Financial District

Clarification on the mandatory merger filing obligation in the transition to new turnover thresholds in the Competition Act

According to the current Competition Act concentrations shall be notified to the Norwegian Competition Authority (“NCA”) if the undertakings concerned have a combined annual turnover in Norway exceeding NOK 50 million, and at least two of the said undertakings have an annual turnover in Norway exceeding NOK 20 million. From 1 January 2014 the turnover thresholds will be increased to NOK 1 billion (approximately 128 million euro) and NOK 100 million (approximately 12.5 million euro) respectively.

This significant amendment will have major practical impact in terms of reducing the number of transactions where filings are mandatory. One question has thus been whether a concentrations subject to mandatory filing obligation under the current regime, if the agreement leading to the concentrations is concluded prior to 1 January 2014, has to be notified if the concentration shall be implement after 1 January 2014. 

The Competition Act carries no transitional rules on this issue, and the preparatory works are silent.

The NCA recently published a statement which clarifies its position: In this category of concentrations the NCA will apply the new turnover thresholds.

The clarification from the NCA implies that parties’ to concentrations where filing is mandatory under the current system, but not from 1 January 2014, may adapt their share purchase agreements and implementation plan in order to lawfully escape the filing obligation to the NCA.

The statement from the NCA can be found here.  

The Author

Thomas Sando
Thomas Sando Thomas Sando is partner and a member of Steenstrup Stordrange’s Competition Law Practice. Sando is a former legal advisor in the Norwegian Competition Authority. He has extensive experience in competition law work and advises and represents clients on all aspects of competition law issues, e.g. with regard to cooperation and distribution agreements, abuse issues, merger control procedures, general compliance and in the case of dawn raids. Sando has been selected by his peers to be included in Best Lawyers Norway (in the category “Antitrust”) in 2011, 2012 and 2013.

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