Competition Authority, regardless of whether the undertakings concerned are domiciled outside of Norway. 

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the net turnover related to the sale of goods and/or services in the ordinary course of business exclusive of (i) rebates; (ii) value added tax and other taxes directly related to the turnover; and (iii) group internal sales.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Guidance to the calculation of turnover can be found on the homepage of the Norwegian Competition Authority at 

https://konkurransetilsynet.no/wp-content/uploads/2018/08/Retningslinjer-for-melding-1.pdf.

As turnover under the Norwegian merger control rules is defined based on the principles of the European Commission's Consolidated Jurisdictional Notice, see the European Commission's Consolidated Jurisdictional Notice under Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings ("the Jurisdictional notice").

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover should as a general rule be based on the latest financial year for which audited annual accounts exist.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the "undertakings concerned" in Section 2.1.1 above. In short, the undertakings whose turnover is taken into account comprise the entire group that the acquirer belongs to (including turnover of natural persons controlling the acquirer, provided the person is classified as an undertaking) and the target's group (i.e. target and any of its wholly or jointly-owned subsidiaries).

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall not be included in the target's group turnover, as far as the seller's activities is not part of target in the transaction.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Special rules apply to the calculation of turnover for investment funds; state-owned undertakings; financial institutions and insurance undertakings, which are similar to the Jurisdictional Notice.

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of acquisition of sole control, the acquirer is responsible for filing.

In case of acquisition or change in the quality of control joint control or a merger creating a new entity, the notification must be jointly submitted.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, a transaction meeting the above thresholds has to be notified to, and approved by, the Norwegian Competition Authority prior to its implementation.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Notification may be made where the undertakings concerned demonstrate to the Norwegian Competition Authority a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make such a bid, provided that the intended agreement or bid would result in a notifiable transaction.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

There are no filing fees.

1.4.2 When must the filing fee must be paid?

Not applicable.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The Norwegian Competition Authority publishes a non-confidential notice of the fact that it has received a notification on its homepage.  

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

Depending on the case, the Norwegian Competition Authority may issue press releases on procedural decisions such as decisions to order notification below thresholds, decisions to move the case to Phase II, notice that intervention may take place. In Phase II-cases with high media exposure and public interest, the Authority will also issue a statement when clearance is given. Otherwise, the Authority will abstain from commenting on active cases in the media.

1.5.3 Will third parties be able to review the notification?

The Norwegian Competition Authority is required to provide a copy of the notification upon request from third parties. However, the copy will be censored for confidential information, including business secrets.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

While there are no fast track procedures, transactions may be notified by way of a simplified notification if the undertakings concerned are not operating in the same or related markets, or if the combined market shares of the undertakings concerned do not exceed 20% on any markets where they both compete (horizontal links) or 30% on any vertically related markets. In these circumstances, the content of the notification is less onerous, but the process is in principle the same.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

In general, pre-notification is not mandatory in Norway and is usually reserved for cases where some substantial concerns or procedural issues may be expected. Such pre-notification periods may involve discussions with the Competition Authority about the case and timing; telephone and/or physical meetings; submission of draft notification; fact-finding exercises; requests for additional information and documents, etc.

When the formal notification is submitted to the Norwegian Competition Authority the clock starts running, provided the notification is accepted as complete.

During Phase I investigations, the case team will send a market test questionnaire to the largest customers, competitors and suppliers of the notifying parties, if it deems it necessary.

The Norwegian Competition Authority will also publish a non-confidential notice on its homepage of the fact that it has received a notification.

As part of the investigation, the case team may also send requests for information, including engage in discussions and meetings with the notifying parties.

If the transaction cannot be cleared unconditionally in Phase I, the Authority will hold a meeting with the notifying parties where inter alia remedies will be discussed. If the notifying parties submit remedies, the Authority will proceed to market test and assess the remedies.

The Authority will then either initiate a Phase II investigation by issuing a notice that intervention may take place, or the transaction is cleared if no notice is issued.

 The Authority will then normally continue its investigations, contact third parties in the market and send further requests for information to the notifying parties.

If the competition law concerns have not been met, the European Commission will proceed to work on a so-called "statement of objections" ("SO"), which entails a detailed examination of its findings and conclusions.

Before issuing the SO, the Authority will invite the notifying parties to a meeting if they are willing to submit remedies to meet the concerns expressed in the SO. If the notifying parties are not willing to do so, the Authority will proceed and issue a confidential SO to which the notifying parties may reply in writing or orally.

The notifying parties can then either submit remedies meeting the concerns in order to get a conditional clearing decision, withdraw the notification or receive a prohibit decision.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Pre-notification contact to the Norwegian Competition Authority is only customary in complicated transactions.

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable. 

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Phase I:

Starting from the first working day after the formal filing has been submitted by the notifying parties, the Norwegian Competition Authority has 25 working days to decide whether to clear the transaction in Phase I or open a Phase II investigation. In transactions that are viewed as non-problematic, the Authority has a policy of clearing the case before the expiry of the 25 working days deadline.

If the notifying parties submit remedies before the expiry of the 20th working day, the Authority will extend the Phase I period by 10 working days, i.e. to a total of 35 working days.

Phase II:

In Phase II the Authority has 70 working days from receipt of the notification to either accept and make binding any remedies presented by the notifying parties or issue a reasoned draft decision to prohibit the transaction. If the notifying parties submit new or revised remedies later than 55 working days after submission of the notification, the deadline is extended correspondingly, though no longer than 85 working days from receipt of the notification.

If a draft prohibition decision is issued, the parties have 15 working days to comment on the draft. The Authority has 15 working days to issue its final decision after receiving such comments. This deadline may be extended by 15 working days if remedies are submitted after the Authority has issued its reasoned draft prohibition decision. The deadline may be extended by a further 15 working days upon request from the notifying parties.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The statutory timetable/deadlines can be suspended if the Norwegian Competition Authority's investigation is impeded due to circumstances attributable to the notifying parties.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

There is no statutory timetable/deadline for the pre-notification period, and the duration of such period may vary from a couple of weeks to more than a month, depending on namely the complexity of the specific transaction at hand.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Norwegian Competition Authority does not have mandatory notification forms, though it has published guidelines on information required for notifications following both the simple and normal procedures.

Please see (only available in Norwegian):

https://konkurransetilsynet.no/wp-content/uploads/2018/08/Retningslinjer-for-melding-1.pdf

https://konkurransetilsynet.no/wp-content/uploads/2018/10/RL020-Retningslinjer-for-forenklet-melding-av-foretakssammenslutning-884515_6_0-2.pdf

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Not applicable.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

A notification following the normal procedure has to be made in Norwegian.

A simplified notification may be made in Norwegian, Swedish, Danish or English.

3.4.2 Does translations have to be certified/legalized and apostilled?

Not applicable.

Statutory timetable

Step Description Time
1

Pre-notification

In general, pre-notification is not mandatory in Norway and is usually reserved for cases where some substantial concerns or procedural issues may be expected. Such pre-notification periods may involve discussions with the Competition Authority about the case and timing; telephone and/or physical meetings; submission of draft notification; fact-finding exercises; requests for additional information and documents, etc.

There is no statutory timetable/deadline for the pre-notification period, and the duration of such period may vary from a couple of weeks to more than a month, depending on namely the complexity of the specific transaction at hand.

2

Phase I

When the formal notification is submitted to the Norwegian Competition Authority the clock starts running, provided the notification is accepted as complete.

During Phase I investigations, the case team will send a market test questionnaire to the largest customers, competitors and suppliers of the notifying parties, if it deems it necessary.

The Norwegian Competition Authority will also publish a non-confidential notice on its homepage of the fact that it has received a notification.

As part of the investigation, the case team may also send requests for information, including engage in discussions and meetings with the notifying parties.

If the transaction cannot be cleared unconditionally in Phase I, the Authority will hold a meeting with the notifying parties where inter alia remedies will be discussed. If the notifying parties submit remedies, the Authority will proceed to market test and assess the remedies.

The Authority will then either initiate a Phase II investigation by issuing a notice that intervention may take place, or the transaction is cleared if no notice is issued.



Starting from the first working day after the formal filing has been submitted by the notifying parties, the Norwegian Competition Authority has 25 working days to decide whether to clear the transaction in Phase I or open a Phase II investigation. In transactions that are viewed as non-problematic, the Authority has a policy of clearing the case before the expiry of the 25 working days deadline.

If the notifying parties submit remedies before the expiry of the 20th working day, the Authority will extend the Phase I period by 10 working days, i.e. to a total of 35 working days.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Phase II

The Authority will normally continue its investigations, contact third parties in the market and send further requests for information to the notifying parties.

If the competition law concerns have not been met, the European Commission will proceed to work on a so-called "statement of objections" ("SO"), which entails a detailed examination of its findings and conclusions.

Before issuing the SO, the Authority will invite the notifying parties to a meeting if they are willing to submit remedies to meet the concerns expressed in the SO. If the notifying parties are not willing to do so, the Authority will proceed and issue a confidential SO to which the notifying parties may reply in writing or orally.

The notifying parties can then either submit remedies meeting the concerns in order to get a conditional clearing decision, withdraw the notification or receive a prohibit decision.

In Phase II the Authority has 70 working days from receipt of the notification to either accept and make binding any remedies presented by the notifying parties or issue a reasoned draft decision to prohibit the transaction. If the notifying parties submit new or revised remedies later than 55 working days after submission of the notification, the deadline is extended correspondingly, though no longer than 85 working days from receipt of the notification.

If a draft prohibition decision is issued, the parties have 15 working days to comment on the draft. The Authority has 15 working days to issue its final decision after receiving such comments. This deadline may be extended by 15 working days if remedies are submitted after the Authority has issued its reasoned draft prohibition decision. The deadline may be extended by a further 15 working days upon request from the notifying parties.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 25 days + 10 days
  • 70 days + 15 days + extensions

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 29-08-2019 by
Contact Person
Ole-Andreas Torgersen, Partner
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