Member Article

Mergers – recent cases
On 15 December 2023, Nordea’s acquisition of Danske Bank’s private customer portfolio was unconditionally cleared after a phase II investigation. The market for banking services holds great significance for Norwegian consumers, prompting a thorough examination of Nordea’s acquisition of Danske Bank’s private customer operations by the NCA. In connection with the clearance decision Director General Tina Søreide stated «Following a comprehensive assessment, the Competition Authority has determined that Nordea’s acquisition of Danske Bank will not significantly hinder effective competition in the banking market. As a result, the implementation of the acquisition is now approved.»

The NCA emphasized the importance of well-functioning competition in ensuring Norwegian bank customers benefit from the lowest possible mortgage interest rates. The Director, at the same time, (rather surprisingly maybe) encouraged active consumer participation in the market by staying informed about mortgage terms, comparing prices, and being willing to switch banks if necessary. She believes this can contribute to creating a competitive environment in the retail banking market.

In a groundbreaking development for Norway, the Supreme Court has, for the first time, adjudicated a decision to block a merger. This legal intervention resulted in the overturning of the NCA’s decision prohibiting the merger. In 2019, Schibsted acquired the majority stake in Nettbil, a web-based auction service utilized by individuals to sell used cars to dealerships. At that time, Nettbil was a startup with a limited market share, while Schibsted maintained control over Finn.no, a classified ads platform with a dominant position for car ads. Despite Nettbil’s modest turnover, the NCA determined that the acquisition would substantially impede effective competition and consequently opposed the transaction. This determination was based on the parties being deemed competitors in a concentrated market where Finn.no already held a dominant position. Schibsted appealed this decision to the Competition Appeals Board, which upheld the NCA’s blockage. The case was ultimately decided by the Supreme Court on 16 February 2023, resulting in the final overturning of the NCA’s decision. The Supreme Court’s main consideration was that the parties to the transaction were not active in the same relevant product market, which was the opposite of the NCA’s position in the matter.

The Supreme Court’s judgment transpired after the Competition Appeals Board permitted a bank merger initially opposed by the NCA (DNB’s acquisition of Sbanken – a «maverick contender» in the retail banking market). In two recent cases, the NCA thus failed to demonstrate a significant impediment to effective competition, a prerequisite for intervening in a merger.

Cartels
Norway’s four major publishing houses and Bokbasen, a database provider, were collectively fined NOK 545 million by the NCA for violating the Competition Act. The publishers were accused of illegally exchanging future book prices and other competitively sensitive information through a subscription to Bokbasen. The NCA found the publishers to be competitors in a highly concentrated Norwegian book market. About 90% of the book market’s turnover is represented by four publishing houses. According to the NCA, the evidence suggested that the publishers shared and received competitively sensitive information through Bokbasen, leading to a complete overview of each other’s market conduct. In the NCA’s opinion, the alleged illegal sharing of competitively sensitive information enabled the publishing houses to adjust their market strategies based on their competitors’ plans. On appeal, the Competition Appeals Board on 23 November 2023 squashed the NCA’s entire decision based on the conclusion that it had failed to substantiate that the information exchange through Bokbasen was a restriction «by object.»

The key clarification in this matter revolves around whether the prices entered by publishers in Bokbasen were future prices. The Competition Appeals Board considered various factors to ascertain the binding nature of these published prices. Contrary to the NCA’s assertion, the notion that prices must be fully binding at the time of sharing to avoid being considered future prices was rejected. The NCA’s interpretation was criticized because it diverges from the guidelines of the Commission and ESA. The decision also stated that the NCA’s position lacks support in EU- or EFTA Court case law. The Appeals Board also considered how the information was exchanged, noting that it occurred through an openly accessible database available to all industry players and customers. The information was simultaneously shared with end customers through retailers’ online bookstores, as these were automatically updated with new data from the book database.

Ongoing investigations
There are currently four cases under investigation that are partially known in the public domain:

• Abuse of dominance in the financial sector
• Cartel in the market for moving services
• Cartel in a «health-related» market
• Illegal information exchanges in the grocery sector – the «price hunter case»

In the latter case, the NCA issued its Statement of Objections on 15 December 2020. Some commentators say the NCA «dropped a bombshell,» revealing hefty fines totaling NOK 21 billion aimed at the major grocery players Norgesgruppen, Coop, and Rema 1000. According to press statements by the NCA, the initial investigation suggests that these supermarket chains colluded in a manner that could have inflated grocery prices, centering around their collaborative efforts in price-checking activities. According to the NCA, the chains consented to providing price-checkers access to each other’s stores, facilitating the comprehensive collection of prices. The NCA’s provisional findings indicate that the chains leveraged this information to synchronize pricing strategies, potentially leading to an undesirable surge in grocery prices for consumers. This alleged collusion has been ongoing since 2011. Following a notable upswing in price data gathering, the Authority initiated an inquiry in 2016, delving into the pricing dynamics and information flow, including the chains’ price-checking activities. A dawn raid was carried out in 2018. The NCA’s provisional conclusion is that this collaboration violates its intended purpose, warranting substantial fines. The Authority has specified that Norgesgruppen faces a fine of NOK 8.8 billion, Coop Norge SA is slated for a NOK 4.8 billion fine, and Rema 1000 AS could be penalized with a fine of NOK 7.4 billion. The NCA’s final decision was expected in 2023 but will not be rendered until sometime in early 2024. Given the outcome of the «Bokbasen» matter already referred to above, it remains to be seen whether the NCA’s theory of harm and «by object infringement» theory will stand if the decision is appealed.

Other notable developments
Third-party financing of opt-out class actions

In a recent ruling, the Norwegian Supreme Court determined that opt-out class actions with third-party litigation funding are not permissible in Norway.

Background:

In November 2020, the Norwegian Competition Authority (NCA) imposed fines on Verisure AS and Sector Alarm for market collusion in the residential alarm services sector. The fines amounted to NOK 766 million for Verisure and NOK 467.3 million for Sector Alarm. The NCA found that the two major players in the market engaged in market-sharing practices from 2011 to 2017, agreeing not to sell alarm services to each other’s customers through door-to-door selling. During this period, Verisure and Sector Alarm had numerous direct contacts, sharing detailed market strategies and encouraging compliance with agreed practices. They maintained collusive behavior through threats of retaliatory measures. The illegal conduct occurred throughout Norway.

The Opt-out Class Action:

A group of consumers formed the «Alarm Customers’ Association» (AKF) and brought proceedings on behalf of around 400,000 alarm customers against Verisure and Sector Alarm. The Oslo City Court and Borgarting Appeals Court dismissed the case as inadmissible. Before the Supreme Court, the key issue was whether the Norwegian Dispute Act allowed third-party financing in opt-out class actions. This case, funded by Therium, was Norway’s first opt-out class action with external financing. In its ruling dated 5 December 2023, the Supreme Court decided that the principle of effectiveness in EEA law could not lead to the conclusion that third-party financing should be allowed. In this context, the Supreme Court stated that it is up to the legislator to introduce legislation rather than for the courts to take a stand on such a fundamental issue.

Personal liability for competition law infringements
In 2023, the Norwegian Government engaged in a public consultation to explore the possibility of strengthening personal liability for violations of the Competition Act. A legal opinion has been published as part of this process, delving into various aspects of liability issues. The consultation emphasizes the significance of competition legislation in safeguarding crucial societal interests, including consumers’ freedom of choice, fair distribution, and efficiency through innovation. Administrative reactions and sanctions are imposed solely on legal entities, with penalties for natural persons not having been utilized since the Competition law’s enactment in 2004. The consultation paper explores the potential introduction of fines and management disqualification for natural persons, arguing that these measures would provide a more direct and preventive effect in protecting legal goods. The proposal aligns with international practices and the Ministry of Justice and Public Security recommendations. The opinion proposes the removal of criminalization in certain sections of the Competition Act, advocating for the Competition Authority to have the authority to impose fines on natural persons for specific provisions. It suggests retaining criminalization for serious breaches related to cartel activities. The timeline for a final proposal is unclear.

New market investigation tool
In a move following the footsteps of the UK, where the national competition authority wields authority in conducting market investigations and implementing remedies, Norway is contemplating similar measures. Other European nations, including Sweden, Denmark, and Germany, are also evaluating the adoption of comparable legislation.

The proposed amendments introduce a market investigation tool that would empower the Norwegian Competition Authority to delve into market dynamics and subsequently enforce behavioral or structural remedies. The objective is not merely to uncover infringements of competition rules but to identify and address competitively restrictive behavior requiring measures beyond the scope of traditional competition legislation. This approach enables competition authorities to tackle broader competition concerns within a market, transcending individual companies’ behavior.

Key takeaways from the draft legislation include the authority’s ability to conduct market investigations in situations where competition is perceived as restricted or at risk. The decision to initiate a market investigation is subject to a public hearing, allowing stakeholders to provide input on the preliminary assessment. The authority may impose necessary remedies to alleviate competition restrictions in markets with significant impediments. Additionally, the appointment of a trustee to aid in implementing market investigation decisions is within the authority’s purview.

ESA adopted a revised informal guidance notice
The EFTA Surveillance Authority (ESA) adopted a revised Notice on informal guidance for questions related to EEA competition law on 14 June 2023. This notice is a resource for businesses seeking informal guidance on applying EEA competition rules. The revision aligns with changes made to its guidance notice by the European Commission in October 2022. The updated criteria in ESA’s notice enhance its flexibility in providing informal guidance, especially for novel or unresolved questions. This allows ESA to address a wider range of issues through guidance letters, contingent on available resources. As of now, no guidance has been issued under the revised guidelines. The updated notice also broadens the definition of ‘novel issues’ to include cases where the existing EEA legal framework lacks sufficient clarification.

In perspective: The «rear view mirror» – Overview of the last 20 decisions adopted by the Norwegian Competition Authority under the Competition Act Sections 10 and 11
The table set out below gives a brief overview of the 20 last cases decided by the Competition Authority based on the Competition Act Section 10 (cartel prohibition) and Section 11 (abuse of dominance) over the past 15 years.

• Only two of the cases involved leniency applications.
• Eight of the cases involved illegal bid rigging or cooperation in public tenders.
• The highest fines in a cartel case were in the residential alarm matter from 2020 (totaling 1.2 billion).
• The highest fine in a dominance matter was NOK 788 million in the Telenor decision (2018).

See the table of cases here.