The Public Competition Review

Public
Competition
Enforcement
Review
Tenth Edition
Editor
Aidan Synnott
lawreviews
© 2018 Law Business Research Ltd

Public
Competition
Enforcement
Review
Tenth Edition
Editor
Aidan Synnott
lawreviews
Reproduced with permission from Law Business Research Ltd
This article was first published in April 2018
For further information please contact Nick.Barette@thelawreviews.co.uk

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i
ACKNOWLEDGEMENTS
ADVOKATFIRMAET GRETTE AS
ALLEN & OVERY LLP
ANJIE LAW FIRM
BAKER & MCKENZIE (GAIKOKUHO JOINT ENTERPRISE)
BAYKANIDEA LAW OFFICES
BIRD & BIRD
CLEARY GOTTLIEB STEEN & HAMILTON LLP
DRYLLERAKIS & ASSOCIATES
GOODMANS LLP
HANNES SNELLMAN ATTORNEYS LTD
KHAITAN & CO
LEE AND LI, ATTORNEYS-AT-LAW
LEGA ABOGADOS
LINKLATERS C WIŚNIEWSKI I WSPÓLNICY SP K
LLOREDA CAMACHO & CO
L PAPAPHILIPPOU & CO LLC
MARVAL, O’FARRELL & MAIRAL
NORTON ROSE FULBRIGHT SOUTH AFRICA INC
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
RCAA
STIBBE
URÍA MENÉNDEZ – PROENÇA DE CARVALHO
The publisher acknowledges and thanks the following law firms for their learned assistance
throughout the preparation of this book:

Acknowledgements
ii
VEIRANO ADVOGADOS
WHITE & CASE LLP
WILMER CUTLER PICKERING HALE AND DORR LLP (WILMERHALE)

iii
PREFACE��vii
Aidan Synnott
Chapter 1 EU OVERVIEW��1
Frédéric Louis and Anne Vallery
Chapter 2 ARGENTINA��13
Miguel del Pino and Santiago del Rio
Chapter 3 AUSTRALIA��27
Kathryn Edghill
Chapter 4 BELGIUM��43
Hendrik Viaene and Delphine Gillet
Chapter 5 BRAZIL��53
Mariana Villela, Leonardo Maniglia Duarte and João Marcelo Lima
Chapter 6 CANADA��66
Cal Goldman, David Rosner, Richard Annan and Michael Koch
Chapter 7 CHINA��78
Michael Gu
Chapter 8 COLOMBIA��97
Enrique Álvarez and Darío Cadena
Chapter 9 CYPRUS��113
Stephanos Mavrokefalos
Chapter 10 FINLAND��120
Tapani Manninen, Anette Laulajainen and Annastina Kolehmainen
CONTENTS

iv
Contents
Chapter 11 FRANCE��133
Florence Ninane and Patricia Carmona Botana
Chapter 12 GERMANY��152
Evelyn Niitväli and Marc Reysen
Chapter 13 GREECE��164
Emmanuel Dryllerakis and Cleomenis Yannikas
Chapter 14 INDIA��183
Avaantika Kakkar, Dhruv Rajain and Aman Singh Baroka
Chapter 15 ITALY��202
Giuseppe Scassellati-Sforzolini, Marco D’Ostuni, Luciana Bellia and Fabio Chiovini
Chapter 16 JAPAN��213
Junya Ae, Michio Suzuki and Ryo Yamaguchi
Chapter 17 NETHERLANDS��223
Tjarda van der Vijver, Jochem de Kok, Koen de Wit and Iradj Nazaryar
Chapter 18 NORWAY��233
Odd Stemsrud
Chapter 19 POLAND��246
Anna Laszczyk and Wojciech Podlasin
Chapter 20 PORTUGAL��258
Joaquim Caimoto Duarte, Tânia Luísa Faria and Maria Francisca Couto
Chapter 21 SOUTH AFRICA��274
Candice Upfold
Chapter 22 SWEDEN��294
Peter Forsberg, Haris Catovic and David Olander
Chapter 23 TAIWAN��309
Stephen Wu, Rebecca Hsiao and Wei-Han Wu
Chapter 24 TURKEY��332
Serbülent Baykan and Handan Bektaş

Contents
v
Chapter 25 UNITED KINGDOM��344
Marc Israel and Andrew Wright
Chapter 26 UNITED STATES��362
Aidan Synnott and William B Michael
Chapter 27 VENEZUELA��382
Alejandro Gallotti
Appendix 1 ABOUT THE AUTHORS��393
Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS��413

vii
PREFACE
In the reports from around the world collected in this volume, we continue to see a good deal
of international overlap among the issues and industries attracting government enforcement
attention. We also see the evolution and refinement of approaches to competition law
enforcement in several jurisdictions. Particularly notable this year are the chapters from the
United Kingdom and Argentina: the authorities in the United Kingdom are surely busy
adapting for a post-Brexit enforcement regime, while those in Argentina are ‘pushing for
the issuance of a new antitrust law ... with several major changes’. Indeed, in the report
that follows, we read of many areas where the new Argentine administration has stepped up
enforcement activities. South Africa is also proposing ‘substantial changes’ to its competition
law.
Cartelenforcementremainsrobust.Inthepagesthatfollow,wereadofnumerousmatters
before Brazilian enforcers; a notable new emphasis on cartel enforcement in Argentina; and
in Australia, the imposition of a fine in ‘the first criminal prosecution for cartel conduct’. We
also read of the continued use of leniency programmes in several jurisdictions. However, the
chapter on the European Union reports that leniency applications have appreciably declined,
which, the authors note, ‘raises the question of the effectiveness of the leniency programme
itself and of other detection methods’. Still, the report from France details the first use of
that country’s leniency programme in conjunction with a new settlement procedure. The
authors note that ‘the recent new settlement procedure may accelerate proceedings as more
companies may be willing to settle’. The report from Argentina describes a proposed leniency
programme there.
The above-referenced French case involved an alleged cartel of manufacturers of PVC
and linoleum floor coverings. (The Chinese also fined manufacturers of PVC.) In Australia,
the authorities moved against an alleged cartel of suppliers of roof sheeting. Fines were
imposed upon cement companies in Italy and Australia. The EU and United Kingdom
chapters discuss the use of pricing algorithms by cartels. Both the United Kingdom and the
United States brought actions concerning alleged cartels relating to the sale of real estate: the
United States continued its enforcement activities against real estate auction bid-rigging, and
the UK brought an action against agents alleged to have engaged in a cartel related to their
services.
In the areas of restrictive agreements and abuse of dominance, several jurisdictions
continued to police firms in the pharmaceutical industry. The chapters from China, France
and the United Kingdom describe several of these enforcement efforts. Moreover, the French
authorities launched a broader inquiry into several areas in the healthcare sector. Additionally,
in France a gas supplier was fined for abuse of its dominant position. In the United Kingdom,
the Competition and Markets Authority continued its work against resale price maintenance,

Preface
viii
a practice that was also met with scrutiny by authorities in India. In addition, there are
pending appeals in cases involving payment cards in both the United States and the United
Kingdom, and a resolution of a payment card case in Argentina. More generally, the report
from Argentina notes ‘heightened activity in conduct investigations’, and the chapter from
Australia details two amendments to that country’s Competition and Consumer Act relating
to misuse of market power and ‘concerted practices’. The discussion on loyalty rebates and
exclusivity in the EU Overview will be of interest to many.
Merger review and enforcement activity remains robust. The chapters that follow
note activity in many sectors ranging from banking in Brazil to online property advertising
platformsinFrance.Frenchauthoritiesalsorevisitedconditionsplacedonearlierpay-television
and free-television mergers in light of changing competitive conditions. Indeed, our French
contributors note an increasing amount of merger activity there; and from Argentina, we read
that ‘significant steps have been taken towards a more proactive merger control system’, along
with an acceleration of the pace at which the Antitrust Commission reviews cases. In Brazil,
‘[t]here has been an increase in the number of mergers reviewed by’ the authority there, ‘as
well as in the number of transactions subjected to substantial scrutiny and opposition, and
even effectively blocked by the authority’. The ATT/TimeWarner deal is being challenged in
the United States, but was cleared – with certain conditions – in Brazil, where ‘ATT owns
[a] pay-tv services operator ... and TimeWarner licenses channels to pay-tv operators’. The
report from China notes several enforcement actions arising out of merger process violations,
such as the failure to properly report transactions, along with conditional approvals of
acquisitions involving printing and container transport.
Last, but certainly not least, readers will be quite interested in the informative discussion
of ‘[t]he biggest talking point for UK competition law’ – Brexit – in the chapter from the
United Kingdom. Here, the authors discuss the potential consequences of Brexit on the
UK’s competition enforcement regime, while noting that the ‘future ... remains unclear’.
We will watch with interest to see how evolving proposals for Brexit may affect competition
enforcement in the United Kingdom and the European Union.
Aidan Synnott
Paul, Weiss, Rifkind, Wharton Garrison LLP
New York
March 2018

233
Chapter 18
NORWAY
Odd Stemsrud 1
I OVERVIEW
i Statutory provisions and public enforcers
The main statutory provisions in Norway are enshrined in the Competition Act of 2004
(CA). The substantive provisions of the CA mirror Articles 101 and 102 TFEU and Articles
53 and 54 EEA Agreement by prohibiting first, cartels and anticompetitive agreements, and
secondly, abuse of a dominant position. Norway is not a member of the European Union,
but it is party to the EEA Agreement. Thus, Norway has implemented the EU and EEA
competition rules and internal market rules, and has a state aid regime similar to that of EU
Member States (Article 61 EEA Agreement mirrors Article 107 TFEU).
The main public enforcer of the CA is the Norwegian Competition Authority (NCA).
Decisions adopted by the NCA can be appealed to the Competition Appeals Tribunal prior
to being brought before the Norwegian appellate courts. The Competition Appeals Tribunal
was established as of 1 April 2017. The NCA is not a formal member of the European
Competition Network, although having informal points of contact. The Nordic countries
entered into an enhanced cooperation agreement in September 2017.
The public enforcers of the provisions of the EEA Agreement are, in addition to
the NCA, the European Commission and the European Free Trade Association (EFTA)
Surveillance Authority (ESA). ESA is particularly important in relation to enforcement of
the state aid provisions and Article 59 EEA Agreement (the award of special or exclusive
rights – mirroring Article 106 TFEU). Decisions adopted by ESA can be challenged before
the EFTA Court. Due to the case allocation rules of the EEA Agreement, ESA does not deal
with merger cases or cartel cases affecting EU Member States.
ii NCA enforcement: 2017 overview and 2018 outlook
In 2017, the NCA adopted in total four decisions: two cartel prohibition decisions, one
prohibition decision against a notified merger and one decision for breach of the merger
standstill obligation. The NCA has one major pending abuse of dominance case, being
against Telenor (the incumbent) in the telecom sector.
1 Odd Stemsrud is a partner at Advokatfirmaet Grette AS.

Norway
234
Public enforcement of the NCA 2014–2017
2014 2015 2016 2017
Mergers – notifications 89 96 97 99
Mergers – interventions 3 5 3 1
Mergers – breach of standstill 5 2 0 1
Section 10 decisions (cartel provision) 0 2 1 2
Section 11 decisions (abuse of dominance) 0 0 0 0
Section 9e (challenges of public regulations) 0 0 0 0
Dawn raids 6 1 1 3
In 2018 the NCA’s enforcement focus, according to instructions from the Ministry of
Trade, Fisheries and Industry (Ministry) in the 2018 budget letter, will target (1) personal
criminal sanctions as a real threat, (2) enforcing abuse of dominance cases and (3) monitoring
competition in the grocery sector. The reason behind (1) and (2) is the hitherto absence of
enforcement of the relevant provisions. The reason behind (3) is that the Norwegian grocery
sector is allocated between a few large chains. Moreover, due to the Norwegian customs
regime for foodstuffs, it has proven challenging for foreign grocery chains to penetrate the
Norwegian market.
ESA enforcement: 2017 overview
ESA adopted 14 state aid decisions related to Norway in 2017, covering, inter alia,
environmental aid, regional aid and services of general economic interest aid. With regard
to enforcement priorities, it should be noted that Regulation 2015/1589, establishing a
possibility to prioritise state aid complaint cases, has yet to be incorporated into the EEA
Agreement.
ESA adopted no competition law decisions in 2017. However, it is currently undertaking
two major investigations:
a in parallel to the NCA, ESA has one major pending abuse of dominance case against
Telenor in the telecom sector pursuant to Article 54 EEA; and
b ESA opened antitrust proceedings pursuant to Article 53 EEA Agreement in the
Norwegian financial sector in October 2016, including against the major banks and
the key trade organisation (Finance Norway).
ESA is in practical terms to some extent ‘a second NCA for Norway’; that is, the EFTA and
EEA States are Iceland and Liechtenstein, in addition to Norway. Thus, ESA’s focal point is
often (markets in) Norway, in contrast to the European or global competition scope of the
European Commission.
iii Global public enforcement against Norwegian entities
In the global arena one case has stood out in recent years: the Maritime Car Carrier case. In
this case, relating to the pure car truck carrier industry, investigations have been opened in
all major global jurisdictions, including the EU, the US and Japan. Two Norwegian shipping
companies, Wilh Wilhelmsen Logistics (WWL) and Höegh Autoliners, have been subject
to the investigations. The former company has filed for leniency and been fined in several

Norway
235
jurisdictions. The latter has, to date, only been fined in the US. The European Commission
adopted its decision on 21 February 2018, imposing a fine of €207 million on WWL. This is
the largest ongoing cartel case with Norwegian addressees.
iv Private enforcement
On the legislative side, Directive 2014/104/EU on antitrust damages actions has yet to be
incorporated into the EEA Agreement and implemented into Norwegian law. This is due to
institutional issues that are unlikely to be solved in the near future. However, existing general
Norwegian law mirrors roughly the provisions of the Directive.
The key private enforcement case currently pending in Norwegian courts is the
Kristoffersen case. In this case, the world-renowned slalom skier Henrik Kristoffersen
is challenging the sporting community framework in relation to the scope of an athlete’s
economic rights pursuant to EU and EEA law. The case addresses novel issues on a European
level, and is currently pending before the EFTA Court.
The most interesting ongoing damages action case is the case between Nye Kystlink
and Color Group, currently pending before the Appellate Court with a reference to the
EFTA Court in Case E-10/17 on certain questions related to limitation. The litigation case
has surfaced in the wake of the EFTA Surveillance Authority’s decision in Case 59120 of
14 December 2011. The decision identified an infringement by Color Group and Stroemstad
municipality of Articles 53 and 54 EEA related to long-term exclusive harbouring rights. The
novel issue in the case is related to the EFTA Surveillance Authority contemplating, for the
first time, providing the national court with information from the decision not made available
to the interested parties. Based on basic principles of due process it would be difficult for the
national court when rendering a judgment to draw on facts not made available to the parties.
II CARTELS
The substantive cartel provision in Section 10 of the CA mirrors Article 101 TFEU and
Article 53 EEA Agreement, except for the criterion related to effect on trade between EEA
States. Thus, Section 10 CA prohibits agreements and concerted practices that have an
anticompetitive object or actual or potential restrictive effects on competition. Judgments of
the European Union Court of Justice (EUCJ) and the EFTA Court are directly relevant legal
sources in the interpretation and application of the provision.
The leniency policy pursuant to the CA is similar to that of Regulation 1/2003 in the
EU, including the possibility of obtaining a marker:
a the first applicant may be granted full immunity from administrative fines;
b the second company may be granted a 30 to 50 per cent reduction;
c the third company may be granted a 20 to 30 per cent reduction; and
d subsequent companies may be granted a reduction in fines of up to 20 per cent.
In contrast to the EEA Agreement provisions, cartel behaviour in breach of the CA can also
trigger criminal sanctions, including fines and ultimately imprisonment of individuals, in
theory of a duration of up to six years in aggravating circumstances. On the one hand, criminal
sanctions have yet to be applied in a cartel case in Norway, not to mention criminal sanctions
against individuals. On the other, the NCA adopted specific guidelines in 2016 on criteria
when they will consider reporting an individual offence to the Public Prosecution’s office, and

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the instructing ministry has requested the NCA to consider imposing criminal sanctions on
individuals in future cases. The leniency programme is not available to individuals. However,
it is possible to anonymously enquire at the NCA about whether they will request criminal
sanctions against individuals as a prejudgment decision.
There is a settlement procedure available pursuant to the CA mirroring that of
Regulation 1/2003, possibly reducing an administrative fine by 10 per cent. The provision
entered into force in 2016 and has yet to be applied.
i Significant cases
The NCA adopted two cartel decisions in 2017.
Publishers case – exclusionary conduct 2
In a decision of 22 March 2017, the NCA fined four publishers for illegal collusion with
fines totalling 32 million Norwegian kroner. The four publishers account for the majority
of books supplied to Norwegian consumers. The NCA found that the cooperation between
the publishers had the purpose of restricting competition in the mass market for books. This
market includes retail outlets for books that are not traditional bookstores, such as kiosks,
grocery stores and petrol stations. There are only two main distributors in this market in
Norway, Interpress and Bladcentralen, the latter distributor being jointly owned by the four
publishers. The publishers boycotted Interpress, with the effect that books were supplied
only to Bladcentralen, the distributor owned by the publishers. Three of the four publishers
have initiated a court review of the decision. The NCA conducted a new dawn raid on the
said publishers in January 2018 in a case concerning a possible illegal exchange of sensitive
information related to the joint venture Bokbasen AS. The joint venture is a distribution
platform for e-books in Norway. The EFTA Surveillance Authority is in parallel investigating
the Norwegian exemption from the CA related to the possibility to set fixed prices for books
for an initial period after publication.
El Proffen case – bid rigging3
The collusion in this case took place in the spring of 2014 and was related to a public tender
for the maintenance of electrical installations in public schools. Five members of El Proffen,
a large chain of independent electricians, cooperated on the tender by submitting a joint
bid on the invitation from the chain office, irrespective of the fact that each member could
have offered on the tender. Thus, the (independent) members agreed on prices instead of
competing to submit the best offer. In a decision of 4 September 2017, the NCA imposed
fines totalling approximately 18 million Norwegian kroner on the chain – El Proffen – and
the five members that participated in the joint bid. The decision has not been appealed.
Dawn raids
The NCA carried out two cartel dawn raids in 2017, in June in the market for alarm
and security services, and in December in the market for waste and waste treatment in
Mid-Norway. The investigations are ongoing. There is no information in the public domain
2 NCA decision V2017-18 of 22 March 2017.
3 NCA decision V2017-21 of 7 September 2017.

Norway
237
on additional ongoing cartel cases in Norway enforced by the NCA (i.e., cases where a
statement of objection has been published or cases where there public information on dawn
raids has been conveyed).
The key court case – ‘by object’ restriction: the Ski Taxi judgment (Supreme Court and
EFTA Court)4
In a judgment of 22 June 2017, the Norwegian Supreme Court dismissed an appeal from two
taxi companies relating to a decision by the NCA concerning the submission of joint bids in
a tender procedure related to the provision of patient transport services. In its decision, the
NCA had concluded that two taxi companies were competitors and that the submission of a
joint bid constituted a restriction of competition by object in breach of Section 10 CA. The
judgment touched on an issue of principle: whether cooperation between competitors that
takes place openly regarding the procuring authority can constitute a ‘by object’ restriction.
The Supreme Court requested an advisory opinion from the EFTA Court on this issue. The
EFTA Court found:
While the disclosure of the joint nature of the bids to the contracting authority may be an indication
that the parties did not intend to infringe the prohibition on agreements between undertakings, that,
in itself, is not a prerequisite for determining whether an agreement may be considered a restriction
of competition by object.
ii Trends and outlook
For several years, the NCA’s enforcement resources have to a large degree focused on merger
control. However, cartel enforcement has not been limited to leniency cases. On the contrary,
most recent cartel cases in Norway have been complaint cases related to collusion by way of
bid rigging in local markets.
III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE
Section 10 of the CA mirrors Article 101 TFEU and Article 53 EEA Agreement. Moreover,
Section 11 of the CA mirrors Article 102 TFEU and Article 54 EEA Agreement. Thus,
Section 11 CA prohibits a company’s unilateral abuse of a dominant position.5
Judgments of
the EUCJ and the EFTA Court are directly relevant legal sources in the interpretation and
application of the provisions.
Regarding public enforcement tools, the CA includes the possibility of commitment
decisions mirroring that of Regulation 1/2003 in the EU.
i Significant cases
Four ongoing cases from 2017 merit mention.
4 HR-2017-1229-A of 22 June 2017 and advisory opinion in EFTA Court case E-3/16, Ski Taxi SA, Follo
Taxi SA og Ski Follo Taxidrift AS v. the Norwegian Government of 22 December 2016.
5 The provision also prohibits abuse of collective dominance as that concept is enshrined in EU and EEA
competition law.

Norway
238
Trustly antitrust case – financial sector
On 25 October 2016, ESA opened proceedings against DNB, Nordea, Finance Norway and
BankID for suspected breaches of Article 53 EEA Agreement.6
ESA will investigate whether
these members of the Norwegian banking community engaged in concerted practices aimed
at blocking a new market entrant, the Swedish company Trustly, from providing a new
e-payments service in Norway. At present, Norwegian consumers are unable to benefit from
a new service that is now available in most other EEA countries. ESA will investigate whether
there are valid reasons for this under the EEA competition rules. The substance of the case
fits with the implementation of the Payment Services (PSD2) Directive in 2018, pursuant to
which it is likely that foreign e-payment service providers such as Trustly will obtain market
access. The investigations are ongoing.
Telenor abuse cases – telecom
NCA case
On 23 November 2016, the NCA sent a statement of objections to Telenor. The NCA is
considering imposing a fine of 906 million Norwegian kroner on Telenor, the highest fine
ever in Norway. The case relates, in essence, to an alleged abuse by Telenor of its dominant
position by engaging in conduct that impeded the entry of a third mobile network in Norway.
From 2007 onwards, Network Norway and Tele2 established such a network. During the
rollout phase, Telenor was required to provide them with access to its network in areas where
the third network was not yet present. The conduct amounted to two separate alleged abuses:
the first abuse is in regard to Telenor’s conditions for giving Network Norway access to its
network when the third network was under construction, and the second abuse is in regards
to the fact that Telenor entered into exclusive supply agreements with four mobile operators,
reducing the ability of the third network to retain customers.
ESA case
On1February2016,ESAsentastatementofobjectionstoTelenor.ThecaseconcernsTelenor’s
conduct in three Norwegian markets: the market for wholesale mobile access and origination
services, the market for mobile broadband services to residential customers and the market
for mobile communications services to business customers. ESA takes the preliminary view
that Telenor’s pricing of access and origination services at the wholesale level likely impeded
competing offers in the market for mobile broadband services to residential customers. In the
market for mobile communications services to business customers, ESA is concerned that
clauses in Telenor’s contracts have impeded competition by making it very difficult for its
customers to switch provider and by making it overly expensive for competitors to capture
customers from Telenor.
Widerøe case – aviation
On 7 June 2016, ESA opened formal proceedings against Widerøe’s Flyveselskap to investigate
whether it has infringed Article 54 EEA Agreement (abuse of dominance).7
Widerøe is an
airline that operates public service obligations (PSO) routes in Norway. For safety reasons,
6 ESA decision 195/16/COL of 25 October 2016.
7 ESA decision 099/16/COL of 6 June 2016.

Norway
239
a satellite-based approach system (called SCAT-1) is installed at several regional airports in
Norway. At the airports where this system is installed, it is required that the aircraft has
SCAT-1 on-board equipment installed to operate the PSO routes. ESA is investigating
whether Widerøe may have abused a dominant position by refusing to supply an essential
component of the system to other operators, thereby impeding market access.
Dawn raids
The NCA conducted a dawn raid at the premises of the brewery Ringnes in January 2017.
The aim of the investigation is to establish whether Ringnes has abused its dominant position
in breach of Section 11 CA. The case involves Ringnes’ operations regarding the sale of beer
to eateries in Norway. No further details have been made public.
The NCA has yet to adopt a decision pursuant to Section 11 CA (abuse of dominance),
a provision introduced into Norwegian law by the entering into force of the CA in 2004,
which has not later been settled or quashed by the courts. (Two major cases that were settled
or quashed are the SAS case of 2005 and the Tine case of 2011.) Thus, it is safe to say that the
enforcement of abuse of dominance cases by the NCA is low.
ESA has successfully enforced the similar provision of the EEA Agreement (Article 54)
on several occasions, of particular note in the Posten case of 2010 (fines of approximately €11
million) and the Color Line case of 2013 (fines of approximately €19 million).
With regard to the application of Section 10 to vertical agreements, it could be noted
that the NCA has not adopted any such decision after the entering into force of the CA in
2004.
IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND
REGULATED INDUSTRIES
i Market liberalisation
The government’s efforts on liberalisation are aimed at particular two markets: rail passenger
transport services and air navigation services.
Rail passenger transport services
ThemarketpillaroftheEUFourthRailwayPackagewillmakeitcompulsoryforEEAcountries
to open the market for domestic passenger services by December 2019, while competitive
tendering for PSO will be obligatory in the majority of cases from December 2023. The
government has already ‘unbundled’ train operations and infrastructure management, and
has initiated the deregulation of the Norwegian market by way of placing various routes on
tender through a phasing-in period from 2017 to 2022.
Air navigation services
The government has conveyed, although not particularly forcefully, that the markets for
air navigation services will be liberalised. They have also stated that the incumbent service
provider and owner of most of the airports in Norway, Avinor, may await the introduction of
remote towers prior to placing the services on competitive tendering. Thus, it may take many
years before the market is opened to other air navigation service providers.

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240
ii Regulated industries
As in other EEA countries, as pursuant to EU and EEA secondary legislation, electronic
communications (including telecom), the power industry and the postal sector are subject
to additional sector-specific competition rules. The enforcement of these provisions did not
raise particularly noteworthy issues in 2017.
iii Trends and outlook
Grocery sector
As previously mentioned, in 2018 the NCA shall particularly focus on competition in
the grocery sector. The background to this can be found in the fact that the Norwegian
grocery sector is apportioned between a very few large chains with the attendant high risk of
sub-optimal competition. Moreover, due to the Norwegian customs regime for foodstuffs, it
has proven challenging for foreign grocery chains to penetrate the Norwegian market.
Private versus public entities – competition on the merits
Norway has a very large public sector. On the governmental level, a commissioned report on
competition between private and public entities was published 23 January 2018. The topic of
public commercial entities is not as controversial in Norway as it is in many other countries.
It has yet to be decided by the government whether it will adopt changes to the current
legislation in this regard in addition to the requirements of general EU and EEA state aid law
(i.e., to shield private commercial operations from being stifled by state-owned enterprises).
V STATE AID
Although not part of the EU, Norway has a state aid regime similar to that of EU Member
States (i.e., Article 61 EEA Agreement mirrors Article 107 TFEU). Thus, the EEA Agreement
prohibits state aid in order to prevent distortions of competition and negative effects on trade.
The prohibition is, however, subject to exemptions, recognising that government
intervention can be necessary to correct market failure and for other purposes. To benefit
from these exemptions the government must, as a rule, notify aid measures to ESA for prior
approval. Aid measures may be implemented without prior approval when they comply with
the General Block Exemption Regulation (GBER) or other specific rules. The main piece
of Norwegian legislation on state aid, in addition to the main parts of the EEA Agreement
having been incorporated into Norwegian law, is the State Aid Act of 1992. All procedural
rules and the EEA block exemptions have been implemented into Norwegian law as part of
the State Aid Act. Similar to the EU model, ESA may request that illegal and incompatible
state aid is recovered from Norwegian beneficiaries.
ESA has substantial resources enabling it to monitor the Norwegian market. Regarding
ESA enforcement versus European Commission enforcement, there is, however, one key
difference: Regulation No. 734/2013 has, for institutional reasons, yet to be incorporated
into the EEA Agreement. Thus, ESA’s competences follow from the previous regulation,
Regulation No. 659/99. The effects are, inter alia, that ESA cannot prioritise complaint cases
in the same degree as the European Commission; nor can ESA request market information
pursuant to the rules of Regulation No. 734/2013. That said, most cases are in any event
notification cases that ESA has to handle within the applicable deadlines.

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Moreover, a key observation from a factual perspective is that ESA is only monitoring
Norway, Iceland and Liechtenstein, enabling ESA to allocate significant resources to the
Norwegian market. In addition, Norway has a public affairs sector that in relative terms is
much larger than that of most other countries.
With regard to private enforcement, national courts are empowered to enforce, inter
alia, the state aid standstill provision and the block exemption provisions. However, private
enforcement of the state aid framework has so far been limited in Norway.
i Significant cases
ESA adopted 14 state aid cases related to Norway in 2017, in addition to 43 Norwegian
notifications pursuant to the GBER not requiring any ESA decision. All cases were
notification cases (i.e., cases notified for the approval of legal aid). Conversely, ESA did not
open any formal proceedings in 2017 based on a complaint.
The main areas for state aid in Norway are regional aid, aid to promote and make
environmental friendly solutions competitive, aid to CO2
capture technology related to oil
and gas exploration, and aid to shipping in the form of a special tax regime. To this end, four
significant cases from 2017 are as follows.
Tax reductions on zero-emission vehicles
In a decision of 19 December 2017, ESA approved a (new) period of state aid for zero-emission
vehicles in Norway through several tax exemptions:8
it approved a zero VAT rating for electric
cars for a period of three years. The zero VAT rating alone amounts to 3.2 billion Norwegian
kroner annually. It also approved also other state aid measures for electric cars, including an
exemption from annual vehicle tax and registration tax, for a period of six years. Further, zero
VAT rating and other tax exemptions were approved for a period of six years for hydrogen
cars.
Carbon capture and storage
The goal of the government’s carbon capture and storage (CCS) strategy is to realise at least
one full-scale CCS demonstration project by 2020, and Norway allocated up to 360 million
Norwegian kroner to CCS studies in 2017. CCS will reduce CO2
emissions as it enables
oil and gas installations to capture emissions stemming from their production and store
such CO2
underground. In a decision of 16 March 2017, ESA approved aid to concept
and Front-End Engineering and Design studies related to CCS technology.9
In a decision
of 8 August 2017, the ESA approved a three-year extension of Norway’s aid scheme for
the carbon capture testing centre at Mongstad.10
The total operating budget of the centre
is estimated to be 805 million Norwegian kroner, of which up to 652 million Norwegian
kroner is granted as aid over three years by the state entity Gassnova. Based on the west
coast of Norway, Technology Centre Mongstad is a unique facility for large-scale testing and
qualification of CO2
capture technologies. ESA first approved aid to the project in 2008 for
a five-year period, and the project became operational in 2012. The new approval runs until
August 2020, and the expected participants are Statoil, Shell and Total.
8 ESA decision 228/17/COL of 19 December 2017.
9 ESA decision 045/17/COL of 16 March 2017.
10 ESA decision 146/17/COL of 8 August 2017.

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Tonnage tax scheme
In a decision of December 2017, ESA approved a (new) 10-year special tax regime for
shipping in Norway.11
The Norwegian scheme exempts maritime transport from the usual
corporate tax rate. Instead, ship owners pay taxes based on ship weight, resulting in a
significantly reduced rate comparable to the tonnage tax of other jurisdictions, notably the
international shipping markets. The new scheme will be valid from 1 January 2018 until
31 December 2027 and has an approximate yearly value of 200 million Norwegian kroner.
The new scheme has been revised, taking in windmill farm vessels while introducing some
limitations for bareboat chartering.
Petroleum tax reimbursement case
The ESA is currently in an informal investigation phase related to parts of the Norwegian
petroleum tax scheme (i.e., the reimbursement system for exploration costs). Due to the
extraordinary returns on production of petroleum resources, oil companies are subject to an
additional special tax. In 2017, the ordinary company tax rate was 24 per cent and the special
tax rate was 54 per cent, generating a marginal Norwegian petroleum tax rate of 78 per cent.
The reimbursement system for exploration costs was introduced to reduce entry barriers
and encourage economically viable exploration activity. Under the system, companies that
are making a loss may choose between requesting an immediate refund of the tax value of
exploration costs from the taxation authorities and carrying forward the losses to a later year
when the company has a taxable income. If a company chooses the immediate payment
option, the exploration costs cannot be deducted from income in later tax assessments. Based
on a complaint, ESA is currently investigating whether the system could include illegal state
aid.
With regard to enforcement priorities, Regulation 2015/1589, transferring a possibility on
ESA to prioritise state aid cases, has yet to be incorporated into the EEA Agreement. However,
ESA has in an unofficial capacity stated that it will, within the existing legal framework, not
prioritise small cases not affecting competition in the marketplace to any appreciable degree:
it will, inter alia, not prioritise complaint cases related to public sales of minor properties
allegedly at below market price.
AnothertrendistheincreaseduseofGBERblock-exemptedaid.Norwayhasmadeactive
use of the GBER, with 36 block-exempted aid measures in 2016 and 43 block-exempted aid
measures in 2017. The purpose of the GBER, introduced in 2014, is that only larger, more
distortive and complex cases will remain subject to prior notification and detailed scrutiny by
ESA. Within the scope of the GBER, the requirement is that larger aid awards are published
on a publicly available website, and certain schemes require an evaluation plan under which
ESA conducts monitoring exercises.
The focus of individually notified aid is on regional aid to Norway’s outermost regions,
aid to support the shift from being an oil and gas-producing country, and aid to support
environmentally friendly choices.
11 ESA decision 214/17/COL of 14 December 2017.

Norway
243
Many European countries provide aid to promote the use of renewable energy in
households. In Norway, however, renewable energy already accounts for 99 per cent of the
total electricity production (mostly hydropower: almost 50 per cent of Europe’s hydropower
capacity is in Norway) Thus, this is not a focus of aid in Norway.
The agricultural sector is aid-intensive in Norway. This sector (as well as the fisheries
sector) is, however, not covered by the EEA Agreement. Thus, agricultural aid in Norway is
monitored only by national political control.
VI MERGER REVIEW
Section 18 et seq of the CA requires that concentrations meeting certain thresholds are notified
to the NCA. Thus, concentrations where the undertakings concerned have a combined
annual turnover in Norway exceeding 1 billion Norwegian kroner must be notified, unless
only one of the undertakings concerned has an annual turnover in Norway exceeding 100
million Norwegian kroner.
Since the CA entered into force in May 2004, the NCA has intervened in 43 cases, of
which 15 concentrations have been prohibited.
The procedure pursuant to the CA reflects roughly the EU Merger Regulation, albeit
with substantially shorter pre-notification discussions. The main features are as follows: Phase
I lasts 25 working days. A standard standstill prohibition applies until approval. There is no
deadline for notifying a concentration. Concentrations that are unlikely to affect competition
may be notified by a short-form notification, with market share thresholds mirroring the
Directorate-General for Competition Short Form CO. The notion of a ‘concentration’
mirrors that of the EU Merger Regulation, and the same holds true for the substantive
test: the significant impediment of effective competition test. The Competition Authority
publishes a notice of all notified concentrations on its website.
During 2017, the NCA received 99 merger notifications, of which four went to Phase
II and one triggered an intervention by way of a prohibition decision. In addition, the NCA
adopted one decision related to breach of the standstill provision.
Although Norway is not an EU Member State, it is covered by the one-stop shop of a
Form CO filing to the European Commission pursuant to the EUMR.Two key particularities
are that turnover in Norway (EFTA) is not relevant for the assessment of the European
Commission’s jurisdiction, and the European Commission’s jurisdiction only covers products
and services covered by the EEA Agreement (Article 8). Thus, exceptions include, inter alia,
agricultural products, which may require a separate filing in Norway if national jurisdictional
thresholds are met.12
There are also additional EEA and EFTA particularities in relation to the
referral procedures between the European Commission and the NCA.
i Significant cases
Telecom: Telia/Phonero – Phase II clearance
Telia’s contemplated acquisition of Phonero was notified to the NCA on 11 November 2016.
Telia and Telenor (the incumbent) are by far the two largest players in the Norwegian market
for mobile telecommunication services. In the segment of mobile telecommunication services
to business customers, however, Phonero is a successful player that has gained considerable
12 See, e.g., the decision in M.7015, Bain Capital/Altor/Ewos, Section 4 Paragraph 8.

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244
market share. Thus, the NCA’s preliminary view was that the concentration raised various
theories of harm related to the fact that Phonero would no longer be a separate competitive
force. The NCA found in the end that the Telia/Phonero concentration would lead to cost
savings for Phonero that will in turn benefit costumers. Thus, the NCA ultimately approved
the concentration on 3 April 2017.
Shipping: Eimskip/Nor Lines – blocked
On 3 April 2017, the NCA adopted a decision to prohibit the proposed acquisition of Nor
Lines by Icelandic Eimskip.13
The contemplated acquisition involved the two largest players
in the market for shipping frozen fish from Northern Norway to Northern Europe. The
parties’ customers are fish producers who procure shipping services for their frozen fish.
The majority of the frozen fish is exported. The market for transportation of frozen fish
with reefer vessels from Northern Norway to Northern Europe has a low number of market
players. Thus, the NCA adopted the position that the contemplated acquisition would
have significantly impeded effective competition in this market. Against that background,
the NCA blocked the decision. In a later unrelated decision of 28 August 2017, the NCA
approved the acquisition of activities associated with Nor Lines by Samskip.
Other cases
In a decision of 20 January 2017, the appellate body (at the time still the Ministry) confirmed
a prohibition decision of the NCA of 15 September 2016 blocking the acquisition of Dolly
Dimple’s Norge by Umoe Restaurants. The NCA found, that the concentration would lead
to a significant restriction of competition in the markets of restaurants and takeaways, both
nationally and in 20 local markets. This was confirmed by the Ministry. The case demonstrates
the Norwegian authorities’ hitherto focus on small markets, product-wise (here, pizza), as
well as geographically.
The notification of a joint venture (Nordic Port Services) between Greencarrier
Shipping Logistics, DFDS Logistics and Seafront Group, notified on 20 September 2017,
was withdrawn by the parties in January 2018. The withdrawal was based on a statement
from the NCA conveying its preliminary view that it intended to block the concentration
due to the transaction’s impediment of competition in markets related to the port terminal
services of sea containers.
Prior to 1 April 2017, merger decisions could be appealed to the Ministry, with a possibility
for the Council of State to adopt decisions in cases touching on interests of major society
significance. As of 1 April 2017, all appeals are lodged at the Competition Appeals Tribunal,
and the prerogative of the Council of State has been repealed.
The NCA has for many years focused on competition in local markets, which has led
to a higher number of prohibition decisions than in comparable jurisdictions with a more
neutral focus. The same focus has led the NCA to have one of the highest global ratios
of prohibition decisions compared to the number of launched Phase II investigations: for
13 NCA decision V2017-19 of 3 April 2017.

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245
example, in 2016 (97 merger cases) a Phase II investigation was launched in three cases, and
all three cases ended with a prohibition decision. It remains to be seen whether this approach
will be endorsed by the (new) Competition Appeals Tribunal.
The NCA adopted revised best practice guidelines on the handling of merger cases in
December 2017. Pre-notification discussions are used more often than previously.
Most of the NCA’s internal enforcement resources are allocated to merger control, with
the effect that complex cases under Sections 10 and 11 (Articles 101 and 102 TFEU cases)
are usually not subject to an in-depth investigation.
VII CONCLUSIONS
The most significant issue in relation to public enforcement of the competition rules in
Norway in 2017 was the establishment of the Competition Appeals Tribunal. The Tribunal
consists of competition law experts, and any subsequent appeals, in practice, will most likely
address general legal forms rather than complex assessments of competition economics and
law. No changes to the CA are expected in 2018.
On merger control, the NCA has retained its focus on local markets, which likely
will continue to generate several outright prohibition decisions in cases raising concerns. It
remains to be seen whether the NCA’s approach will be endorsed by the (new) Competition
Appeals Tribunal.
The most significant issue in relation to public enforcement of the state aid rules is the
increased use of block-exempted aid pursuant to the GBER.
Regarding private enforcement, the highest-profile current case in Norway is the Henrik
Kristoffersen case, which is currently pending before the EFTA Court.

393
Appendix 1
ABOUT THE AUTHORS
ODD STEMSRUD
Advokatfirmaet Grette AS
Odd Stemsrud is a partner at Advokatfirmaet Grette and head of the firm’s EU and
competition practice. He has advised on some of the largest competition and state aid matters
involving Norwegian companies for 20 years. These include merger control at the European
Commission, including global coordination, global cartel matters, as well as advice in EEA
matters at the EFTA Surveillance Authority (ESA). He regularly assists clients with private
enforcement at national courts, and he also has litigation experience from the European
Court of Justice and the EFTA Court. Odd is recognised in various international legal guides
as a ‘go to guy’ on competition and state aid. Of the current high-profile cases related to
Norway he is, inter alia, legal counsel for Henrik Kristoffersen in a key private enforcement
case, coordinating global counsel for Höegh Autoliners Holdings in the global PCTC cartel
case and counsel for the complainant, Trustly, in an antitrust case related to e-payments and
exclusionary conduct by the Norwegian financial sector. Furthermore, he assists Flytoget
(operator) and Entur (through-ticketing service provider) in the liberalisation process of
passenger transport by rail and LFV, the main Swedish provider, in the liberalisation of
the air navigation services markets. He is a contributor to the Antitrust Committee of the
International Bar Association and the American Bar Association’s Section of Antitrust Law.
ADVOKATFIRMAET GRETTE AS
Filipstad Brygge 2
0114 Oslo
Norway
Tel: +47 480 121 94
odst@grette.no
www.grette.no

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