Private Antitrust Litigation

A very limited number of ‘pure’ competition damages cases have been tried by Norwegian courts and no cartel damages claim has resulted in a judgment yet. There are, however, examples of out-of-court settlements in cases of this kind and of contractual claims being defended on competition law grounds. We expect more cases to come over the next couple of years based on the recent cartel and other competition infringement decisions from the Norwegian Competition Authority and the European Commission (eg, the Oslo District Court gave a decision on 1 July 2018 in which the District Court assumes jurisdiction pursuant to article 6 (1) of the Lugano Convention 2007 in a case brought by several Norwegian and foreign plaintiffs belonging to the Posten Group against a number of foreign addressees to the European Commission decision in AT 39824 (Trucks) and a Norwegian subsidiary of one of the foreign defendants. The decision is subject to appeal).

Directive 2014/104/EU (Damages Directive) is European Economic Area (EEA) relevant, but yet to be implemented into EEA law and transposed into Norwegian law.

Back to top

There is no specific statute mandating private antitrust actions. Such actions may be initiated according to the general rules and principles of the law on damages. The claimant must substantiate a basis for liability, an economic loss and causation between the harmful event and the loss. Violation of the cartel prohibition will normally be considered a sufficient basis for liability. Therefore, it is easier to establish the necessary legal basis for a claim in ‘follow-on’ actions. Still, any damages will require the proof of causation and an economic loss.

Indirect Norwegian purchasers may, in principle, bring claims against Norwegian companies, but bear the burden of proof as to the amount of the damage suffered and as to the causal link between this damage and the infringement of antitrust law. If the claim is brought against foreign defendants, questions of jurisdiction will arise (see articles 2, 5 (3) and 6 (1) of the Lugano Convention 2007) (see question 5).

Back to top

See question 2.

Back to top

Private actions (injunctive relief or damages) are available in any type of antitrust matter. Claims can be made against members of cartels as well as against companies that abuse a dominant position or any party to a potentially anticompetitive agreement, for example, with respect to breaches of both section 10 of the Competition Act and article 53 of the EEA Agreement (both mirroring article 101 of the Treaty on the Functioning of the European Union (TFEU)), as well as section 11 of the Competition Act and article 54 of the EEA Agreement (mirroring article 102 of the TFEU).

An infringement ruling by a competition authority is not a prerequisite for a private antitrust action.

However, the full burden of proof that an infringement has occurred rests on the claimant (see question 2). If a competition authority investigates a certain conduct, it is, therefore, advisable to await the finding of the authority.

A competition authority decision is not binding, but persuasive. A court decision in the criminal or public competition case is not binding to the private damages case but is likely to be of significant weight.

Back to top

The international competence of Norwegian courts in antitrust matters is governed by the Lugano Convention 2007 on jurisdiction and the enforcement of judgments in civil and commercial matters and, if not applicable, by Norwegian procedural law. According to the Lugano Convention 2007, the Norwegian courts have, for example, jurisdiction in antitrust matters if the defendant is domiciled in Norway (article 2(1)) or in cases of cartel damages actions where the harmful event occurred or may have occurred in Norway (article 5(3)). Pursuant to article 5(3) of the Lugano Convention 2007, matters relating to tort, delict or quasi-delict may be brought before the courts where the harmful event occurred or may occur. This is a narrow exception to article 2(1) (defendant’s domicile) of that Convention (see C-220/88 (Dumez) (paragraphs 17 to 19), and the Norwegian Supreme Court in Rt 2011.897 Marin Alpin and paragraph 47, article 5(3) of the Lugano Convention 2007) is only applicable if there are ‘particularly close connecting factors’ between the dispute and the legal venue. How the Norwegian courts will interpret this legal principle in competition cases after the Court of Justice of the European Union’s judgment in case C-352/13 (CDC) (paragraphs 38 and 51) remains somewhat unclear.

A Norwegian court would likely consider itself as having jurisdiction in a case where either:

• the defendant resides or has its seat in Norway, as the case may be, or alternatively;
• if the infringement wholly or partly took place in Norway; or
• the claimants are direct customers of the cartel or otherwise able to prove an immediate harm as a result of the alleged competition infringement.

If one defendant of a group of joint and severally liable defendants can be sued in Norway, all of the defendants can be sued before the Norwegian courts if there is a sufficiently close relationship between the claims against all of the defendants (see article 6(1) of the Lugano Convention 2007). In cartel cases, a claim against all participants may, therefore, be brought against all defendants if one defendant can be sued in Norway (the ‘anchor defendant’), see CJEU in C-352/13 (CDC). It is less clear that this also applies if the anchor defendant is a non-cartelist or non-addressee of the competition decision (eg a Norwegian subsidiary to one of the foreign cartelists). The salient question under article 6(1) of the Lugano Convention 2007 is whether the claim against the anchor defendant is so closely connected with the claims against the other defendants that it is expedient to hear and determine them together to aid the risk of irreconcilable judgments. Arguably, this is not transferable to claims brought against anchor defendants not being an addressee of the competition decision.

The parties could influence the place of jurisdiction to some extent. The defendants could agree that the harmful event occurred in Norway. Equally, the parties could draft an arbitration clause. Whether the arbitration clause would cover the claimants’ claim would depend on the competition infringement and how the arbitration clause is written. Whether the claim at issue is subject to arbitration, must be decided on the basis of Norwegian law.

Norwegian law provides for a presumption of wide interpretation of arbitration clauses (see Supreme Court judgments in Rt 1991 p 291, Rt 1994 p 1489 and HR-2017-1932-A).

It is not entirely clear, however, whether the court would agree that there is sufficiently close connection between the parties’ legal relationship and the competition follow-on claim. The Supreme Court judgment in HR-2017-1932A (a fraud case) renders some support to conclude that there could be a close connection between competition follow-on claimants and the parties’ legal relationship under the contract (eg, it is through the contracts regarding the acquisition of the cartel goods that the alleged overprice materialises and manifests itself so that the contract(s) is a necessary prerequisite for the alleged overcharge).

Back to top

Yes. Provided that Norwegian courts have jurisdiction in accordance with the conditions as set out in question 5, private actions can be brought against both corporations and individuals (including those from other jurisdictions).

Back to top

Litigation may be funded by third parties. Within the framework of a class action, a claimant may agree with his or her counsel that the fee should depend on the outcome of the case. Such an agreement requires the approval of the court. Otherwise, the Norwegian Bar Association does not accept that its members charge contingency fees.

Back to top

No. Jury trials are not available.

Back to top

Discovery in the generally accepted meaning of the word does not exist in Norwegian law. Anyone may, however, petition the court to order securing of evidence prior to commencing litigation (see Chapter 28 of the Disputes Act) . Evidence may be secured if it can be of significance in a dispute to which the applicant may become a party or intervener, and there is either a clear risk that the evidence will be lost or considerably weakened, or there are other reasons why it is particularly important to obtain access to the evidence before legal proceedings are instigated.

Within the framework of a court procedure, there is a general obligation on a party (whether a party to a proceeding or a third party) holding a written document that can be assumed to be of importance as evidence to produce that document (see sections 21(4) and 21(5) of the Dispute Act). A court may issue an order to that effect. A party seeking such an order from the court should identify the document and explain what information is expected to be included in the document. The disclosure obligations are limited by principles of proportionality (section 21(8) of the Dispute Act) and relevance (section 21(7) of the Dispute Act). Such evidence may be declared inadmissible by the court. Also, business secrets and other information that fall under Norwegian Competition Authority (NCA) rules on professional secrecy are generally inadmissible (section 22(10) of the Dispute Act). The court can, through a court ruling, decide to declare information under professional secrecy admissible if the court finds that the rationale for secrecy must be given less weight than the rationale for presenting the evidence.

Back to top

In general, parties may rely on virtually all kinds of documents, statements and occurrences in attempting to prove their case. The court may freely evaluate the evidence presented by the parties at its discretion. One exception is that section 21(12) of the Dispute Act limits the use of written statements as evidence in court proceedings. Written statements can, however, be presented as evidence if the parties agree, or if the parties are given the possibility to question the person who has given the statement. The written statement cannot be submitted before it has been established that the person to question will meet in court.

As a general principle, documents received or drawn up by a public body (including the NCA and the courts) are public. This principle is, however, subject to exceptions in the Freedom of Information Act, which lists a number of situations where documents are confidential.

In the NCA’s case files, information on an undertaking’s business operations, inventions and research results must be treated as confidential where the undertaking in question may be expected to suffer injury if the information is disclosed.

Information relating to admission of guilt from undertakings submitted to the competition authorities in the event of applications for leniency or during settlement negotiations is subject to prohibition of evidence (see section 22(3) of the Dispute Act and the statutory duty of confidentiality in relation to such information of section 27 of the Competition Act). The duty of confidentiality applies even if the information is included in a document from the undertaking or the competition authorities as they may be extra sensitive in a subsequent action for damages (see Prop L 75 (2012-2013) page 153). In addition, parties and party representatives that obtain knowledge of information must keep this confidential (see the section 27(a) of the Competition Act).

This implies that in a case investigated by Norwegian competition authorities, the leniency applicant may not be required to submit evidence relating to information on admissions of guilt or material covered by section 27(2) of the Competition Act (see section 22(3) of the Dispute Act). Nor can the court receive evidence if this is contrary to the statutory duty of confidentiality. To the extent that information in the leniency application is covered by the duty of confidentiality section 27(2) of the Competition Act, it is also subject to the prohibition of evidence under section 22(3) of the Dispute Act.

The same should arguably apply to information in a leniency application submitted to the Commission. Both the considerations that form the basis of the duty of confidentiality and system considerations under Norwegian dispute law indicate that these must also be subject to prohibition of evidence (see Prop 75 L (2012-2013), clause 8.1.6 and NOU 2012.7 clause 12.1.5). The same applies to references to the defendants’ leniency declarations or settlement statements in the version of the decision disclosed to the concerned parties.

Back to top

Written correspondence to and from lawyers (including in-house lawyers) held by the lawyer or by the client is protected by legal privilege and may not be subject to a court order to produce such a document. Lawyers are also prevented from giving evidence on matters confided to them in their practice.

The professional secrecy of lawyers cannot be overruled by a court.

Back to top

Private actions are available regardless of whether there has been a prosecution under competition or criminal law. There is no difference between private actions as to whether there has been a criminal conviction or not.

Back to top

The claimant can rely on the findings of competition authorities and findings in criminal proceedings (see question 10).

If the competition decision or judgment is final, although not entirely clear under Norwegian law and based on the absence of any precedents, the court is likely to give significant weight to the decision when deciding liability, although not directly binding (loss and causality between the competition infringement and the harm and loss to the plaintiff must still be proven by the plaintiff).

Leniency applicants are not protected from follow-on litigation.

The NCA follows the Norwegian administrative-law principle of public access to official records. As a general rule, all documents received or drawn up by the NCA are to be considered public, although secrecy rules apply for documents that contain confidential information, such as trade secrets and information related to leniency applications etc (see question 10).

Back to top

Under section 16(18) of the Norwegian Dispute Act, the court may stay the proceedings by way of an interlocutory order if the outcome of the case is wholly or in part dependent on a legal issue that will be bindingly resolved in another case or if other weighty reasons exist.

For example, if a competition authority has initiated an ongoing proceeding regarding fines owing to a breach of an antitrust prohibition, the court can decide on a stay in a proceeding regarding damages owing to the same alleged breach.

Although EU Commission decisions and judgments of EU courts are not binding upon Norwegian courts, the district court (Øvre Romerike) has previously found that a pending ECJ judgment clarifying the liability in a competition follow-on claim case, gives legal basis for a stay order (follow-on damages case to the Commission decision in AT.39258 Airfreight). This is in line with the homogeneity principle in article 6 of the EEA Agreement. Hence, the Masterfoods decision is also of great relevance in a case before a Norwegian court.

Back to top

A claim for compensation for alleged cartel activity will, in principle, succeed if the court finds it more likely than not that there has been a cartel or a competition infringement, an economic loss, and a causal link between the cartel or infringement and the economic loss. In contrast, the standard required for the NCA to impose an administrative fine for an infringement of the cartel prohibition is that the violation is substantiated by sufficiently clear and precise evidence, which is intended to be a higher standard.

Whether rebuttable presumptions exist under Norwegian law remains unclear under Norwegian law based upon the scarce private antitrust litigation that exists. There is no precedent for this in Norwegian law. A standard presumption of 20 per cent overcharge, unless substantiated and made likely by other evidence, appears less likely.

If the plaintiff has presented evidence making it likely that it suffered an economic loss directly related to the competition infringement, a ‘passing-on defence’ could be for the defendant to prove, but it remains to be seen how the Norwegian courts will deal with this when cases of this kind are brought before them.

Back to top

There is no standard timetable for court proceedings. It will depend on the circumstances of each case. Depending on the complexity of the case and the number of instances, the length of a case can vary between roughly one year for a ‘simple’ case with no appeal, to perhaps five years or more for a complex case in three instances. There are no formal possibilities to accelerate proceedings.

Back to top

The general limitation rules set out in the Limitation Act 1979 apply (section 34 (1) of the Competition Act). Nevertheless, in follow-on claims, the limitation period is prolonged to one year after a legally binding decision or judgment has been issued in the case (the Competition Act section 34 (2)). A decision or judgment is considered legally binding when the possibility to appeal has expired.

Stand-alone claims are subject to general limitation rules only. A claim for damages resulting from the infringement of EU-EEA competition law (or, indeed, the infringement of any similar Norwegian competition law provision) will have to be framed as a claim in tort. According to section 9 of the Limitation Act, a claim for damages in tort will, as a general rule, become time-barred three years after ‘the day when the claimant acquired, or should have acquired, sufficient knowledge of the tort and the tortfeasor’. In this context, ‘sufficient’ is normally taken to mean sufficient in order to present a claim against the tortfeasor. It is not required that there be knowledge of the damage suffered by the wrongdoing. Once such knowledge, or indeed negligent lack of knowledge, has been established, a claim will be time-barred within three years. This point is important, because court reports show that many claims are lost because the claimants do not act with the required promptness once they become sufficiently aware of their claims.

The essential point is, therefore, to establish to what extent the potential claimant has had ‘knowledge’ or ‘negligent lack of knowledge’ of:

• the wrongdoing; and
• the wrongdoer.

Both elements must be proven in order for the limitation period to start. A modifying factor is that any knowledge must have been ‘sufficient’ as mentioned above.

If the claimant has not presented the claim because he lacked the necessary knowledge of the claim or the debtor, ‘limitation’ occurs at the earliest opportunity one year after the date the claimant knew or ought reasonably to have such knowledge.

Furthermore, there is a possibility that a claim based on cartel activities may lead to partial invalidity of the sales contract, giving rise to a claim for restitution of the overprice paid. Such a claim would, for the purposes of limitation, be a contractual claim falling under section 10 of the Limitation Act. According to this provision the claim will be time-barred one year after the creditor got necessary knowledge of the claim and of the debtor.

There is an absolute limitation period of 20 years after the cartel ended.

The extent to which the parties may agree that a claim shall not be time barred, is set out in section 28 of the Limitation Act 1979. The parties may not agree that a particular claim shall not be the subject of limitation. However, if the claim is in existence, the parties may agree to extend the limitation period with three years of the date of the agreement. However, such extension cannot be longer than 10 years after the date of ordinary limitation.

Back to top

Cases involving private civil litigation are brought before the district court of competent jurisdiction (typically at the place of business of the defendant). The judgment of the district court can be appealed to the Court of Appeals (at law and facts) and further to the Supreme Court (subject to procedural limitations on appeal).

Back to top

Yes. Collective proceedings are available in respect of antitrust claims.

Back to top

Yes. Class actions are mandated by Chapter 35 of the Civil Procedure Act. In addition to specific rules applicable to class actions, the Civil Procedure Act also allows, to a rather large extent, joinder of parties in ordinary proceedings, provided that certain conditions are fulfilled.

The Civil Procedure Act recognises two different forms of class actions:

• opt in: anyone who falls within the scope of the class as defined by the court in its approval of the class action is entitled to be registered as a member within the time limit set by the court; and
• opt out: anyone who falls within the scope of the class as defined by the court in its approval of the class action is automatically a member of the group (and will be bound by a subsequent ruling) unless he or she withdraws from the class.

Which of the two procedures that is most suitable for a specific class action is ultimately left to the court to decide.

Back to top

Pursuant to section 35(4) of the Dispute Act, the court must approve that the action is brought as a class action. In order for a class action to be approved the following conditions, set out in section 35(2), must be met:

• several persons have claims or obligations whose factual or legal basis is identical or substantially similar;
• the claims can be heard by a court with the same composition and in the main pursuant to the same procedural rules;
• class procedure is the most appropriate way of dealing with the claims; and
• it is possible to nominate a class representative.

Back to top

To date, no antitrust class proceedings have been brought in Norway.

Back to top

Yes. See question 20.

Back to top

Yes. Pursuant to section 35(11)(3) of the Dispute Act, settlement in a class action pursuant to section 35(7) of the Dispute Act (opt out) requires the approval of the court. The rationale behind this rule is that the claims have low individual value, meaning that the group members cannot be expected to have an active role in the proceedings. Also, members of the class action may be unaware of the action. The court shall ensure that the process leading up to the settlement has been satisfactory (ie, that the group members have been informed of the settlement) and ensure that the content of the settlement is satisfactory.

The parties have a wide margin of appreciation when it comes to agreeing on an amicable solution.

Court approval is not necessary for an opt-in action.

Back to top

Not applicable.

Back to top

No. Note that unlike the general rule that parties in legal proceedings are not required to have legal representation, claimants in private class actions and organisation class actions must, in general terms, be represented by a member of the Norwegian Bar Association (see section 39(4) of the Dispute Act). The court may deviate from this principle in exceptional circumstances.

Back to top

The calculation of damages suffered by the claimant is primarily based on general tort law. As such, damages are calculated on the basis of the difference between the financial position of the claimant after the infringement occurred and the hypothetical financial position the claimant would have been in if the competition law infringement had not occurred. The financial status of the affected party has to be considered as a whole; therefore, not only its losses in income or profit and lost investment may be taken into account, but also any benefits received as a consequence of the anticompetitive behaviour.

Norwegian damages law does not provide for punitive damages such as triple damages (see question 29).

The principle of natural restitution not only leads to pecuniary compensation but may, particularly in cases of abusive refusals to supply, lead to the defendant being ordered by the court to contract with the claimant and supply him or her with the requested goods or services.

Back to top

Norwegian procedural law provides for different interim measures based on Chapter 34 of the Dispute Act. In the event of an immediate risk that the financial situation of the defendant will deteriorate, the claimant can request a court to seize assets of the defendant. Furthermore, courts can issue interim measures ordering the defendant to perform a certain action, such as supplying the claimant with certain goods, if the claimant would otherwise lose important customers. The standard of proof is lower than for the principal claim on the merits. An applicant for interim relief must provide prima facie evidence that he or she has a claim and that the realisation of such a claim is impossible or severely jeopardised without the interim remedy (urgency). As a general rule, an interim remedy shall not result in the fulfilment of the final remedy.

Back to top

No. Norwegian law does not provide for punitive or exemplary damages. Only compensatory damages can be sought. The claimant must prove a causal link between the culpable behaviour and the damage incurred. Only the net financial loss of the claimant will be compensated.

Back to top

A claim for damages will attract interests according to the Norwegian Act on Interest on overdue Payments.

The accrual of statutory interest is triggered by the monetary claim becoming due. The date from which interest may be claimed, is defined in the relevant statute. If the due date has been fixed in advance (eg in a promissory note or in a contract, interest is calculated from this date). If, on the other hand, there is no such date fixed in advance, the accrual of interest starts 30 days after a demand for payment has been sent to the debtor in writing.

Statutory interest is calculated as a percentage of the outstanding amount. The interest rate is normally reviewed bi-annually (1 January and 1 July). The interest rate is considerably higher than the market rate. The reason for this is partly to add a punitive element so as to encourage prompt payment, partly to avoid the issue of compound interest. Therefore, compound interest cannot be claimed, neither as damages. However, if the creditor suffers additional economic loss, that is, a loss that is not covered by the interest rate, this may be claimed in tort as a separate loss (see section 3(3) of the Interest on overdue Payments Act).

Back to top

No. Fines imposed by competition authorities should not be taken into account when determining damages, albeit no clear precedents to this effect yet exist.

Back to top

The main rule in civil litigation in Norway is that the losing party shall compensate the other party its necessary costs associated with the case. The parties present their claims at the end of the oral hearing and in the judgment the court decides whether the winning party shall be awarded costs, and if so, the amount (which is often lower than the claimed amount). The successful attorney’s fees are ultimately agreed between him or her and the client. It follows from the Norwegian Bar Association’s Code of Ethics (which is legally binding) that the amount payable to a lawyer cannot be calculated as a percentage or a proportion of the outcome or value of the case. However, ‘no win no fee’ is allowed, as are differentiated fees depending on the outcome, discretionary success fees etc.

The general rule is that unsuccessful claimants are obligated to compensate the winning party its necessary defence costs and attorneys’ fees. However, if the winning party is to blame for the initiation of the case (eg, by refusing a reasonable settlement offer) or the court for other reasons finds it reasonable to not impose such an obligation upon the unsuccessful claimants, the court may choose not to require the defendant to compensate the winning party’s defence costs and attorney’s fees.

These rules also apply to class actions. For class actions, the Dispute Act section 35(13)(1) also provides that the court shall determine the class representative’s and the legal counsel’s fees and coverage of expenses.

Class members in opt-in actions will be liable towards the class representative for costs imposed on the representative for remuneration and refund of disbursements insofar and to the extent that such liability is a condition for registration.

Class members in opt-out actions will not have any liability towards the class representative (or towards the other party in the action for that matter) for costs.

Back to top

To the extent that parties have colluded, the parties are, as a general rule, jointly and severally liable for the ‘group act’ constituting the infringement of EU competition law. As long as liability is established, each party is, in principle, liable for the consequences of the group act. The fact that one party may be less culpable than the others, does not affect his or her liability with regards to the aggrieved party.

However, varying degrees of culpability among the group members (as well as other factors) may be taken into account in the distribution of liability as between the group members (section 5(3)(2) of the Norwegian Torts Act).

A party who has benefited from, but not participated in, infringements of EU, EEA or Norwegian competition law will, under Norwegian law, likely not be held liable in tort. A tort claim in this context will have to be based on culpa, and a mere economic benefit will not in itself be sufficient to establish negligence on his or her part.

This implies that there will, as a general rule, be no liability for third parties (ie, non-members of the cartels mentioned) who have merely followed an overall price trend set or influenced by the cartel, unless negligence or culpability is shown. In order to establish culpability, one will at least have to show that the third party had some knowledge of the cartel’s price setting or the cartel’s influence on the price. In addition, there will have to be an element of blame.

However, depending on the circumstances, there may be a basis for a claim for unjust enrichment. There is, so far, no authoritative case law firmly establishing such liability in this context.

Back to top

If one member of the cartel is found liable for the damages caused by the group, it is indeed possible to claim contribution from the other group members. The claim for contribution is, however, subject to limitation. If the claim for contribution has been served within one year of payment to the main creditor, the limitation period will be interrupted.

Furthermore, there are some other particular rules relating to the limitation of such claims. Section 8 of the Limitation Act provides as follows:

‘If several debtors are liable to the creditor and one of them discharges his debt before the limitation period has expired in respect of him, the period of limitation for his recourse claim against a co-debtor shall be one year after the discharge of the debt. Nevertheless, the claim shall not become statute barred before the expiry of the limitation period to which he would be entitled if the discharged claim had been transferred to him. If the creditor’s claim against the co-debtor had lapsed at the time of discharge of the debt, the recourse claim can only be asserted if the co-debtor has been notified within reasonable time of the discharge of the debt. If, prior to the discharge of the debt, the period of limitation has been interrupted or prolongation has been agreed under section 28, it shall be further required that the co-debtor has been notified of this within a reasonable period of time’.

The method for the determination of the extent to which contribution may be claimed, is set out in section 5(3)(2) of the Norwegian Torts Act. According to this provision, the extent of a contribution claim shall be determined ‘with regard to the basis for responsibility and to other relevant circumstances’. The wording of the statutory provision is vague and offers no clear guidelines as to what factors should be taken into consideration.

In case law, it is well established that each case must be assessed on an individual basis. All the relevant circumstances may be taken into account, and there is no fixed method for the assessment of the contribution. The assessment is, therefore, quite discretionary, leaving all powers with the judge. The jurisprudence offers no clear guidelines for the assessment of the relevant factors.

However, Supreme Court practice seems to indicate that the dominant factor in all cases will be the degree of culpability. Therefore, if a party is more to blame than the others, this will normally carry great weight in the assessment. Furthermore, the courts seem to have regard to the chain of events, so that a party whose position is more dominant than the others, will often have to take a greater burden than the others. Finally, the courts take into account purely individual factors, such as ability to pay, and the extent of insurance coverage.

The objective of the provision is to secure a solution that is equitable and fair in the individual case. It is therefore difficult to give any general guidelines for the assessment.

Back to top

The Norwegian rules regarding the passing on defence are somewhat unclear and there is no authoritative case law. The burden of proof as to whether antitrust damages have or have not been passed on, must, according to general principles, rest with the plaintiff. However, in recent legal theory, the view has been voiced that this burden of proof must be reversed; the rationale being that this will secure efficiency and leave the aggrieved party with a more enforceable remedy. In our view, both these positions are arguable, and it will not be possible to say that one is more firmly established than the other.

Back to top

If the plaintiff has been able to prove the existence of an intentional or negligent infringement, actual injury and the causal link between the two, no specific grounds of justification as regards liability exist as such.

However, the amount of the damages, can be reduced if the plaintiff has contributed, by fault or negligence, to the injury sustained. Also, if the plaintiff has benefited from the infringement, this would have an impact on the amount of the damages.

Back to top

In principle, arbitration proceedings are available under Norwegian law. However, such proceedings are only admissible if an arbitration clause has been agreed between the parties, which requires an agreement between the parties.

Back to top

Back to top