Review of Competition Authority's fine for violation of the Competition Act section 11
Supreme Court judgment 22 June 2011, HR-2011-01251-A (case no. 2010/1947), civil case, appeal against judgment
Tine SA (Counsel Stephan L. Jervell) v. the Competition Authority (Counsel Christian Lund)
Justices: Indreberg, Webster, Møse, Stabel, Skoghøy
The case concerns judicial review of the Competition Authority's decision to impose a financial penalty on Tine SA (Norway’s largest producer, distributor and exporter of dairy products) pursuant to the Competition Act section 29 for infringement of the prohibition against abuse of dominant position. The majority of the Supreme Court did not find that Tine had used improper means in competition with other suppliers. Tine’s agreement with the Rema grocery retail chain did not bind Rema contractually or otherwise in a manner that prevented Rema from having Synnøve Finden (another large dairy company) as a supplier. The increase in financial contributions payable from Tine to Rema was not extraordinary if one took account of Rema’s obligations in return, other factors that could influence the negotiation result and Tine’s contributions to other grocery retail chains. Neither Tine’s memo about the benefits of having a sole supplier, nor its agreement, at Rema’s request, to prepare a draft planogram which excluded the Synnøve Finden and Q-dairies brands and to manufacture a private label cheese for Rema were unacceptable means. The Supreme Court affirmed the District Court's ruling and set aside the Competition Authority's decision. The judgment was passed with dissenting votes (3-2).