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11 September 2008
The Competition Act has been amended in respect of the procedural merger control rules with effect from July 1 2008. Changes related to the repeal of the former filing deadline and automatic suspension of all mergers will bring the act further into line with the EU Merger Regulation. New content requirements for notifications will require the provision of more detailed information, especially in respect of markets where the affected parties have market shares of less than 20%.
All concentrations that are subject to a filing obligation are now also subject to an automatic suspension until the transaction is cleared. This implies that the concentration may not be implemented until the Competition Authority’s case handling is completed.
Previously such a prohibition on implementation followed only where the authority had ordered the parties to supply an extended notification or where such notification had been submitted voluntarily, which allowed the possibility of implementing a transaction prior to clearance from the authority. This possibility is now ruled out.
The automatic suspension will now last until the expiry of the initial 15 working days following the date upon which the authority receives a complete standardized notification. If the authority decides to undertake an investigation and order the submission of a so-called ‘extended notification’, the suspension will be automatically extended by another 25 working days after the authority’s receipt of the complete extended notification. The authority may also decide to extend the suspension further if the transaction enters into a phase II procedure.
As a result of the changes it will now be more important than before to address the issues of whether notification is necessary, when to make a notification (pre-signing notifications are possible) and whether to submit a standard or extended notification at the outset.
There are presently no exceptions to the automatic suspension in respect of public bids or similar, but the authority may grant individual exemptions from the automatic suspension.
According to the previous regulation, filing (by means of standardized notification) of a concentration subject to notification was due no later than the time of final agreement between the parties or attainment of control over the target company.
The introduction of an automatic suspension makes a filing deadline provision redundant, as omission to file in any case would make implementation and completion of a concentration subject to filing requirements illegal. The deadline has therefore been repealed.
The act has also been amended in respect of the content of notifications. According to the amendments, the initial, standardized notification must state the five most important competitors, customers and suppliers for each overlapping market, even where the overlap is marginal. This is a consequence of the removal of the 20% market share threshold.
This implies that more information must be provided to the Norwegian competition authorities than to the competition authorities in many other jurisdictions in respect of markets where the parties to the concentration have low but still overlapping market shares.
For further information on this topic please contact Frode Elgesem or Monica Syrdal at Advokatfirmaet Hjort DA by telephone (+47 2247 1800) or by fax (+47 2247 1818) or by email (firstname.lastname@example.org or email@example.com).
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