Martin André Dittmer Frederik Jakobsen December 16 2021 Maritime and Commercial High Court rules on exclusivity agreements and unreasonably low prices in cash management services Gorrissen Federspiel | Competition & Antitrust - Denmark Martin André Dittmer, Frederik Jakobsen Competition & Antitrust FactsDecisionCommentIn a 30 August 2021 decision, the Maritime and Commercial High Court found Loomis to have entered into exclusivity agreements that infringed articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) and set unreasonably low prices under article 102 of the same. The decision contains a by-effect analysis of the exclusivity agreements and a finding of abuse of dominance due to unreasonably low prices, despite the AKZO criteria for predatory pricing not being fulfilled.FactsOn 5 July 2018, Nokas Værdihåndtering A/S filed a damages claim against Loomis Danmark A/S and Loomis Teknik A/S (jointly, "Loomis"). The claim was founded on alleged infringements of articles 101 and 102 of the TFEU and the corresponding provisions of the Competition Act in the Danish market for cash management.Cash management mainly consists of two types of services:collection and transport of cash to and from customers; andsorting, counting, packing, and checking the cash in insured cash handling centres.Purchasers of cash management services are typically actors within the banking and retail sectorsIn 2016, Loomis acquired cash handling company Bankernes Kontantservice A/S (BKS), an entity that at the time was jointly owned by 61 banks. The first claim concerned a covenant to the merger agreement. The covenant stipulated that a majority of the seller banks (50 in total) continue to purchase services from BKS (now Loomis) to about the same extent as before the merger for a transitional period of approximately three years and five months (the "transitional agreement").The second claim was that BKS had abused its dominant position on the market for cash management by offering unreasonably low prices to a number of different customers from 2014 to 2016 (ie, before being acquired by Loomis).DecisionThe Maritime and Commercial High Court ruled in favour of the plaintiff on both accounts.Exclusivity agreementsThe Court found that the transitional agreement de facto amounted to an exclusive purchasing obligation capable of foreclosing the market to such an extent that it led to appreciable anti-competitive effects.The Court noted that Loomis had obtained a market share of 75% to 85 % by acquiring BKS, as the banks' procurement of services from BKS amounted to 60% to 70% of total market turnover prior to the merger. The 50 selling banks thus accounted for a majority of the total turnover in the market and, the Court found, had little incentive to procure cash handling services from different suppliers due to the transitional agreement. The Court also highlighted the fact that the market had high entry barriers and that Nokas was the only remaining competitor on the market after the acquisition of BKS.Based on this, the Court found that the transitional agreement constituted a by-effect infringement of article 101 of the TFEU and an abuse of Loomis' dominant position under article 102 of the same.Further, the Court rejected Loomis' argument that the agreement amounted to an ancillary restraint within the meaning of the Commission Notice (2005/C 56/03), as it did not find sufficient proof that the transitional agreement was necessary to conclude the merger. Rather, the Court found that the covenant ensured only a higher valuation of BKS.Unreasonably low pricesAs regards the second claim, the Court found that BKS had abused its dominant market position by offering unreasonably low prices to a total of eight customers. All target customers were significant actors within the retail segment.In one of the eight cases, BKS had priced below average variable costs (AVC). In the remaining seven cases, BKS had priced below average total costs (ATC), but above AVC. The Court held that none of the cases' offers had been determined as part of a plan for eliminating BKS's competitors.Despite this, the Court found by a majority decision that all eight offers constituted an abuse of BKS' dominant market position. The Court reasoned that no objective justification had been provided for the pricing, and that it resulted in a likely elimination of the plaintiff, Nokas, to the detriment of competition and consumers.Comment The decision is not immediately reconcilable with established case law of the Court of Justice of the European Union (CJEU) on predatory pricing. In the CJEU's AKZO judgment,(1) it was determined that prices below AVC by a dominant undertaking are presumed abusive, whereas prices below ATC that are above AVC are regarded as abusive only if they are part of a plan to eliminate competitors. In the present case, the Court explicitly stated that no intention to eliminate its competitors had been established on behalf of BKS.Instead, the Court cited the Post Danmark I case,(2) in which it was determined that a dominant undertaking had a special responsibility to not allow its behaviour to impair genuine, undistorted competition on the internal market. In order to assess the existence of anti-competitive effects, it was necessary to consider whether that pricing policy, without objective justification, produced an actual or likely exclusionary effect to the detriment of competition and consumers.The judgment at hand appears to state that unreasonably low prices may, in certain situations, constitute abusive behaviour, even where the AKZO criteria are not fulfilled. In this regard, the Court seemed to attribute importance to the fact that BKS had a large and secure customer basis with its owners (the banks), whereas the unreasonably low prices were offered to customers within the retail segment, where BKS' market position was not as consolidated.For further information on this topic please contact Martin André Dittmer or Frederik Jakobsen at Gorrissen Federspiel by telephone (+45 33 41 41 41) or email ([email protected] or [email protected]). The Gorrissen Federspiel website can be accessed at www.gorrissenfederspiel.com.Endnotes(1) C-62/86.(2) C-209/10.