Denmark: The Differences in Danish and EU Competition Law


In summary

This article provides legal practitioners with an overview of competition law in Denmark, which is based on EU competition law. To a large extent, the Danish rules are similar to the EU rules. The focus of this article is on those areas of the law where the Danish rules differ from the EU rules, as well as cover recent developments in Denmark.


Discussion points

  • Agreements
  • Unilateral conduct
  • State aid
  • Decision-making powers and sanctions
  • Damages for breach of competition rules

Referenced in this article

  • Danish State Prosecutor for Economic and International Crime, SØIK
  • Danish Competition Act (Consolidated Act No. 360 of 4 March 2021) and the English version (Consolidated Act No. 155 of 1 March 2018)
  • Danish Competition and Consumer Authority
  • Danish Competition Council
  • Danish Competition Appeals Tribunal

Agreements

Introduction

The prohibition on anticompetitive agreements in the Danish Competition Act (the Competition Act) follows a structure similar to that of article 101 of the Treaty of the Functioning of the European Union (TFEU). Section 6 of the Competition Act contains the general prohibitions and is comparable to article 101(1) of the TFEU, whereas section 8 is comparable to article 101(3) of the TFEU. Case law from the European Commission and the European Court of Justice (ECJ) is applied when interpreting the prohibition on anticompetitive agreements in the Competition Act.

Agreements subject to the Competition Act can benefit from the EU block exemptions as these have been implemented in Danish law. Further, the Competition Act provides a de minimis exemption in section 7, which was aligned as of 1 January 2018 with the De Minimis Notice 2014/C 291/01. According to the exemption, the rules on anticompetitive agreements do not apply to agreements or concerted practices if:

  • the aggregate market share held by the parties to the agreement does not exceed 10 per cent on any of the relevant markets affected by the agreement, where the agreement is made between undertakings that are actual or potential competitors on any of those markets (agreements between competitors); or
  • the market share held by each of the parties to the agreement does not exceed 15 per cent on any of the relevant markets affected by the agreement, where the agreement is made between undertakings that are not actual or potential competitors on any of those markets (agreements between non-competitors).

However, the Danish de minimis exemption does not apply to agreements that have restriction of competition as their object or that may affect trade between member states, as those types of agreements are subject to article 101 of the TFEU and, if applicable, the EU de minimis rule.

Section 9 of the Competition Act provides undertakings with the possibility to notify an agreement for assessment by the Danish Competition and Consumer Authority (DCCA). Similar to the previous EU system, the DCCA can, depending on the assessment, provide the undertaking with a declaration stating that the agreement does not violate section 6 of the Competition Act. However, it may refrain from considering a notification if the agreement appreciably affects trade between member states. In practice, the option of having an agreement assessed by the DCCA is rarely used.

The DCCA typically announces the strategy it intends to follow during the course of a couple of years. It follows from the strategy published in January 2019 that the DCCA will focus on, among other things, digital and technological developments. This is in accordance with the strategy on digital growth launched in 2018 by the Ministry of Industry, Business and Financial Affairs, which contains several initiatives relating to competition law regulation, such as a proposal for an amendment of the Danish merger control thresholds in respect of digital business models.

Cases on digital platforms

A variety of cases involving agreements between providers of digital platforms have been settled in the past few years.

In June 2020, the Competition Council (the Council) found that the digital platform, Ageras, where users can get offers, for example, on auditing services, had violated the competition rules. Among other things, the platform had informed submitters with low bids on ‘estimated market prices’ and provided the submitters with the opportunity to raise bids accordingly. The price mechanism advising submitters on ‘market price’ was found to be incompatible with the Competition Act’s prohibition of restrictive agreements.

In respect of digital platforms, the Council also found minimum pricing to be restrictive on competition in two cases in August 2020. The practices in question were found to prevent free pricing between independent, competing companies and were, thus, incompatible with the competition rules. The cases were closed owing to commitments from the undertakings concerned to remove the pricing mechanisms.

The Demolition Cartel case

In October 2015, the DCCA conducted dawn raids at the premises of a number of companies in the demolition industry, which led to the opening of another major and complex case, referred to as the Demolition Cartel case, which comprised several individual cartel cases.

The demolition companies violated the Competition Act by exchanging information on prices and coordinating bids in connection with tenders regarding different demolition contracts (bid rigging). The conduct was found to constitute a concerted practice that amounted to a cartel.

In one of the cases, the prosecutor motioned for imprisonment of an employee from one of the demolition companies; however, in 2018, the District Court of Holbæk dismissed the motion for imprisonment as it did not find the cartel to be of a severe nature and, consequently, that the conduct did not constitute an offence punishable by imprisonment.

The series of cases came to an end in February 2020, when the last demolition company and three employees from the company involved in the demolition cartel were discharged as the company actively contributed to the investigation of the infringements and fulfilled the criteria for obtaining leniency. In total, six demolition companies and 12 employees have paid fines amounting to 18 million kroner. The largest fine imposed was 5.9 million kroner, which was issued in a case with 12 infringements concerning bid rigging.

The HMN, Gastech Energi, Kjertner and DEBRA case

In July 2017, the Danish Competition Appeals Tribunal (DCAT) upheld the Council’s decision, establishing that HMN Naturgas (HMN), Gastech-Energi, Kiertner and the energy industry association DEBRA – Energibranchen had coordinated prices on gas furnace maintenance subscription for end users in 2014. HMN offered its end customers gas furnace maintenance subscriptions through independent plumbers, called ‘service partners’. Gastech-Energi and Kiertner were service partners but did themselves offer gas furnace maintenance subscriptions to end users.

The DCAT considered that HMN, Gastech-Energi and Kiertner agreed that a part of the fees for HMN’s end users should rise and that the parties were competitors, since HMN, Gastech-Energi and Kiertner all offered gas furnace maintenance subscriptions to end users. The DCAT did not examine whether the agreement had resulted in any negative consequences on the market concerned, since it found the agreement to be a restriction of competition by object.

Moreover, the fact that the total price for HMN’s end users was actually reduced was not in itself sufficient to prove that the agreement did not restrict the competition, because the parties – according to the DCAT – had not shown that prices would not have been reduced even further without the agreement.

In June 2019, the Maritime and Commercial High Court upheld the DCAT’s decision and ruled that HMN, Gastech-Energi, Kiertner and DEBRA had violated the Competition Act by coordinating prices. The court found that the parties had agreed on a raise in HMN Naturgas’ end prices with the objective of making it possible for the independent plumbers to raise their prices as well and, thus, that the agreements between HMN Naturgas and the independent plumbers had restriction of competition as their object in violation of section 6 of the Competition Act.

The case was subsequently appealed to the High Court of Eastern Denmark by HMN Naturgas, which upheld the ruling in March 2021 and found that the company had violated the competition law by coordinating subscription prices for service, maintenance, etc, to the detriment of competition.

The Hugo Boss, Ginsborg and Kaufmann case

The retail clothing industry has been under scrutiny in two cases from June 2020, where the Council found that competing dealers had illegally exchanged information on prices, discounts and quantities in connection with future sales. The illegal activity had taken place between, on the one hand, the manufacturer of clothing, Hugo Boss, and, on the other hand, the clothing retailers Kaufmann and Ginsborg.

The cases are interesting because Hugo Boss manufactures and supplies products to Kaufmann and Ginsborg, but, at the same time, distributes products directly to consumers and is, thus, active in the same downstream market for menswear as its retailers; hence, Hugo Boss has a vertical as well as a horizontal relationship with Kaufmann and Ginsborg. Naturally, as a supplier, Hugo Boss must maintain ongoing contact with its dealers.

However, as competitors, the undertakings concerned must remember to act independently on the market and refrain from entering into any anticompetitive agreements (eg, by providing information in advance on sale ranges, sale prices and discounts in connection with future sales).

Following the Council’s decisions, the DCCA has sent six injunctions and enforcement notices to undertakings in the clothing industry, thereby emphasising the illegality of exchanging information that may impede competition. The two cases have subsequently been appealed to the DCAT where they are pending.

The Jorton/H Skjøde Knudsen case

In January 2020, the High Court of Eastern Denmark found that the construction companies Jorton A/S and H Skjøde Knudsen A/S had violated the Competition Act by exchanging information on prices and coordinating offers on several contracting assignments (bid rigging). After the DCCA had conducted dawn raids at Jorton A/S and H Skjøde Knudsen in spring 2016, the case was reported to the State Prosecutor for Economic and International Crime (the State Prosecutor), who initiated prosecution of the companies.

The Court found that the companies had coordinated offers in respect of three contracts on public construction projects in the period from January 2012 to August 2013 and imposed fines on both companies of 3 million kroner and 2 million kroner, respectively. In addition, two senior executives were fined 75,000 kroner and 50,000 kroner, respectively.

Cases on resale price maintenance

The DCCA has generally paid attention to resale price maintenance.

In December 2019, the High Court of Eastern Denmark upheld a ruling by the District Court of Næstved and imposed a fine of 1 million kroner on a Danish distributor of hair products, Icon Hairspa A/S, and a fine of 100,000 kroner on a member of the Icon Hairspa management for violating the prohibition on resale price maintenance in the Competition Act. The company required that its dealers followed the recommended retail price as the minimum price when selling certain hair products.

In a similar case from September 2020, the design company GUBI A/S was found guilty of resale price maintenance. The Council found that GUBI, for a period of not less than two-and-a-half years, was responsible for employees entering into restrictive agreements on behalf of GUBI with a number of dealers (eg by making demands that GUBI’s indicative prices should be complied with as minimum prices in connection with resale to consumers).

In determining the amount of the fine, emphasis was placed on the gravity of the infringement, including that the agreements contained both vertical and horizontal elements, the duration of the infringement and GUBI’s turnover. As mitigating circumstances, it was considered that GUBI approached the DCCA voluntarily and, thus, contributed to the clarification and investigation of the case. Moreover, GUBI documented the implementation of measures to ensure such infringements will not occur again.

In January 2020, the German manufacturer of dog equipment, Cloud7 GmbH, was fined for demanding one of its Danish dealers to comply with Cloud7’s indicative prices in the period from January 2017 to October 2018. Resale price maintenance is a clear violation of the competition rules, and Cloud7 GmbH accepted to pay a fine of 225,000 kroner in lieu of prosecution.

Cases on trade organisations

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

In April 2018, the DCAT upheld the Council’s decision involving the Danish Camping Board (the Board). The Board was found to have illegally restricted competition by adopting a provision that camping sites should require their guests to buy, at a fixed price, a ‘camping pass’ issued by the Board. The practice entailed a combined agreement on price and exclusion of competitors from the market and comprised almost 90 per cent of all Danish camping sites. According to the DCAT, the practice had the object of restricting competition. In January 2020, the bankruptcy estate after the Board agreed to pay a fine of 400,000 kroner for the infringement.

In March 2020, the trade association Economic Association for Passenger Transport agreed to pay a fine in lieu of prosecution of 400,000 kroner for violation of the Competition Act. Offers on assignments had been coordinated between the members of the trade association, which were found incompatible with the prohibition in section 6 of the Act.

Cases on market sharing

In a case from May 2020, MediaCenter Danmark had agreed with a competitor, MPE Distribution, that the two companies would share the market for distribution of bulk mail between them. Such agreements – on market sharing or partitioning of markets – are clear violations of the Competition Act.

Only MediaCenter Danmark was fined since MPE Distribution applied for leniency and assisted with the investigation as required; hence, MPE Distribution was dismissed of all charges by receiving total immunity from the imposition of any fines. MediaCenter Danmark has accepted to pay a fine of 2.25 million kroner.

In another case from December 2020, the City Court of Roskilde found that Sydkystens Automatik P/S had violated the Competition Act by agreeing to share the market with a competitor, FinDan El-Anlæg A/S. In particular, the companies had agreed to stay away from each other’s customers in the period from November 2016 to February 2017.

The City Court imposed a fine on 400,000 kroner on Sydkystens Automatik P/S. Further, it imposed a fine on 100,000 kroner on a senior employee as it considered that it must have been clear to the senior employee that the agreement divided the market and, thereby, potentially limited competition.

The judgment has been appealed by Sydkystens Automatik P/S, and the separate case against FinDan El-Anlæg A/S is still pending.

Unilateral conduct

Introduction

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

Advertising on digital platforms

The most high-profile abuse cases in Denmark have undoubtedly been in the postal sector (ie, the Post Danmark cases). The market for the distribution of unaddressed mail has, however, been declining in recent years, while the market for advertisement on digital platforms has been growing. The two markets are connected in the sense that a large proportion of advertisers are customers in both markets; hence, the DCCA has had an increased focus on abusive conduct on digital platforms.

In June 2020, the Council found that FK Distribution had abused its dominant position by tying distribution of unaddressed mail to promotion on its digital platforms. When customers bought distribution of unaddressed mail from FK Distribution, it was a condition that they also bought display on FK Distribution’s digital platforms, including minetilbud.dk. The Council found that the behaviour could create entry barriers and exclude competitors from the growing market on advertisement (of newspapers, etc) on digital platforms.

The Deutz AG case

In June 2013, the Council ruled that Deutz AG (a German engine manufacturer) abused its dominant position by preventing the supply of spare parts for the IC3 trains owned by the Danish state railway company, DSB. Deutz refused to supply spare parts for the IC3 trains and prevented parallel imports of spare parts in an agreement with its distributor in Denmark.

In December 2013, the DCAT upheld the Council’s decision, after which the case was appealed to the Maritime and Commercial High Court. Owing to a rather extensive exchange of statements regarding expert valuations and appointment of the expert appraisers, the case was only recently closed by the Maritime and Commercial High Court in January 2021. The Court ultimately found that the Deutz AG and the company’s Danish dealer, Diesel Motor Nordic A/S, had illegally prevented the sale of spare parts for use in the renovation of DSB’s IC3 trains. The judgment has been appealed to the High Court of Eastern Denmark.

The Teller case

In September 2019, the DCAT upheld the Council’s decision regarding Teller (now Nets). The DCAT found that Teller abused its dominant position on the Danish market for merchant acquiring services and mobile payment solutions for point of sale payments from 2012 to 2016 by using conditional rebate schemes and provisions regarding exclusivity to a limited number of its largest customers. According to the DCAT, Teller offered its customers the rebate schemes on condition that the customers used Teller solely or to a large extent. The case is currently pending before the Maritime and Commercial High Court.

The CD Pharma case

In November 2018, the DCAT upheld a decision by the Council in which it found that CD Pharma (a pharmaceutical distributor) abused its dominant position by charging excessive prices for the drug Syntocinon. The case concerned the Danish market for oxytocin (contained in Syntocinon), which is used for pregnant women in connection with childbirth. CD Pharma had an exclusive distribution agreement on the Danish market with the European producer of the drug.

In March 2020, the Maritime and Commercial High Court rendered its judgment in the case with dissent. Three of the five judges found that CD Pharma was dominant in 2014 and 2015 on the market for oxytocin, while the two other judges found that CD Pharma was not dominant.

The question of dominance is of interest because CD Pharma only became a residual supplier as a result of another supplier’s (Orifarm) breach of contract with the buyer, Amgros, and because CD Pharma acted on a one-year tender market in which it submitted bids in competition with Orifarm, among others. All the judges found that CD Pharma’s high price for Syntocinon for a period of less than six months was excessive and, consequently, violated the Competition Act and article 102 of the TFEU.

The Falck case

In January 2019, the Council found that Falck (Denmark’s largest provider of ambulance services) abused its dominant position by excluding its largest competitor, BIOS, from the Danish market for ambulance services. Between August 2014 and October 2015, Falck decided on, and implemented, a strategy that comprised, among other things, conveying negative stories about BIOS to the press and to Falck’s employees with the purpose of influencing any paramedics who were considering jobs with BIOS to abstain from applying for those jobs. The behaviour shown by Falck made it difficult for BIOS to recruit paramedics, and ultimately BIOS was forced to leave the market.

In December 2019, Falck confessed to the infringement, and the District Court of Copenhagen imposed a fine of 30 million kroner. The size of the fine reflects the increased level of fines that apply to competition law infringements as of 1 March 2013 and is to date the highest fine imposed by the Danish competition authorities in Denmark for an infringement of competition law.

The Godik case

In April 2020, the Council found that Godik Aps had abused its dominant position from 2014 to 2018 by requiring the majority of its customers to rent mobile lavatories exclusively from Godik. Godik Aps is a rental company of mobile lavatories and other items and accessories for festivals, sports events, etc.

The Council found that Godik held a dominant position on the Danish market for rental of mobile lavatories for events. According to the Council, Godik’s standard agreements contained exclusivity clauses of at least three years’ duration without a right to termination. The Council considered that the exclusivity clauses hindered competing rental companies in accessing the Danish market for rental of mobile lavatories for events and that Godik’s exclusivity clauses may have led to higher prices for customers.

State aid

The Danish rules on state aid

Section 11(a) of the Competition Act contains the Danish rules on state aid. 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.

Section 11(a) is similar to – and interpreted in accordance with – the corresponding provisions of the TFEU; however, it is not applicable if the aid is lawful, according to public regulation.

The Danish rules on state aid do not entail block exemptions similar to those issued by the Commission with regard to the application of articles 107 and 108 of the TFEU to certain categories of state aid; thus, the application of section 11(a) 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 11(a) if the aid scheme at issue affects trade between EU member states. Typically, this will be the case if the aid scheme at issue is being, or has been, assessed by the Commission under articles 107 and 108 of the TFEU, or if the Commission intends to do so in the near future.

There is no recent case law on the Danish rules on state aid.

Decision-making powers and sanctions

Fines

The competition authorities have the power to investigate undertakings and to decide whether anticompetitive conduct (eg, agreements and concerted practices) are in violation of the Competition Law. If an undertaking is found to infringe the competition rules intentionally or negligently, the competition authorities may request the courts to impose civil fines in accordance with Danish civil procedure (sections 23 to 24 of the Competition Act).

The new civil fine regime is a consequence of the adoption of the ECN+ Directive (Directive (EU) 2019/1), which has led to a rather significant amendment of the Competition Act. The implementation has granted the competition authorities the powers to:

  • request the courts to impose fines on undertakings in civil proceedings;
  • conduct investigations in private homes;
  • actively assist other competition authorities in the European Union; and
  • impose structural remedies.

The amended Competition Act entered into force in March 2021. The competition authorities may offer undertakings a fine instead of prosecution in uncomplicated cases without evidential doubt. If the undertaking accepts the fine and pleads guilty, the undertaking can thereby avoid trial proceedings.

Individuals who participate in, or contribute to, infringements of the Competition Law are subject to criminal prosecution (section 23(4) and (6)). The competition authorities do not have the power to impose sanctions on individuals; they must forward those cases to the State Prosecutor, who investigates the suspected individuals and decides whether criminal prosecution should be initiated. Criminal prosecution is led by the State Prosecutor and brought before the courts in accordance with Danish criminal procedure. The competition authorities cannot offer individuals a fine instead of prosecution.

In December 2012, the 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 and, consequently, the rules only apply to competition infringement after 1 March 2013.

GravityExamplesPrevious indicative levelNew indicative levelIndicative level of fines for individuals
Less graveExclusive purchase obligations lasting more than five yearsUp to 400,000 kronerUp to 4 million kronerMinimum 50,000 kroner
GraveResale price maintenance; non-compete clauses in joint production agreements400,000 to 15 million kroner4 million to 20 million kronerMinimum 100,000 kroner
Very graveCoordination of prices, production, customers or bids; certain types of abuse of dominanceOver 15 million kronerOver 20 million kronerMinimum 200,000 kroner

Imprisonment

Custodial sentences in cartel cases were also introduced in the amendment from 2013. 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.

Under section 23(4) of the Competition Act, the punishment for participating in a cartel may be imprisonment for up to 18 months. Under aggravating circumstances, the punishment may increase to imprisonment for up to six years.

The custodial sentence is primarily directed towards the members of management, the members of the board and the responsible employees who are involved. The State Prosecutor has unofficially announced that it will request unconditional imprisonment in cartel cases and that the punishment of up to 18 months’ imprisonment applies if the estimated total value of the infringement (eg, a price-fixing cartel) is more than 10,000 kroner. Further, according to an unofficial announcement from the State Prosecutor, imprisonment for up to six years applies if the estimated value of the infringement is more than 500,000 kroner.

It remains to be seen whether the courts will follow the view of the State Prosecutor. In the Demolition case, mentioned above, the State Prosecutor, for the first time under Danish competition law, made a claim to imprison the managing employees in the company; however, both the District Court of Holbæk and the High Court of Eastern Denmark dismissed the claim for imprisonment and instead imposed a fine of 100,000 kroner, based on a concrete assessment.

Leniency

Since 2007, it has been possible to apply for leniency in Denmark in cartel cases.

The Danish leniency regime is similar to that of the European Union; thus, the first undertaking to satisfy the criteria will obtain withdrawal of charges, and the subsequent leniency applicants may obtain a reduction of the fine, provided they submit new, relevant information. Similarly, if an individual fulfils the criteria for leniency, he or she may avoid a custodial sentence or other type of punishment, and the subsequent leniency applicants may have their sentences reduced.

In general, plea bargaining does not exist under Danish law and, consequently, any reduction in custodial sentences to those who report a cartel subsequent to the first reporter will be decided by the courts.

To benefit from the leniency scheme, the applicant must satisfy the following criteria:

  • the authorities are presented with new evidence enabling them 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 application for leniency; and
  • the undertaking has not forced others to participate in the cartel.

As of 1 January 2018, a preliminary application (a marker) for leniency can be submitted, which shall be finalised within the time limit determined by the competent authority. In that case, the application is deemed to have been submitted as at the date of submission of the preliminary application and, consequently, the preliminary application facilitates the possibility of reserving a place in the queue for leniency, while putting together a final application.

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 Act on implementation of the Damages Directive (Directive 2014/104/EU) and the general Danish rules on damages.

The Act ensures a right to full compensation for competition law infringements and 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 has 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 be obtained only 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. Most of those cases concern damages as a consequence of anticompetitive agreements.

Moreover, all those cases concern damages for infringements before the new Act on implementation of the Damages Directive entered into force. Consequently, case law gives no guidance on how the new damages claim regime works. The following cases are, thus, all from before 2016.

The Electricity cartel case

A case from 2006 concerning an electricity cartel illustrates the difficulties of determining the loss in a case concerning damages for breach of competition rules. The municipality of Copenhagen claimed to have suffered a loss (320,000 kroner) caused by a bid-rigging cartel for electricity works. The District Court of Gentofte found that the admitted participation in the electricity cartel constituted a basis of liability on which the municipality could base its claim for damages.

Although the District Court agreed with the municipality that the standard of proof should be mitigated regarding the loss, the Court found that the counterfactual situation without a cartel would most likely have resulted in a price that was only 3 per cent lower, and the damages were, therefore, fixed at 50,000 kroner.

The Cheminova A/S case

In January 2015, the Maritime and Commercial High Court rendered a judgment regarding a damage claim caused by a price-fixing and market cartel. The case was about whether Cheminova A/S (Cheminova), a company primarily producing crop protection products, had suffered a loss for which Akzo Nobel Functional Chemicals BV and Akzo Nobel Base Chemicals AB (Akzo Nobel) were liable because of their participation in a price-fixing and market cartel on the market for MCAA (also called chloroacetic acid).

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 issued with fines for participating in the price-fixing and market cartel during the period from 1986 to 2000.

In the case before the Maritime and Commercial High Court, Akzo Nobel 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, in which the expert assessed, among other things, the calculation model that was most appropriate for calculating potential overprices of the product, the size of the potential overprices and the percentage of Cheminova’s costs that could be deemed to have been passed on to customers.

Cheminova had claimed damages of 47.2 million kroner; however, the Court found that Cheminova’s total losses amounted to 10.71 million kroner, without specifying any details of the calculation.

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