What is the legal framework in your jurisdiction covering the behaviour of dominant firms?
The statutory framework applicable to undertakings in a dominant position is laid down in the Danish Competition Act (the Competition Act). Section 11 of the Competition Act prohibits any abuse of a dominant position by one or more undertakings. Danish competition law is to a large extent equivalent to EU competition rules. Section 11 of the Competition Act corresponds to article 102 of the Treaty on the Functioning of the European Union (TFEU) and is interpreted in accordance with case law from the European Commission and the European Courts.
Section 11 applies to conduct that has an effect on the Danish market. However, if a certain practice affects trade between member states within the EU, the competition authorities and the courts apply the national provision together with article 102 of the TFEU.
The Danish Competition and Consumer Authority (DCCA) enforces and makes decisions on behalf of the Competition Council (the Council) in minor and relatively uncomplicated cases. The Council decides all cases of general public and fundamental importance, including cases in which a precedent has not yet been set, and cases in which the Council issues orders to put an end to an infringement.
Decisions rendered by the DCCA and the Council are subject to appeal before the Competition Appeals Tribunal (the Tribunal), and the Tribunal’s decision may be brought before the Danish courts.
Definition of dominance
How is dominance defined in the legislation and case law? What elements are taken into account when assessing dominance?
The definition of dominance under Danish law is generally identical to the definition provided under EU competition law. An undertaking is deemed to be dominant when it holds an economic position that enables it to prevent effective competition on a given market and act independently from its competitors, customers and ultimately consumers.
In line with EU practice, an undertaking’s market share can be a significant indicator of dominance under Danish law. However, in general the Danish competition authorities also take into account other factors such as, for example, the market structure, number of market players, potential new entrants on the market, financial strength and market behaviour, existing and potential substitution possibilities in terms of both national and foreign goods and services, entry barriers, opposing buying power, etc.
Purpose of legislation
Is the purpose of the legislation and the underlying dominance standard strictly economic, or does it protect other interests?
The aim of the Danish competition law regime and the underlying dominance standard is strictly an economic one. According to section 1 of the Competition Act, the overriding purpose of the Act is to promote efficient societal use of resources through effective competition, benefitting both undertakings and consumers.
The efficiency objective is fundamental under Danish competition law. The concept of efficiency entails that goods and services are produced and distributed at the lowest costs possible, and that the distributed quantities and combinations of goods and services reflect the preferences of users and consumers in terms of both quality and price.
Sector-specific dominance rules
Are there sector-specific dominance rules, distinct from the generally applicable dominance provisions?
In principle, there are no explicit sector-specific dominance rules. However, certain areas of law contain rules on conduct governing similar objectives as the competition rules on abuse of dominance (eg, the areas of telecommunications, financial services and postal services). For example, according to the Danish Act on Payment Services, providers of electronic payment services may not charge excessive fees and profits. The provision applies to both dominant and non-dominant undertakings.
Exemptions from the dominance rules
To whom do the dominance rules apply? Are any entities exempt?
Section 11 of the Competition Act applies to any form of commercial activity, including the activity of state-owned companies and commercial activity in the public sector. According to the preparatory works to the Competition Act, the concept of commercial activity is subject to a broad interpretation, meaning that the Competition Act covers any financial activity that takes place within a market for goods and services. There is no requirement of financial gains (ie, non-profit undertakings may be considered commercially active undertakings within the meaning of the Competition Act, in the same way as under EU competition law).
According to the Competition Act, the competition rules do not apply if the conduct of an undertaking is a direct or necessary consequence of public regulation. Moreover, the Act does not apply to pay and working conditions.
Transition from non-dominant to dominant
Does the legislation only provide for the behaviour of firms that are already dominant?
Section 11 of the Competition Act solely applies to firms already holding a dominant position on a given market. Thus, section 11 neither applies to conduct by non-dominant undertakings, nor to undertakings attempting to become dominant.
In accordance with EU case law, it is required for establishing dominance under Danish competition law that market power is maintained for a certain period, meaning that temporary or inconsistent market power is usually insufficient to consider an undertaking dominant.
Is collective dominance covered by the legislation? How is it defined in the legislation and case law?
Section 11 explicitly prohibits the abuse of a dominant position by one or more undertakings. Consequently, the prohibition applies to both independently and collectively dominant undertakings.
Collective dominance under Danish law is defined in accordance with EU competition law.
In a decision from 2006, the Competition Council found five taxi companies to be collectively dominant on the market for clearance of taxi vouchers in Copenhagen. Following a long-term cooperation between six taxi companies concerning mutual clearance of each other’s vouchers and cards, five of the companies terminated their agreement with the sixth company. This prevented customers from using this company’s vouchers when using the other five taxi companies, placing the sixth company at a significant competitive disadvantage. The five companies were issued an order to resume the collaboration with the sixth company on objective, reasonable and non-discriminatory terms.
Does the legislation apply to dominant purchasers? Are there any differences compared with the application of the law to dominant suppliers?
Section 11 of the Competition Act does not differentiate between dominant purchasers and dominant suppliers (ie, the prohibition against abuse of a dominant position applies equally to both suppliers and purchasers).
Market definition and share-based dominance thresholds
How are relevant product and geographic markets defined? Are there market-share at which a company will be presumed to be dominant or not dominant?
According to section 5(a) of the Competition Act, the definition of the relevant product market and geographical market shall be based on examinations of demand and supply substitutability, as well as potential competition.
The Danish competition authorities use the same criteria in defining the relevant market as the European Commission, the General Court and the European Court of Justice. In practice, however, the DCCA generally seems to define markets narrowly, leading to more frequent findings of dominance under Danish law than in other jurisdictions.
The Competition Act does not prescribe binding thresholds above which an undertaking will per se be considered dominant. However, the preparatory works to the Competition Act mention some general guidelines concerning thresholds at which an undertaking will be presumed dominant:
- a market share below 25 per cent will rarely lead to the establishment of a dominant position;
- a market share between 25 per cent and 40 per cent will not in itself establish a dominant position - additional criteria must be involved in the assessment;
- a market share above 40 per cent establishes a rebuttable presumption of dominance; or
- a market share above 50 per cent may in itself constitute sufficient evidence of a dominant position.
However, in accordance with EU case law, a market share under 40 per cent is usually insufficient to establish dominance according to Danish case law.
In a decision from 2010, the Tribunal considered a company possessing a market share of above 90 per cent to be in a ‘super-dominant’ position. It appears from the wording of the decision that such a high market share resulted in the application of a strict abuse standard in the case.
In addition to market shares, the competition authorities also take other factors into account in the assessment of dominance; see question 2.
Abuse of dominance
Definition of abuse of dominance
How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?
Section 11(3)(i)-(iv) of the Competition Act lists examples of abusive conduct. The list essentially corresponds to that of article 102 of the TFEU and is not exhaustive.
Section 11(3) of the Competition Act lists the following non-exhaustive examples of abuse:
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading terms and conditions;
- limiting production, sales or technical development to the detriment of consumers;
- applying dissimilar conditions to services of equal value with trading partners, consequently placing them at a competitive disadvantage; and
- conditioning the conclusion of a contract upon the other contracting party’s acceptance of supplementary services, which by their nature or according to customary trade practice have no connection with the services subject to the contract.
The Competition Act does not explicitly define the concept of abuse, and neither the Danish courts nor the Council or the Tribunal have provided an all-encompassing definition of the term. Instead, the preparatory works for the Competition Act refer to EU law as a guiding point in determining whether certain behaviour constitutes ‘abuse’ within the meaning of competition law. Consequently, as under EU law, ‘abuse’ is defined objectively as a concept relating to the behaviour of an undertaking in a dominant position, which, through recourse to methods differing from those that condition normal competition (ie, abnormal business conduct), affects competition negatively.
In general, the Danish competition authorities strive to have an effects-based approach in dominance cases.
As only the actual or potential harm to the structure of a given market is decisive, a dominant undertaking’s subjective intent by certain conduct is principally immaterial in determining an abuse. However, malicious intent may be taken into account by the competition authorities when assessing certain conduct.
Exploitative and exclusionary practices
Does the concept of abuse cover both exploitative and exclusionary practices?
As under EU competition law, Danish law operates with three main categories of abuse: exploitative practices, exclusionary practices and discriminatory practices.
Link between dominance and abuse
What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominated market?
As under EU competition law, there is no requirement for a causal link between holding a dominant position on a market and abuse. The concept of abuse does not only include conduct, which can only be exercised through a dominant position, but also conduct that does not necessarily require any market power (eg, conclusion of exclusive agreements). Conduct by a dominant undertaking may thus be abusive even if the conduct has been instigated upon the initiative of a non-dominant trading partner of the dominant undertaking.
As under EU competition law, Section 11 equally applies to abusive conduct having negative effect on a market adjacent to the market in which the undertaking concerned holds a dominant position.
What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?
The Competition Act does not provide for any express exemptions from the prohibition against abuse of a dominant position. The common conception, however, is that conduct that is wholly insignificant to the competition on a given market should not necessarily be pursued by competition authorities as abusive under section 11, as public resources must be used as effectively as possible.
In line with this, the Danish Supreme Court stated in a judgment from 2011 regarding a public television service provider’s application of retroactive rebates that there needs to be an ‘appreciable effect’ on competition in order for an abuse to exist. However, what is specifically understood by an ‘appreciable effect’ and to what extent market coverage needs to be proven in order for a given behaviour to be considered an abuse, may be interpreted in the light of EU case law, including the European Court of Justice’s judgment from 2015 in C-23/14, Post Danmark II, and judgment from 2018 in C-525/16, MEO.
A dominant undertaking may also plead that its conduct is either a direct or necessary consequence of public regulation, objectively justifiable owing to, for example, health or safety reasons related to the nature of the product, or that the conduct creates efficiency gains that also benefit consumers.
In regard to the latter, it is - in accordance with EU case law - for the dominant undertaking to show that:
- the efficiency gains likely to result from the conduct under consideration counteract any likely negative effects on competition and consumer welfare in the affected markets;
- those gains have been, or are likely to be, brought about as a result of that conduct;
- such conduct is necessary for the achievement of those gains in efficiency; and
- the conduct does not eliminate effective competition, by removing all or most existing sources of actual or potential competition.
Specific forms of abuse
Types of conduct Types of conduct
Rebate schemes may be considered abusive under section 11(3)(i) or (iii) of the Competition Act. Danish competition authorities have so far laid down a strict approach in regard to rebates. However, it is expected that the Danish competition authorities will continuously interpret section 11 in light of EU case law, including the European Court of Justice’s judgment from 2017 in C-413/14 P, Intel Corporation Inc.
Retroactive rebates are largely considered a ‘per se abuse’, regardless of whether the thresholds applied in the rebate scheme are set generally or individually for each customer, and whether the rebate only affects a small percentage of the market. In a case from 2009, the DCCA found that Post Danmark, the Danish national postal service operator, had abused its dominant position on the market for distribution of bulk mail by granting a general (non-individual) retroactive rebate. The rebate scheme was implemented in respect of direct mail in 2003, at a time when there was no competition on the market for distribution of bulk mail and when the monopoly on distribution of letters applied to all letters weighing up to 100 grams. The rebate scale rated from 6 per cent to 16 per cent and all customers were entitled to receive the same rebate based on their aggregate purchases over the reference period of one year. Post Danmark brought the competition authorities’ decision on direct mail before the Danish courts, which in turn referred preliminary questions on the matter to the ECJ (cf case C-23/14). Upon delivery of the Court’s judgment on 6 October 2015, Post Danmark discontinued the Danish court case.
In continuation of the direct mail case, the Council decided in May 2017 on an older case concerning Post Danmark’s rebate scheme on the market for distribution of magazines. This case, concerning retroactive individual fidelity rebates to certain large customers in 2007-2009, had been pending the ECJ’s judgment on the direct mail rebate system. The Council found that the individual rebates in 2007-2009 also constituted an abuse.
In a judgment from March 2011, the Danish Supreme Court found that TV2/Danmark’s retroactive turnover-related rebate violated section 11 of the Competition Act and article 102 of the TFEU. The rebate was calculated based on the customers’ expected annual turnover at TV2, and the rebate scale rated from 4.7 per cent to 19.3 per cent.
In 2018, the Council decided that Teller (now Nets) abused its dominant position from 2012 to 2016 by using conditional rebate schemes and provisions regarding exclusivity to its largest customers. During the relevant period, Teller was the largest acquirer of international payment cards in Denmark and dominant on the Danish market for merchant acquiring services and mobile payment solutions for POS payments. Teller offered its customers the rebate schemes on condition that the customers used Teller solely or to a large extent.
Incremental rebate schemes are also generally considered problematic, unless either the rebates offered are cost-justifiable under a strict standard or the rebate spread does not exceed 6 to 7 per cent and is calculated and paid out on a quarterly basis.
Tying and bundling
Tying and bundling may constitute an abuse of a dominant position under section 11(3)(iv) of the Competition Act.
In a case from 2008, Unimerco offered free maintenance services for power fastening tools (nail guns, nailers and staplers) on the condition that the customers only used original fasteners (nails and staplers). In addition, Unimerco applied security warnings to their products warning customers against using fasteners produced by others that Unimerco and further informed customers that usage of non-original fasteners would make the warranty void. The case was closed with commitments by Unimerco to alter its trading terms and sales materials.
Exclusive dealing, including the conclusion of exclusivity clauses and non-compete clauses, may amount to abuse of a dominant position under section 11 of the Competition Act.
The Council closed a case regarding an exclusivity clause between the Danish news agency Ritzau and the newspaper MetroXpress with a commitment decision in 2010. In the case, the DCCA concluded in its preliminary assessment that Ritzau possessed a dominant position on the Danish market for news services and that the exclusivity could amount to an abuse. Ritzau offered commitments to not bind future owners to purchase general news services from Ritzau, and to shorten the term of the agreement with MetroXpress regarding delivery of Ritzau’s news services.
Predatory pricing throughout a longer period with the purpose of driving out weaker competitors by a dominant undertaking is considered abusive pursuant to section 11(3)(i) of the Competition Act. In order to constitute abuse, the low prices may not be a result of large-scale production efficiencies but must be attributed to significant financial power.
In a decision from 2002, the Council decided that a dominant undertaking is allowed to set lower prices when a competitor sets its prices below the dominant undertaking’s average variable costs with the purpose of meeting competition and maintaining customers. In a decision from 2011 concerning Post Danmark’s rebates for distribution of magazines, however, the Tribunal specified that a very dominant position on a market must result in a particularly narrow application of the ‘meeting the competition defence’. Moreover, in order to successfully plead the ‘meeting the competition defence’ in such a case, the conduct may not have had the purpose of strengthening and abusing the dominant position, must have been justified by efficiency gains, and must be in accordance with general consumer interests.
In a decision from 2004, the Council found that Post Danmark held a dominant position on the market for distribution of unaddressed mail, commercials and local newspapers in Denmark. According to the Council, Post Danmark had not abused its dominant position by, for instance, charging certain customers low prices for mailing services. While the average net prices were not below the average incremental costs (AIC), some of the lowest prices were below the average total costs (and in one situation even slightly below AIC). However, as the estimation of Post Danmark’s costs was very discretionary, and as the Council could not demonstrate any intent to eliminate competitors, the Council rejected the abuse charge.
In 2013, the DCCA informally examined whether a campaign by an electricity supplier, offering one month of free electricity to consumers entering into a six-month electricity supply contract with the dominant firm, was compliant with Danish competition law. The DCCA stated in its advisory opinion that a campaign by a supplier, who has historically had a supply obligation in the area, may potentially affect competition negatively due to the previously established relations with consumers in the area. However, in that particular case the DCCA’s immediate assessment was that the campaign did not amount to abusive pricing.
Price or margin squeezes
Price squeeze (or margin squeeze) may amount to abusive conduct under section 11(3)(i) of the Competition Act.
A vertical margin squeeze may occur when a dominant undertaking on an upstream market is vertically integrated, and charges prices for wholesale inputs to downstream competitors, leaving downstream competitors with an unreasonable profit margin. In effect, downstream competitors are unable to compete effectively in that particular market.
In a case from 2013, the telecom company TDC offered a number of commitments in order to relieve the DCCA’s concerns regarding a possible margin squeeze on the market for retail broadband products. TDC, which held a dominant position on the upstream market for copper infrastructure and had an obligation to deliver wholesale broadband products to its competitors on the retail broadband market, was selling the wholesale products to competitors at a price close to TDC’s own prices on retail broadband products to consumers. This possibly prevented TDC’s competitors from competing effectively on the downstream market for retail broadband. TDC committed to documenting to the DCCA that the wholesale prices did not amount to illegal margin squeeze, that is, by altering and clarifying calculation methods in calculating profitability and securing transparency in the company’s assessment of revenue and costs.
Finally, in a case from 2014 the Danish payment service provider NETS offered a number of commitments in order to relieve the DCCA’s concerns regarding a possible margin squeeze on the market for front-end acquirer processing services.
Refusals to deal and denied access to essential facilities
Refusal to deal and denying access to essential facilities may constitute abuse of a dominant position pursuant to section 11(3)(ii) of the Competition Act.
In a decision from 2013, the Council found that Deutz, a German engine manufacturer, had abused its dominant position by refusing to deliver spare parts to renovate 400 IC3 train engines produced by Deutz, to any spare part distributors outside of Deutz’ own network. Deutz thereby prevented DSB, a public undertaking operating passenger services on the Danish state’s rail network, from ordering spare parts from distributors competing with Deutz. The argument that the refusal to supply was for resale and thus not abusive, was not exculpatory in the assessment. The Tribunal subsequently upheld the decision, and the case is currently pending before the Danish Maritime and Commercial Court.
Predatory product design or a failure to disclose new technology
Predatory product design and failure to disclose new technology are not explicitly prohibited in the Competition Act, and to our knowledge, there are no cases under Danish law having dealt with this specific form of abuse. However, as section 11 is not exhaustive, predatory product design and failure to disclose new technology may be considered abusive insofar as they constitute exploitative, exclusionary or discriminatory conduct and have a negative effect on competition.
According to section 11(3)(iii) of the Competition Act, the application of dissimilar terms to services of the same value, thereby placing certain trading partners at a competitive disadvantage, may constitute abuse of a dominant position in breach of section 11(1) of the Competition Act.
In a case from 2011, the Council concluded that CPH had applied discriminatory access criteria for the use of a new low-cost part of a terminal in Copenhagen Airport, thereby abusing its dominant position on the market for flight terminal services. The Council stated that the access criteria to the low-cost part of the terminal de facto limited the use of that part of the terminal to certain carriers. Carriers who could not satisfy all the conditions had to use the regular - and more expensive - terminal facilities. Accordingly, CPH had applied dissimilar conditions to equivalent transactions with other trading parties in breach of section 11 of the Competition Act and article 102 of the TFEU. The Council issued an order for CPH to revoke the three conditions, which were found to be discriminatory.
In another case, which was closed by an informal guidance letter from the DCCA in 2013, the DCCA stated that KMD’s price discrimination, as a starting point, is good for competition and that all companies, including a dominant company, have a right to grant individual rebates or discounts to its customers. Further, the DCCA stated that unless there are indications that the dominant company’s rebates lead to an elimination of competition, the price discrimination will not be considered to constitute an abuse by itself. The DCCA then noted that, in any event, it is a precondition for abuse to be established that the dominant company’s customers are competitors and thus can be put in a disadvantageous situation on the downstream market as a result of the price discrimination. This guidance letter could be interpreted as a more effects-based approach to the price discrimination subject; see also the European Court of Justice’s judgment from 2018 in C-525/16, MEO.
Exploitative prices or terms of supply
According to section 11(3)(i) of the Competition Act, exploitative pricing and application of exploitative trading terms by a dominant firm may be considered abusive.
When assessing whether pricing by a dominant undertaking is excessive, it is essential to determine whether the undertaking imposes prices onto the market or achieves profits that clearly could not have been achieved on a market with sufficiently effective competition.
In 2007, the Council declared that Elsam A/S (now Ørsted) abused its dominant position on the wholesale market for electricity in Western Denmark in 2005 and 2006 by imposing excessive prices. Elsam appealed the decision, which was upheld by the Danish Maritime and Commercial Court in August 2016. The court stated that there was no reasonable connection between the prices and the costs, and that the prices exceeded those that could have been achieved on a market with effective competition. In May 2018, the High Court of Western Denmark acquitted Elsam of the charges for abuse of a dominant position, as the High Court found that the competition authorities had not proved, with a sufficient degree of certainty, that Elsam’s prices were excessive and that Elsam had abused its dominant position in the relevant period. In October 2018, the Appeals Permission Board denied the Council access to appeal the case to the Supreme Court.
In a case from 2013, the Danish payment service provider NETS was found to have violated section 11 by charging excessive fees from web shops, when consumers paid by credit card. The Council ordered NETS to lower the fees to a reasonable level, and the decision was upheld by the Tribunal. The case is pending before the courts.
In 2018, the Tribunal upheld a decision from the Council in which it ruled that CD Pharma AB (a pharmaceutical distributor) abused its dominant position by charging unfair prices for the drug Syntocinon. The drug Syntocinon contains oxytocin, which is used for pregnant women in connection with childbirth, and CD Pharma had an exclusive distribution agreement on the Danish market with the producer of the drug. The case is of interest because CD Pharma acted on a one-year tender market and the abusive behaviour lasted for less than six months (see also the European Court of Justice’s judgment from 2017 in C-177/16, AKKA/LA). The case is pending before the courts.
Abuse of administrative or government process
Misuse of an administrative or judicial procedure is not explicitly listed as an abuse under section 11 of the Competition Act. However, in a case from 2005, the Council decided that Toyota had abused its dominant position on the market for authorised service of Toyota cars by forcing an authorised Toyota service mechanic to accept a damage claim without the possibility of having the claim assessed by an impartial third party, and by threatening to terminate his contract, should he not accept. The Tribunal stated that enforcement of contractual rights and remedies and instigation of legal proceedings in this regard would not amount to abusive conduct, unless it could be demonstrated that the legal actions were not instigated on a well-founded basis with a justifiable aim, but on questionable grounds and with an objective to restrict competition. On this basis, the Tribunal repealed the Council’s decision.
Mergers and acquisitions as exclusionary practices
Structural abuse in the form of mergers and acquisitions of competing undertakings as exclusionary practices is covered by section 11 of the Competition Act.
Mergers and acquisitions are generally governed by the rules in Chapter 4 of the Competition Act. In approving mergers between and acquisitions of competing undertakings, the competition authorities assess whether the balance of the market will shift in such a way as to create an unwanted dominant position, which may be abused.
The examples of abusive conduct listed in section 11(3) of the Competition Act are not exhaustive. Thus, any exploitative, exclusionary or discriminatory conduct having a negative effect on competition may constitute an abuse of a dominant position within the meaning of the Competition Act.
Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?
The DCCA is, as secretariat for the Council, responsible for the day-to-day case administration of the Competition Act and prepares and presents cases for the Council to decide. The DCCA is entitled to make decisions on behalf of the Council in minor cases and cases based on existing case law, whereas the Council decides all cases of general public and fundamental importance, including cases in which a precedent has not yet been set.
The Council is composed of seven members appointed by the Minister of Business. The Council represents versatile knowledge within competition matters, public and private enterprise, including legal, economic, financial and consumer-oriented affairs.
Decisions rendered by the DCCA and the Council are subject to appeal before the Tribunal, which is the highest administrative body. The Tribunal consists of five members, of which the chairperson is a Supreme Court judge and the four other members generally are legal and economic experts.
Under section 18 of the Competition Act, the DCCA may conduct unannounced inspections at the premises of an undertaking or a public authority - ‘dawn raids’ - in order to gather information about suspected competition violations. The DCCA is authorised to make copies of any information or documents found on the business premises regardless of the information medium (ie, digital and physical documents, computers, phones). Prior to carrying out a dawn raid, the DCCA must obtain a court order, which establishes the boundaries for the scope of the dawn raid and prevents the DCCA from gathering any information outside of the stated scope. As of 1 January 2018, the DCCA is also authorised to render dawn raids to assist the competition authorities in Sweden, Norway, Finland, Iceland, Greenland and the Faroe Islands in connection with the application of national (ie, non-Danish) competition rules by these authorities.
As opposed to the European Commission, the Competition and Consumer Authority is, however, not allowed to conduct dawn raids in private homes.
The Danish State Prosecutor for Serious Economic and International Crime (the police) may conduct inspections in private homes under certain conditions.
Sanctions and remedies
What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?
Pursuant to section 11(4) of the Competition Act, the DCCA may issue a range of orders to terminate an existing infringement of section 11. Examples of such orders follow from the non-exhaustive list in section 16(4), and include, for instance, an order for termination of a contract or amendment of trading terms, granting access to certain infrastructure facilities and pricing below a certain level. Acting upon any concerns the authorities may have in relation to section 11, commitments made by an undertaking can be made binding.
Structural remedies have not been used in cases concerning abuse of a dominant position, and orders issuing structural remedies will most likely fall outside the scope of section 16 of the Competition Act.
According to section 23 of the Competition Act, a person or an undertaking may be fined if, intentionally or by gross negligence, that person or undertaking abuses its dominant position. Abuse of a dominant position is not punishable by imprisonment under Danish legislation.
In meting out a fine, section 23(5) of the Competition Act and the preparatory works to the provision state that consideration must be given to the gravity of the infringement, the duration of the abusive conduct, and the turnover of the undertaking in question. ‘Turnover’ is understood as group turnover and not the turnover solely related to the infringing firm.
In assessing the gravity of the infringement, an abuse will fall within one of three categories with the following basic fine levels:
- minor infringement: up to 4 million kroner;
- serious infringement: between 4 million and 20 million kroner; and
- very grave infringement: more than 20 million kroner.
There is no leniency programme concerning abuse of dominance.
In addition, individual fines may be issued to members of management or other employees in key positions who have either participated in the infringement or have failed to act against anticompetitive conduct of which they had knowledge. An individual fine may span from 50,000 to 200,000 kroner depending on the severity of the infringement. In very grave circumstances, a fine may exceed 200,000 kroner.
In a case from 2006, Arla Foods was issued a fine of 5 million kroner for having paid one of its customers - a supermarket - a ‘marketing contribution’ to a campaign in exchange for the supermarket removing the products of one of Arla Foods’ competitors from its selection. Up to the time of writing, the case is the only instance in which a fine for abuse of dominance has been imposed under Danish law.
Can the competition enforcers impose sanctions directly or must they petition a court or other authority?
The DCCA and Council decide whether there are sufficient grounds to investigate a case and may issue orders to dominant undertakings to end an existing violation of section 11 or to prevent future violation.
The Council decides whether a case should be forwarded to the Danish State Prosecutor for Serious Economic and International Crime in order for a fine to be imposed.
What is the recent enforcement record in your jurisdiction?
The DCCA receives numerous complaints regarding alleged abuse of a dominant position on a yearly basis. Of these complaints, only a limited number of cases are pursued and many cases are closed by commitments by the undertaking. Thus, the Danish competition authorities rule on abuse in no more than one or two cases a year (recently even fewer than that).
The Danish competition authorities generally strive to follow the Guidance Paper on the European Commission’s enforcement priorities in applying article 102 of the TFEU to abusive exclusionary conduct. So far, however, the competition authorities have not based any decisions exclusively on the Guidance Paper and have only referred to it to the extent that is has been found compliant with existing law.
The Post Danmark I case (see also C-209/10) from 2013 and Post Danmark II case (see also C-23/14) have undoubtedly been the most high-profile abuse cases in Denmark in recent years.
It is not possible to give certainty as to the expected duration of a case before the competition authorities. However, as a rough estimate, a case before the DCCA or the Council typically takes between two and three years, whereas a case before the Tribunal may take between six and 12 months.
Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?
The Competition Act does not regulate the (whole or partial) validity of a contract or a certain provision in the contract found to be in breach of section 11 of the Act.
However, a provision expressly breaching the prohibition against abuse of a dominant position will generally not be enforceable under Danish contract law.
To what extent is private enforcement possible? Does the legislation provide a basis for a court or other authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?
The Competition Act allows for private parties to enforce section 11. Nonetheless, private enforcement has not played a significant role in cases concerning abuse of dominance in the past.
Firstly, it is free to file a complaint with the competition authorities, whereas court proceedings are costly. Secondly, competition authorities will have easier access to information from third parties regarding the relevant market, as well as information from the dominant undertaking subject to the complaint. The DCCA and the Council may demand all the information, including accounting records, business documents and electronic data that it deems necessary for deciding whether section 11 applies to certain conduct. Failure of a party to comply with such requirements may lead to a fine.
Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?
The right to damages for loss owing to a violation of Danish or EU competition rules is governed by the Danish Act on Damage Claims for Infringements of Competition Law (implementing EU Directive 2014/104), which entered into force in December 2016.
The Damage Claims Act implements several requirements that EU member states are obliged to fulfil with the aim of ensuring effective exercise of the right to compensation for competition law infringements throughout the EU. According to section 3 of the Act, any natural or legal person who has suffered harm caused by an infringement of Danish or EU competition law has the right to obtain full compensation for that harm in accordance with the Act on Damage Claims for Infringements of Competition Law.
It is expected that the new act will generate more damages claim cases in Denmark.
To what court may authority decisions finding an abuse be appealed?
A decision made by the Council or the DCCA may, as a general rule, be appealed to the Tribunal within four weeks after the party in question has been notified of the decision. The Tribunal’s decision cannot be appealed to another administrative body but may be brought before the courts no later than eight weeks after the party in question has been notified of the decision.
Unilateral conduct by non-dominant firms
Are there any rules applying to the unilateral conduct of non-dominant firms?
There are no specific rules applying to the unilateral conduct of non-dominant undertakings.