Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Leniency rules were contained in regulations enacted by the NCA. Since the 2013 amendments, they have been included in the Competition Act under Sections 30 and 31. Few changes have been made to the material rules. Under Norway's leniency program, an undertaking party to a restrictive agreement may be fully exempted from the imposition of fines where it is the first to provide, on its own initiati …

Leniency

According to Section 12, the NCA can adopt orders imposing a prohibition as regards conduct coming within the scope of Sections 10 and 11. The 2013 amendments, which came in force on 1 January 2014, extend the scope of NCA orders to infringements of its own regulations (secondary legislation). The order may include any measures necessary to bring the infringement to an end. Structural measures can only be imposed if there are no effective behavioral measures, or if behavioral measures would be more burdensome for the undertaking.

Cease and desist orders

Pursuant to Section 28 of the Competition Act, the NCA may determine that the undertaking against which a decision or an order is directed shall pay a periodic penalty to the State until the anticompetitive situation has been rectified.

According to Section 29, an administrative fine may be imposed by the NCA if an undertaking or an association of undertaking, intentionally or negligently:

- infringes a provision of the Competition Act (Section 29-a);

- infringes a decision or an order made pursuant to the Competition Act (Section 29-a and b);

- fails to comply with a cease-and-desist order or an order for interim measures (Section 29-c);

- provides incorrect or incomplete information to the competition authorities (Section 29-d);

- breaks seals made during inspections (Section 29-e);

- infringes a regulation adopted to promote competition (Section 29-f ); or

- contributes to such infringements (Section 29-g).

Fines are ordered by the Authority. In determining their amount, the Authority takes into account the turnover of the undertaking, the gravity and duration of the infringement. Section 31 of the Competition Act also specifies that the Authority must give consideration as to whether the undertaking concerned has assisted the competition authorities in the detection of its own infringements or those of others.

The ceiling of administrative fines has been fixed in the Regulation on the calculation of and leniency from administrative fines of 22 August 2004 to 10 percent of the undertaking's worldwide turnover. Additional information on the NCA's method of setting fines may be found in the NCA's Fining Regulation No FOR-2013-12-11-1465 of December 2013.

Fines

Leniency rules were contained in regulations enacted by the NCA. Since the 2013 amendments, they have been included in the Competition Act under Sections 30 and 31. Few changes have been made to the material rules. Under Norway's leniency program, an undertaking party to a restrictive agreement may be fully exempted from the imposition of fines where it is the first to provide, on its own initiative, evidence that is sufficient to:

- acquire a court order to secure evidence in connection with the infringement, at a time where the Authority is not in possession of sufficient evidence to be able to acquire such an order, or

- prove the infringement, at a time where the Authority is not in possession of sufficient evidence to prove such infringement.

This full immunity is however subject to:

- full cooperation of the undertaking with the Authority, including providing all evidence that is known to the undertaking and answering any question or inquiry the Authority has in connection with the infringement ;

- the undertaking ending its participation in the infringement at the latest when the evidence is submitted; and

- the undertaking having not sought to coerce other undertakings to participate in the infringement.

Partial leniency may be granted where an undertaking submits evidence that significantly strengthens the Competition Authority's ability to establish an infringement of Section 10 of the Act, and ends its participation in the infringement no later than when the evidence is submitted.

The system proved inefficient as leniency did not extend to criminal prosecution. In a bid to enhance the program, the 2013 amendments expressly provide for the exemption of criminal sanctions for undertakings. However, individuals are not covered by such exemption, even though the new rules specify that criminal prosecution will depend on a request from the NCA. This certainly constitutes an improvement, but the State prosecutor can still bring an individual before the criminal courts where “strong public interests” require it (e.g. where the individual is also liable for other criminal offenses). Furthermore, the amendments introduce a marker system comparable to the EU system which allows undertakings to secure a good position without having to immediately disclose all the incriminating evidence they will rely on.

Undertakings which fail to comply with the provisions of the Competition Act or decisions or orders of the Competition Authority adopted thereunder, provide incorrect or incomplete information, break seals made during inspections, or which infringe a regulation adopted to promote competition may be held criminally liable. Companies may be fined while natural persons may be imprisoned for up to three years (Section 32). Imprisonment may be increased to six years in the case of agreements restricting competition where “aggravating circumstances” are found to exist. When deciding whether aggravating circumstances exist, the court will consider the significance of the damage suffered, the anticipated profit resulting from the infringement, the seriousness of the infringement, and whether there was an attempt to conceal the infringement.

In determining the amount of the criminal fine, Section 31 of the Competition Act specifies that the Authority must give consideration as to whether the undertaking concerned has assisted the competition authorities in the detection of its own infringements or those of others. Since the 2013 amendments which entered into force on 1 January 2014, criminal charges may not be brought against undertakings benefitting from the leniency program.

Global Competition Law

1180. Leniency

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Les notions juridiques connexes

1180. Leniency

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise