Competition law enforcement summary 2019-2020
Over the past year the Norwegian Competition Authority (NCA) has not rendered a single decision for breach of the prohibition against anticompetitive agreements and practices. The last formal decision rendered was in 2017 in the El-Proffen matter. When it comes to abuse of dominance, we must go back to the Telenor matter in 2018 to find a case where the NCA applied sanctions, when a fine of NOK 788 million was issued. (The case is still pending on appeal.)Prior to that, sanctions for abuse of dominance have hardly been applied after the entry into force of the 2004 Competition Act. One may wonder whether cartels, illegal collusion and abuse of dominance takes place in Norway at all, or whether there is a lack of prioritization of enforcement in «classic» behavioral cases by the NCA.
Currently, there are known investigations after dawn raids in the groceries sector, the fuels sector and the book publishing market, and likely other cases under investigation that are not yet in the public domain. The NCA also issued a Statement of Objections in the residential alarm market in 2019, with prewarming of fines of NOK 784 million (Verisure) and 424,8 million (Sector Alarm). However, the formal decision against Verisure has not yet been rendered. A dawn raid in the recycling business was also carried out in 2019, but the case was closed due to lack of evidence of collusion.
Also, leniency cases are scarce and almost non-existing. Private actions for damages have been brought on very few occasions and none have been based on findings or decisions by the NCA. Class actions have never been initiated, likely due to lack of decisions and a cumbersome system under the Disputes Act for bringing class actions on behalf of consumers that effectively protects cartelists from mass consumer claims.
On the merger control front, one prohibition decision was rendered against the Prosafe / Floatel merger. The merger was also blocked by the CMA in the UK. The Sector Alarm / Nokas merger was cleared with commitments, and represents the first case where the NCA has intervened in a merger involving an acquisition of a minority shareholding. Finally, the Tieto / Evry merger was also cleared with commitments. The remainder of cases were all cleared, often well within the case handling deadlines (25 working days in Phase I). The NCA seems to have continued to be effective and fast throughout the Covid-19 pandemic, despite having been granted a temporary extension of its case handling deadlines (45 working days in Phase I compared to the normal deadline of 25 working days).
Also, the NCA has issued a Statement of Objections for alleged gun-jumping in a matter where the NCA has imposed a reporting obligation for all concentrations, also those falling under the merger control thresholds. The proposed fine is NOK 15 million, which is substantial compared to the turnover affected by a «micro transaction» that the NCA has admitted did not impact negatively competition in the petrol market. The NCA also imposed a mandatory merger filing obligation below the national filing thresholds in Amedia / Nu Publishing and Nor Tekstil / Storvask. While both cases were ultimately cleared, the latter case is somewhat interesting as the NCA considered a sub-contractor agreement between the parties (with Storvask as sub-contractor) as a concentration within the meaning of the merger control rules.
One field where the NCA is surprisingly active, is in its involvement in public consultations. Over the past year, the NCA has submitted comments to legislative proposals on 16 occasions, covering several areas, hereunder pharmaceuticals, the transport sector, electric grids, guaranteed pension products, access to mobile networks, and many more. It is tempting to question whether the NCA’s approximately 90 employees to a lager degree should give priority to more effective cartel enforcement. That being said, the NCA has, despite a track record with very few decisions in behavioral cases, issued substantial fines in the cases where it has decided to react.