New market investigation tool: The Norwegian Government publishes draft legislation
On 31 March 2023, the Norwegian Government published a consultation paper on the proposed amendments to the Competition Act. The draft legislation outlines the scope of the Norwegian Competition Authority’s possible future powers to conduct market investigations.
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 focusing only on individual companies’ behaviour. 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 draft legislation
The Norwegian Government is following in the footsteps of the UK, where the national competition authority already has powers to conduct market investigations and impose remedies. Sweden, Denmark, and Germany are currently considering implementing similar legislation.
One of the 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 draft legislation 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 restricted or at risk of being restricted.
- 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. Stakeholders may submit their comments on the NCA’s preliminary assessment.
- 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.
- The NCA may appoint a trustee to assist with the implementation of any market investigation decision.
- If necessary, the NCA may impose interim measures during an ongoing market investigation.
All stakeholders are invited to submit their comments and remarks on the draft legislation within the hearing deadline on 30 June 2023. If enacted, the new rules could enter into force in early 2024.