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The Norwegian Competition Authority’s decision on alleged unlawful information exchange between publishers overturned 

24.11.2023 - Competition, market and regulation

Oslo Economics assisted the law firms Kvale, Thommessen, and Wikborg Rein, who represented the publishers Vigmostad & Bjørke, Gyldendal, and Aschehoug both during the Norwegian Competition Authority’s (NCA) handling of the case and as experts during the tribunal proceedings.  

The NCA made a final decision on infringement fines in November 2022. Collectively, the publishers were fined NOK 545 million (~EUR 46 million). The Competition Appeals Tribunal (CAT) has now overturned the decision, and the publishers have been acquitted. This decision is final. This marks the first time a decision by the NCA imposing fines for violations of Section 10 of the Norwegian Competition Act (corresponding to TFEU 101) has been overturned at the CAT. 

The press release from the tribunal states (our translation): “Unlike the Competition Authority, the Competition Appeals Tribunal did not find that the sharing of information through the Mentor Forlag subscription was an exchange of future prices but rather current/indicative prices. This, combined with the fact that the information was not shared in a channel that has the characteristic features of a private channel, i.e., that the information was simultaneously shared with the customers, implies that the Competition Appeals Tribunal has concluded that the sharing of information does not constitute a restriction of competition by object violating the Competition Act §10 and Article 53 of the EEA Agreement.” 

The CAT’s decision is fully in line with Oslo Economics’ assessments during the case. During the proceeding of the case in the CAT, we emphasized that the NCA’s decision was based on an incorrect economic perception of how the competition between publishers works, especially in that it was assumed that the competition between publishers to sell books only takes place at the time of publication. This gave rise to an incorrect conclusion from the NCA that the price information registered in the book database relates to future prices. 

The competition takes place long before a book’s official publication date. The publishers sell their books to the booksellers, the booksellers make their choices (marketing, etc.) and the books are put out for advance sale – long before publication. Information in the book database about upcoming publications, including prices, is thus current and represents the publishers’ competitive behaviour. Communicating information about prices and other relevant information to customers that they need to make their choices effectively and to be able to put competitors against each other is normal competitive behaviour that is necessary for the market to function effectively.  

Competition economic analyses in Oslo Economics 

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Jostein Skaar
Jostein Skaar
Elias Braunfels
Elias Braunfels
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