Norwegian Supreme Court affirms annulment of the competition authority's merger decision prohibiting the acquisition of a used car sales online portal by online marketplace owner Schibsted
In its judgment of 16 February 2023, the Norwegian Supreme Court (the "Supreme Court") affirmed the annulment of a decision by the Norwegian competition authority ("NCA") which had prohibited Schibsted ASA ("Schibsted") from acquiring a majority stake in the used car sales portal Nettbil AS ("Nettbil"). The Supreme Court found that the parties' services, while both broadly related to used car advertisement services, were clearly different and that NCA had not sufficiently substantiated its position that the transaction would eliminate competition between the parties' services. Nor was there sufficient evidence to support the NCA's view that the transaction would harm innovation as, absent the transaction, Schibsted could have developed a service that competed more directly with Nettbil.
Schibsted, a major Nordic media conglomerate, is the majority owner of Finn AS, the operator of the all-purpose online marketplace and classified advertisement service "Finn.no," which customers can use to sell, among other items, used cars. Toward the end of 2019, Schibsted acquired a majority stake in Nettbil, the operator of the service "Nettbil.no" through which individuals can sell used cars directly to Nettbil at a price determined by sealed-bid auctions, whereafter Nettbil in turn immediately resells the car to the purchaser with the highest bid. In the process, Nettbil assumes the associated credit risk and defect liability vis-à-vis the end customer.
Almost one year later, the NCA adopted a decision ordering Schibsted to divest its shares in Nettbil. It found that the services offered by Finn and Nettbil competed in the same product market - essentially defined as "transactional activities necessary for selling used cars" - and that, as a result of the transaction, prices would increase and service quality would decrease. The NCA dismissed as irrelevant the significant price differences between the services offered by the parties (although the price of Nettbil's service was ten to 30 times higher than Finn's). Instead, it relied on internal documents in which the parties referred to each other as competitors, as well as qualitative criteria allegedly showing an overlap between the parties' services. In addition, the NCA advanced a theory of harm pertaining to innovation according to which Nettbil had a high growth potential and that either of Nettbil or Finn would create a service directly competing with the other's absent the acquisition.
The Norwegian Competition Board of Appeal upheld the NCA's decision, but the Court of Appeal reversed it. The Supreme Court has now affirmed the Court of Appeal's ruling and allowed the merger to go ahead.
The Supreme Court's analysis and findings
The Supreme Court found that the NCA had failed to establish to the requisite standard that Finn and Nettbil were part of the same product market and that the acquisition had therefore eliminated competition between them. It held that the NCA had attributed too much weight to the fact that both parties offered used car sales advertisement services, and failed to properly account for the fact that Finn offers only an advertisement service, whereas Nettbil's service covers the entire car transaction and assumes the associated credit risk and defect liability. Moreover, the NCA had been wrong when it considered irrelevant the significant price differences between Nettbil's and Finn's services.
Nor was the Supreme Court persuaded that Schibsted's internal documents supported the NCA's case. One document discussed the effect of Finn losing used car sales to Nettbil, but the Supreme Court considered that the document's status and underlying calculations were uncertain and did not demonstrate that Schibsted believed that Nettbil exerted competitive pressure on Finn. Another document expressed concerns that Nettbil would grow and take share from the person-to-person used car market, weakening Finn's market position. While recognising the ambiguous nature of these statements, the Supreme Court interpreted them in their context and concluded that most evidence suggested that they concerned the risk of losing advertising revenues from the automotive industry rather than Finn's competitiveness vis-à-vis Nettbil.
Finally, the Supreme Court also rejected the NCA's view that the acquisition would harm innovation, which appeared to be similar to a potential competition theory of harm. According to the Supreme Court, evidence showed that Schibsted's business strategy was to acquire a niche platform complementary to Finn's service rather than a competing service, and that Schibsted did not consider it an option to develop a service that competed more directly with Nettbil.
The Nettbil judgment is a reminder that mergers in the digital space that do not involve the largest global platforms, but parties with a significant regional presence, can also raise challenging issues that cause them to run into resistance from the competition authorities. Nettbil demonstrates that in the digital space, where service offers will frequently be differentiated and are subject to continuous change, substantiating with sufficient evidence that parties to a transaction have a direct competitive relationship can be a difficult task for a competition authority. Traditional tools for defining the relevant markets in which the parties operate and measure the intensity of competitive interaction between the parties may be of little direct help. Building a case purely on qualitative parameters will typically not be sufficiently persuasive either as there will often be other qualitative parameters indicating a lack of a direct competitive relationship.
In this situation, internal documents showing competitive interaction between the parties will frequently become the most relevant evidence. On this point, however, the Supreme Court appeared to be - for good reason - quite demanding, rejecting a few ambiguous (although not entirely unproblematic) documents as insufficient to support the competition authority's case. Courts in other jurisdictions might well have been more deferential to the findings of a competition authority in a similar situation.
The Supreme Court - again, for very good reason - also appeared to be quite sceptical about the competition authority's innovation theory of harm. A mere allegation that the parties could, in the absence of the transaction, develop products that would compete more directly, cannot be sufficient to justify blocking a transaction, especially if there was apparently no concrete evidence that either party had considered building a competing service absent the transaction. The Supreme Court therefore appeared to have sound reasons to conclude that this was a genuine add-on acquisition of a complementary service, and not a transaction that credibly threatened potential rivalry between the parties to the transaction. Indeed, the Court of Appeal - whose decision the Supreme Court upheld - found that Nettbil likely would have continued as a niche player still in need of a capital injection, had it not been for the merger.
FOREIGN DIRECT INVESTMENT
Federal Chamber of Representatives adopts bill approving cooperation agreement that creates foreign direct investment screening mechanism
On 9 February 2023, the federal Chamber of Representatives adopted a bill (the "Bill") which approves the cooperation agreement of 30 November 2022 (the "Agreement") between the federal government, the regional governments and the communities establishing a foreign direct investment ("FDI") screening mechanism. The Agreement creates terms and procedures for the screening of FDI and regulates the cooperation between the federal government and the various other governments in the joint exercise of their competencies in the field.
EU Regulation 2019/452
The Agreement is part of the implementation process of EU Regulation 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union (the "FDI Regulation"). The FDI Regulation defines minimum requirements for EU Member States' FDI screening mechanisms, such as that being introduced in Belgium, and establishes a mechanism for coordinating FDI reviews within the EU.
The Agreement applies to FDI by foreign investors that can affect national security, public order or the strategic interests of the regional governments and communities.
- FDI is defined as any investment by a foreign investor aimed at obtaining or maintaining long-term direct relations between the foreign investor and a business, including investments that enable effective participation in the management or control over the "Control" is interpreted in accordance with Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the "EU Merger Regulation").
- Foreign investors are defined as (i) non-EU private individuals (i.e., private individuals with a principal residence outside the EU), (ii) non-EU businesses (i.e., businesses incorporated under the law of a non-EU country or otherwise organised and having their registered office or principal activity in a country outside the EU), and (iii) companies whose ultimate beneficial owners have their principal residence outside the EU. This also includes governments and public institutions.
The Agreement explicitly excludes from its scope of application investments solely aimed at creating new economic activities.
Interfederal Screening Committee
The Agreement provides for the creation of an Interfederal Screening Committee (the "ISC").
The ISC will be responsible for coordinating the application of the FDI screening mechanism. It will be composed of representatives of the federal and regional governments and the communities.
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