On 12 December 2024, the Norwegian Parliament adopted new legislation granting the Norwegian Competition Authority powers to conduct market investigations and impose both behavioural and structural remedies on businesses.

In essence, the market investigation tool will allow the Norwegian Competition Authority (NCA) to initiate and conduct market investigations in any market and subsequently impose burdensome behavioural or structural remedies, including forced divestitures, with the aim of overcoming 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 new legislation

One of the main purposes of the market investigation tool is to supplement the NCA’s 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. The new tool can be used to address a wide range of structural competition concerns, regardless of their cause or complexity.

A summary of the key takeaways from the new legislation is set out below

• The market investigation tool can in principle be applied to all markets, but the Norwegian government have stated that it is likely to be particularly relevant in markets with few players, stable market shares, high barriers to entry and/or high vertical integration.
• 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.
• A draft decision to initiate a market investigation shall be subject to a public hearing before the NCA adopts a final decision. Additionally, the NCA must provide a reasoned explanation of why the investigation is deemed necessary.
• In markets with features that significantly restrict competition or that are capable of significantly restricting competition, the NCA may impose any behavioural or structural remedies considered necessary to eliminate or mitigate such restrictions, provided that the measures are deemed necessary and proportionate. Stricter conditions apply for imposing structural measures. Stakeholders may also submit proposals for remedial measures to address the NCA’s concerns.

The new legislation was enacted against the votes of several opposition parties who referred to serious concerns raised against the proposed rules. As a result, it is conceivable that amendments may be introduced following a possible change of government in 2025.