Co-operation with national courts

EFTA Surveillance Authority observations to national courts (amicus curiae observations)

Pursuant to Article 15(3) of Chapter II of Protocol 4 to the Surveillance and Court Agreement, ESA, acting on its own initiative, may submit written observations (“amicus curiae” observations) to courts of the EFTA States where the coherent application of Articles 53 or 54 so requires. With the permission of the court in question, ESA may also make oral observations.

In its Notice on Co-operation with the courts of the EFTA States in the application of Articles 53 and 54 EEA, ESA sets out its policy regarding the application of Article 15(3) of Chapter II of Protocol 4.

The competent national court has given its permission for the following amicus curiae observations to be published:

Case: Telenor ASA og Telenor Norge AS (Telenor) (Case no. 2019/34)

  • National court: Norwegian Competition Tribunal (Konkurranseklagenemnda)
  • ESA's observations: 08 May 2019 (English pdf)
  • National court judgment: 20 June 2019 – Judgment (Norwegian pdf)

Summary and Background

ESA submitted amicus curiae observations before the Norwegian Competition Tribunal in an appeal brought by Telenor against a decision of the Norwegian Competition Authority (NCA) dated 21 June 2018. The NCA's decision found that Telenor held a dominant position in the wholesale and end-user markets for mobile communications in Norway in the period from 2010 to 2014. The NCA also found that Telenor had abused its dominant position during that period by implementing changes to the structure of Network Norway's fees for wholesale access to Telenor's mobile network, thereby reducing Network Norway's incentives to roll out a third mobile network in Norway. This behaviour was deemed in breach of Article 54 of the EEA Agreement and Section 11 of the Norwegian Competition Act.

ESA limited its observations to two issues:

  • the case law and tests for finding anti-competitive effects/a restriction on competition;
  • the conditions relating to intention and negligence.

In its ruling of 19 June 2019, the Competition Tribunal upheld the NCA's decision.

Case: The Icelandic Competition Authority v Byko ehf. /Norvík hf (Case no.E-550/2016) 

Case: Byko ehf. /Norvik hf. v the Competition Authority and the Icelandic State and The Competition Authority v Byko ehf. /Norvik hf. (Case no. 490/2018) 

Summary and background

The case concerns a decision by the Icelandic Competition Authority (ICA) in May 2015 against Byko (a retail hardware chain in Iceland) for violation of Article 10 of the Icelandic Competition Act and Article 53 of the EEA Agreement. ICA found that Byko had colluded extensively with Húsasmiðjan, its biggest competitor in the building materials market. ICA considered that the infringement was serious and imposed a fine of ISK 650 million on Byko. 

In October 2015, the Icelandic Competition Appeals Committee lowered the fine from ISK 650 million to ISK 65 million, as it considered that the infringement was less serious than ICA had concluded. The Appeals Committee also concluded that ICA had not sufficiently shown that competition in the EEA had been restricted and that Byko's conduct constituted an infringement of Article 53 EEA.

ICA appealed that decision to the Reykjavík District Court and ESA submitted written (amicus curiae) observations to the District Court concerning how an actual or potential effect on EEA trade should be assessed, as well as emphasising the importance of fines being set at a sufficient level to ensure a deterrent effect. ESA highlighted that horizontal cartels covering the whole of an EEA State, for instance, are normally capable of affecting trade between EEA States. Furthermore, horizontal cartels are considered the most serious infringements of EEA competition law due to their harmful effect on industry and consumers in the EEA and, as such, result in the highest fines imposed by competition authorities.

On 16 May 2018, the Reykjavík District Court concluded, in line with ESA's observations, that the conduct was liable to affect EEA trade and Byko had thus infringed Article 53 of the EEA Agreement. The District Court also raised the fine to ISK 400 million, finding that the infringement was serious and had as its object the strengthening of Byko's position at the expense of consumers. 

On 13 June 2018, Byko ehf. and Norvik hf. appealed the District Court's judgment, from 16 May 2018, to the Court of Appeal, Landsréttur, and on 15 June ICA lodged a cross appeal. On 19 September 2018, ESA submitted its written observations to Landsréttur. The written observations submitted to Landsréttur are the same as those put forward before the District Court. ESA considered it important to send these observations to Landsréttur as well, due to the fact that this case raises critical questions of principle and interpretation of EEA law.

Case: NCC AB and NCC Roads AS v Staten v/Konkurransetilsynet (Case no. 14-076039ASD-BORG/03)

Summary and background

The case concerns a decision by the Norwegian Competition Authority against Veidekke ASA, Veidekke Industri AS, NCC AB and NCC Roads AS for violation of Section 10 of the Norwegian Competition Act and Article 53 of the EEA Agreement. It found that, in the context of work for Vegvesenet  and for Trondheim Municipality, the parties had agreed to: (i) allocate markets and customers, (ii) bid-rigging, and (iii) exchange strategic information.

ESA, acting as amicus curiae, submitted Observations pursuant to Article 15(3) of Chapter II of Protocol 4 SCA, implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act. Article 15(3) allows ESA, on its own initiative, to submit written observations to the Norwegian courts “[w]here the coherent application of Article 53 or Article 54 of the EEA Agreement so requires”. ESA decided to submit observations based on that the judgment of the Court of first instance, the Oslo District Court, annulled the part of the Competition Authority's Decision that applied Article 53 EEA as it found no appreciable effect on trade in the present case.

In ESA's opinion, the case raises a critical question of principle and interpretation of EEA law, namely the interpretation of the effect on trade criterion, which is to be found in both Articles 53 and 54 of the EEA Agreement.

ESA submitted that a too narrow interpretation of the criterion could lead to unequal conditions of competition within the internal market. The fact that an agreement concerns trade in products or services marketed in one State only is not, in ESA's view, a sufficient basis under EEA competition law to conclude that there is no effect on trade between Contracting Parties. Such an erroneous interpretation of the effect on trade criterion puts at risk the uniform application of EU and EEA competition law within the EEA and undermines the objective of the EEA Agreement to establish an internal market with equal conditions of competition throughout the entire EEA. In particular, ESA emphasised that trade between EEA States may also be affected in cases where the relevant market is national or sub-national.

ESA's observations was thus limited to describing the criterion concerning the effect on trade between Contracting Parties and the principles relevant in the application of that criterion, as set out in case law and described in ESA's Guidelines on the effect on trade concept contained in Articles 53 and 54 of the EEA Agreement.

Case: Bastø Fosen AS v Color Line (Case no. 13-178315ASD-BORG/02)

  • National court: Borgarting Court of Appeal
  • ESA's observations: 28 July 2014 – Norwegian version (pdf); English version (pdf)
  • National court judgment: 22 September 2014 – Judgment (Norwegian pdf)

Summary and background

ESA submitted amicus curiae observations to the Borgarting Court of Appeal in Norway, in a case concerning the starting point for and the possible suspension of the limitation period for follow-on actions for damages before the Norwegian courts.

ESA emphasised that as a general rule it is difficult for private parties to obtain the evidence necessary to support a claim for damages if they are not able to base their claim on a final infringement decision of a competition authority. On that basis, ESA submitted its view that, as a matter of principle, the starting point for national limitation periods for follow-on actions for damages, or their length, should be such that potential victims are able to bring a damages claim after an infringement decision by ESA becomes final. Such a position reflects the starting point of the limitation period for follow-on damages actions based on competition decisions of a penal nature in Norway. It also reflects the position taken in the proposed new EU Directive on antitrust damages actions, which is in the final stages of the adoption process.

In its judgment of 22 September 2014, Borgarting Court of Appeal took into account the developments in Norwegian and EU law securing a right for claimants to bring follow-on claims for damages after a final infringement decision by a competition authority, but, on the facts, held that the claimant in this case had had reasonable time to bring its claim within the meaning of the relevant national limitation rules. On that basis, the Court held that the action was time-barred and dismissed the appeal.

Other EEA Institutions

This website is built with Eplica CMS