Yes, the Competition Act (LOV-2004-03-05-12) provides the main Norwegian rules on merger control, which largely mirror EU competition law. The relevant legislation is available online at https://lovdata.no/dokument/NL/lov/2004-03-05-12?q=konkurranseloven. Information in English can be found on the website of the Norwegian Competition Authority at https://konkurransetilsynet.no/currently-reviewed/mergers-and-acquisitions/?lang=en. Due to the fact that Norwegian merger control rules largely mirror the EU rules, the guidance found in the European Commission’s jurisdictional notice and ancillary restraints notice, are relevant and largely relied upon for the purposes of Norwegian competition law as well.

Merger control is enforced by two independent administrative bodies established and regulated under the Competition Act: the Norwegian Competition Authority ("NCA"), and the Competition Appeals Tribunal ("CAT"). The NCA is responsible for the administration and enforcement of the Competition Act. The decisions of the NCA are subject to appeal before the CAT. The CAT consists of three to five members, depending on the specifics of the case, all with expertise in either economics or law. Decisions of the CAT are in turn subject to appeal before the Norwegian Court of Appeals and, in the last instance, the Supreme Court.

Mergers that are subject to the jurisdiction of the EFTA Surveillance Authority ("ESA") or the EU Commission are exempted from the notification obligation to the NCA. This pertains to mergers with a "community dimension" under the EUMR (EU Commission) or cases with an "EFTA dimension" but not a community dimension (ESA). Mergers are only subject to the jurisdiction of either one of the two. Very few mergers have an "EFTA dimension" without at the same time also having an EU "community dimension" and so, generally, the jurisdiction of ESA in merger control cases is not significant. The rules on "community dimension" under the EUMR apply in Norway as well, under Article 57 of the EEA Agreement. This means that, in practice, the NCAs jurisdiction in merger control cases is limited by the jurisdiction of the EU Commission under the EUMR, which according to the Competition Act exempts the merger from being notifiable to the NCA.

Yes. Merger filing requirements are set out in Sections 18 and 18 a of the Competition Act.

The merger control rules apply to transactions entailing a "concentration", the concept of which is interpreted and applied in the same way as in EU competition law. In accordance with the EU Merger Regulation, a concentration will be deemed to arise in any of the following circumstances:

• two or more previously independent undertakings merge; or
• one or more persons already controlling at least one or more undertakings, acquire, whether by the purchase of securities or assets, by contract or by any other means, de jure or de facto, direct or indirect control of the whole or parts of one or more other undertakings.

The European Commission jurisdictional notice is relied on for the purposes of interpreting these concepts.

The acquisition of minority shareholdings is subject to notification, as any other transaction, when the transaction entails that control over the undertaking is acquired and the jurisdictional thresholds are met. Whether the acquisition of a minority shareholding constitutes the acquisition of control, depends inter alia on whether the strength of voting rights and other factors may lead to the possibility of exercising control. It should be noted that the acquisition of a possibility to exercise control is sufficient; whether or not control has actually been exercised, is not relevant. The EC's jurisdictional notice, and the case law of the EU courts, are generally relied on for these purposes.

In addition, the Competition Act Section 16 a specifically provides that the NCA may prohibit acquisitions of minority shareholdings if the acquisition is found to entail a significant impediment to efficient competition.

Foreign-to-foreign mergers meeting the turnover thresholds are subject to Norwegian merger control, regardless of whether effects in the Norwegian market can be identified. The turnover thresholds do however entail a requirement for the undertakings concerned to be generating substantial turnover in Norway in order for the merger to be caught by the Norwegian merger control rules.

The merger notification obligation applies to concentrations where:

• the combined aggregate turnover in Norway of all undertakings concerned exceeds NOK 1 billion, and;
• the turnover in Norway of each of at least two of the undertakings concerned is more than NOK 100 million.

The notion of "undertakings concerned" is interpreted and applied in accordance with EU competition law.

In addition, the NCA may order a notification to be submitted for mergers falling below these thresholds (a so-called "call-in" option). The NCA may issue such an order where it considers that the merger in question may affect competition or where particular circumstances suggest that the NCA review the merger. However, such an order may not be issued later than three months after the final merger agreement is entered into or the acquisition of control has taken place.

Filing is mandatory provided that the turnover thresholds are met.

Mergers meeting the turnover thresholds must be filed and approved by the NCA before they are implemented.

A merger that is notifiable to the NCA must not be implemented before approval by the NCA or the expiry of the statutory time limits (the "stand-still obligation"). The NCA has 25 working days to conduct its initial review (Phase I), by which it must decide whether to approve the transaction or enter into an in-depth Phase II investigation of 70 working days. Communication and negotiations between the parties and the NCA may trigger extensions of this deadline up to a total of 145 working days. The NCA may ‘stop the clock’ at any time during the formal review periods in Phase I and II if the parties do not provide the requested additional information within the time frame given.

The NCA may grant an exception from the standstill obligation upon request from the parties, however, this rarely happens.

The use of a specific form is not required. The Competition Act sets out the following requirements as to the contents of the filing:

• Company registration number and the parties' contact information.
• Description of the transaction
• Description of the undertakings concerned and undertakings belonging to the same group, and their areas of business
• The name of the parties' five most important competitors, customers and suppliers in markets where the undertakings concerned and undertakings belonging to the same group have horizontal overlapping activity (competitors on the same product market),
• A description of horizontally or vertically affected markets (combined market share above 20% in markets with horizontal overlap and/or market share above 30% in a market with vertical overlap):
  • The description shall include a description of the market structure in the affected markets, a description of the most important competitors, customers and suppliers of the involved parties in the affected markets, and a description of any barriers to entry in the affected markets
• The name of the parties' three most important competitors, customers and suppliers in markets where the undertakings concerned and undertakings belonging to the same group have vertically overlapping activity (activity on the same upstream or downstream market) and market share above 30%.
• A description of any efficiency gains
• Information on whether the transaction is subject to regulatory requirements from other competition authorities
• The transaction agreement and appendices
• The parties' latest annual reports and annual accounts
• When the concentration is a joint venture, the notification shall also include information regarding whether the parent companies remain active in the same market as the joint venture or in an upstream or downstream or adjacent market

Although the Norwegian Competition Authority can in principle make exemptions to the notification requirements, our experience is that this is difficult in practice unless the information cannot be obtained, for example in the notification of hostile takeovers.

For straightforward cases that are unlikely to raise competition concerns, the filing may follow the simplified procedure under which less information on the relevant markets and the parties' competitors, customers and suppliers are required. Both the ordinary and simplified procedures require the lodging of a non-confidential version. All filings are made publicly available on the website of the NCA.

No, there are no filing fees required.

Pre-notification dialogue with the NCA is recommended in cases that are not straightforward, since such consultations often may significantly influence the merger control process. To initiate this informal procedure, a draft filing is often delivered to the NCA. In respect of the official procedure, the timetable for clearance is the same whether the merger is filed under the simplified procedure or the full-form notification procedure. Once the notification is filed, the NCA must within 10 working days declare whether the filing is complete – thereby confirming that the deadlines are counted from the notification, alternatively declare that the filing is incomplete and specify the grounds for this.

The NCA shall issue its Phase I decision within 25 working days from the receipt of a complete notification. The Phase I deadline may be extended to up to 35 working days if one or more of the participating undertakings propose remedies within 20 working days from submittal. In Phase II, the NCA shall issue a final decision within 70 working days. These deadlines may be extended up to a total of 145 working days through communication and negotiations between the parties and the NCA. The NCA may ‘stop the clock’ at any time during the formal review periods in Phase I and II if the parties do not provide the requested additional information within the time frame given.

The Competition Act states that the NCA must prohibit concentrations that Significantly Impede Effective Competition ("SIEC"), in particular as a result of the creation or strengthening of a dominant position. Otherwise, the concentration must be approved. The test is the same as and follows the practice and interpretation of the EUMR.

The transaction may be approved, approved subject to conditions, or prohibited. Commitments may be offered to eliminate competition concerns. The NCA may also impose conditions and obligations.

Yes, the parties may propose and consequently negotiate suitable commitments with the NCA if it is considered that the concentration cannot be approved without conditions. The commitments may include structural remedies (i.e., divestments) or behavioral remedies. The competition authorities may also issue orders to ensure that the parties abide by the commitments. such as for instance the appointment of a manager for which the parties must pay.

The NCA can impose fines for failure to notify (before the implementation of the concentration) amounting to 10% of the annual turnover of the undertakings concerned. In its case law, the NCA has issued fines of up to NOK 25 million for failure to notify a transaction in combination with breach of the standstill obligation. The NCA has also issued fines of up to NOK 7.5 million for failure to provide sufficient and correct information relevant to the merger. If the merger has already been implemented, the authority may impose that the undertakings or assets brought together are separated or order the cessation of joint control or any other action suitable to restore effective competition in the market concerned.

Fines of up to 10% of the annual turnover of the undertakings concerned may be imposed for unlawful implementation of a concentration prior to clearance or for implementation of a prohibited merger. Fines issued in recent years by the NCA for breach of the standstill obligation (so-called "gun jumping") range from NOK 200.000 to NOK 25 million (the latter in combination with breach of the notification obligation). The NCA generally follows the case law and practice in EU competition law, and with reference to the recent case law of the EU Courts, it is likely that the NCA may increase its fine levels in future cases.  

Yes, the NCA may on a case-by-case basis impose an obligation to notify transactions that fall below the filing thresholds provided that it finds there is reason to believe that the transaction may affect competition or if particular circumstances suggest that the transaction is scrutinized by the NCA.

The NCA would issue an administrative decision addressed to the parties whereby the parties are ordered to submit a regular merger notification filing. The case would then follow the same procedure as the ordinary merger control procedure for notifiable transactions.

The NCA has in recent years taken an active and aggressive approach to merger control cases, illustrated by the fact that in the last two years, two of the NCA's prohibition decisions have been overturned in the CAT and in the Supreme Court respectively. In 2022, the CAT overturned the NCAs prohibition of the acquisition by DNB (Norway's largest bank) by Sbanken (a competing, smaller bank considered as somewhat of a maverick). In early 2023, the Supreme Court dismissed the appeal brought by the NCA against a judgment from the Court of Appeals which overturned the NCAs decision to prohibit the acquisition by Schibsted (Norwegian media corporation) of Nettbil, an online platform for the second-hand sale of cars. These developments are illustrative of the fact that the NCA has taken an aggressive approach to mergers within the financial and digital sectors. It remains to be seen whether the squashing of these decisions will lead to a shift in the NCA's approach in regard to merger control.

As is the case in a range of jurisdictions, particularly in the EU, FDI control is increasingly relevant in Norway. The Norwegian FDI regime is set out in the Security Act, whereby investments into companies that are subject to the Security Act must be notified to and approved by the government prior to their implementation. In 2023, amendments to the Security Act expanding the scope of the FDI notification obligation have been adopted by the Parliament. When these enter into force (expected by 2024), the obligation to provide an FDI filing when investing in Norway will be significantly extended. The filing obligation arises depending on the target of the transaction and applies only if the target is subject to the Security Act by way of a formal administrative decision or alternatively through security clearances granted subject to the Act in the context of the target's contracts with government entities or other high-security companies etc. The substantive test under the Norwegian FDI regime is whether the ultimate beneficiary owners after the transaction (i.e., UBOs of the acquirer) raise national security or public safety concerns.