Brussels, 28 July 2014 Case No: 75554 Event No: 710884

TO COURT OF APPEAL

WRITTEN OBSERVATIONS submitted, pursuant to Article 15(3) of Chapter II of Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act, by the: EFTA Surveillance Authority Rue Belliard 35 1040 Brussels, Belgium

Represented by Agents: Gjermund Mathisen, Senior Officer and Janne Tysnes Kaasin, Temporary Officer, Department of Legal & Executive Affairs in Case No. 13-178315ASD-BORG/02

Appellant: Bastø Fosen AS v/styrets leder Postboks 94 3191 Horten

Counsel: Advokat Morten Goller Wikborg, Rein & Co. DA Advokatfirma Postboks 1513 Vika 0117

Legal representative: Advokat Simen Klevstrand Wikborg, Rein & Co. DA Advokatfirma

Respondent: Color Line v/styrets leder Postboks 82 4662

Counsel: Advokat Gunnar Sørlie Advokatfirmaet BA-HR DA Postboks 1524 Vika 0117 Oslo

Subject matter: Claim for damages for breach of competition law

______

Rue Belliard 35, B-1040 Brussels, tel: (+32)(0)2 286 18 11, fax: (+32)(0)2 286 18 00, www.eftasurv.int

TABLE OF CONTENTS

1 INTRODUCTION ...... 3

2 THE IMPORTANCE OF PRIVATE ENFORCEMENT OF EEA COMPETITION LAW ...... 4

3 THE OSLO ’S JUDGMENT ...... 7

3.1 Background ...... 7

3.2 Observations on ’s judgment...... 8

3.2.1 The limitation period – its starting point and its possible suspension or interruption ...... 8

3.2.2 Events prior to 13 December 2009 which led the District Court to conclude that the three-year limitation period had elapsed ...... 10

3.2.3 The treatment of Article 53 EEA and Article 54 EEA together for the purposes of calculating the limitation period ...... 13

4 GENERAL PRINCIPLES OF EEA LAW ...... 14

4.1 The principle of effectiveness ...... 14

4.2 The principle of equivalence ...... 15

5 THE POSSIBILITY TO REQUEST THE EFTA COURT TO GIVE AN ADVISORY OPINION ...... 16

6 CONCLUDING REMARKS ...... 16

7 SCHEDULE OF ANNEXES ...... 18

2

1 INTRODUCTION 1. On 24 June 2013, the EFTA Surveillance Authority (the “Authority”) received the judgment of Oslo District Court dated 21 June 2013,1 currently under appeal before Borgarting Court of Appeal, from one of the parties (Bastø Fosen). Thereafter, on 19 June 2014, the Authority requested Borgarting Court of Appeal to provide it with copies of the pleadings of the parties.

2. The Authority is submitting these Observations pursuant to Article 15(3) of Chapter II of Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (“SCA”), implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act. Article 15(3) allows the Authority, on its own initiative, to submit written observations to the Norwegian courts “[w]here the coherent application of Article 53 or Article 54 of the EEA Agreement so requires”.2

3. The case before Borgarting Court of Appeal raises important questions of principle and interpretation in relation to Articles 53 and 54 EEA, in particular concerning the enforcement of the EEA competition rules by private parties. The purpose of these Observations is to highlight aspects of EEA law of importance to the proceedings before the Court, in particular in relation to the interpretation of the Norwegian Limitations Act 1979 (foreldelsesloven), which is at the heart of the questions before the Court.

4. In submitting these Observations, the Authority is acting as amicus curiae, with a view to assisting the national court in the application of the EEA competition

1 Case No 12-203595TVI-OTIR/06. 2 Article 15(3) of Chapter II of Protocol 4 SCA provides that: “Where the coherent application of Article 53 or Article 54 of the EEA Agreement so requires, the EFTA Surveillance Authority, acting on its own initiative, may submit written observations to the courts of the EFTA States. With the permission of the court in question, it may also make oral observations”. The Authority also refers to the Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 53 and 54 of the EEA Agreement (included as Annex 1 to these Observations), in particular at paragraph 19. Article 15(3) of Chapter II of Protocol 4 to the SCA corresponds to Article 15(3) of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (OJ L1, 4.1.2003, p. 1). 3

rules, based on its knowledge and experience in enforcing those rules, a task with which it has been entrusted pursuant to the SCA.

5. In submitting these Observations, the Authority respects the independence of the Court. The assistance offered by the Authority does not bind the Court. The Authority’s assistance is part of its duty to defend the public interest; it has therefore no intention to serve the private interests of the parties involved in the case pending before the Court.3

6. The Authority will address the following issues: in Section 2, the importance of private enforcement of EEA Competition Law before national courts; in Section 3, observations on the Oslo District Court’s judgment, including the main investigatory steps in the Authority’s investigation in its Color Line case; and, in Section 4, general principles of EEA law.

2 THE IMPORTANCE OF PRIVATE ENFORCEMENT OF EEA COMPETITION LAW 7. The enforcement of competition law takes two forms: (i) public enforcement by competition authorities; and (ii) private enforcement by those who have suffered harm as a result of infringing conduct. Both forms of enforcement are crucial to the effective enforcement of the EEA competition rules. While each form serves a common purpose – the public interest in ensuring that competition is undistorted – each form also serves a different, yet complementary purpose: public enforcement is aimed primarily at deterrence, with significant financial penalties imposed on infringing parties; while private enforcement is primarily designed to compensate the victims of anti-competitive conduct, through damages.

8. It follows from the case law of the Court of Justice of the European Union (“Court of Justice”) that the full effect of the competition rules applicable in the EEA would be put at risk if it were not open to any individual to claim damages for

3 See Annex 1, paragraph 19. 4

loss caused to them by a contract or by conduct liable to restrict or distort competition.4

9. Indeed, the right of any individual to claim damages for loss caused to them by conduct which is liable to restrict or distort competition contrary to the EEA competition rules strengthens the function of those rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a significant contribution to the maintenance of effective competition in the EEA.5

10. The EFTA Court has noted that the enforcement of the EEA competition rules by private parties should be encouraged, as it can make a significant contribution to the maintenance of effective competition in the EEA.6

11. In that respect, the national courts play a vital role, as recognised in the preamble to Council Regulation (EC) No 1/2003: “National courts have an essential part to play in applying the Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements. The role of the national courts here complements that of the competition authorities of the Member States”.7

12. In general, competition authorities, including the Authority, are better placed than victims of anti-competitive conduct to uncover infringements of the EEA competition rules. This is in particular due to the wide-ranging investigative powers competition authorities have at their disposal, powers that are in most cases not available to private parties. Such powers include significant means with

4 See judgment in Courage and Crehan, C-453/99, EU:C:2001:465, paragraph 26. 5 See judgment in Donau Chemie, C-536/11, EU:C:2013:366, paragraph 23. 6 See Case E-14/11 Schenker I [2012] EFTA Ct. Rep. p. 1178, paragraph 132; Case E-5/13 Schenker V, judgment of 7 July 204, paragraph 134. 7 The provisions of Part II of Protocol 4 SCA reflect those of Council Regulation (EC) No 1/2003 and, in accordance with the preamble to the SCA, “the preambles to acts adopted in application of the Treaties establishing the European Economic Community [...] shall, in so far as those acts correspond to the provisions of Protocols 1 to 4 and to the provisions of the acts corresponding to those listed in Annexes I and II to this Agreement, be relevant to the extent necessary for the proper interpretation and application of the provisions of these Protocols and Annexes”. The preamble of Council Regulation (EC) No 1/2003 is thus relevant for the interpretation of Protocol 4 SCA. 5

which to uncover evidence that is not available to private parties. In particular, the Authority may conduct unannounced inspections (“dawn raids”) and collect relevant evidence – often concealed – directly from the company concerned.8 The Authority also has the power to obtain all necessary information from undertakings9 and the power to take statements from any natural or legal person.10 Importantly, the evidence obtained using such investigative powers is often the evidence that underpins the finding of an infringement under the EEA competition rules. Investigations carried out by the Authority in the field of competition are in general highly complex and often take several years to conclude.11

13. This means that where a competition authority has initiated an investigation into certain potentially anti-competitive practices, any victims of such practices will generally wait until that authority has reached a final decision before deciding whether to commence proceedings for damages before the national courts (often referred to as “follow-on claims”).

14. The importance of follow-on claims, and the role they play in the effective enforcement of EEA competition law, is reflected not only in case law but also in the new EU Directive on antitrust damages actions, currently in the process of being formally adopted.12 This Directive will require EU Member States to ensure

8 Article 20 of Chapter II of Protocol 4 to the SCA. 9 Article 18 of Chapter II of Protocol 4 to the SCA. 10 Article 19 of Chapter II of Protocol 4 to the SCA. 11 The average length of cartel investigations by the Commission (pursuant to Article 101 TFEU) between 2000-2011 was 4.2 years, see Cartel Enforcement in the European Union: Determinants of the Duration of Investigations by Kai Hüschelrath, Ulrich Laitenberger, and Florian Smuda, Discussion Paper No. 12-071, Centre for European Economic Research, available at: http://ftp.zew.de/pub/zew-docs/dp/dp12071.pdf. Investigations of infringements of Article 102 TFEU may take even longer. In the Color Line case, the Authority’s investigation into possible breaches of both Articles 53 and 54 EEA took 5.6 years (from 4 April 2006 to 14 December 2011). 12 On 17 April 2014, the European Parliament adopted a text of the Directive on antitrust damages actions which was agreed between the European Parliament and the Council during the ordinary legislative procedure. The agreed text of the Directive has been sent to the Council for final approval (http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html). Thus, the Directive is not yet a part of the EEA Agreement.13 Proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, available at 6

that an infringement of competition law found by a final decision of a national competition authority is deemed to be irrefutably established for the purposes of an action for damages brought before the national courts of that EU Member State under Article 101 or 102 of the TFEU or under national competition law.13

3 THE OSLO DISTRICT COURT’S JUDGMENT

3.1 BACKGROUND 15. The proceedings before Borgarting Court of Appeal stem from a decision adopted by the Authority on 14 December 2011 (the “Infringement Decision”).14 In that Decision, the Authority found that Color Line AS and Color Line Group AS (“Color Line”) had infringed Articles 53 and 54 EEA through long-term exclusive rights pursuant to a harbour agreement with the Municipality of Strömstad, Sweden. The Authority imposed a fine on Color Line in the amount of EUR 18.811 million. Color Line did not appeal the Authority’s Infringement Decision to the EFTA Court. The Infringement Decision therefore became final on 14 February 2012.15

16. On 13 December 2012, Bastø Fosen AS (“Bastø Fosen”) brought proceedings against Color Line before Oslo District Court claiming damages of up to NOK 1 billion for infringements of Articles 53 and 54 EEA. Bastø Fosen relied on the Authority’s Infringement Decision as evidence of the infringements.

17. Oslo District Court concluded that Bastø Fosen’s damages claim was time-barred pursuant to the limitation period set out in Section 9 of the Norwegian Limitations Act 1979. It held that “Bastø Fosen prior to 13.12.2009 had the incentive to initiate civil law proceedings with a view to a positive result as regards proving that Color

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7- 2014-0089+002-002+DOC+PDF+V0//EN. See its Article 9. 13 Proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//NONSGML+AMD+A7-2014-0089+002-002+DOC+PDF+V0//EN. See its Article 9. 14 The Authority’s Decision No 387/11/COL. 15 Pursuant to Article 36 EEA, an appeal to the EFTA Court of a decision taken by the Authority must be brought within two months of its notification to the plaintiff. 7

Line had infringed Article 53 EEA”, and that “it was not necessary for the Court to decide whether Bastø Fosen has had a view to a positive result as regards proving that Color Line also had infringed Article 54 EEA” (unofficial translation).16

3.2 OBSERVATIONS ON OSLO DISTRICT COURT’S JUDGMENT 18. In this Section, the Authority will comment on the following aspects of the District Court’s judgment: (i) the limitation period – its starting point and its possible suspension or interruption; (ii) events prior to 13 December 2009 which led the District Court to conclude that the three-year limitation period had elapsed; and (iii) the treatment of Article 53 EEA and Article 54 EEA together for the purposes of calculating the limitation period.

19. The Authority is also pleased to provide Borgarting Court of Appeal with observations relating to general principles of EEA law that are of importance to the case at hand, and that Borgarting Court of Appeal should address in its analysis of the case. Those general principles of EEA law are expanded upon in Section 4 below.

3.2.1 The limitation period – its starting point and its possible suspension or interruption

20. The District Court appears to hold that the limitation period for the damages claim brought by Bastø Fosen began in January 2007, pursuant to Section 9 of the Norwegian Limitations Act. Section 9 of the Limitations Act provides that:

“Claims for damages or redress shall be subject to a limitation period of 3 years from the date the claimant acquired or should have acquired the necessary knowledge of the damage and of the party responsible.” (Unofficial translation.)

21. As a matter of principle, where the Authority has taken steps with a view to public enforcement, the Authority is of the view that any limitation period for antitrust damages claims should be interrupted or suspended until a decision of the Authority finding an infringement of EEA competition law becomes final (or

16 See the conclusion in Section 4.6 of the District Court judgment, page 21. 8

the proceedings are otherwise terminated). In other words, the starting point for the limitation period, or its length, should be such that potential victims are able to bring a damages claim after an infringement decision by the Authority has become final. Until a breach of EEA competition law has been confirmed by such a decision, a private party has no assurance of the existence of an infringement. Taking into account the complexity of proving a breach of EEA competition law (see paragraph 12 above), it will normally be very challenging for a private party to initiate or carry on damages proceedings in the absence of such a decision.

22. This is also the approach adopted in the new EU Directive on antitrust damages actions, currently in the process of being formally adopted,17 which provides that national limitation periods should be suspended until at least a year following a final infringement decision, without requiring parties to take private legal action during the investigation by a competition authority of a potential infringement of the competition rules.18

23. The Authority also notes the need for coordination of the procedures of the Authority and the national courts in order to avoid the possibility of conflicting decisions, as set out in Article 16(1) of Chapter II of Protocol 4 to the SCA. Article 16(1) requires national courts to avoid giving decisions which would “conflict with a decision contemplated by” the Authority in proceedings it has initiated. Where the Authority adopts a decision, the risk of a conflicting national decision is greatly diminished if the limitation period is such that it allows potential victims to wait until after the Authority’s decision has become final before bringing a damages claim.

17 See footnote 12 above. 18 Article 10(5) of the Directive provides that: “Member States shall ensure that the limitation period is suspended or, depending on national law, interrupted, if a competition authority takes action for the purpose of the investigation or proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension shall end at the earliest one year after the infringement decision has become final or the proceedings are otherwise terminated” (emphasis added). See footnote 13. 9

3.2.2 Events prior to 13 December 2009 which led the District Court to conclude that the three-year limitation period had elapsed

24. In reaching its conclusions, the District Court analysed in particular two events prior to 13 December 2009 which led it to conclude that the three-year limitation period under Norwegian law had elapsed when Bastø Fosen initiated its follow- on damages claim on 13 December 2012.

25. The first event was a letter from the Authority to Bastø Fosen dated 12 January 2007 (Annex 2). The District Court held that the letter was a “warning letter” to Bastø Fosen about the Authority’s antitrust investigation into the practices of Color Line. Based on this letter, the District Court held that, in January 2007, Bastø Fosen “had or should have acquired the necessary knowledge of the damage and of the party responsible”, for the purposes of Section 9 of the Limitations Act.

26. The letter from the Authority to Bastø Fosen dated 12 January 2007 was a “simple request” for information pursuant to Article 18(2) of Chapter II of Protocol 4 SCA, sent by the Authority’s Competition and State Aid Directorate. Such a request often constitutes a preliminary step in an investigation concerning possible anticompetitive conduct.19

27. The request for information to Bastø Fosen contained little information about the investigation; its purpose was to obtain information to assist the Authority in determining whether an infringement of Article 53 and/or Article 54 EEA had been committed. This is typical of a request for information. As a rule, therefore, it is difficult to see that such a request could enable a potential victim to acquire the necessary knowledge of the damage and the party responsible within the meaning of Section 9 of the Limitations Act.

28. The District Court also referred to the unannounced inspection carried out by the Authority at Color Line’s premises from 4 to 6 April 2006. Referring to Section 6(1) of the EEA Competition Act, in conjunction with Section 25 of the Norwegian

19 Article 18(2) distinguishes between “decisions” on the one hand and “simple requests” on the other. 10

Competition Act, the District Court found this to require that “there are reasonable grounds to believe that Article 53 or 54 has been infringed”.20

29. The legal basis for the Authority to conduct an unannounced inspection is Article 20 of Chapter II of Protocol 4 to the SCA, as incorporated into national law by way of Section 10 of Regulation No. 1518 of 21 December 2011 to the Norwegian EEA Competition Act. The Authority has the power to ”conduct all necessary inspections of undertakings” in order to carry out its duties under Chapter II of Protocol 4 SCA. Unannounced inspections usually take place at the initial phase of an antitrust investigation. The Authority normally lacks precise information on the substance of the case at this stage, and the purpose of the inspection is to gather more information. As recently held by the Court of Justice in the Nexans case, “[h]aving regard to the fact that inspections take place at the beginning of an investigation, the Commission still lacks [...] precise information to make a specific legal assessment and must verify the accuracy of its suspicions and the scope of the incidents which have taken place, the aim of the inspection being specifically to gather evidence of a suspected infringement” (emphasis added).21

30. As noted in the press release published by the Authority following its inspection at Color Line’s premises, “[t]he fact that the EFTA Surveillance Authority carries out an inspection does not mean that the company is guilty of anti-competitive behaviour nor does it prejudge the outcome of the investigation itself” (Annex 3).

31. For the benefit of the Court, the following paragraphs describe in brief the main steps in the antitrust investigation carried out by the Authority in the Color Line case. These steps are representative of typical antitrust proceedings conducted by the Authority.

20 See the District Court judgment, Section 4.3, at the bottom of page 15. 21 See judgment in Nexans, Case C-37/13 P, EU:C:2014:2030, paragraph 37. 11

32. Antitrust proceedings generally consist of three main phases: (i) the investigative phase; (ii) the procedures leading to an infringement decision; and (iii) the adoption of the decision by the Authority’s College.22

33. In the Color Line case, following a complaint, the Authority carried out an extensive investigation, commencing with an unannounced inspection at Color Line’s premises (from 4 to 6 April 2006), in order to find relevant evidence of the alleged infringement of EEA competition law.

34. Following the inspection, the Authority held several meetings with Color Line and exchanged a significant amount of correspondence. The Authority also sent requests for information to several companies (including to Bastø Fosen on 12 January 2007).

35. On 16 December 2009, a Statement of Objections (“SO”) was issued by the Authority to Color Line. An SO is a formal step in an antitrust investigation in which the Authority informs the party/ies in writing of the objections raised against them. However, the adoption of an SO is a preliminary step and does not prejudge the final outcome of the investigation.23

36. The addressee of an SO, in accordance with the fundamental principle of the right to a defence, has the right to reply in writing to the SO. Following that reply, a case may be closed without adoption of an infringement decision, or the Authority may proceed to adopt an infringement decision. It should be noted that certain objections raised in the SO may not be pursued in a final decision (due, for example, to a lack of evidence supporting those objections).24 The latter was the case in respect of some of the allegations raised by the Authority in the SO addressed to Color Line, which were not pursued in the subsequent Infringement Decision.

22 See in particular Chapters II and III of Protocol 4 SCA and the Authority’s Notice on best practices for the conduct of proceedings concerning Articles 53 and 54 of the EEA Agreement (Annex 4). 23 See the Authority’s press release dated 18 December 2009, in which the Authority stated that “[s]ending a Statement of Objections does not prejudge the final outcome of the procedure” (Annex 5). 12

37. Color Line submitted its written comments to the SO on 12 April 2010. An oral hearing was then held on 14 June 2010. Following the oral hearing, a “state of play” meeting was held between Color Line and the Authority on 15 February 2011. 25 On 6 May 2011, Color Line submitted a written position paper to the Authority. Another meeting was held between the Authority and Color Line on 11 May 2011.

38. The Authority examined Color Line’s reply to the SO, as well as its submissions in the oral hearing and in subsequent meetings and correspondence, before reaching its finding that Color Line had infringed Articles 53 and 54 EEA, as set out in the Infringement Decision adopted by the Authority’s College on 14 December 2011.

39. In the light of the above, and in particular the length and complexity of the Authority’s antitrust investigations, the preliminary stages of such investigations, including unannounced inspections and requests for information, will not generally provide a potential claimant with very much information about a potential breach of EEA competition law or the basis for a potential action for damages.

3.2.3 The treatment of Article 53 EEA and Article 54 EEA together for the purposes of calculating the limitation period

40. The District Court concluded that it was not necessary to take a decision on whether, prior to 13 December 2009, Bastø Fosen was in a position to initiate civil proceedings with regard to damages suffered as a result of an infringement by Color Line of Article 54 EEA.26

41. The Authority notes that an infringement of Article 53 EEA and an infringement of Article 54 EEA amount to separate breaches of EEA law, even if they are in respect of the same conduct. Thus, each infringement may give rise to separate claims for damages. Given that the assessment of law and facts related to each infringement may be different, any limitation period should be assessed

24 See Annex 1, paragraph 73. 25 See Annex 1, paragraphs 56–57. 13

separately for infringements of Article 53 EEA on the one hand and infringements of Article 54 EEA on the other.

4 GENERAL PRINCIPLES OF EEA LAW

4.1 THE PRINCIPLE OF EFFECTIVENESS 42. In the absence of EEA law governing procedural rights and remedies it is for the EEA States to lay down the detailed procedural rules governing actions for safeguarding rights that individuals derive from EEA law, including the right to claim damages for harm suffered as a result of infringements of EEA competition law.27

43. Such national rules, and their application, must respect the principle of effectiveness.28 In the present context, that principle requires that national rules having a bearing on the right to seek damages before national courts for harm suffered due to a breach of EEA competition law must not render it practically impossible or excessively difficult to exercise that right.

44. It is incumbent upon national courts to ensure that general principles of EEA law, including the principle of effectiveness, are respected.29

45. As a general rule, it is difficult for a private party who has suffered harm as a result of an infringement of EEA competition law to obtain the evidence necessary to support a claim for damages before a national court without a final finding of infringement from a competition authority. That is why most such claims are brought on the basis of a final finding of infringement by a competition authority. To the Authority’s knowledge few, if any, private damages claims have, to date, been successfully pursued in Europe in the absence of a final decision by a competition authority.

26 See the conclusion in Section 4.6 of the District Court judgment, page 21. 27 See the judgments in Courage and Crehan, EU:C:2001:465, paragraph 29; Manfredi, C-295/04, EU:C:2006:461, paragraphs 62 and 81; Pfleiderer, C-360/09, EU:C:2011:389, paragraph 24; and Donau Chemie, EU:C:2013:366, paragraph 27, Kone and Others, C-557/12, EU:C:2014:1317, paragraphs 21–26 and 32–33. 28 Judgment in VEBIC, C-439/08, EU.C.2010.739, paragraph 57. 29 Judgment in Pfleiderer C-360/09, EU:C:2011:389, paragraphs 29–30. 14

46. A national rule on limitation such as that at issue in the present case, may place a significant burden on private claimants, as described in the above Observations. It is for Borgarting Court of Appeal to assess whether the interpretation given by the District Court to Section 9 of the Limitations Act is such as to render it impossible or excessively difficult to seek damages before national courts for harm suffered as a result of an infringement of EEA competition law.

4.2 THE PRINCIPLE OF EQUIVALENCE 47. The Authority notes that the District Court’s judgment addressed a recent amendment to the Norwegian Competition Act in June 2013, which entered into force on 1 January 2014. That amendment included, in Section 34(2) of the Act, a special limitation period for claims for damages brought for infringements of the Competition Act: it allows damages claims to be brought by a private claimant within one year of the final decision of the Norwegian competition authority or a legally enforceable court judgment.30 This means that the competition law decisions of an administrative nature adopted by the Norwegian competition authority are treated in a manner equivalent to competition decisions of a penal character: Section 11 of the Limitations Act provides for a one year limitation period for damages claims following a decision in criminal proceedings in competition cases.31

48. The Authority notes that the EEA law principle of equivalence requires that the rules safeguarding the rights which individuals derive from EEA law must not be less favourable than those governing similar domestic actions.32 The principle of equivalence requires that national rules be applied without distinction,

30 Section 34 reads as follows: “For claims arising from violations of this Act, the Limitation Act applies, hereunder Sections 9 and 11. Even if the limitation period has expired, the claim that is mentioned in subsection one can be initiated in a separate damages action. Such an action must be initiated within one year of the date of a final decision or of a legally enforceable court judgment in the case” (unofficial translation). 31 See Proposition No. 75 L (2012-2013) Section 10.1. 32 See judgment in Donau Chemie, EU:C:2013:366, paragraph 27. 15

irrespective of whether the alleged breach is of EEA law or of national law, where the purpose and cause of action are similar.33

49. While the amendment in Section 34(2) entered into force on 1 January 2014, the Authority notes that the principle behind Section 34(2) is not new. Indeed, it appears that Section 34(2) was modelled on Section 11, second sentence of the Limitations Act,34 precisely in an effort to achieve equivalence in the treatment of decisions of the Norwegian competition authority that do not have a penal character and competition decisions of a penal nature.35

50. In that light, the EEA law principle of equivalence may require that decisions of the Authority are also treated in a manner equivalent to national competition decisions of a penal character, as far as any limitation period for bringing a claim for damages is concerned.

5 THE POSSIBILITY TO REQUEST THE EFTA COURT TO GIVE AN ADVISORY OPINION

51. The Authority emphasises that if Borgarting Court of Appeal considers it necessary to enable it to give judgment, it remains open to the Court to request the EFTA Court to give an Advisory Opinion on the interpretation of the EEA Agreement, pursuant to Section 51a of the Courts of Justice Act (domstolloven), implementing Article 34 SCA.

6 CONCLUDING REMARKS 52. The Authority submits that in the present case, Borgarting Court of Appeal is under an obligation to take into account all relevant aspects of EEA law in its interpretation and application of the relevant statute of limitations. As set out above, such aspects of EEA law include the importance of private enforcement of EEA competition law before national courts, the principle of effectiveness and the principle of equivalence.

33 See judgment in Bulicke, C-246/09, EU:C:2010:418, paragraph 26. 34 See Proposition No. 75 L (2012-2013) Section 10.1. 35 See Proposition No. 75 L (2012-2013) Sections 4.2.8 and 4.4.1. 16

53. As a matter of principle, where the Authority has taken steps with a view to public enforcement, the Authority is of the view that any limitation period for antitrust damages claims should be interrupted or suspended until a decision of the Authority finding an infringement of EEA competition law becomes final (or the proceedings are otherwise terminated). In other words, the starting point for the limitation period, or its length, should be such that potential victims are able to bring a damages claim after an infringement decision by the Authority has become final.

54. The Authority hopes that its Observations may be of assistance to Borgarting Court of Appeal in deciding the case pending before it. The Authority remains at the Court’s disposition should it have any questions in respect of these Observations or any other issue in the present case.

Gjermund Mathisen Janne Tysnes Kaasin

Agents of the EFTA Surveillance Authority

17

7 SCHEDULE OF ANNEXES

Referred to in these written Number of No Description Observations at pages paragraph(s)

Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the 1 2, 5, 36, 37 13 application of Articles 53 and 54 of the EEA Agreement, dated 14 December 2006

Request for Information, dated 12 2 25 6 January 2007

PR(06)17 of 4 April 2006: Statement on 3 EFTA Surveillance Authority inspection 30 1 in

Notice on best practices for the conduct of proceedings concerning Articles 53 and 54 of the EEA Agreement (adopted 4 32 31 by ESA through Decision 517/12/COL of 19 December 2012, and codifying earlier practice)

PR(09)98 of 18 December 2009: Preliminary findings of the Authority 5 35 1 suggest that Color Line has acted in breach of EEA competition rules

18