On 21 April 2022, the District Court of Glostrup issued a judgment that ordered Hovedstadsregionens og Midt-Nords Naturgasselskab I/S (formerly HMN Naturgas) and Gastech Energy to each pay an 8 million kroner fine for unlawful price coordination in the natural gas furnaces market. The same judgment also issued fines against two complicit individuals, which amounted to 75,000 kroner and 50,000 kroner.
In 2016, the Danish Competition Council (DCC) published a decision on a case in which the former HMN Naturgas had unlawfully coordinated prices in the natural gas furnaces market with two competing companies and a trade association. The DCC stated that the price coordination constituted an infringement of section 6 of the Danish Competition Act and article 101(1) of the Treaty on the Functioning of the European Union. In 2021, the decision was subsequently upheld by:
- the Competition Appeals Tribunal;
- the Maritime and Commercial Court (for further details please see "Maritime and Commercial Court finds HMN and competitors guilty of illegal price coordination agreement"); and
- the High Court of Eastern Denmark in 2021.
The DDC reported the matter to the Special Crime Unit for criminal prosecution. The Prosecution Service filed charges against:
- Hovedstadsregionens og Midt-Nords Naturgasselskab I/S, which is now in dissolution;
- one subcontractor/competitor; and
- four employees of the companies involved.
The other subcontractor/competitor had gone bankrupt, and the trade association was dissolved.
In its judgment, the District Court of Glostrup focused on the criminal charges in the price coordination case.
The Court found the accused companies and persons guilty of having intentionally concluded an agreement and/or concerted practice between competitors, with the object of restricting competition by coordinating subscription prices for the servicing of natural gas furnaces to end users. The anticompetitive activities were categorised as an infringement of section 6(1) of the Danish Competition Act. The four employees were found guilty of aiding and abetting by having entered into the agreement of 29 April 2014 between the companies and the trade association.
In that regard, the Court relied on the facts of the case, including the wording of the agreement and its clause 6, which related to the coordination of prices and the previous correspondence between the companies. It was proven that the employees had participated in the negotiations regarding the agreement and that they drafted clause 6 by mutual understanding. The employees were aware of the content of the agreement and, therefore, had the required intent.
The Court found that the anticompetitive activity was neither severe nor constituted a cartel agreement under in section 23(3) of the Danish Competition Act. There were, on that basis, no grounds for imposing prison sentences on the defendants, as the prosecutor had requested.
Concerning the determination of penalties, the preparatory work of the Danish Competition Act distinguishes between minor, serious and very serious infringements. As a starting point, horizontal agreements should be categorised as serious or very serious infringements. The gravity, duration of the infringement and the turnover of the companies are considered in determining the fines.
The parties' agreement and/or concerted practice on the coordination of subscription prices for the service of natural gas furnaces to end users was applied to negotiations on a number of matters other than user prices, such as the conditions for becoming a service partner for HMN Naturgas. User prices were merely a part of the negotiations. The purpose of the negotiations was, for example, to ensure cheaper spare parts for HMN Naturgas's end users. After a specific assessment, the wider application of the agreement was found to be relevant to determining the penalties for the case.
The Court, therefore, categorised the infringement as serious rather than very serious. Thus, the two companies were each fined 8 million kroner, considering that the basic amount of an undertaking's serious infringement according to the preparatory work is between 4 million kroner and 20 million kroner.
This judgment shows how an agreement and/or concerted practice can constitute an infringement of competition law that entails criminal penalties, both for the undertakings concerned and the senior employees involved. Danish procedural and criminal competition law was amended as of 4 March 2021 as a result of the implementation of EU Directive 2019/1/EU (ECN+ Directive) (for further details please see "Competition authorities given power to fine companies for breach of competition law"). The amendment means that competition authorities can issue administrative fines or request civil fines in civil court cases where an infringement is found. For physical persons, the calculation of fines or potential imprisonment for established infringements is still tried as a criminal case. However, since the illegal price coordination occurred before the amendment of the Danish Competition Act, the calculation of fines or potential imprisonment for both the undertakings and the physical persons were tried as a criminal case.
The judgment also clarifies the nature of penalties that are issued when the infringement is categorised as serious. Further, if the anticompetitive behaviour is not the sole purpose of an agreement, there may be scope for the severity of the penalties to be reduced.
For further information on this topic please contact Martin André Dittmer or Rebecca Fink Joensen 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.