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Independence of competition authorities: from designs to practices – NORWAY –November 2016 OECD discussion

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This presentation by Norwegian Competition Authority was made during the discussion on "Independence of competition authorities - from designs to practices" held at the 15th Global Forum on Competition on 1 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/independence-of-competition-authorities.htm

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Independence of competition authorities: from designs to practices – NORWAY –November 2016 OECD discussion

  1. 1. Agency Independence Contribution from Norway The Norwegian Competition Authority Ministry of Trade, Industry and Fisheries
  2. 2. Agency Independence 1) Independence in individual cases 2) The 2016 amendments 3) Independence in advocacy efforts 4) Professional independence 5) Ethical guidelines
  3. 3. Independence in individual cases • The NCA's independence in dealing with individual cases is secured by law: “The Competition Authority can not be instructed [by the ministry or government] as to decisions in individual cases" The Norwegian Competition Authority The Prosecutor for Economic and Environmental Crime Ministry for Industry, Trade and Fisheries The Courts: The District Court The Court of Appeal The Supreme Court Criminal prosecution of individuals Appeals on merger desicionsAppeals on desicisons according to the prohibition regulations (eg. cartels and abuse of dominance) Letter of Assignment and financial framework
  4. 4. Independence in individual cases • However … – The Ministry is the appellate body for the NCA’s merger desicions (and some other administrative desicions) • Moreover … – in cases involving questions of principle or interests of major significance to society, the Government can approve a concentration or an acquisition of shares that the NCA has intervened against under the merger regulations
  5. 5. 2016 Amendments The Norwegian Competition Authority The Prosecutor for Economic and Environmental Crime Ministry for Industry, Trade and Fisheries The District Court Criminal prosecution of individuals Appeals on desicions according to the prohibition and merger regulations Letter of Assignment and financial framework The Competition Complaints Board The Court of Appeal The Supreme Court • Motivation – To enhance NCA’s independence – Increase efficiency in reaching final legally binding decision • Establishment of a Competition Complaints Board – First instance to deal with all NCA decisions – No longer any appeals to the ministry • The government can no longer reverse decisions based on public interest considerations
  6. 6. Independence in advocacy efforts • The Ministry can – order the NCA to deal with a case – ask the NCA to do a study on a particular market – … but can not influence the outcome and recommendations • The DG is appointed by the Government for a fixed term – … but it is an appointment based on professsional qualifications • The DG can be discharged by the Government before end of term – … but only in circumstances of severe misconduct  High degree of independence in advocacy work
  7. 7. Professional independence and high ethical standards • Professional independence and high ethical standards in the exercise of authority are a prerequisite for agency independence • This is ensured by formal and informal tools – Public Administration Act – Ethical Guidelines
  8. 8. Public Administration Act • A case must be illuminated as well as possible prior to administrative decisions being taken • A public official is disqualified when directly or indirectly party to the case or circumstances exist that could impair trust in impartiality • The individual is personally responsible for disqualifying him- or herself, and for stepping aside when a case so requires • If impartiality can be questioned, the case handler must step aside and not work on the case, or a set DG or Minister will be appointed
  9. 9. A prominent example Minister at inauguration in 2001 warns against SAS acquiring Braathens while the NCA dealt with the case. The Minister stated ia. that he “does not favor predators eating their prey”. A set Minister had to be appointed when the Ministry dealt with the case
  10. 10. Public Servants Act and Ethical Guidelines • General regulations and ethical guidelines – "public officials shall not, on their own behalf or on behalf of others, accept or facilitate the acceptance of gifts, travel, hotel accommodations, hospitality, discounts, loans or other contributions or perquisites that are appropriate to, or intended by the donor, to influence their work.“ • Agency specific ethical guidelines – Reflect various issues and circumstances that may in particular be of relevance to an NCA case handler • Measures to enhance awareness, including training in ethical dilemmas
  11. 11. Concluding comments • Agency independence depends on many factors, e.g. – The legal and institutional framework – And the professionality of the employees • Important legal and institutional measures have been undertaken to enhance NCA’s independence • Professional independence needs continuous attention

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