In essence, the market investigation tool will allow the authority to conduct market investigations and subsequently impose behavioural or structural remedies to overcome any structural impediments to competition that are uncovered in the investigated markets.

The market investigation itself is not aimed at discovering infringements of competition rules. Instead, the purpose is to uncover competitively restrictive behaviour that needs to be addressed by specific measures going beyond what is possible under traditional competition legislation. In this way, competition authorities may address more general competition concerns in a market, rather than having to focus only on the behaviour of individual companies. Any suspected infringements identified during a market investigation may also be investigated.

All companies in an investigated market must be prepared for extensive fact-finding exercises, including disclosure of internal documents.

Key takeaways from the prosed bill

One of the main purposes of the market investigation tool is to supplement the Norwegian Competition Authority’s (NCA) traditional enforcement powers, i.e., under national statutory provisions equivalent to articles 101 and 102 TFEU, that are not always capable of effectively addressing structural competition concerns.

A summary of the key takeaways from the proposed bill is set out below

• The NCA may conduct market investigations in a market, or part of a market, if there are features of that market indicating that competition is significantly restricted or at risk of being significantly restricted. The new market investigation tool can in principle be applied to all markets.
• A draft decision to conduct a market investigation shall be subject to a public hearing before a final opening decision is adopted by the NCA.
• The NCA may impose any behavioural or structural remedies considered necessary to eliminate or mitigate the restriction of competition in markets with features that significantly restrict competition or that are capable of significantly restricting competition. Stricter conditions apply for imposing structural measures. Stakeholders may also submit proposals for remedial measures themselves.
• The NCA may appoint a trustee to assist with the implementation of any market investigation decision.

Next steps

The bill will now be submitted to the Norwegian parliament (Stortinget) for further consideration.

The proposed bill is available here (in Norwegian only).

In addition to the market investigation tool bill, the Norwegian government, also announced a complete revision of the Norwegian Competition Act. A new legislative committee has been established to carry out the review and propose updated legislation in line with developments in Norwegian and EU/EEA competition policy.