Competition & FDI: Outlook for 2025
The past year witnessed several important developments, including the Norwegian Competition Authority’s (NCA) imposition of record fines, the Court of Appeal hearing in the first cartel damages claim litigated in Norwegian courts and the expansion of the NCA’s powers by the adoption of a new market investigation tool. It seems likely that each of these will continue to influence the competition law landscape throughout 2025, in addition to an increased focus on merger call-in powers and the potential adoption of new FDI rules in Norway.
Competition Appeals Board to rule on record fines
In 2025, the Competition Appeals Board is expected to rule in the appeal case concerning the Norwegian Competition Authority’s (NCA) 2024 decision to impose record fines on Norway’s three major grocery chains, Coop, NorgesGruppen and REMA. The fines of NOK 4.8 billion in total are among the highest issued by any competition authority and are quite unique in that they involved cooperation that did not amount to a cartel.
The background of the case is the grocery chains’ use of so-called price hunters to survey competitors’ prices and their agreement to allow such price hunters access each other’s shops. Although the price hunters only collected current prices publicly available in the shops, the NCA nonetheless considered the behavior to be anti-competitive. The case was initially pursued by the NCA as an object infringement, but in January 2024, the NCA announced that it had rejected this approach and instead only claimed that the conduct had an anticompetitive effect. On 21 August 2024, the NCA decided to fine the grocery chains.
All three grocery chains have notified their intent to appeal. The appeal deadline is 21 February 2025, and the Competition Appeals Board is expected to issue its ruling later this year.
Judgment in Norway’s first cartel damages case
In March 2025, the Court of Appeal is expected to deliver its judgment regarding state-owned postal and cargo operator Posten’s claim for damages from several European truck manufacturers. The defendants accepted record fines from the European Commission in a cartel settlement in 2016. The truck cartel lasted from 1997 to 2011.
Several hundred damages claims have been made across Europe following the cartel settlement. Posten’s claim is the first cartel damages claim litigated in Norwegian courts.
Oslo City Court rejected the economic expert analyses presented by all parties and concluded that Posten had not proved to the requisite standard that the cartel had resulted in an overcharge. Several new economic expert reports have been submitted to the Court of Appeal. The oral hearing took place over 35 days during the fall 2024 and included witness testimony by a number of economic experts.
Haavind represents Posten in the matter.
New FDI regime in Norway?
Will 2025 be the year that Norway catches up with Europe in the regulation of foreign direct investment (FDI)?
The Norwegian Security Act requires mandatory filings for investments in a limited number of companies only. However, it also empowers the Government to block any acquisitions of and investments in Norwegian companies in any sector on national security grounds even if no mandatory filing is triggered.
In December 2023, a Norwegian Government-appointed expert committee proposed introducing a new FDI screening regime more similar to those found in most EU countries. In January 2025, the Norwegian Government confirmed that they are going ahead with drafting new FDI screening legislation. The new regime can be expected to significantly expand the scope of notifiable transactions compared to the current framework.
While the authorities will likely take inspiration from FDI regimes in large EU countries and other Nordic countries in preparing the new rules, it is to be hoped that Sweden’s over-expansive regime serves as a warning. In the first full year of its new regime, Sweden received more than 1,000 notifications. A similarly broad regime would impose disproportionate cost and delay on parties to M&A transactions and investments in Norway.
New market investigation tool to enter into force
On 12 December 2024, the Norwegian Parliament passed new legislation empowering the Norwegian Competition Authority to carry out market investigations and enforce both behavioral and structural remedies on businesses.
The new rules will enter into force on 1 July 2025 and all companies in an investigated market must be prepared for extensive fact-finding exercises, including disclosure of internal documents.
It is expected that the new market investigation tool will be particularly relevant in markets with few players, stable market shares and few examples of successful new entries, as well as in markets with significant vertical integration.
A point worth noting is that 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.
Learn more about the new market investigation tool here: The Norwegian Government introduces new market investigation tool.
Increased focus on merger call-in powers
In 2024, the European Court of Justice (ECJ) delivered a landmark judgment in the Illumina/Grail case, providing clarification on the scope of Article 22 of the EU Merger Regulation (EUMR). The Court ruled that Article 22 does not permit the European Commission to accept referrals of mergers that fail to meet the jurisdictional thresholds of the referring Member State.
The Commission’s ability to review below-threshold mergers under Article 22 EUMR is now limited to cases where the referring Member State either lacks its own merger control regime, which is not very relevant in practice, or has jurisdiction under national rules. A key point in this respect is that jurisdiction is not necessarily limited to transactions that meet turnover thresholds for mandatory filings but may also include cases where a national authority is able to use call-in powers in below-threshold transactions.
Member States with call-in powers are expected to increasingly utilise these powers to refer cases to the Commission under Article 22 EUMR. For instance, in October 2024, the Commission accepted a referral from the Italian Competition Authority regarding NVIDIA’s acquisition of the Israeli AI workload management startup Run:ai. Although the transaction did not meet the jurisdictional thresholds under Italian merger control rules, it was referred by the Italian authority, which has powers to call in certain below-threshold transactions. The transaction was cleared unconditionally by the Commission in December 2024, but NVIDIA has nonetheless lodged an appeal to the EU’s General Court challenging the Commission’s jurisdiction to review its acquisition.
Several other Member States, including Hungary, Denmark, Latvia, Lithuania, Slovenia, Sweden, and Ireland, also have similar call-in powers, and more may follow suit.
The Norwegian Competition Authority (NCA), with its call-in powers, may similarly refer below-threshold transactions. The most recent example is the merger between Infomedia A/S and Retriever Aktiebolag.The merger did not meet the revenue thresholds for mandatory filings under the Norwegian Competition Act. The NCA’s recent call-in decision in the Infomedia/Retriever merger highlights a growing trend among national regulators to exercise discretion in scrutinising below-threshold transactions.