Eivind J Vesterkjær and Trine Siri Dahl (Advokatfirmaet Thommessen AS) authored this publication

Foreign direct investment screening in Norway is governed by Chapter 10 of the Norwegian Act on National Security (the Security Act). The screening mechanism is limited to companies that have been brought within the scope of the Security Act by way of an administrative decision pursuant to section 1-3 of the Security Act.

Alongside the notification regime, acquisitions may trigger certain information requirements. For example, companies holding a so-called "supplier clearance" of CONFIDENTIAL or higher shall inform the National Security Authority of changes to its ownership structure, board composition, etc., which may ultimately lead to the withdrawal of the clearance in case of security concerns as a result of the changes.

Outside the scope of application of Chapter 10, section 2-5 of the Security Act contains a general intervention clause that empowers the authorities to intervene against any planned or ongoing activities (including transactions) that may cause a "not insignificant risk" to national security.

As a response to the current political landscape, a review has been initiated to extend the scope of the FDI regulations. The initial proposal from the Ministry of Justice published in connection with a public consultation process in late 2021 contained inter alia provisions making notification mandatory if the target holds a security clearance of CONFIDENTIAL or higher, reducing the ownership stake threshold that triggers a notification obligation from 33.33 percent to 10 percent ownership or voting rights. It is currently expected that the Ministry will send a formal proposal for amendments to the Act to the Norwegian Parliament in Q2, 2023.

Recent updates

As a result of developing national security concerns, the Norwegian Ministry of Justice and Public Security issued a consultation paper in the autumn of 2021 with proposals for significant amendments to the provisions regarding ownership control in the Security Act. The proposed changes included inter alia:

• Expansion of the scope of businesses that are subject to rules on ownership control
• Lowering the threshold for triggering events with recurring filing obligations at several levels to the acquisition of direct or indirect holdings of 10 percent, 1/3, 50 percent, 2/3 and 100 percent of the share capital, participating interests or votes in the company
• Making also the seller and Board of Directors/CEO of the target company subject to the notification obligation (in addition to the buyer)
• Introducing a wide-scoped standstill obligation that covers also the exchange of non-public information
• Introduction of fines for failure to notify

After completion of the consultation process, the Ministry has worked on a legislative bill that has been delayed several times but is now expected to be presented to the Parliament in Q2 2023. During the consultation process many stakeholders raised concerns about the proposed standstill obligation in their responses, and the Ministry is expected to materially adjust or exclude this suggested amendment in its final proposal. While the content of the bill remains to be seen, there is no doubt that it will propose changes in the Security Act that are capable of impacting investments in Norwegian enterprises engaged in sensitive activities and giving rise to novel legal and practical questions that will need to be resolved in acquisition processes. It is expected that the proposed changes (if they are adopted by the Parliament) will be implemented 1 January 2024 at the earliest.

Who files

If an undertaking is subject to section 1-3 of the Security Act and the triggering thresholds are exceeded, the filing obligation is on the acquiring party. The filing shall be submitted to the relevant ministry responsible for the sector in question, or (if no ministry is in charge) to the National Security Authority. There is no deadline for filing and no automatic standstill, but the authorities have the power to impose a standstill obligation on a case-by-case basis and to unwind a transaction after closing.

A filing shall include the following information:

• The acquirer's name, address, company registration number/personal ID-number
• The company registration number of the target company
• The acquirer's ownership share after completion of the proposed acquisition
• The ownership structure of the acquirer (including any foreign ownership interests in the acquirer's business and any foreign ownership interests held by the acquirer) and its ultimate beneficial owner(s). Nationalities shall be reported
• The names of the persons that are members of the acquirer's board of directors and management
• Possible relations between the acquirer and other existing owners of the target company
• The acquirer's ownership interests in other companies that are covered by the Security Act and/or within the concerned sector
• The acquirer's annual turnover and annual accounts for the last five years, to the extent this information is available
• Other circumstances that the acquirer assumes may be of relevance for the assessment of whether the acquisition shall be approved

Types of deals reviewed

The provisions on ownership control in Chapter 10 of the Security Act are in principle general in nature and apply irrespective of sector and the nationality of the acquirer.

Chapter 10 of the Security Act only applies if the acquisition or transaction concerns an undertaking that has already been brought within the scope of application of the Security Act by way of a decision by the competent ministry or the National Security Authority pursuant to section 1-3 of the Act. Such decisions may be adopted for undertakings that:

• Handle classified information
• Control information, information systems, objects, or infrastructure of crucial importance for fundamental national functions
• Are engaged in activities of crucial importance for fundamental national functions

There is no publicly available list of companies that have been brought within the scope of the Act by way of a decision pursuant to section 1-3 of the Act. In a transaction process, information about the existence of such a decision is normally best obtained from the target company (e.g., during the DD process), because it will have been notified of the decision to bring it within the scope of the Act. However, a prospective buyer may also approach the Authority for guidance on a case-by-case basis.

When a company has been brought within the scope of the Security Act, the acquirer of a "qualified ownership interest" in that company has an obligation to notify the relevant ministry so that the acquisition can be reviewed. Under the current Security Act, "qualified ownership interest" is defined as an ownership interest where the acquirer obtains:

• A third of the company's stock capital, or the interests or votes
• A right to become the owner of a third of the stock capital or interests or
• Assumes significant influence over the company through other means (e.g., veto rights)

Scope of the review

In determining whether an acquisition should be approved, made conditional or prohibited, the relevant authority shall determine whether the acquisition "may entail a risk that is not insignificant that interests of national security will be threatened." The criteria permit broad discretion in the authority's assessment.

There is limited guidance on the scope of review publicly available, and we are not aware of any decisions of approval or prohibition pursuant to the Security Act except the Bergen Engines case mentioned below. The National Security Authority has, however, on several occasions noted that it will focus on whether the acquirer has ties to countries that Norway does not have a security cooperation with, such as e.g., non-NATO countries.

In March 2021, the Norwegian government for the first time blocked a transaction based on concerns for national security, namely the sale of Bergen Engines, an engine manufacturing company owned by Rolls-Royce, to TMH International. The acquisition was blocked in accordance with section 2-5 of the Security Act (the criteria for intervention correspond to the rules on ownership control in Chapter 10 of the Security Act). A royal decree regarding the Bergen Engines case was published on the website of the Ministry of Justice that shed light on which strategic considerations the authorities might emphasize during foreign investment review:

• Bergen Engines manufactures engines for civil and military applications, and supplies both the civil and military sectors in Norway and several other countries. A sale of Bergen Engines to TMH International would have given TMH International insight into, and allowed the transfer of, the company's technology, expertise, materials, real estate, customer portfolio and contracts
• The government held that TMH International was partly owned by individuals with ties to the Russian government and that Bergen Engines produced and applied technology that would strengthen Russia's military capabilities. The acquisition of Bergen Engines by TMH International would therefore have been in conflict with Norwegian security policies
• The government further held that Russia has struggled with accessing such technology since sanctions were imposed in 2014. Allowing the sale of Bergen Engines to TMH International could indirectly have provided technology to Russia and thus violated the current sanctions policy
• The sale of Bergen Engines to TMH International could have led to efforts to circumvent regulations on exports to Russia
• Bergen Engines is located at the entry to a major Norwegian port of strategic importance. Accordingly, the sale of the company to TMH International could potentially have constituted a national security risk also in that respect

Review process timeline

Within 60 working days after having received a notification, the responsible authority shall either inform the acquirer that the acquisition is approved, or inform the acquirer that the decision will be made by the King in Council. In case of the latter, there is no definitive timeline for the further review process.

For example, the prohibition decision regarding TMH's acquisition of Bergen Engines was adopted by the King in Council ca. six weeks after the transaction agreement between Rolls-Royce and TMH was signed, and about 3.5 months after Rolls-Royce had first approached Norwegian authorities regarding the planned sale (and reportedly was given the green light to proceed with a shortlist of buyers that included TMH). This case was handled under the general intervention clause in section 3-5 of the Security Act and not the specific rules on ownership control in Chapter 10 of the Act, but it is likely representative of the ability of Norwegian authorities to analyze complex cases relatively quickly.

If the authority has requested further information from the acquirer within 50 working days from receipt of the notification, the 60-working-day deadline is suspended until the requested information is received by the authority.

There are three possible outcomes of reviews under both the rules on ownership control (Chapter 10) and the general intervention clause (section 2-5): (i) the acquisition is approved; (ii) the acquisition is approved subject to certain conditions or obligations (e.g., sale of part of the business or termination of certain agreements); or (iii) the acquisition is prohibited.

Pursuant to general principles of administrative law, the decision must be suitable to achieve the objective of securing national security and proportionate to that end. The economic consequences of a decision for the businesses involved must be taken into account, and the authorities have an obligation to consider whether the security concerns at stake can be resolved with less-invasive measures than a full prohibition.

As set out above, there are currently no known cases where an acquisition has been blocked pursuant to the provisions on ownership control in Chapter 10 of the Security Act. The Bergen Engines case however demonstrates that national security concerns may lead to the authorities blocking the implementation of a transaction without using the provisions in Chapter 10.

As noted above, we have not identified any decisions of prohibition pursuant to the Security Act pursuant to Chapter 10 of the Security Act, meaning that there is limited transparency on what considerations are made in the review process.

On a general level, the Norwegian government has increased its focus on how the use of economic instruments can constitute a security risk. The COVID-19 pandemic and following negative economic consequences and possible bankruptcies in businesses have further increased the concern that foreign acquirers may be carrying out strategic acquisitions in Norway and accordingly increase their influence in areas of strategic value to Norwegian national security.

Moreover, the Norwegian Police Security Service and the National Intelligence Service have stated in their annual threat assessments that there is a trend that several countries, with which Norway does not have security cooperation, are seeking knowledge relevant to Norwegian military systems and capacities from Norwegian technology environments. It can be expected that this may also affect the review of certain transactions.

How foreign investors can protect themselves

If the acquisition in question could trigger national security concerns, investors should carry out a thorough analysis of the feasibility of the transaction and on how deal certainty can best be achieved with the least possible impact on the transaction rationale.

Among the issues that need to be considered is whether the security problem can be isolated to parts of the target business. If so, a divesture of the relevant parts of the target business or termination of sensitive agreements may constitute an adequate remedy in order to secure clearance. Depending on the circumstances, the parties may want to engage in a pre-transaction discussion with the authorities to obtain their view on the proposed transaction and on how any security issues can be resolved.

A practical problem may be that the issues that gives rise to the security problem may constitute classified information that the seller and the target cannot disclose to the prospective buyer. A workable approach may be that the buyer receives such information in a sufficiently aggregated form (i.e., that the sensitive business constitutes x percent of the total revenues of the target).

While there is currently no standstill obligation in case of mandatory notification requirements, it is normally advisable to include approval as a condition precedent to closing, and to take the filing and review process into account in determining the transaction timeline.

In typical cases, it is advisable to submit the notification of the transaction at least 60 days prior to the planned closing date. Where a transaction could give rise to national security concerns, investors should take into account a potentially longer waiting period prior to closing as an in-depth review following a decision to bring the case before the King in Council (the government) does not have a definitive timeline for review.

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