In November 2023, the Norwegian Competition Appeals Board (Konkurranseklagenemnda), an administrative complaints body, overturned a decision of the Norwegian Competition Authority (Konkurransetilsynet) concerning alleged anti-competitive agreements and concerted practices in the book industry.
In its investigation, concluding with its decision in 2022, the Competition Authority was of the view that an exchange of information between competitors in the concentrated book market violated the national competition act. In particular, it stated the practices of the five – amounting to 90% of the national book market – constituted a restriction of competition by object violating section 10 of the Competition Act which prohibits anti-competitive agreements and concerted practices.
The Competition Appeals Board had not found, in contrast to the Competition Authority, that the sharing of information through the subscription service was the sharing of future prices, but of current/indicative prices. As a result of the decision of the Competition Appeals Board, the fines imposed on the five publishers amounting to 545m NOK (€46m) have been annulled.
When the Competition Appeals Board was first established, it was not possible for the Competition Authority to appeal their decisions to the national courts and tribunals in Norway. The only persons that could appeal the decisions were private parties. However, amendments to national law have been made, as this in practice prevented the full access to an effective judicial remedy for all concerned parties, including the public interest. However, given the book publishers case pre-dated the amendments to national court, the decision of the Competition Appeals Board is final. In future cases, appeals of the Competition Appeals Board will be heard by the courts of appeal in Norway (and not the city/district courts).
The decision of the Competition Appeals Board has, as of 27 November 2023, not yet been published. However, it will be before the end of the year, once parties have had a change to scrutinise the decision to determine whether any trade secrets are contained therein. For now, the Competition Appeals Board’s announcement can be read here.