Competition and state aid law

Public procurement law

Health industry

In summary, the adopted amendments imply an increased number of businesses subject to the screening regime, a lower threshold for triggering notification requirements, a filing obligation for the seller and target companies as well as the acquirer, a standstill obligation, a ban on information sharing during the acquisition process, and a possibility of administrative fines and criminal liability. More on this and the current Norwegian investment control regime below.

The relevant amendments to the Security Act were adopted by a unanimous Norwegian Parliament on 9 June 2023. Although formal rules of procedure require a second vote in the parliament to pass a bill, no further amendments are expected. It remains to be seen when the new rules will enter into force, but likely later this year or 1 January 2024 at the latest.

The current Norwegian investment control regime

The Norwegian investment control regime is enshrined in the Norwegian National Security Act (the Security Act) Chapter 10. Contrary to popular belief, the regime is not a Foreign Direct Investment (FDI) regime as both foreign and (purely) domestic transactions may be caught. The regime empowers Norwegian authorities to screen certain investments in Norwegian companies on grounds of national security. Whether the screening regime is triggered, depends on a two-step process:


, the filing obligation applies only to transactions where the target company is subject to the Security Act. State, county and municipal bodies are covered by the Security Act, as well as private undertakings which, by individual decision by the relevant ministry, are made subject to the Act either because the company (i) handles classified information; (ii) controls information, information systems, objects or infrastructure which are of vital importance to fundamental national functions; or (iii) is engaged in activities of vital importance for fundamental national functions.


There is no public list or record of companies made subject to the Security Act. Specific sectors such as 

 defence, transportation, banking and financial services, food and water supply, energy and some health services may be more likely to be engaged in activities of crucial importance for national fundamental functions than other sectors.


, the filing obligation is only triggered if there is an acquisition of a “qualified ownership interest” in an undertaking subject to the Security Act. A qualified ownership interest is defined as an ownership interest where the acquirer obtains, either directly or indirectly, any of the following: (i) at least one-third of the share capital, participating interests or votes in the target company; (ii) the right to own at least one-third of the share capital or participating interests, or; (iii) otherwise significant influence over the management of the target company.


Shares owned or acquired by the shareholder’s associates have the same status as the shareholder’s own shares. The same applies to participating interests which are owned or taken over by associates of the owner of the participating interests. Acquisitions of assets, on the other hand, are exempt from the scope of the regime.


The relevant ministry or the National Security Authority shall within 60 working days from receiving a filing from the acquirer inform whether the transaction has been approved or referred to the King in Council (the Government) for further consideration. A transaction may only be prohibited if the acquisition entails a not insignificant risk that national security will be threatened.

In its proposition to the Norwegian Parliament (bill), the Ministry of Justice emphasized several reasons why the current regulation is outdated. Key reasons being increasingly complex and multifaced threats, unveiled attempts to access sensitive technology and information about Norwegian affairs, increased interest to invest in Norwegian companies from China and Russia, and the war in Ukraine showing the close interlinks between national security and trade. The importance of having similar rules to those in other jurisdictions, for the purpose of maintaining a profitable investment climate in Norway, is also considered.


The so-called Bergen Engines case from 2021 kick-started in many ways the process for amending the legislation, as the case illustrated how difficult it is to map the risk in complex value chains with businesses, suppliers and subcontractors across sectors and national borders. The case concerned the sale of Bergen Engines, an engine manufacturing company owned by Rolls-Royce, to TMH International, a Swiss company partly owned by a company with apparent ties to the Russian Government. Bergen Engines manufactured engines for important military applications, and the Norwegian Government held that the transaction could lead to the transfer of important technology and expertise to Russia, potentially in conflict with Norwegian security interests. 

In addition, the physical location of Bergen Engines was strategically important in relation to national security interests and the acquisition could lead to circumvention of the export control regulations. The Government blocked the acquisition on the basis that “there was a not insignificant risk of a threat to national security interests associated with the transaction”. The case, in particular the Government's handling of the case, was criticized and serious deficiencies in the work relating to assessments of national security interests and application of the Security Act were revealed.

An increased number of businesses will be subject to ownership screening and lower thresholds for mandatory filings

The amendments significantly strengthen the investment control regime by increasing the number of businesses that will or could fall within the scope of the regime.


, a filing obligation is imposed on acquisitions of suppliers of goods or services in connection with classified procurements holding a valid clearance in accordance with Chapter 9 of the Security Act. 

, the new rules state that the relevant authority will be required, and not only empowered, to make undertakings of 

 importance to national security interests subject to the Security Act. 

 importance to national security functions may, at the relevant authority's discretion, be made subject to the screening regime by individual decision. Hence, the amendment entails a wider scope of businesses subject to the regime by law as well as giving the relevant ministry increased flexibility with regards to companies made subject to the regime.


In its proposal, the Ministry of Justice estimates that 250-300 companies are of significant importance to fundamental national functions or national security interests, and therefore may become subject to the screening regime.


Further, the Norwegian investment control regime is strengthened by lowering the threshold for a filing obligation for certain acquisitions. Filing will be required for the acquisition of a direct or indirect ownership interest of at least 10 % of the share capital, participating interest, or votes in companies subject to the regime. Additional filing obligations is triggered by subsequent acquisition of shares which causes ownership interests of 20 %, 1/3, 50 %, 2/3 and 90 % when each of these thresholds are surpassed.


To justify why there is ground for lowering the threshold to 10 %, the Ministry of Justice notes that, depending on the circumstances, an acquisition may be approved on the condition that no further shares in the company are acquired. 

The EU regulation on foreign direct investment

 also contains a 10 % screening threshold, bringing the Norwegian regime more in line with similar regimes in many EU member states.

New: Filing obligation on the seller and the target company, as well as the acquirer

Under the current investment control regime, the filing obligation rests on the acquirer only. The adopted rules convey a filing obligation on the seller and the target company, in addition to the acquirer, to ensure that all notifiable acquisitions are review by the relevant authority.


The seller and the target company will only be subject to the filing obligation where the acquisition exceeds the filing thresholds and where the acquirer obtains direct ownership interest (not indirect ownership interest), i.e. where the seller or the target company is able to foresee or identify a notification obligation.

New: Standstill obligation and restrictions on information sharing

The new regime introduces a standstill obligation prohibiting the closing of the acquisition until the approval from the relevant ministry or the Security Authority has been obtained. The current Security Act contains no rule prohibiting the closing of an acquisition and, in principle, a notifiable transaction can therefore be carried out prior to approval, albeit there is a risk of a reversal order if the acquisition is later subject to a prohibition decision.


In addition to a standstill obligation, the adopted amendments include a rule prohibiting sharing of information that can be used for activities threatening Norwegian security interests. This is to avoid that the transaction process itself poses a risk to national security interests. The restriction on information sharing complements the rules on information security already embedded in Chapter Five of the Security Act. The preparatory works mentions information and knowledge concerning technical descriptions, production methods and development, technology and operations as an example of information that may, depending on the circumstances, be used for activities threatening Norwegian security interests. The restriction on information sharing does not apply to publicly known information, and the ministry may also give its consent to share specific information during the acquisition process.

The amendments introduce a legal basis for imposing sanctions in the event of non-compliance with the Security Act’s rules on ownership control. This includes fines for violations of the notification requirement or the standstill obligation, and criminal liability for intentional or negligent violations of the notification requirement.

The adopted amendments are expected to have significant implication for an increased number of investors which are either present or looking to invest in the Norwegian market, as the investment control regime will become relevant in an increased number of transactions. In addition, non-compliance with the Security Act will in the future also be associated with greater risk due to the increased focus on sanctions and restrictive measures. It is also worth mentioning that, although the amendments are intended to follow the legal development in other countries, investors must keep in mind that there are national differences in investment control/FDI regimes.


As a final note, further amendments to the Security Act should be expected. During the amendment process, the Minister of Justice informed the Parliament that additional amendment work has been initiated, without elaborating further. However, the amendment proposal mentions, among other things, the need for a deeper dive into how influence in other ways than through acquisition, for example through loan financing or other forms of transactions, may be regulated, and how the authorities can identify potential security threats related to real estate transactions.


Significant amendments to the Norwegian investment control regime

The case originates back to 2010, when the grocery chains entered into an industry standard for comparative advertising which included regulations on access to each other’s stores to collect prices. This standard was further expanded in 2011 and 2012, and, according to the NCA, enables the grocery stores to collect large quantities of price information. It is worth noting that the NCA was informed of the industry standard at the time.

The NCA has found that the illegal cooperation lasted from January 2011, and at least until the NCA’s unannounced inspections in April 2018. During this time, price hunting activities increased, so that the chains eventually received updates on competitor prices several times a day.

According to the NCA, the price hunter arrangement has led to a transparent market where the incentive to lower prices has been significantly reduced as competitors would immediately follow any price decrease. At the same time, the risk of increasing prices was also reduced, as a chain could immediately see if their competitor followed the price increase.

Investigation switched to anticompetative effects case

The case was initially considered by the NCA as an object infringement, and in December 2020, the NCA issued a Statement of Objection with an estimated fine totaling NOK 21 billion (EUR 1.8 billion). However, following the NCA’s loss in the 

Competition Appeals Tribunal in the Bokbasencase

 which also concerned exchange of information about current prices, the NCA announced in January 2024 that they would discontinue the investigation of the price hunter arrangement as a by object case, and switch to investigate this as an anticompetitive effects case. 

A new Statement of Objections with adjusted fines was issued in April 2024, and the fines are now imposed: NOK 2.3 billion (EUR 200 million) to NorgesGruppen and NOK 1.3 billion (EUR 120 million) to each of Coop and Rema 1000 are in line with this. The fines are by far the highest fines imposed in a competition case in Norway.

The NCA’s decision is not yet published, but an extensive press release is available 

Although this marks the end of the NCA’s lengthy investigation, the case is far from over. All three grocery chains have announced that they will challenge the decision before the Competition Appeals Tribunal.

The Norwegian Competition Authority fines Norway’s three leading grocery chains approximately 420 million euros for illegal information exchange  

Krohn Viddal advises clients on all aspects of competition law. He assists clients in connection with investigations being conducted by the Norwegian Competition Authority and the EFTA Surveillance Authority (ESA). One example is the latter’s investigation of Widerøe’s conduct in connection with the submission of bids on PSO routes in Norway. 

Magnus assists Norwegian and international clients with the notification of proposed business combinations to the Norwegian Competition Authority and the European Commission, as well as general competition law advice.   

In addition to competition law and public procurement issues, Krohn Viddal advises clients on matters relating to various regulatory regimes applicable to specific sectors, such as transport, pharmaceuticals, medical equipment/consumables, food products, dietary supplements and cosmetics, as well as export controls/sanctions and general public administration law. 

Krohn Viddal is a proactive and analytical advisor, who strives to understand his clients’ real needs and tailor his advice to match them as closely as possible.

Solcellekraft has experienced substantial growth in the assembly and installation of solarpanels for both private individuals and businesses.

DCC is listed on the London Stock Exchange and owns a range of businesses in renewable energy, including those related to biogas, heat pumps, and charging.

After the purchase Solcellekraft will continue to operate as a separate company under its current name and will have access to the knowledge, products, and solutions in DCC's portfolio of renewable energy companies, including comparable solar companies in other European countries. Solcellekraft will become part of the Nordic business unit, Energy and Solutions.

­- To grow both in Norway and internationally, significant financial resources are required. The agreement with DCC will make Solar Power the most reliable provider of solar power in Norway. We will be able to streamline critical processes and strengthen our strategy for innovation in products and solutions," says Nils-Arne Lie, CEO of Solar Power.

We congratulate alle parties involve. Our core team consisted of Per Dagslet, Anette Wallaker Hansen, Ola Heian, Stein Ove Solberg and Magnus Høegh Krohn Viddal.

Irish investment company DCC plc is acquiring Norwegian Solcellekraft 

Strawberry Publishing is the fourth largest general publishing group in Norway. The company comprises two general publishing houses, Strawberry Publishing and Bastion Forlag.

Bonnier Books gathers Bonnier’s book publishing and retail activities. Over 2 000 people across seven countries work within Bonnier Books and the annual turnover is approximately SEK 7 billion.

The transaction was announced 19 November. Completion of the transaction is subject to approval by the Norwegian Competition Authority. See more information in the 

.

Arntzen de Besche has acted as Norwegian legal advisor to Bonnier Books alongside Roschier Stockholm as Swedish legal counsel. The core team from Arntzen de Besche has consisted of Lars Horgen Hinze, Espen I. Bakken, Magnus K. H. Viddal and Frida May Behrens.

Contact information

+47 975 44 890

mvi@adeb.no

+47 23 89 40 00

Areas of expertise

Competition and state aid law

Public procurement law

Health industry

Magnus Høegh Krohn Viddal

News

Significant amendments to the Norwegian investment control regime

The Norwegian Competition Authority fines Norway’s three leading grocery chains approximately 420 million euros for illegal information exchange

What we have done

Irish investment company DCC plc is acquiring Norwegian Solcellekraft

Bonnier Books acquires 70 % of Strawberry Publishing

Nyhetsbrev

Contact information

+47 975 44 890

mvi@adeb.no

+47 23 89 40 00

Areas of expertise

Competition and state aid law

Public procurement law

Health industry

Magnus Høegh Krohn Viddal

News

Significant amendments to the Norwegian investment control regime

The Norwegian Competition Authority fines Norway’s three leading grocery chains approximately 420 million euros for illegal information exchange

What we have done

Irish investment company DCC plc is acquiring Norwegian Solcellekraft

Bonnier Books acquires 70 % of Strawberry Publishing

Nyhetsbrev

The Norwegian Competition Authority fines Norway’s three leading grocery chains approximately 420 million euros for illegal information exchange