In newly-released draft proposals for an amendment to the Competition Act, which are now out for consultation in Government consultation portal, it is proposed, among other things, to abolish the Competition Authority's power to appeal the decisions of the Competition Appeals Board to domestic courts. The explanatory notes to the bill state that the Norwegian competition authority cannot appeal the appeals board's decisions to the courts. In Norway, a special appeals board was established in 2016. Under current law, only companies have such a right of appeal to the courts, not the Norwegian Competition Authority.
In this regard, attention is drawn to the fact that on 30 October, the Norwegian Ministry of Trade published notification where it is reported that it is intended to grant the Norwegian Competition Authority the aforementioned right of appeal to the courts. The notification states that the Norwegian competition authority is tasked with safeguarding the public interest and that it is undesirable that it cannot refer the appeals board's decisions to the courts. The Norwegian Ministry considers it necessary to make this change in order to ensure and protect the public interest.
Earlier this week, on 28 October, directed Supervisory authority EFTA (ESA) address to the Norwegian Ministry of Trade, setting out the EEA Supervisory Authority's clear position that the aforementioned lack of appeal rights for competition authorities cannot be considered compatible with the competition rules of the EEA Agreement-law and can create problems for the application of the EEA Agreement's competition rules in Norway. Furthermore, the ESA points out that the arrangement is contrary to the new EU Directive 1/2019, on the harmonisation and strengthening of the powers of competition authorities, which explicitly requires that competition authorities have the power to appeal.
The above-mentioned position of ESA has direct relevance to, and supports, the right of appeal of the Competition Authority in this country, and is in accordance with the comments that the Competition Authority has made, including to the Ministry of Industry and Innovation. If the legislative changes in Norway are implemented, all competition authorities in the Nordic countries, including the Icelandic one under current law, will have the authority to ensure that the public interest and the interests of smaller businesses receive final resolution in the courts.
The Competition Authority will elaborate on the importance of the right of appeal in its report on the current draft bill.
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