Several fines were handed out during Summer 2019 for Competition Act infringements. A group of cases regarding bid rigging in the demolition and plumbing industries were settled with fines issued to companies and management. In addition, the Danish association of camera distributors agreed to pay a fine for price coordination and Circle K Denmark A/S was fined for infringing merger control rules.
The Maritime and Commercial Court recently upheld a decision by the Competition Appeals Board which had found that a price coordination agreement between HMN Naturgas I/S, two sub-contractors and a trade association had as its object the restriction of competition. An interesting takeaway from the judgment is that the Maritime and Commercial Court viewed separable components of an agreement in isolation.
In recent months there have been a number of significant cases concerning restrictive agreements in Denmark. For example, a cooperative purchasing society was found guilty of coordinating prices, several judgments were issued regarding cartel infringement in the form of bid rigging in the demolition industry and a company executive was fined for imposing minimum resale prices on hair products.
The Competition Council recently handed down a highly publicised decision finding that the ambulance and assistance company Falck Danmark A/S had abused its dominant position on the Danish market for ambulance and pre-hospital support services by establishing and carrying out a general strategy to exclude its competitor from the market.
There were a number of significant events in Danish competition law in Autumn 2018. For example, one of Denmark's most significant abuse of dominance cases ended following the High Court of Western Denmark's issuance of its final decision. Further, the Competition Appeals Tribunal confirmed that Swedish pharmaceutical distributor CD Pharma AB had abused its dominant position and a widely discussed gun-jumping case was finally decided after a preliminary ruling from the European Court of Justice.
The Competition Appeals Tribunal recently rendered a decision in a case concerning the possible coordination of conduct regarding industry standards in the roofing felt business. The tribunal remitted the case to the Competition Council for renewed assessment because of an insufficient by object assessment. The so-called 'by object box' has been widely debated among legal professionals in Denmark and the rest of the European Union.
The legality of consortium agreements under competition law has been widely debated in recent years. The Maritime and Commercial High Court recently rendered a much-anticipated judgment on this subject and repealed the competition authorities' 2015 and 2016 decisions in a case concerning a consortium agreement between two companies regarding their joint bid on a public tender for road marking work.
One of Denmark's biggest abuse of dominance cases is coming to an end following the High Court of Western Denmark's issuance of its final decision, which repealed the Competition Council's decision. However, the Competition and Consumer Authority has sought permission to appeal the case to the Supreme Court. The case shows the importance of economic analysis in abuse of dominance cases. Establishing excessive pricing requires extensive economic analysis and there seems to be a high bar for proof.
The Danish Competition and Consumer Authority recently reported a case of bid rigging in the demolition industry to the State Prosecutor for Serious Economic and International Crime. Six companies and a number of executives from each company have now been charged. This is the first case in Denmark in which the defendants risk imprisonment due to the infringement of competition law. Prison sentences for such offences were introduced in 2013.
The Competition Council recently found that Swedish pharmaceutical distributor CD Pharma AB had abused its dominant position in Denmark by charging excessive prices. The Competition Council ordered CD Pharma not to engage in similar behaviour in future and referred the case to the State Prosecutor for Serious Economic and International Crime for criminal prosecution.
The Competition Appeals Tribunal has overruled a decision of the Competition Council which found that the Danish Pharmaceutical Association had violated Section 6 of the Competition Act and Article 81 of the EC Treaty. The tribunal held that as the pharmaceutical market is highly regulated, it was not possible for the wholesalers to compete on price, quality or product diversity, but instead only on services and cost-based discounts.
The Competition Authority recently published the Danish Competition Report for 2007. The report highlights that mergers that could have possible detrimental effects on competition are exempt from the Danish merger control rules due to the high threshold values, which are among the highest in the European Union.
Following dawn raids on a number of Danish banks, the Competition Council has issued a ruling concluding that seven Danish banks had violated the Competition Act by participating in a cartel for a period of several years. The council found that the banks had participated in a market-sharing agreement by dividing customers geographically.
The Competition Appeal Board has repealed a ruling of the Competition Council that Viasat's business terms did not violate Sections 6 and 11 of the Competition Act, which deal with anti-competitive behaviour and correspond to Articles 81 and 82 of the EC Treaty. The case turned on the definition of the relevant market reached following the council's examination of the facts.
In order to boost competition and enhance transparency, the minister for economic and business affairs has proposed a bill containing several amendments to the Competition Act. The amendments can be categorized into two groups: preventive measures and investigative measures.
In a recent decision the Competition Council stated that a merger that involved the transformation of a business from a voluntary chain to a centralized capital chain of retail shops impeded competition in a way that created a dominant position in the market, even when almost all the participating retail shops in the voluntary chain followed the same pricing policy.
The Competition Council has resolved to approve the concurrent acquisition by German company Celesio AG of two Danish pharmaceutical wholesale companies, KV Tjellesen A/S and A/S Max Jenne Medicinalvarer En Gros. The merger was referred to the Competition Council by the European Commission as it mainly affects the Danish market.
The Competition Council has approved the establishment of a joint venture between three Danish companies relating to the purchase and sale of fertilizers. This is the first time the council has considered a merger based on a notification and supporting documents in English only - an option introduced through amendments to the Competition Act in 2005.
The Competition Authority has approached the minister of the interior and health with a recommendation for increased liberalization of the Danish pharmacy sector. The approach was made on the basis of an analysis of the sector carried out by the authority in connection with its Competition Report 2005.
Billund Airport has notified its competitor Esbjerg Airport to the Competition Authority on the grounds that Esbjerg Airport illegally subsidizes budget airline Ryanair by offering it favourable prices to use the airport more frequently.