Introduction
Facts
Decision
Comment
On 18 November 2022, the Danish Competition Council (DCC) published a decision in which it found that Nye Visioner v/Søren Dybdal under the business concept "Nye Visioner" ("New Visions") had infringed section 6 of the Danish Act on Competition and article 101(1) of the Treaty on the Functioning of the European Union (TFEU). On 17 October 2022, the DCC announced that it had fined four former partners in Nye Visioner in the same case complex. The undertakings had collectively agreed on fixed prices and sharing customers.
Nye Visioner is a Danish platform of independent service providers offering personal planning and efficiency courses, meeting management, stress prevention and management training. The developer of Nye Visioner, Nye Visioner v/Søren Dybdal, made the platform available to a number of undertakings that became partners in Nye Visioner and paid a commission to New Visions v/Søren Dybdal. The individual undertakings shared the brand Nye Visioner but were competitors for the purpose of competition law.
In a period between 2013 and 2021, five partner undertakings to Nye Visioner collectively agreed on fixed prices and customer allocations within the business concept Nye Visioner.
The DCC found that the undertakings had engaged in a horizontal price coordination and customer-sharing agreement by allocating customers between them and fixing prices, which falls within the definition of a "cartel" under section 5b(6) of the Danish Act on Competition. The five partner undertakings admitted that the agreement constituted an infringement of section 6 of the Danish Act on Competition and article 101(1) of the TFEU by having the restriction of competition within the internal market as its object.
In the latest decision published on 18 November 2022, the DCC found that Nye Visioner/Søren Dybdal had played a leading role in founding and running the cooperation within Nye Visioner. In addition, the undertaking had encouraged the infringement by annually issuing revised prices, to which the partner undertakings could provide input.
The DCC found that the conduct in question was suitable to have an appreciable effect on trade between member states. This was due to the facts that the agreement:
- covered the whole territory of the state of Denmark;
- included services (training sessions/courses) that can be and are traded across borders; and
- concerned fixed prices and costumer sharing.
On these grounds, the case was dealt with under both the Danish Act on Competition and the TFEU.
The undertakings were each sentenced with fines in the range of 10,000 kroner (approximately £835) to 90,000 kroner (approximately £7,500) for their participation in the infringement. In accordance with sections 23(1) and 23(4) of the Danish Act the size of the fines reflected:
- the severity of the infringements;
- the duration of the infringements;
- the turnover of the undertakings;
- and the fact that fines cannot exceed 10% of the undertaking's annual turnovers.
The infringement was found to be severe or very severe. The DCC also took mitigating circumstances into account, in particular in view of the cooperation of the undertakings with the DCC. Under section 23(b)(3)(4) of the Danish Act when imposing a civil fine on an undertaking, the fact that the undertaking has contributed to the investigation of the case must, as a general rule, be taken into account as a mitigating circumstance.
The DCC is currently investigating whether more companies are part of the infringing agreements within Nye Visioner.
The case shows that the amount of the fines varies significantly in accordance with the rules on mitigating circumstances, such as collaboration with the competition authorities and if the fine is accepted by the undertaking. In addition, fines cannot exceed 10% of the undertaking's annual turnover. A fine of 10,000 kroner for participation in a cartel with a duration of more than four years, which was the amount issued to one of the undertakings in Nye Visioner, seems noteworthy.
The case shows that the competition rules also apply to companies within the same business concept. Furthermore, the case illustrates that when imposing a civil fine on an undertaking, mitigating circumstances such as contribution to solving the case must be taken into account, when the conditions for leniency are not met. In the case, the antitrust leniency regime in Denmark was not used. Under sections 23(d)-23(i) of the Danish Act on Competition, undertakings can obtain exemption from or reduction in fines for participation in a cartel.
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.