The European, Middle Eastern and African Antitrust Review 2018

Denmark: Overview

Bruun & Hjejle

Danish competition law is based on EU competition law, and to a large extent the Danish rules are similar to the EU rules. The objective of this article is to give an introduction to Danish competition law, including the rules on state aid. The focus will be on areas of the law where the Danish rules differ from the EU rules, as well as recent developments in Denmark.

The article will provide an overview of the following areas of the law:

  • agreements;
  • unilateral conduct;
  • state aid;
  • rules on sanctions; and
  • damages for breach of competition rules.

Agreements

Introduction

The structure of the prohibition on anticompetitive agreements in the Danish Competition Act is similar to the EU structure. Section 6 contains the general prohibition and is comparable to article 101(1) TFEU, whereas section 8 is comparable to article 101(3) TFEU. Case law from the Commission and the ECJ is used when interpreting the prohibition on anticompetitive agreements in the Competition Act. The EU block exemptions have been implemented in Denmark, and agreements subject to the Competition Act may thus benefit from the block exemptions.

Section 7 of the Danish Competition Act provides a de minimis exemption according to which the rules on anticompetitive agreements do not apply to agreements or concerted practices between undertakings which have:

  • a combined yearly turnover of less than 1 billion kroner and a combined market share of less than 10 per cent for the relevant goods or services; or
  • a combined yearly turnover of less than 150 million kroner.

The Danish de minimis exemption does not, however, apply to agreements considered cartel agreements (ie, the rule does not apply to agreements relating to price coordination, production or sales quotas, market sharing or bid rigging). Nor does the Danish de minimis exemption apply to agreements that may affect trade between member states, as such agreements are subject to article 101 TFEU and, if applicable, the EU de minimis rule.

In principle, the Danish Competition Act provides undertakings with a possibility to have an agreement assessed by the Danish Competition Council (the Council). If the Council approves the agreement, the undertaking receives a statement from the Council that the agreement does not violate section 6 of the Competition Act; similar to the previous EU system. However, in practice, the possibility to have an agreement assessed is only used very rarely.

The Danish Competition and Consumer Authority (DCCA) normally announces its strategy for the course of a couple of years. Most recently (in March 2016), the Minister of Business and Growth encouraged the Council to initiate an investigation of competition on the Danish mortgage credit market.

The construction cartel case

In early 2010, the DCCA conducted a dawn raid at the premises of five undertakings in the construction industry, which led to the opening of a major case referred to as the ‘construction cartel case' (the case consists of several individual cartel cases). The State Prosecutor for Serious Economic and International Crime filed charges against 33 building contractors for competition law infringements such as bid rigging and exchange of information on prices and terms. As of June 2016, fine notices have been issued to 23 companies in the total amount of 30.6 million kroner, 19 of which have accepted the fines without objections. Furthermore, several leading employees have been fined 25,000 kroner each for participation in the construction cartel. The largest fine imposed by the authorities in this complex of cases is 10 million kroner, imposed in a settlement procedure with the State Prosecutor on 3 November 2014. The DCCA and the State Prosecutor have used substantial resources to uncover the infringements, which took place from 2007 until 2009. All fines are criminal fines. The fine level reflects the high end of the level at that time (ie, before the substantial increase in fine levels in March 2013). The construction cartel remains the largest Danish competition law case to date.

Other cases

In June 2014, the Council rendered a decision stating that five Danish companies active on the market for milking systems had entered into an anticompetitive agreement on price fixing and geographical market sharing. The companies were all part of the Lely franchise and had frequently met to discuss and coordinate prices and market sharing. The Council found the agreement to infringe section 6 of the Danish Competition Act as well as article 101 TFEU. In October 2015 the Danish Competition Tribunal (the Tribunal) ruled in favour of the Council, and as of April 2016, the franchisor (and a person from the management) along with three of the Danish franchisees entered into a settlement with the Danish Public Prosecutor for Serious Economic and International Crimes. The franchisor accepted to pay a fine of 750,000 kroner, and the three franchisees each accepted fines of 100,000 kroner. The person from the management accepted a fine of 25,000 kroner. The size of the fines reflected, inter alia, the duration of the infringement (four-and-a-half years) and the turnover of the companies involved.

In June 2015, the Council found that two companies, LKF Vejmarkering and Eurostar Danmark, had entered into an anticompetitive agreement by creating a consortium while being competitors on the market for road marking. The two companies were the two largest contractors on the market and placed a joint bid in a public procurement by the Danish Road Directorate for a period of four years covering road marking in most of Denmark. The consortium was awarded the contract. The Council stated that the consortium was not objectively necessary in order for the companies to participate in the procurement. In April 2016, the Tribunal upheld the decision of the Council.

In February 2016, five Danish real estate agents accepted fines for colluding to boycott a property finding website, Boliga.dk, which is a competitor to the real estate agents' own property finding website, Boligsiden.dk. The fines total 12 million kroner, not including the additional personal fine of 25,000 kroner to one senior executive from each of the five companies. Two other real estate agents have rejected fines and will challenge the State Prosecutor in court. The case concerns a period in 2009-2010, in which the real estate agents discouraged their employees from providing photographs to the competing property finding website. According to the DCCA, the boycott activity protected the real estate agents' own property finding website from competition and thereby constituted a breach of competition law. The case originated in 2010 when the competing property finding website submitted a complaint which led the DCCA to carry out a series of dawn raids. In consequence thereof, the DCCA referred the case to the State Prosecutor in 2012. Subsequently, the real estate agents failed to have the decision overturned by the Tribunal at the end of 2012.

Generally, the DCCA has paid special attention to resale price maintenance. In November 2016, Opel Danmark accepted a fine in the amount of 8.25 million kroner for imposing binding resale prices on the company's distributors. The company had entered into anticompetitive price agreements with the distributors, in which it had fixed minimum resale prices for the sale of used leasing, rental and demo cars for a period of approximately four years.

Moreover, in April 2017, Olympus Danmark accepted a fine in the amount of 3.6 million kroner for imposing binding resale prices on distributors for a period of approximately two years. The company entered into vertical anticompetitive price agreements with some of the company's distributors to ensure that the distributors did not sell certain camera models at prices lower than what had been determined by Olympus Danmark. The company used a so-called kickback system, which included a payback of a cash amount from Olympus if the distributors could provide evidence that the cameras had been sold at the minimum price determined by Olympus, and if not, they would not receive a payback.

Trade organisations

In recent years, the DCCA has paid special attention to trade organisations' provision of information and recommendations to their members.

In the DCCA's guidelines from 29 September 2014 on information activities in trade organisations, the DCCA highlights the following as illegal: any recommendation on prices, rebates or exchange of future prices through the trade organisation (as opposed to exchanging, say, historical prices); recommendations on limitation of production or sales or information revealing future production or sales (as opposed to information on, for example, improved production methods); recommendations about passing on costs to customers or exchanging information which reveals marginal costs (as opposed to general and neutral guidance on cost by the trade organisation); and recommendations limiting innovation, development, competitive parameters, etc (as opposed to guidance on ethics, professional standards, etc).

 In December 2013, the Danish Construction Association's scaffold section undertook to stop informing its members of competitive bids when they were bidding on a project. Further, the Association more generally undertook not to directly or indirectly participate in or encourage the creation of a similar reporting scheme. The commitments were made binding by the Council. The scaffold section of the Association had practised a reporting scheme under which scaffolding companies were obliged to report to the Association prior to bidding on a project if the bid exceeded 50,000 kroner. This information was then circulated among the bidding members of the section by the Association.

In October 2014, the Tribunal ruled in favour of the Council in a case regarding the trade organisation for car mechanics. The trade organisation had illegally urged its members to boycott Autobutler, a company running an internet portal. The Council ordered the trade organisation not to engage in such behaviour in future.

Unilateral conduct

Introduction

Anticompetitive unilateral conduct is regulated in section 11 of the Danish Competition Act. The section corresponds to article 102 TFEU and is interpreted in accordance with case law from the Commission and the ECJ. If a certain practice affects trade between member states within the EU, the national provision is applied together with article 102 TFEU.

In recent years, there has been little enforcement concerning unilateral conduct. However, two cases - both relating to the Danish postal carrier Post Danmark A/S (Post Danmark) - provide insight into developments in the area of rebates and selective pricing.

The magazine mail case

In the ‘magazine mail case' in 2010, the Council found that Post Danmark had abused its dominant position on the market for magazine mail. According to the Council, the abuse consisted of the granting of individual target rebates to four large customers and the general application of a quantity rebate system with a retroactive element. Further, it followed from the decision that the competition authorities decided not to undertake an investigation of discrimination aspects with reference to the resources needed for such an investigation.

The decision was appealed to the Tribunal, and in December 2011 the Tribunal upheld the first part of the Council's decision. However, the Tribunal struck down the second part regarding the quantity rebate system. The Tribunal agreed with the Council that the rebate system contained a retroactive element, but according to the Tribunal, efficiencies could justify the retroactive element. Subsequently, the Tribunal remitted the case to the Council after which the case was initiated at the Danish Maritime and Commercial Court.

The Danish Maritime and Commercial Court found difficulties in assessing whether Post Danmark's retroactive rebates schemes constituted a violation of article 102 TFEU and consequently referred three preliminary questions to the European Court of Justice. In October 2015, the European Court of Justice issued its preliminary ruling and confirmed that there is no de minimis requirement for the finding of an abuse of a dominant position and that the Council should not have applied the as-efficient-competitor test on the case. The case is still pending before the Danish Maritime and Commercial Court.

The unaddressed mail case

The ‘unaddressed mail case' was about the fully liberalised Danish market for the distribution of unaddressed mail (ie, newspapers, brochures, etc), in which Post Danmark held a dominant position in the years 2003-2004. At the same time, Post Danmark was a legal monopolist in the market for the delivery of addressed letters and small parcels not exceeding a certain weight. The legal monopoly entailed a universal obligation to provide distribution of letters and parcels nationwide. Therefore, Post Danmark had a nationwide distribution network, which could also be used on the liberalised market for unaddressed mail.

Post Danmark's only real competitor on the market for unaddressed mail was Forbruger-Kontakt A/S (FK), which was the only other undertaking in the market with a nationwide distribution network. The challenge for FK, however, was that it had to keep up a certain customer volume in order to maintain its nationwide distribution network.

In 2003, Post Danmark took over three major customers (Spar, SuperBest and Coop) from FK by offering them rates lower than those charged to Post Danmark's other customers. FK complained to the competition authorities, and the Council found that Post Danmark's behaviour amounted to selective pricing in violation of section 11 of the Danish Competition Act and article 102 TFEU.

Post Danmark appealed the decision, and the appeal made its way to the Supreme Court. The Supreme Court referred two preliminary questions to the ECJ on the interpretation of article 102, which led to the landmark judgment in case C-209/10, Post Danmark.

Paragraph 36 of the preliminary judgment clearly states that the prices offered to customers Spar and SuperBest, which covered Post Danmark's average total costs, did not constitute anticompetitive behaviour. Therefore, the remaining procedure before the Supreme Court concerned only the price offered to Coop. The price to Coop did not cover Post Danmark's average total costs, but was, however, found to cover the great bulk of the costs attributable to the distribution of unaddressed mail (the incremental costs).

The Supreme Court rendered judgment on 15 February 2013 and found that Post Danmark's pricing behaviour towards Coop did not constitute abuse of dominance. The Supreme Court applied the directions laid down by the ECJ and found that the Council had not proved that the concerned form of pricing behaviour (below average total costs, but above average incremental costs) produced an actual or likely exclusionary effect to the detriment of competition. In this regard, the Supreme Court highlighted that:

  • Post Danmark's average prices to all customers covered Post Danmark's average total costs;
  • Post Danmark's distribution agreements were terminable subject to a notice of one or three months; and
  • it was possible for a competitor as efficient as Post Danmark to compete with Post Danmark's prices.

Other cases

A case from May 2014 involves Nets, a Nordic provider of payments, card and information services. The DCCA, which conducted a dawn raid of Nets in 2012, had concerns that Nets, acting on an upstream market for processing services, and a Nets subsidiary (Teller) active on a downstream market for acquiring international payment cards, were involved in an illegal margin squeeze on the market for processing of payment card transactions through Nets' infrastructure (upstream) and Teller's pricing in the acquiring market (downstream). In addition, the DCCA suspected that Nets had used excessive prices. The case was settled with commitments by Nets made binding by the Council. The commitments include:

  • the introduction of fair, reasonable and non-discriminatory terms for companies acquiring access to Nets' infrastructure;
  • a significant decrease in the average price charged for use of the infrastructure;
  • the separation of accounts for Nets' infrastructural services and processing services respectively; and
  • an extraordinary cost-free termination right to all of Teller's customers during the first three months of the commitments.

In August 2016, in an appeal case before the Danish Maritime and Commercial Court, the Court upheld the Council's decision from 2007, in which it found that Elsam A/S (now DONG Energy) had abused its dominant position on the wholesale market for electricity in Western Market in 2005 and 2006. The abuse consisted of an imposition of excessive prices. The Court found that there was no reasonable connection between the prices and the costs, and that the prices exceeded those which could have been achieved on a market with effective competition. Currently, the case is pending before the High Court.

State aid

The Danish rules on state aid

Section 11a of the Danish Competition Act contains the Danish rules on state aid. According to this provision, the Council may issue orders for the termination or repayment of aid granted from public funds to support certain forms of commercial activity in cases where the direct or indirect object or effect of the aid is distortion of competition, and the aid is not lawful according to public regulation.

Except for the fact that the provision is only applied if the aid is not lawful according to public regulation, section 11a of the Danish Competition Act is similar to - and interpreted in accordance with - the corresponding provisions of the TFEU.

However, it is worth noting that the Danish rules on state aid do not entail block exemptions similar to those issued by the Commission as regards the application of articles 107 and 108 TFEU to certain categories of state aid. Thus, the application of section 11a of the Danish Competition Act does not require the aid to exceed a certain de minimis ceiling, and even aid amounting to rather limited sums may be caught by the provision.

The Council may refrain from investigating a case under section 11a of the Danish Competition Act if the aid scheme at issue affects trade between member states of the EU. This procedure can be expected if the aid scheme at issue is being or has been assessed by the Commission under articles 107 and 108 TFEU, or if the Commission intends to do so in the near future.

The Sønderborg Municipality case

In a recent case before the High Court of Western Denmark in January 2016, the Court ruled that Sønderborg Municipality was entitled to commission for guarantees provided for two district heating companies. The two companies had received guarantees without any underwriter's commission for credit facilities of 440 million kroner and 114.8 million kroner, which the two companies respectively obtained for the purpose of financing the municipality's heating plans.

The guarantees provided without any underwriter's commission placed the two district heating companies in a favourable position on the market compared to other companies and distorted the competition, thereby infringing article 107 TFEU. Consequently, the Court ruled that the two guarantees were void of effect and that Sønderborg Municipality was justified in collecting commission for the guarantees in accordance with market conditions.

The two district heating companies applied for permission to appeal the judgment to the Supreme Court, but the Appeals Permission Board rejected the application by reference to the fact that the judgment did not concern fundamental questions of statutory interpretation.

Other cases

In two recent cases from the summer of 2015, the DCCA found basis for issuing informal injunctions in regard to section 11a. The cases involved two anonymous municipalities, which allegedly had granted state aid to an association and a sports centre. Following these cases, the DCCA announced an open letter addressed to the Danish municipalities, stating that placing public premises at the disposal of local associations is likely to constitute a violation of section 11a if the activities at the premises are of a commercial nature.

Rules on sanctions

Introduction

In December 2012, Danish parliament passed an act on sanctions for competition law violations. The object of the act was to increase the fines for companies and individuals and to introduce custodial sentences in cartel cases.

The amendment entered into force on 1 March 2013; the rules will apply to incidents after 1 March 2013 and to incidents commenced before 1 March 2013 and continuing after this date.

Increased fines

As regards the increased fines, the following table shows the changes from 1 March 2013:

Gravity

Examples

Previous indicative level

New indicative level

Indicative level of fines for individuals

Gravity Examples Previous indicative level New indicative level Indicative level of fines for individuals

Less grave

Restrictions of passive sales; exclusive purchase obligation lasting more than five years

Up to 400,000 kroner

Up to 4 million kroner

Minimum 50,000 kroner

Grave

Resale price maintenance; non-compete clauses in joint production agreement

400,000 - 15 million kroner

4 million - 20 million kroner

Minimum 100,000 kroner

Very grave

Coordination of prices, production, customers or bids; certain types of abuse of dominance

More than 15 million kroner

More than 20 million kroner

Minimum 200,000 kroner

Imprisonment

In addition to increased fines, in 2013, custodial sentences in cartel cases were introduced. Cartel agreements are punishable by imprisonment if the participation in the cartel was deliberate and if the offence is grievous judging by its scale and the adverse effects it is capable of causing. The maximum sentence is one-and-a-half years' imprisonment. However, if there are aggravating circumstances, the penalty may be up to six years' imprisonment.

The custodial sentence is primarily directed towards involved members of management or responsible employees. The Danish State Prosecutor for Serious Economic and International Crime has unofficially announced that he will, in general, request unconditional imprisonment in cartel cases, and that, in his view, the custodial sentence of up to one-and-a-half years applies if the estimated total value of the crime (eg, a price-fixing cartel) is more than 10,000 kroner, and the custodial sentence of up to six years applies if the estimated value of the crime is more than 500,000 kroner. It remains to be seen whether the courts will follow the view of the State Prosecutor.

Leniency

Since 2007, it has been possible to apply for leniency in Denmark. The Danish leniency regime is similar to that of the EU; the first undertaking to satisfy the criteria will obtain withdrawal of charges, and the subsequent leniency applicants may obtain a reduction of the fine. Similarly, if an individual fulfils the criteria for leniency, he or she may avoid custodial sentences or other types of punishment, whereas the subsequent leniency applicants may have their sentences reduced.

The criteria to satisfy in order to obtain withdrawal of charges are the following:

  • the authorities are presented with new evidence enabling the authorities to conduct an investigation or to establish a cartel offence;
  • the undertaking in question cooperates with the authorities throughout the processing of the case;
  • the undertaking ends its participation in the cartel no later than at the time of applying for leniency; and
  • the undertaking has not forced others to participate in the cartel.

The Danish leniency regime does not have a marker system like leniency regimes in some other jurisdictions. Accordingly, it is not possible for a leniency applicant to determine whether it is the first to report the matter to the authorities.

Damages for breach of competition rules

Introduction

The right to damages for loss as a result of breach of either Danish or EU competition rules is governed by the Danish Act on implementation of the Damages Directive (EU Directive 2014/104), which was adopted by the Danish Parliament in November 2016. The Act ensures a right to full compensation for competition law infringements, and concerns infringements of the European Competition law as well as infringements of the Danish Competition Act. Compensation for infringements can be obtained in accordance with the Act and the general Danish rules on damages.

The Act provides an extended limitation period of five years for bringing actions for damages in competition cases compared to the general statute of limitation for damages in Denmark, which comprises a limitation period of three years.

The Act entered into force on 27 December 2016 and is not applicable to infringements initiated before this date. Damages for infringements before the commencement date may only be obtained if the plaintiff proves: negligence (culpa) or intent by the defendant; a causal and foreseeable loss; and absence of fault by the plaintiff.

Case law

To date, only a limited number of cases on damages for breach of competition law have been heard by the Danish courts, and most of these cases concern damages as a consequence of anticompetitive agreements. Moreover, all cases concern damages for infringements before the new Danish Act on implementation of the Damages Directive (EU Directive 2014/104) entered into force. Consequently, case law gives no guidance on how the new damages claim regime works.

The difficulties of determining the loss were at issue in a 2006 case about an electricity cartel. The municipality of Copenhagen claimed to have suffered a loss as a consequence of a bid-rigging cartel for electricity works. The City Court of Gentofte agreed with the municipality that the standard of proof should be mitigated with regard to the loss. Although the competition authorities had stated in press releases that the excess amounted to 20 per cent (320,000 kroner), the City Court found that the counterfactual situation without a cartel would most likely have resulted in a price which was only 50,000 kroner lower (3 per cent).

In a case from 2008, Skandinavisk Motor Co, which produced spare parts for cars, had been found to have abused its dominant position by giving loyalty rebates on the market for Skoda spare parts. One of its competitors, TW Autodele, claimed damages based on a discretionary assessment of its own market share and the defendant's market share in absence of the abuse. The City Court of Glostrup found that the TW Autodele's loss was not substantiated with any actual data or calculations; there was no solid evidence suggesting that TW Autodele's market share, in the absence of the abuse, would have increased proportionately, and the case against Skandinavisk Motor Co was dismissed.

A recent judgment rendered by the Maritime and Commercial Court on 15 January 2015 was about whether Cheminova A/S, a company primarily producing crop protection products, had suffered a loss for which Akzo Nobel Functional Chemicals BV and Akzo Nobel Base Chemicals AB were liable owing to their participation in a price and market cartel on the market for MCAA. Cheminova had bought the MCAA-mixture, Azonol, from the Akzo Nobel-companies for many years.

The damages case arose as a consequence of the Commission's decision of 19 January 2005 in which six Akzo Nobel-companies (including the two defendants) were imposed a fine for participating in a price-fixing and market cartel in the market for MCAA during the period 1986-2000.

The defendants in the case before the Maritime and Commercial Court acknowledged the basis of liability, including causation and foreseeability, but denied that Cheminova had suffered a loss. The case was subject to a court-appointed expert survey and valuation where the expert assessed, inter alia, which calculation model was most appropriate for calculating potential overprices of the product, the size of the potential overprices and percentage of Cheminova's costs which could be deemed to have passed on to customers. The court fixed Cheminova's total losses at 10.71 million kroner without specifying any details of the calculation. Cheminova had claimed damages in the amount of 47.2 million kroner.

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