Notice is hereby given of the Competition Act, cf. Consolidation Act no. 155 of 1 March 2018 as amended pursuant to Art. 1 of Act no. 207 of 15 February 2001.
Part 1
The purpose of this Act and its area of use
Art. 1.
The purpose of this Act is to promote efficient resource allocation in society through workable competition for the benefit of undertakings and consumers.
Art. 2.
(1) This Act shall apply to any form of commercial activity as well as aid from public funds granted to commercial activity.
(2) The provisions of Parts 2 and 3 of this Act shall not apply where an anti-competitive practice is a direct or necessary consequence of public regulation. An anti-competitive practice established by a local council shall only be considered a direct or necessary consequence of public regulation in so far as the practice is necessary to allow the local council to carry out the tasks assigned to it in accordance with current legislation.
(3) Decisions made by the executive committee of a local authority partnership, cf. Art. 60 of the Local Government Act, shall be considered equivalent to decisions made by a local council as referred to in paragraph (2) above.
(4) A decision about the extent to which an anti-competitive practice will be covered by paragraph (2) above shall be made by the minister responsible for the regulation concerned. If the Competition and Consumer Authority requests the relevant minister to determine whether an anti-competitive practice is covered by paragraph (2), the minister must reach a decision no later than four weeks after having received the request from the Authority. The Competition and Consumer Authority may extend the time limit.
(5) If the Competition and Consumer Authority finds a public regulation or an aid scheme likely to restrain competition or otherwise likely to impede efficient allocation of society’s resources, the Authority may deliver a reasoned opinion to the relevant minister and to the Minister for Industry, Business and Financial Affairs, pointing out its potentially adverse effects on competition, and present recommendations for promoting competition in the area concerned. After negotiating with the Minister for Industry, Business and Financial Affairs, the relevant minister replies to the Competition and Consumer Authority no later than four months after receiving the Authority's statement. The Competition and Consumer Authority may extend the time limit.
(6) When an anti-competitive agreement, a resolution within an association of undertakings, concerted practices between undertakings or abuse of a dominant position may affect trade between the Member States in the European Union, Article 101 or 102 of the TFEU are applied parallel with Art. 6 or Art. 11 or alone. Parts 5-8 may also apply to such agreements etc. or vis-à-vis such conduct.
Art. 3.
This Act shall not apply to pay and working conditions. For the purposes of its on-going work the Competition and Consumer Authority may, however, demand information from organisations and undertakings concerning pay and working conditions.
Art. 4.
(Repealed).
Art. 5.
(1) The provisions of Part 2 of this Act shall not apply to agreements, decisions and concerted practices within the same undertaking or group of undertakings.
(2) The Minister for Industry, Business and Financial Affairs shall lay down specific rules on the application of paragraph (1), after consultation with the Competition and Consumer Authority, including rules on how to define agreements etc. within the same undertaking or group of undertakings.
Art. 5.a.
(1) Afgrænsningen af det relevante marked efter denne lov sker på grundlag af undersøgelser af efterspørgsels- og udbudssubstitution og den potentielle konkurrence. Den potentielle konkurrence skal undersøges, når de involverede virksomheders stilling på det relevante marked er blevet dokumenteret og denne stilling giver anledning til tvivl om, hvorvidt loven er overtrådt.
(2) The Competition and Consumer Authority may draw on external expertise in making its assessment under paragraph (1) above.
Art. 5.b.
For the purposes of this Act, the following definitions shall apply:
(1) National competition authority: An authority which has been appointed by a Member State under Art. 35 of Council Regulation (EC) no. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Art. 81 and 82 of the Treaty to be competent to apply Art. 101 and 102 of the TFEU.
(2) National administrative competition authority: An administrative authority which has been appointed by a Member State to carry out all or some of a national competition authority’s tasks.
(3) National competition law: Provisions in national law which generally pursue the same aims as Articles 101 and 102 of the TFEU and which are applied to the same case and parallel with EU competition law according to Art. 3(1) of Council Regulation (EC) no. 1/2003 of 16 December 2002 on the implementation of the rules on competition in Art. 81 and 82 of the TFEU, and provisions in national law which generally pursue the same aims as Art. 101 and 102 of the TFEU, and which are applied solely, as regards Art. 31(3) and (4) of the Directive of the European Parliament and the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, save provisions in national law that impose criminal sanctions on natural persons.
(4) Court of appeal: A national court, which is empowered according to general remedies to try decisions by a national competition authority or try legal decisions on such decisions, even if that court itself is empowered to establish that competition legislation has been infringed.
(5) Enforcement proceedings: Proceedings before a competition authority for the application of Art. 101 or 102 TFEU, until that competition authority has closed such proceedings by taking a decision referred to in Art. 10, 12 or 13 of this Directive in the case of a national competition authority, or by taking a decision referred to in Art. 7, 9 or 10 of Regulation (EC) No 1/2003 in the case of the Commission, or as long as the competition authority has not concluded that there are no grounds for further action on its part, or proceedings before the Commission until a decision has been taken as referred to in Art. 7, 9 or 10 of Council Regulation (EC) no. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Art. 81 and 82 of the Treaty.
(6) Cartel: An agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices such as, but not limited to, the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights, the allocation of production or sales quotas, the sharing of markets and customers, including bid-rigging, restrictions of imports or exports or anti-competitive actions against other competitors.
(7) Applicant authority: A national competition authority which makes a request for mutual assistance as referred to in Art. 24, 25, 26, 27 or 28 of the Directive of the European Parliament and the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.
(8) Requested authority: A national competition authority which receives a request for mutual assistance and in the case of a request for assistance as referred to in Art. 25, 26, 27 or 28 of the Directive of the European Parliament and the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market means the competent public body which has principal responsibility for the enforcement of such decisions under national laws, regulations or administrative practice.
Part 2
Prohibition against certain anti-competitive agreements
Art. 6.
(1) It shall be prohibited for undertakings etc. to enter into agreements that have restriction of competition as their direct or indirect object or effect.
(2) Agreements covered by paragraph (1) may, in particular, be agreements made to
- fix purchase or selling prices or other trading conditions;
- limit or control production, sales, technical development or investments;
- share markets or sources of supply
- apply dissimilar conditions to equivalent transactions with trading partners, thereby placing them at a competitive disadvantage;
- make the conclusion of contracts subject to acceptance by the other contracting party of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts;
- coordinate the competitive practices of two or more undertakings through the establishment of a joint venture; or
- determine binding resale prices or in other ways seek to induce one or more trading partners not to deviate from recommended resale prices.
(3) Paragraph (1) shall furthermore apply to decisions made by an association of undertakings and to concerted practices between undertakings.
(4) The Competition and Consumer Authority may issue orders to put an end to infringements of paragraph (1), cf. Art. 16. Acting upon any concerns it may have in relation to paragraph (1), the Competition and Consumer Authority may, furthermore, decide that commitments made by an undertaking shall be binding, cf. Art. 16a (1).
(5) Agreements and decisions that are prohibited under paragraphs (1) – (3) shall be void, unless otherwise excepted under Art. 7, exempted under Art. 8 or Art. 10, or comprised by a declaration under Art. 9.
Art. 7.
(1) Without prejudice to paragraphs (2)-(5), the prohibition set out in Art. 6(1) above shall not apply to agreements between undertakings, decisions made by an association of undertakings and concerted practices between undertakings, cf., in case
- the aggregate market share held by the parties to the agreement does not exceed 10 percent on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of those markets (agreements between competitors), or
- the market share held by each of the parties to the agreement does not exceed 15 per cent on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potential competitors on any of those markets (agreements between non-competitors).
(2) In cases where it is difficult to classify the agreement, the decision or the concerted practices as covered by paragraph 1 (i) or (ii), the 10 percent threshold in paragraph 1 (i) is applicable.
(3) The exceptions in paragraph (1) shall not apply, if the object of the agreement, the decision or the concerted practices is to restrict competition.
(4) The prohibition in Art. 6(1) shall, irrespective of paragraph (1) above, apply to an agreement between undertakings, a decision made by an association of undertakings and concerted practices between undertakings if this agreement etc., together with other similar agreements etc., restricts competition.
(5) The exceptions in paragraph (1) shall apply, even if the market shares of the parties to the agreement exceed the thresholds during two successive calendar years.
(6) The Minister of Industry, Business and Financial Affairs shall, after consultation with the Competition and Consumer Authority, lay down rules on the calculation of the turnover or other matters that are relevant for the calculation of the market shares according to this Act, including rules on minor transgressions of the mentioned thresholds.
Art. 8.
(1) The prohibition set out in Art. 6(1) above shall not apply if an agreement between undertakings, a decision made by an association of undertakings or concerted practices between undertakings
- contributes to improving the efficiency of the production or distribution of goods or services, or to promoting technical or economic progress;
- provides consumers with a fair share of the resulting benefits;
- does not impose on the undertakings restrictions that are not necessary to attain these objectives; and
- does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question
(2) The Competition and Consumer Authority may, upon notification, exempt an agreement between undertakings, a decision within an association of undertakings or a concerted practice between undertakings from the prohibition in Art. 6(1) if the Authority finds the conditions set out in paragraph (1) have been complied with. The notification of such an agreement etc., including an application for exemption under paragraph (1), may be submitted to the Competition and Consumer Authority. The Authority shall lay down specific rules on notification, including rules on the use of special notification forms, and on the submission of a non-confidential version of a notification.
(3) Decisions made under paragraph (2) shall specify the period for which the exemption is effective. Exemptions may be granted on specific terms.
(4) The Competition and Consumer Authority may, upon notification, extend an exemption when the Authority finds that the conditions in paragraph (1) are still satisfied. Paragraph (3) shall apply correspondingly.
(5) The Competition and Consumer Authority may refrain from considering a notification under paragraph (2) or (4), if the agreement etc. may appreciably affect trade between the Member States of the European Union.
(6) The Competition and Consumer Authority may alter or revoke a decision made under paragraph (2) or (4) if
- the facts of the situation have changed in any respect that was important for the decision;
- the parties to the agreement etc. fail to comply with the terms imposed; or
- the decision has been based on incorrect or misleading information from the parties to the agreement etc.
Art. 9.
(1) The Competition and Consumer Authority may declare, upon notification from an undertaking or association of undertakings, that according to the facts in its possession, an agreement, decision or concerted practice shall be outside the scope of the prohibition set out in Art. 6(1), and that, accordingly, it has no grounds for issuing an order under Art. 6(4). The Authority shall lay down specific rules on notification, including rules on the use of special notification forms, and on the submission of a non-confidential version of a notification.
(2) The Competition and Consumer Authority may refrain from considering a notification under paragraph (1), if an agreement etc. may appreciably affect trade between the Member States of the European Union.
Art. 10.
(1) The Minister of Industry, Business and Financial Affairs shall, after consultation with the Competition and Consumer Authority, lay down rules on the granting of block exemptions from the prohibition in Art. 6(1) for groups of agreements, decisions and concerted practices that satisfy the conditions in Art. 8(1).
(2) Where agreements, decisions by an association of undertakings or concerted practices that are comprised by a block exemption issued under paragraph (1) above have impact on a concrete case which is incompatible with the conditions in Art. 8(1), the Competition and Consumer Authority may revoke such a block exemption for the undertakings etc. that have entered into the agreement etc.
Part 2.a.
Trading terms of dominant undertakings
Art. 10.a.
(1) The Competition and Consumer Authority may order a dominant undertaking to submit its general trading terms if
- a competitor has filed a not unfounded complaint;
- special conditions prevail on the market and
- the Competition and Consumer Authority, due to these conditions, sees a special need to acquire insight into the ways in which the dominant undertaking fixes its prices, discounts, etc.
The order may exclusively comprise the trading terms for the markets with which the complaint is concerned.
(2) Orders issued under paragraph (1) shall apply for two years from the date when the decision is final.
(3) “Trading terms” shall mean the basis applied at any time by an undertaking to generally fix its prices, discounts, marketing contributions and free services, and the terms and conditions on which the undertaking will grant these financial benefits to its trading partners.
(4) Undertakings that have submitted their trading terms under paragraph (1) above may ask the Competition and Consumer Authority for an assessment of these terms. The Competition and Consumer Authority shall make its decision within six months. This time limit will run from the date when the Competition and Consumer Authority receives from the undertaking the information that is necessary to make an assessment of its trading terms. If no decision has been made by the Competition and Consumer Authority within this time limit, the trading terms shall be considered as approved.
(5) The Competition and Consumer Authority may refrain from making a decision in case such a decision may have implications on whether one or more undertakings abuse a dominant position in the common market or an essential part thereof, and trade between the Member States of the European Union may be appreciably affected thereby.
(6) If the trading terms are contrary to Art. 11(1) or administered in contravention of Art. 11(1), the Competition and Consumer Authority may order revocation or alteration of one or more provisions in the trading terms. If the trading terms are prepared in such a manner that the Competition and Consumer Authority will have an inadequate basis for assessing whether they are contrary to Art. 11(1), the Competition and Consumer Authority may order that one or more of the terms must be further specified.
(7) If a dominant undertaking against which an order under paragraph (1) has been issued deals with trading partners on the Danish market using prices, discounts, financial benefits or other terms that are not shown in or deviate to a not insignificant extent from the trading terms submitted to the Competition and Consumer Authority, this will be taken into account in connection with the general presentation of evidence in proceedings under Art. 11.
(8) The provision in paragraph (7) shall also apply if a dominant undertaking breaches an order issued under paragraph (6). This shall not apply, however, when under Art. 19(4) a delaying effect has been granted pending the outcome of an appeal against the order.
Part 3
Abuse of a dominant position
Art. 11.
(1) Any abuse by one or more undertakings etc. of a dominant position is prohibited.
(2) The Competition and Consumer Authority must declare, upon request, whether one or more undertakings hold a dominant position, cf., paragraph (7). If the Competition and Consumer Authority declares that an undertaking does not hold a dominant position, this declaration shall be binding until revoked by the Competition and Consumer Authority.
(3) Abuse as set out in paragraph (1) may, for example, consist of
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- limiting production, sales or technical development to the prejudice of consumers;
- applying dissimilar conditions to equivalent transactions with trading partners, thereby placing them at a competitive disadvantage, or
- making the conclusion of contracts subject to acceptance by the other contracting party of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(4) The Competition and Consumer Authority may issue orders to put an end to infringements of paragraph (1), cf. Art. 16. Acting upon any concerns it may have in relation to paragraph (1), the Competition and Consumer Authority may, furthermore, decide that commitments made by an undertaking shall be binding, cf. Art. 16a (1).
(5) The Competition and Consumer Authority may declare, upon notification from one or more undertakings, that based on the facts in its possession, a certain form of conduct shall not fall under the prohibition in paragraph (1) and that, accordingly, it has no grounds for issuing an order under paragraph (4).
(6) The Competition and Consumer Authority may lay down specific rules on the material that has to be submitted for a decision under paragraph (2) or (5), including the submission of a non-confidential version of a request or a notification.
(7) The Competition and Consumer Authority may refrain from making a decision under paragraph (2) or (5), in case such a decision may have implications for whether one or more undertakings abuse a dominant position in the common market or an essential part thereof, and trade between the Member States of the European Union may be appreciably affected thereby.
Part 3.a.
Aid that distorts competition
Art. 11.a.
(1) The Competition and Consumer Authority may issue orders for the termination or repayment of aid granted from public funds to support certain forms of commercial activity.
(2) An order under paragraph (1) may be issued in case
- the direct or indirect object or effect of the aid is distortion of competition; and
- the aid is not lawful according to public regulation.
(3) The decision of whether granted aid is lawful according to public regulation shall be made by the relevant minister or the relevant municipal supervisory authority unless otherwise provided by other legislation. Decisions as to the lawfulness of granted aid according to public regulation shall be made no later than four weeks after receipt of a request from the Competition and Consumer Authority. The Authority may extend the time limit.
(4) An order for repayment of aid under paragraph (1) may be issued to private undertakings, self-governing institutions and corporate undertakings owned fully or partly by public authorities. The Minister for Industry, Business and Financial Affairs may lay down specific rules to the effect that orders for repayment of aid under paragraph (1) may also be issued to certain quasi-corporate undertakings owned fully or partly by public authorities.
(5) The Competition and Consumer Authority’s powers to order repayment of public aid under paragraph (1) above shall be barred by limitation five years after the aid was paid out. The Competition and Consumer Authority shall determine the interest to be paid in connection with orders for repayment of unlawful aid according to paragraph (1) above. Interest shall be paid at the interest rate fixed at any time under the European Union’s state aid rules to be applied in the repayment of state aid. The Competition and Consumer Authority may stipulate that compound interest shall accrue from the date when unlawful aid was first made available to the recipient and until the date when the aid has been repaid. The sum of interest which has accrued the preceding year shall accrue interest each subsequent year.
(6) The Competition and Consumer Authority may, upon notification, declare that, based on the conditions known to it, certain grants of public aid are not covered by paragraph (2)(i) and that, accordingly, the Authority has no grounds for issuing an order under paragraph (1). The Authority may lay down specific rules on notification, including rules on the use of special notification forms.
(7) The Competition and Consumer Authority may refrain from dealing with a case under paragraphs (1)-(6) if the aid scheme may affect trade between the Member States of the European Union.
(8) An order that aid shall be terminated, cf. paragraph (1), may be issued regardless of when the decision granting the aid was made.
(9) Aid which, pursuant to paragraph (1), is ordered to be repaid shall be paid to the state treasury.
Art. 11.b.
(1) The Competition and Consumer Authority may investigate the extent to which a public authority offers private providers of services covered by the Free Choice programme a settlement price fixed in accordance with the rules established in other legislation on the Free Choice programme, cf. paragraph (5).
(2) If the settlement price referred to in paragraph (1) is lower or estimated to be lower than the price which the public authority should have used according to the relevant provisions on Free Choice, the Competition and Consumer Authority may issue an order addressed to the public authority to the effect that the public authority shall
- stop calculating and stipulating settlement prices that are contrary to the Free Choice rules,
- use specified bases of calculation, calculation methods or settlement prices in respect of private providers of Free Choice services and
- ensure post-payment of an amount to private suppliers of Free Choice services corresponding to the difference between the settlement price that the authority has used and the settlement price that the authority should have used in accordance with paragraph (i).
(3) Unless otherwise specified in the provisions on the Free Choice programme in question, the order to ensure post-payment may not relate to payments that were made more than one year prior to the date on which the Competition and Consumer Authority launched an investigation into the conditions of the public authority in question.
(4) The Competition and Consumer Authority may refrain from dealing with a case under paragraphs (1)-(3) if the scheme may affect trade between the Member States of the European Union.
(5) The Minister of Industry, Business and Financial Affairs shall, after negotiation with the relevant minister, lay down rules to specify the Free Choice programmes that fall within the Competition and Consumer Authority’s field of competence.
Art. 11. c.
The Minister for Industry, Business and Financial Affairs may lay down rules on the implementation of the Commission Directive on the transparency of financial relations between Member States and public undertakings and on financial transparency within certain undertakings.
Part 4
Merger control
Art. 12.
(1) The provisions of Part 4 of the Act shall apply to mergers where
- the aggregate annual turnover in Denmark of all undertakings involved is at least DKK 900 million and the aggregate annual turnover in Denmark of each of at least two of the undertakings concerned is at least DKK 100 million;
- the aggregate annual turnover in Denmark of at least one of the undertakings involved is at least DKK 3.8 billion and the aggregate annual worldwide turnover of at least one of the other undertakings concerned is at least DKK 3.8 billion; or
- the Business Authority has referred a merger between two or more commercial providers of electronic communications networks in Denmark to the Competition and Consumer Authority, in accordance with the Act on electronic communications networks and services.
(2) Where a merger is a result of the acquisition of parts of one or more undertakings, the calculation of the turnover referred to in paragraph (1) shall only comprise the share of the turnover of the seller or sellers that relates to the assets acquired.
(3) However, two or more acquisitions as referred to in paragraph (2), which take place within a two-year period between the same persons or undertakings, shall be treated as one and the same merger arising on the date of the last transaction.
(4) The Minister of Industry, Business and Financial Affairs shall, after consultation with the Competition and Consumer Authority, lay down specific rules on the calculation of the turnover under paragraph (1), including rules prescribing that the mentioned turnover thresholds shall be calculated on the basis of other assets in the case of financial institutions.
(5) Even if the aggregate turnover of the undertakings involved is lower than the thresholds referred to in paragraph (1) above, the provisions of this Part of the Act shall apply to a merger which the European Commission refers to Denmark according to the EU Merger Regulation.
Art. 12.a.
(1) For the purpose of this Act, a merger shall mean:
- two or more previously independent undertakings amalgamating into one undertaking; or
- one or more persons who already control at least one undertaking, or one or more undertakings - by an agreement to purchase shares or assets or by any other means - acquiring direct or indirect control of the entirety of or parts of one or more other undertakings
(2) The establishment of a joint venture that will perform on a permanent basis all the functions of an independent business entity shall constitute a merger within the meaning of paragraph (1)(ii).
(3) For the purpose of this Act, control of an undertaking is obtained through rights or agreements or in other ways which will, either separately or in combination, make it possible to exert decisive influence on the operations of the undertaking.
(4) A merger shall not be deemed to arise under paragraph (1) in the following cases:
- Where credit institutions, other financial undertakings or insurance companies whose normal activity includes transactions and dealing in securities for their own account or for the account of others are temporarily in possession of interests which they have acquired in an undertaking with a view to reselling these, provided always that they do not exercise the voting rights attached to these interests for the purpose of determining the competitive conduct of that undertaking or exercise these voting rights exclusively with the aim of preparing the disposal of all or part of that undertaking or its assets or shares held and that the disposal takes place within one year of the date of acquisition;
- Where control is acquired by a professional who has powers under current insolvency legislation to deal with and dispose of the undertaking; or
- Where the transactions referred to in paragraph (1)(ii), above are carried out by holding companies as defined in the Annual Accounts Directive, subject to the restriction, however, that the voting rights attached to the shares in their possession, especially in relation to the appointment of members of the management and supervisory bodies of the undertakings in which the shares are held, are only exercised to retain the full value of these investments and not to determine directly or indirectly the competitive conduct of these undertakings.
(5) The Competition and Consumer Authority may, upon request, extend the time limit set out in paragraph (4)(i), where the credit institute or financial undertaking, or insurance company is able to substantiate that the disposal was not reasonably possible within the period required.
Art. 12.b.
(1) A merger covered by this Act shall be notified to the Competition and Consumer Authority after a merger agreement has been concluded, a takeover bid has been published or a controlling interest has been acquired and before the merger is carried out.
(2) The Competition and Consumer Authority may publish a notice to announce that it has received notification of a merger. The notice published shall include the names of the parties to the merger, the nature of the merger and the economic sectors involved.
(3) The Minister of Industry, Business and Financial Affairs shall, after consultation with the Competition and Consumer Authority, lay down rules on the notification of mergers, including rules on the use of special notification forms, and on the submission of a nonconfidential version of a merger notification.
Art. 12.c.
(1) The Competition and Consumer Authority shall decide whether to approve or prohibit a merger.
(2) A merger that will not significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be approved. A merger that will significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be prohibited.
(3) To the extent that the formation of a joint venture that will constitute a merger under Art. 12a (2) above also has as its object or effect the coordination of the competitive conduct of undertakings that remain independent, such coordination shall be assessed in accordance with the criteria laid down in Art. 6(1) and 8(1) of this Act or Art. 101(1) and (3) TFEU in order to establish whether the transaction shall be approved.
(4) When making the assessment under paragraph (3), the Competition and Consumer Authority shall, in particular, take into account:
- whether two or more founding undertakings have retained significant activities in the same market as the established joint venture or in a market which is downstream or upstream from that of the joint venture or in a related market closely associated with this market; and
- whether the coordination that is the direct consequence of the establishment of the joint venture in question provides a possibility for the undertakings involved to eliminate competition in respect of a substantial part of the products or services in question.
(5) A merger that is subject to the provisions of this Act shall not be carried through until it has been notified to and approved by the Competition and Consumer Authority under paragraph (1) above. This shall not prevent the implementation of a public takeover bid or a series of transactions in securities, including securities that can be converted to other securities that can be traded in a market such as a stock exchange, whereby control is acquired from different sellers, cf. Art. 12a, provided that the merger is notified immediately to the Competition and Consumer Authority and the acquirer does not exercise the voting rights attached to the securities in question or only does so to maintain the full value of his investment and on the basis of an exemption granted by the Competition and Consumer Authority according to paragraph (6) below.
(6) The Competition and Consumer Authority may grant an exemption from the provision set out in paragraph (5) and in that connection make it subject to certain conditions or it may issue an order for the purpose of ensuring effective competition.
(7) The Competition and Consumer Authority may grant approval of a merger, based on a simplified procedure, if the Authority, based on the information submitted, finds that the merger will not give rise to any objections on the part of the Authority.
Art. 12.d.
(1) It shall be decided, no later than 25 working days after a complete notification has been received, subject to Art. 12h(5), third sentence, whether a merger shall be approved, and whether the merger may be approved on the basis of a simplified procedure. The time limit referred to in the first sentence may be extended by up to 35 working days in case one or more of the undertakings involved offer commitments, including revised commitments. It shall be decided whether a further investigation of the merger shall be initiated within the time limit referred to in the first or second sentence.
(2) If the Competition and Consumer Authority initiates a further investigation of a merger, cf. paragraph (1), third sentence, then it shall be decided within 90 working days after the decision to initiate a further investigation whether to approve or prohibit the merger.
(3) The time limit referred to in paragraph (2) above shall be extended by 20 working days in case one or more of the undertakings involved offer commitments, including revised commitments, and 70 working days or more have elapsed from the decision according to paragraph (1), third sentence, to initiate a further investigation of the merger.
(4) The time limit set out in paragraph (2) above may furthermore be extended upon a decision of the Competition and Consumer Authority provided that the undertaking or undertakings that has or have filed the notification has or have requested or consented to the extension. An extension may not exceed 20 working days.
(5) Without prejudice to paragraph (9), the Competition and Consumer Authority must receive commitments not more than 90 working days from the date on which the decision according to paragraph (1), third sentence, to initiate a further investigation of the merger was taken. The Competition and Consumer Authority may in exceptional cases assess amendments to commitments that are received after the expiry of the 90 working days.
(6) Without prejudice to paragraphs (7)-(9), if no decision has been made within the time limits provided by paragraphs (1)-(4) above, this shall be considered to be a decision to approve the merger.
(7) If an undertaking involved lodges an appeal with the Danish Competition Appeals Tribunal against the procedure in a merger in which a decision under Art. 12c (1) or (3) has not yet been made, the time limits in paragraph (1)-(4) shall not take effect until the Competition Appeals Tribunal has made a decision regarding the appeal.
(8) If an undertaking lodges an appeal with the Danish Competition Appeals Tribunal against the requirement for submission of a full notification, cf. Art. 12h(4), the time limits in paragraphs (1)-(4) shall not take effect until the Competition Appeals Tribunal has made a decision regarding the appeal.
(9) The time limits set by paragraphs (1)-(5) shall exceptionally be suspended where, owing to circumstances for which one of the undertakings involved in the concentration is responsible, the Competition and Consumer Authority has had to request information by a decision pursuant to Art. 17, and the requested information is not received within the time-limit laid down by the Competition and Consumer Authority. The time limits are discontinued until the Authority has received the requested information. If an undertaking lodges an appeal before the courts against the request for information, the time limits in paragraphs (1)-(5) shall not take effect until a final judgment has been handed down.
Art. 12.e.
(1) The Competition and Consumer Authority may attach conditions to its approval of a merger under Art. 12c(2) or issue orders to ensure, for example, that the undertakings involved comply with the commitments they have accepted vis-à-vis the Competition and Consumer Authority to eliminate any anti-competitive effects of the merger.
(2) Such conditions or orders may require that the undertakings involved must
- dispose of an undertaking, parts of an undertaking, assets or other proprietary interests;
- grant third party access; or
- take other measures capable of promoting effective competition.
(3) The Competition and Consumer Authority may, after its approval of a merger, issue the orders that are necessary to ensure due and correct fulfilment of the commitments made to the Authority by the undertakings involved according to paragraph (1) above.
Art. 12.f.
(1) The Competition and Consumer Authority may revoke its approval of a merger, when
- its approval is based to a substantial extent on incorrect or misleading information, for which one or more of the undertakings concerned are responsible; or
- the undertakings concerned fail to comply with conditions or orders imposed under Art. 12e (1).
(2) In case the Competition and Consumer Authority is made aware of the fact that an undertaking concerned, as part of the assessment of a merger notified according to the simplified procedure, has submitted incorrect or misleading information, the Authority may revoke its approval under Art. 12c (7) and demand that within two weeks the undertakings concerned submit a full notification, cf. paragraph (3), however. The Competition and Consumer Authority’s assessment is subject to the time limits set out in Art. 12d.
(3) However, a full notification shall not be submitted, if, at the time when the Competition and Consumer Authority revokes its approval, the undertakings involved have not taken any initiatives to implement the merger or if they have taken initiatives to implement the merger, but inform the Competition and Consumer Authority within two weeks that the merger will not be implemented.
Art. 12.g.
The Competition and Consumer Authority may, when making a decision under Art. 12c(1) to prohibit a merger that has already been carried through, issue an order that requires separation of the undertakings or assets that have been taken over or merged or cessation of joint control or any other measure capable of restoring effective competition.
Art. 12.h.
(1) A merger may be notified by means of either a simplified or a full notification.
(2) A fee of DKK 50,000 is payable for a simplified notification.
(3) A fee of 0.015 per cent of the aggregate annual turnover in Denmark of the undertakings involved, but not exceeding DKK 1,500,000, is payable for a full notification.
(4) If during the assessment of a simplified notification it appears that a full notification is necessary for the purpose of assessment, such full notification together with evidence of payment of a fee calculated in accordance with paragraph (3) less an already paid fee according to paragraph (2) shall be submitted to the Competition and Consumer Authority.
(5) The fees according to paragraphs (2)-(4) shall be paid to the Competition and Consumer Authority at the time of the notification. Documentation of the payment shall be enclosed with the notification. The time limit in Art. 12d (1) shall run from the day on which the Authority has received a full notification together with documentation of the payment of the fee.
(6) If the fee according to paragraph (2) or (3) is not paid on demand, a notification of a merger shall be deemed not to have taken place. The notification of a merger shall be deemed to be repealed if, cf. paragraph (4), the fee is not paid on demand or a full notification is not submitted despite a reminder.
(7) An already paid fee according to paragraphs (2)-(4) shall not be refunded unless
- there was no duty to notify the transaction;
- the notification is withdrawn before the notification is complete;
- the notification is withdrawn before a decision according to Art. 12c (1) or (7) has been made and the withdrawal is the result of another Danish authority’s refusal of permission for the undertakings involved to merge; or
- the Business Authority was unfounded in referring the merger to the Competition and Consumer Authority, cf. Art. 12(1)(iii).
Part 5
Acces to documents
Art. 13.
(1) The Act on Public Access to Documents in Public Files shall not apply to cases and investigations under this Act other than cases concerning the definition of rules under Art. 5(2), Art. 7 (6), Art. 8(2), third sentence, Art. 9(1), second sentence, Art. 10(1), Art. 11(6), Art. 11a(4), second sentence, and (6), second sentence, Art. 11c, Art. 12(4), Art. 12b(3), Art. 14(6), Art. 15b (1)-(2) and (4), first sentence, Art. 18(8), second sentence, Art. 18a(2) and Art. 21(3). However, undertakings have a right of access to files in respect of information concerning themselves in cases where a decision has been or will be adopted, cf. Art. 8 of Access to Public Administration Files Act, with the exception, however, of information in respect of another undertaking’s technical matters, production methods, operating and business secrets or other confidential information. Furthermore, Art. 13 and 15 of the Access to Public Administration Files Act shall apply to such cases. If information collected in accordance with this Act is passed on to another administrative authority, the first and second sentence shall also apply.
(2) The Competition and Consumer Authority shall publish:
- Decisions made by the said authority according to Art. 2(4), first sentence, and Art. 11a(3), first sentence, as well as the Competition and Consumer Authority’s reasoned opinions and the relevant minister’s responses according to Art. 2(5),
- The Competition Council’s decisions made under this Act
- The Competition and Consumer Authority’s decisions made under this Act or a summary of such decisions, unless the decision is neither found to be of importance for the understanding of the Competition Act nor otherwise found to be of public interest,
- Judgments, settlements of fines or a summary thereof, where, subject to Art. 23, a fine or a prison sentence is imposed on or accepted by an undertaking,
- Orders made by the Competition Appeals Tribunal,
- Judgments passed in lawsuits, to which the Competition and Consumer Authority, the Competition Council or the Competition Appeals Tribunal is a party,
- Judgments which the Authority has obtained from the courts or of which it has requested copies according to Art. 20(4) where such judgments concern the application of this Act or Art. 101 and 102 TFEU.
(3) The Competition and Consumer Authority may also publish information concerning the Authority’s activities in the area of competition.
(4) Publication of information according to paragraphs (2) and (3) shall not include information on technical matters, including information on research, production methods, products and operating and business secrets, where such information is of substantial financial importance to the person or undertaking concerned. Nor shall customer-related information from undertakings, which fall under the jurisdiction of the Financial Supervisory Authority, be disclosed.
(5) Any party who is required to submit information to the Competition Council may file an application to the President of the Council requesting that information that may not be disclosed or made available to the public pursuant to paragraph (4) may not be disclosed to the members of the Council either. The President shall make the final decision as to the extent to and the form in which the information should be disclosed.
Art. 13.a.
In cases and investigations under this Act, Art. 13-15 concerning information and access to personal data in the General Data Protection Regulation shall not apply.
Part 6
The Competition and Consumer Authority. Organisation and powers
Art. 14.
(1) The Minister of Industry, Business and Financial Affairs appoints the Competition Council and the Director General of the Competition and Consumer Authority. The Director General is appointed after consultation of the Council.
(2) The Competition Council has 7 members and is composed of
- 4 members with insight into competition matters or other appropriate academic background,
- 2 members with experience from business management, and
- 1 member with specialised knowledge of consumer affairs.
(3) The Minister of Industry, Business and Financial Affairs appoints the members of the Competition Council for a term of up to 4 years. The members are eligible for reappointment. The Minister for Industry, Business and Financial Affairs appoints 1 President and 1 Vice-President among the members appointed in accordance with paragraph (2)(i) above.
(4) The Minister of Industry, Business and Financial Affairs appoints up to 4 permanent alternates for the members of the Competition Council for a term of up to 4 years. The deputies are eligible for reappointment.
(5) The members of the Competition Council and their alternates are appointed on the basis of their personal and professional qualifications without being under instruction from any authorities, organisations etc.
(6) The Minister of Industry, Business and Financial Affairs sets up a Consultative Group composed of up to 10 members who as a group possess broad knowledge of private and public undertakings as well as legal, economic, financial and consumer affairs. The Minister for Industry, Business and Financial Affairs appoints the members of the Group for a period of up to 4 years on proposal from socio-professional organisations. The members are eligible for reappointment.
(7) The Competition Council lays down its own rules of procedure, subject to approval by the Minister of Industry, Business and Financial Affairs.
Art. 14.a.
(1) Members of the Competition Council, their alternates and the executive officer and employees of the Competition and Consumer Authority enforce Art. 101 and 102 of the TFEU, this Act and rules issued hereunder and perform their duties under this regulation independently from political and other external influence and without receiving instructions from the government or any public or private entity.
(2) The persons mentioned in paragraph (1) may only engage in other employment to the extent that it is compatible with the performance of their duties or position and shall refrain in subsequent employment, paid or unpaid, from dealing with pending cases where a notice of concern has been issued, cf. Art. 15 a(3), cases regarding mergers, see Part 4, cases concerning leniency cf. Art. 23 d-23 i, appeal and legal proceedings regarding decisions under the Act and cases concerning insight into all such cases as they have dealt with during their operation in the Competition Council or employment in the Competition and Consumer Authority.
Art. 14.b.
At the end of the financial year, the Competition and Consumer Authority will prepare a report to The Minister of Industry, Business and Financial Affairs about the activities the past year, including appointment and resignation of members of the Competition Council and the Authority’s executive officer, the scope of allotted resources and changes to those resources compared to previous years. The report shall be made public.
Art. 15.
(1) The Competition and Consumer Authority takes decisions according to this Act and rules adopted pursuant thereto with the exception of rules adopted pursuant to Art. 11c. The Competition and Consumer Authority may take up cases on its own initiative, upon notification, on the basis of a complaint or as a result of a referral from the EU-Commission or other competition authorities in the European Union. The Authority decides if a case provides sufficient grounds to initiate an investigation or to take a decision, in particular whether the case processing should be temporarily halted or definitively stopped. The Council may also decide not to process a case where businesses have already given commitments under Art. 16a (1).
(2) The Competition and Consumer Authority produces competition analyses on its own initiative or upon request from the Minister of Industry, Business and Financial Affairs.
(3) The Competition Council has the overall responsibility for the Authority's administration of the Act and rules adopted pursuant thereto. In addition, the Council renders decisions in cases of principle or of particular importance. The Council will finally approve analyses on competition matters which have either been initiated at the initiative of the Authority or at the initiative of The Minister of Industry, Business and Financial Affairs in the cases where the minister has decided at the same time that the Council shall approve the analysis.
(4) The Competition Council may delegate its power to take decisions under paragraph 3, second sentence, to the Competition and Consumer Authority.
(5) The Competition and Consumer Authority and the Competition Council will deal with enforcement proceedings within reasonable time.
(6) The Consultative Group advises the Competition Council on the need for guidelines and analyses as well possible actions to prevent infringements of this Act and may direct the Council's attention to particular competition concerns in a market.
Art. 15.a.
(1) Under the Public Administration Act, the right to access to information for the parties to a case concerning the application of Art. 101 and 102 TFEU or the EU Merger Regulation shall only comprise the part of the correspondence and exchange of documents between the European Commission and the competition authorities of the Member States, or between the competition authorities of the Member States, which contains information about factual circumstances of a case that are of substantial importance for its decision.
(2) The right to party access to documents under the Public Administration Act and the right to own access, cf. Art. 13(1), second sentence, to information from an application for leniency in respect of a fine or an application for leniency in respect of a sanction may be limited to the extent that the interest in being able to use the information is not estimated to be justified by the party’s right to a defence.
(3) In cases in which an order is issued, or in which a commitment is made binding, the Competition and Consumer Authority shall issue a preliminary statement of objections and a statement of objections. The time limit for the issuing of a statement by the parties regarding a preliminary statement of objections is two weeks. If an order is issued in accordance with Art. 6(4), Art. 10a (1) and (6), Art. 11(4), Art. 11a(1) or Art. 11b(2), the time limit for the parties to issue a statement of objections is six weeks. In the cases mentioned in the third sentence above, in which a party shall be heard further as required under the Public Administration Act, the time limit for issuing a statement shall be three weeks, unless the case has already been before the Competition Council. The first through fourth sentences shall not apply to cases in which a decision is made under the provisions of Part 4 of this Act.
Art. 15.b.
(1) The Minister of Industry, Business and Financial Affairs may lay down specific rules to the effect that written communication to and from the authorities regarding matters that are covered by this Act or by rules issued pursuant to this Act shall take place digitally
(2) The Minister of Industry, Business and Financial Affairs may lay down specific rules on digital communication, including the use of specific IT systems, special digital formats and digital signatures etc.
(3) A digital message must be regarded as having arrived when it is available to the receiver of the message.
(4) The Minister of Industry, Business and Financial Affairs may lay down rules to the effect that the authorities may issue decisions and other documents in accordance with this Act or rules issued pursuant to this Act without signatures, with mechanically or similarly reproduced signatures, or using a technique that ensures the unambiguous identification of the person who has issued the decision or document. Such decisions and documents shall be equivalent to decisions and documents with personal signatures.
Art. 15.c.
The Competition and Consumer Authority may process cases and make decisions in English if so requested by the parties to whom a decision is addressed and the regard for the parties to the case does not decisively make the use of English inadvisable. If the Competition and Consumer Authority has made a decision in English, a Danish summary of the decision shall be available.
Art. 15.d.
(1) The Competition and Consumer Authority may carry out investigations of a specific business sector or certain types of agreements in different sectors (sector inquiries) in order to gain an insight into the competition situation in the sector or sectors concerned.
(2) The provisions of Art. 17 and 18 of this Act shall similarly be applicable to the Competition and Consumer Authority’s investigations under paragraph (1) above.
(3) The Competition and Consumer Authority may, subject to the limitations in Art. 13(4), publish the results of investigations carried out according to paragraph (1) above.
Art. 15.e.
The Competition and Consumer Authority may publish documents that are part of the case processing and for which a third party's comments are required. Art. 13(4) shall also apply on publication.
Art. 16.
(1) The orders which the Competition and Consumer Authority may issue under Art. 6(4), first sentence, or Art. 11(4), first sentence, or with reference to Art. 101 or 102 TFEU with a view to put an end to infringements may include an obligation:
- to terminate agreements, decisions, trading conditions etc. in full or in part;
- not to exceed stated prices or profits, or to calculate prices or profits according to specified calculation rules;
- for one or more of the undertakings concerned to sell to specified buyers on the conditions usually applied by the undertaking in comparable sales. The undertaking is, however, always entitled to demand cash payment or adequate security;
- to grant access to an infrastructure facility which is necessary for the marketing of a product or service.
- functional separation of activities or employees in an undertaking.
- sale of an undertaking’s assets or ownership interests.
- sale of an undertaking or parts thereof.
(2) An enforcement notice under paragraph 1 must be reasonably proportionate to the infringement and necessary for effectively bringing the infringement to an end. When choosing between two equally effective enforcement notices, the Competition and Consumer Authority must choose the least intrusive for an undertaking in accordance with the principle of proportionality.
(3) The Competition and Consumer Authority may issue orders that are required to ensure the timely and correct execution of the orders that the Authority has issued under paragraph (1).
(4) The Competition and Consumer Authority may establish that there has been a previous infringement of this Act or of Art. 101 or 102 of the TFEU.
Art. 16.a.
(1) In enforcement proceedings initiated with a view to making a decision to remedy an infringement of Art. 6 or 11 or Art. 101 or 102 of the TEUF, the Competition and Consumer Authority can make, after consulting relevant market participants, a commitment made by an undertaking or an association of undertakings binding if the commitments satisfy the Authority’s concerns. The decision can apply to a specific period and must determine that there is no longer any basis for the Competition and Consumer Authority to intervene.
(2) The Competition and Consumer Authority monitors the carrying through of commitments which have been made binding according to paragraph 1.
(3) The Competition and Consumer Authority may issue orders necessary to ensure timely and correct fulfilment of the binding commitments, cf. paragraph (1) above.
(4) The Competition and Consumer Authority may revoke a decision under paragraph (1) if
- the facts of the situation have changed in any respect that was important for the decision;
- the conduct of the parties to an agreement etc. is contrary to the commitments made; or
- the decision has been based on incorrect or misleading information from the parties to the agreement etc.
Art. 16.b.
In matters of urgency where it is estimated that there is a risk of serious damage to competition and where it is estimated that Art. 6 or 11 or Art. 101 or 102 of the TFEU has been infringed, the Competition and Consumer Authority may decide to impose an interim enforcement notice on an undertaking or an association of undertakings. The decision must be proportionate to the infringement and must be effective either in a specific period that may be extended to the extent necessary and appropriate, or until the Competition and Consumer Authority has decided whether there is an infringement, or any commitments given have been made binding, see Art. 16 a (1).
Art. 17.
The Competition and Consumer Authority may demand all information, including financial statements, accounting records, transcripts of books, other business papers and electronically stored data to which the party in question has access, and which are assessed to be necessary for the performance of the tasks imposed on the Competition and Consumer Authority under this Act or to decide whether a matter is covered by the provisions of the Act or by Art. 101 or 102 of the TFEU. The Competition and Consumer Authority will fix a reasonable deadline within which the Authority must receive the required information. The Competition and Consumer Authority’s demands for information must be proportionate to the object and may not result in the recipient of the demand for information being forced to admit an infringement of this Act or of Art. 101 or 102 of the TFEU.
(2) The duty to provide information under paragraph 1 is imposed on an undertaking, an association of undertakings and any other legal or natural person.
(3) With a view to applying Art. 101 and 102 TFEU or Art. 53 or 54 of the EEA Agreement, the information referred to in paragraph (1) may also be demanded for use in the Competition and Consumer Authority’s assistance to the European Commission and other competition authorities of the European Union or the EEA area.
(4) The information referred to in paragraph (1) may also be demanded for use in the Competition and Consumer Authority’s assistance to the competition authorities in Sweden, Norway, Iceland, Finland, Greenland and the Faroe Islands in respect of the application of national competition rules by these authorities.
Art. 17.a.
The Competition and Consumer Authority may convene a representative of an undertaking or an association of undertakings or a representative of other legal persons and a natural person to participate in and answer questions during an interview when such representative or natural person can be in possession of information relevant for the application of Art. 6 or Art. 11 or Art. 101 or 102 of the TFEU.
Art. 17.b.
Art. 10 of the Act on due process of law in the administration's use of coercive measures and duties of disclosure shall not apply to demands for undertakings or associations of undertakings on information under Art. 17, the making of an interview under Art. 17 a or the giving of oral evidence under Art. 18(1), third sentence. The parties in question are obligated to provide information according to the said provisions, to the extent compatible with the prohibition against self-incrimination under EU law.
Art. 17.c.
Evidence that may be included in the assessment of whether this Act or Art. 101 or 102 of the TFEU has been infringed includes documents, oral statements, Electronic notices, recordings and all other objects containing information irrespective of their form and medium.
Art. 18.
Representatives of the Competition and Consumer Authority and other accompanying persons which the Authority has empowered or appointed for the purpose, may use their undertaking to carry out unannounced inspection visits, which implies that the Authority obtains access to the premises, sites and transport means of an undertaking or an association of undertakings for the purpose of becoming acquainted with and make copies of any information to which the controlling entity has access, including financial statements, accounting records, books and other business papers irrespective of their medium. The undertaking and the association of undertakings are obligated to subject themselves to an inspection visit, and Art. 9 of the Act on due process of law in the administration's use of coercive measures and duties of disclosure shall not apply. In connection with an inspection visit, the Competition and Consumer Authority may demand evidence from the representatives or employees of the undertaking or the association of undertakings about factual information or documents regarding the subject-matter and purpose of the inspection visit and register their answers. The Competition and Consumer Authority may also the demand that persons covered by the inspection visit show the content of their pockets, bags, etc. to enable the Authority to obtain knowledge of such content and, if necessary, make copies thereof.
(2) If the information of an undertaking or an association is stored or processed by an external data processor, the Competition and Consumer Authority is entitled to be given access to the premises of the external data processor to gain insight into and make copies of the information stored on the site according to paragraph (1). It shall be a precondition for such access that it is not possible for the Competition and Consumer Authority to obtain the information concerned directly from the undertaking or association that is the target of the inspection.
(3) The Competition and Consumer Authority’s inspections may only be carried out on the basis of a previously obtained court order and against due proof of the investigators’ identity.
(4) The Competition and Consumer Authority may obtain a copy of the data content from electronic media covered by the inspection for subsequent review of the copy. The data obtained must be sealed or otherwise protected against reading before the inspection is finished. The undertaking which is the target of an inspection may demand that itself or a representative appointed by the undertaking shall be present when the data obtained are made available for reading and during the Authority’s review of the material obtained. The Competition and Consumer Authority is obligated, no later than 40 working days after the completion of the inspection, to deliver a copy of the information that the Authority may have extracted from the data obtained from the undertaking which is the target of the investigation. When the review of the data obtained has been completed, the data shall be secured against reading. The data obtained shall be deleted if, in the Authority’s assessment, the material does not contain evidence of any infringement of the competition rules. If the Competition and Consumer Authority decides to proceed with the case, the data obtained shall be deleted when the case has been finally decided.
(5) If the conditions of the undertaking or association make it impossible for the Competition and Consumer Authority to get access to or make copies of the relevant information cf. paragraphs (1), (2) and (4) on the day when the inspection is carried out, the Competition and Consumer Authority is entitled to seal off the relevant business premises and information for up to three working days thereafter.
(6) The Competition and Consumer Authority is entitled on the same conditions as in paragraph (5) above to take the information or the medium on which it is stored away for copying. The material which the Competition and Consumer Authority has removed must be returned to the undertaking or association together with a set of copies of the information the Authority has extracted for its further examinations, no later than three working days after the day of the inspection.
(7) In special cases, the time limits in paragraphs (4), (5) and (6) may be extended.
(8) The police shall provide assistance when the Competition and Consumer Authority exercises the powers assigned to it under paragraphs (1), (2) and (4)-(6). The Minister for Industry, Business and Financial Affairs may, by agreement with the Minister of Justice, lay down specific rules on such assistance.
(9) The Competition and Consumer Authority may conduct inspections to grant assistance to the European Commission and other competition authorities of the European Union or the EEA area in connection with these authorities’ application of Art. 101 and 102 TFEU or Art. 53 or 54 of the EEA Agreement. The provisions of paragraphs (1)-(8) above shall apply correspondingly.
10) The Competition and Consumer Authority may conduct inspections to grant assistance to the competition authorities in Sweden, Norway, Iceland, Finland, Greenland and the Faroe Islands in respect of the application of national competition rules by these authorities. Art. (1)-(8) above apply to such inspections.
Art.18.a.
The Competition and Consumer Authority may - in case of a reasonable cause for suspicion that the information in Art. 18(1), first sentence, that concerns the subject of the inspection visit and which might be relevant as evidence of an infringement of Art. 6 or 11 or Art. 101 or 102 of the TEUF, are kept at other sites or in other transport means than those stated in Art. 18(1), first sentence, including private homes belonging to the executive officers, managers and other employees of the undertakings or associations of undertakings - carry out unannounced inspection visits at such other premises etc., but see paragraph (3).
(2) The Competition and Consumer Authority cannot during an inspection visit under paragraph (1) demand oral Statements, but in addition to this, the provisions in Art. 18(1), (3), (4) and (6)-(10) shall apply correspondingly to such inspection visits.
(3) In case of a reasonable suspicion that a natural person who disposes over premises covered by paragraph (1) has contributed to an undertaking’s or an association of undertakings’ infringement as mentioned in paragraph (1) and the requirements in Art. 794 of the Administration of Justice Act have been met, the police will carry out a search pursuant to Art. 794 of the Danish Administration of Justice Act. The search will take place in the presence of the Competition and Consumer Authority.
Art. 18.b.
The Competition and Consumer Authority can on behalf of a national competition authority in the European Union and in the name of that competition authority demand information under Art. 17, carry out interviews under Article 17 a and carry out inspection visits under Art. 18(1)-(8) and Art. 18 a(1) and (2).
(2) Representatives of another national competition authority in the European Union and other accompanying persons who are empowered or appointed by that authority may under the supervision of the Competition and Consumer Authority participate in and actively assist the Authority during an interview or an inspection visit under paragrapgh (1) for the purpose of establishing an infringement of Art. 101 or 102 of the TFEU.
Art. 18.c.
Exchange of information obtained under Art. 18 b(1) may take place pursuant to Art. 12 of Council Regulation (EC) no. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Art. 81 and 82 of the Treaty.
(2) The Competition and Consumer Authority's exchange of applications for leniency with another national competition authority in the European Union can only take place
- with the applicant’s consent; or
- when the other national competition authority has also received an application from the same applicant for leniency in connection with the same infringement, provided that, at the time when the application is filed, it is not possible for the applicant to withdraw the information which the party in question has given the other national competition authority in connection with the specific application.
(3) The Competition and Consumer Authority may give information to other competition authorities than national competition authorities in the European Union on a proviso of reciprocity where the information is covered by the duty of confidentiality of the Competition and Consumer Authority and is necessary for facilitating enforcement of these authorities’ competition legislation, including with a view to fulfilling Denmark’s bilateral or multilateral obligations.
(4) The Minister of Industry, Business and Financial Affairs may lay down detailed rules on the Competition and Consumer Authority’s disclosure of information to foreign authorities of information covered by the Authority’s duty of confidentiality.
Art. 18.d.
Requests for assistance under Art. 25 and 26 of the Directive of the European Parliament and the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market are allowed in accordance with Danish law and the rules of Art. 27 and 28 of the Directive.
(2) The Competition and Consumer Authority may make requests for assistance under Art. 25 and 26 of the Directive.
(3) The Competition and Consumer Authority may receive requests for assistance under Articles 25, paragraphs a and b, of the Directive, and the debt recovery authority may receive requests for assistance under Art. 25, paragraph c, and Art. 26 of the Directive.
(4) The Minister of Industry, Business and Financial Affairs may after negotiations with the minister of tax lay down detailed rules on implementation of Art. 25- 27 of the Directive.
Part 7
Appeals
Art. 19.
Decisions made under Art. 2(1) and (6), Art. 3, first sentence, Art. 5(1), Art. 6(1) and (4), first sentence, Art. 7(1)-(4), Art. 8(2), first sentence, (3), second sentence, and (4) and (6), Art. 9(1), first sentence, Art. 10(2), Art. 10 a(1) and (6), Art. 11(1) and (2), (4), first sentence, and (5), Art. 11 a(1) and (6), first sentence, Art. 11 b(2),v 12 a(5), Art. 12 b(1), Art. 12 c(1)-(3), (6) and (7), v 12 d(6), Art. 12 e(1) and (3), Art. 12 f(1) and (2), v 12 g, Art. 12 h(4), Art. 13(4), v 16 and Art. 16 a(3) and (4), may be appealed to the Competition Appeals Board. In addition, decisions about the EU privilege against self-incrimination, cf. Art. 17 b, second sentence, decisions about the prohibition against self-incrimination, cf. Art. 10 of the Act on due process of law in the administration's use of coercive measures and duties of disclosure, and decisions about the protection of the confidentiality of correspondence between an undertaking and its external lawyer may be appealed to the Competition Appeals Board by the party to whom the decision is addressed.
(2) A complaint under paragraph (1), first sentence, may be filed by
- the party to whom the decision is addressed.
- the party having an individual, material interest in the case. However, this shall not apply to the Competition and Consumer Authority’s decisions under Art. 12 a (5), Art. 12 b(1), Art. 12 c(1)-(3), (6) and (7), Art. 12 d(6), Art. 12 e(1) and (3), Art. 12 f(1) and (2), Art. 12 g, Art. 12 h(4), and Art. 16 a(3) and (4).
(3) Decisions according to Art. 15(1), third and fourth sentence, cannot be appealed to the Competition Appeals Tribunal.
(4) An appeal against a decision under Art. 13(4) shall stay the proceedings. An appeal against other decisions may be granted a stay of proceedings by the Competition and Consumer Authority or the Competition Appeals Tribunal
(5) The Competition Appeals Tribunal may handle cases and make decisions in English if so requested by the addressees of the decision and the regard for the parties to the case does not decisively make the use of English inadvisable. If the Competition Appeals Tribunal has made a decision in English, a Danish summary of the decision shall be available. If the Competition and Consumer Authority has dealt with a case in English or made a decision in English under Article 15c, these documents shall be the basis of the Tribunal’s hearing of the appeal regardless of whether the Tribunal’s hearing and decision are conducted or made in English.
(6) The party to whom an interim order is addressed, cf. Art. 16 b, may, within four weeks after the decision has been notified to the party, file a complaint with the Competition Appeals Board about the lawfulness and proportionality of the order. The Competition Appeals Board will process the complaint according to an expedited procedure.
Art. 20.
(1) Decisions made by the Competition and Consumer Authority under this Act may not be brought before any other administrative authority than the Competition Appeals Tribunal and may not be brought before the courts of law until the Appeals Tribunal has made its decision.
(2) Appeals shall be lodged with the Competition Appeals Tribunal within four weeks after a decision has been communicated to the party concerned. When special reasons so warrant, the Competition Appeals Tribunal can disregard exceeding of the appeal time limit.
(3) The decision of the Competition Appeals Tribunal may be brought before the courts no later than eight weeks after the party in question has been notified about the decision. If submission is not made within the time limit, the decision by the Competition Appeals Tribunal is final.
(4) Copies of judgments passed by a court concerning the application of this Act or Art. 101 and 102 TFEU shall be submitted to the Competition and Consumer Authority by the court, or in criminal cases, by the State Prosecutor for Serious Economic Crime. The Competition and Consumer Authority shall inform the European Commission of judgments concerning Art. 101 and 102 TFEU.
Art. 21.
(1) The Competition Appeals Tribunal shall consist of a President, who shall be a Supreme Court Judge, and four other members, of whom two shall be legal experts while two shall be economic experts. The President may, in case of his own absence, authorise one of the members with legal expertise to replace the President.
(2) The President and the members shall be appointed by the Minister for Industry, Business and Financial Affairs. They shall be independent of commercial interests. Their appointment shall cease by the end of the month in which they will be 70 years old. The President or a member can, however, finish the processing of cases being processed by the Competition Appeals Tribunal on expiry of the term of the person concerned.
(3) The Minister of Industry, Business and Financial Affairs shall lay down rules on the activity of the Appeals Tribunal, including rules on the fees chargeable for bringing decisions before the Appeals Tribunal.
Art. 21.a.
Information from an application for leniency in which insight has been obtained through party access to files under the Public Administration Act or through own access, cf. Art. 13(1), second sentence, in the Competition and Consumer Authority's enforcement proceedings may only be applied in proceedings before the court to exercise the party's rights of defence in proceedings before national courts in cases that are directly related to the case for which access has been granted, and only where such proceedings concern
- the allocation between cartel participants of a fine imposed on them jointly and severally; or
- the review of a decision by which the Competition and Consumer Authority found an infringement of Art. 101 or 102 TFEU or Art. 6 or 11.
(2) The following categories of information obtained by a party during enforcement proceedings before the Competition and Consumer Authority under the Public Administration Act or through own access, cf. Art. 13(1), second sentence, shall not be used by that party in proceedings before national courts before the Authority has made a decision with respect to all parties under investigation in the enforcement proceedings that Art. 6 or Art. 11 or Art. 101 or 102 of the TFEU has been infringed, and an enforcement notice issued under Art. 16, or that undertakings’ commitment is made binding, cf. Art. 16 a(1), or that the proceedings are terminated by other means
- information that was prepared by other natural or legal persons specifically for the enforcement proceedings of the Competition and Consumer Authority;
- information that the Competition and Consumer Authority has drawn up and sent to the parties in the course of its enforcement proceedings.
(3) The court may ask the Competition and Consumer Authority to comment on whether information is covered by paragraphs (1) and (2).
Part 8
Penalty and leniency provisions
Art. 22.
Daily or weekly default fines may be imposed on undertakings, associations of undertakings or any other legal person failing to
- supply complete and correct information within the stipulated time limit in response to a request referred to Art. 17;
- participate in or answer questions during an interview, see Art. 17 a;
- subject themselves to an inspection visit, see Art. 18;
- comply with a decision to bring an infringement of Art. 6 or Art. 11 or Art. 101 or 102 of the TFEU to an end;
- comply with a term or enforcement notice issued pursuant to this Act; or
- comply with a commitment which has been made binding, cf. Art. 16 a(1).
(2) Daily or weekly default fines may be imposed on a natural person failing to:
- supply complete and correct information within the stipulated time limit in response to a request referred to in Art. 17; or
- participate in or answer questions during an interview, cf. Art. 17 a.
(3) The size of a default fine to an undertaking, an association of undertakings or any other legal person may amount to a maximum of 5 per cent of the party’s average total daily turnover on a global level in the preceding financial year per day and calculated from the date stated in the decision to impose default fines.
Art. 23.
An undertaking, an association of undertakings or any other legal person may be ordered to pay a civil fine if it deliberately or negligently
- infringes Art. 6(1);
- infringes Art. 11(1);
- fails to comply with an order under Art. 6(4), first sentence, or Art. 11(4), first sentence, or fails to comply with an order under Art. 16(3);
- fails to comply with a commitment which has been made binding under Art. 16 a(1);
- fails to comply with an order under Art. 16 a(3);
- fails to comply with an order under Art. 16 b;
- gives incorrect, incomplete or misleading information in response to a demand for information under Art. 17(1), or fails to give the information within the stipulated time limit;
- fails to participate in or answer questions during an interview, see Art. 17 a;
- opposes an inspection visit, see Art. 18,
- in response to questions asked during an inspection visit, see Art. 18(1), third sentence, gives an incorrect or misleading answer or fails or refuses to give a complete answer;
- has broken the seal made by the Competition and Consumer Authority under Art. 18(5); or
- infringes Art. 101 or 102 of the TFEU, cf. Art. 2(6).
(2) An undertaking, an association of undertakings or any other legal person may be ordered to pay a civil fine if it deliberately or negligently
- fails to comply with a term notified under Art. 8(3), second sentence, or paragraph (4), second sentence;
- fails to comply with an order under Art. 10 a(1) or (6);
- fails to comply with an enforcement notice under Art. 11 a(1) or Art. 11(2);
- fails to notify a merger under Art. 12 b(1) or fails to submit an ordinary report before the expiry of the time limit mentioned in Art. 12 f(2);
- carries out a merger despite a prohibition against it under Art. 12 c(2), second sentence, fails to observe the prohibition against a merger before approval thereof under Art. 12 c(5), first sentence, fails to comply with a term or enforcement notice under Art. 12 c(6) or Art. 12 e(1) or 3, or fails to comply with an enforcement notice issued under Art. 12 g; or
- gives incorrect, incomplete or misleading information to the Competition and Consumer Authority or the Competition Appeals Board or fails to disclose matters of importance to the case or sector investigation, see Art. 15 d, for which the information is obtained, without the matter being covered by paragraph 1, no. 7 or 10.
(3) When an undertaking, an association of undertakings or any other legal person having been ordered to pay a fine under Art. 22 has fulfilled the obligation without the default fine having been fully paid or collected, the undertaking, the association of undertakings or any other legal person is ordered to pay a civil fine equalling the unpaid part of the default fine.
(4) A natural person may be ordered to pay a fine for having wilfully or negligently having contributed to an undertaking or an association of undertakings having infringed Art. 6 or 11 or Art. 101 or 102 of the TFEU, cf. Art. 2(6). The sanction may be increased to imprisonment for up to one year and six months if the person has contributed to an undertaking or an association of undertakings having entered into a cartel agreement as mentioned in the third sentence contrary to Art. 6(1) of the TEUF, and the infringement is deliberate and of a gross nature, especially due to the scope of the infringement or the adverse effects it may cause. A cartel agreement under the second sentence shall be understood as an agreement, concerted practice or adoption between undertakings at the same distributive stage regarding
- prices, profits or the like for the sale or resale of goods or services;
- limitations of production or sales;
- division of markets or customers; or
- coordination of bids.
(5) Paragraph (1), no. 1 shall not apply from the time when an agreement etc. has been notified to the Competition and Consumer Authority under Art. 8(2) or (4), and until the Authority has notified its decision under Art. 8(2), (4) or (5).
(6) A natural person may be ordered to pay a fine for having deliberately or with gross negligence
- in other employment, paid or unpaid, dealt with pending cases where a notice of concern has been issued, cf. Art. 15 a(3), cases regarding mergers, see Part 4, cases concerning leniency, cf. Art. 23 d-23 i, appeal and legal proceedings regarding decisions under the Act and cases concerning insight into all such cases as they have dealt with during their operation in the Competition Council or employment in the Competition and Consumer Authority cf. Art. 14 a(2);
- having given incorrect, incomplete or misleading information in response to a demand for information under Art. 17(1), or having failed to give the information within the stipulated time limit;
- having failed to participate in or answer questions during an interview, see Art. 17 a; or
- having given incorrect, incomplete or misleading information to the Competition and Consumer Authority or the Competition Appeals Board or having failed to disclose matters of importance to the case or sector investigation, see Art. 15 d, for which the information is obtained, without the matter being covered by plan no. 2.
Art. 23.a.
An undertaking may be held responsible and liable for civil fines imposed on another undertaking within the same economic entity for infringements of Art. 6 or 11 or Art. 101 or 102 of the TFEU.
(2) If an association of undertakings is not solvent and is therefore unable to pay a fine imposed for infringement of Art. 6 or Article 11 or Art. 101 or 102 TFEU, measured based on the member undertakings’ turnover, the association of undertakings shall within a time limit stipulated by the Competition and Consumer Authority collect contributions from the member undertakings to pay the fine.
(3) If the member undertakings fail to fulfil the obligation in full within the time limit to pay the contributions under paragraph (2), the Competition and Consumer Authority can collect the balance directly from each of the undertakings whose representatives were members of the decision-making bodies when the infringement took place.
(4) After the Competition and Consumer Authority has demanded payment pursuant to paragraph (3), the Authority can also demand payment of outstanding fines from each member of the association being active on the market where the infringement occurred where necessary to ensure full payment of the fine. However, payment cannot be demanded from member undertakings that prove that they have not implemented the association's decision on an infringement, and which have either not known about its existence or have actively disassociated themselves from it before the
Competition and Consumer Authority’s investigation was initiated.
Art. 23.b.
When measuring civil penalties to undertakings, associations of undertakings or any other legal person or penalties to natural persons for infringements of this Act or Art. 101 or 102 of the TFEU, the gravity and duration of the infringement must be taken into account. When measuring civil penalties to undertakings, associations of undertakings or any other legal person, the party’s total group turnover on a global level in the financial year prior to the decision must be taken into account. In addition, damages paid after an amicable dispute resolution may be taken into account, see the Act concerning claims for damages due to infringement of the competition rules. The penalties must be effective, proportionate and deterrent.
(2) When measuring a civil fine to an undertaking, an association of undertakings or any other legal person in general, it must be included as an aggravating circumstance that the party e.g.
- after a decision has been made previously on the party’s infringement of this Act or of Art. 101 or 102 of the TFEU continues to commit the same infringement or commits a similar infringement;
- has played a managerial role or has urged others to commit the infringement; or
- has exposed another undertaking to retaliation measures to make them respect an anti-competitive agreement or conduct contrary to Art. 6 or Art. 11 or Article 101 or 102 of the TFEU.
(3) When measuring a civil fine to an undertaking, an association of undertakings or any other legal person in general, it must be a mitigating circumstance that the party e.g.
- has exclusively played a passive role in connection with the infringement;
- has failed to comply with an illegal agreement, resolution or concerted practice under Art. 6 or Art. 101 of the TFEU;
- by an internal policy for compliance with the competition rules has constantly made an active effort for all the undertaking’s employees to comply with this Act; or
- has contributed to clarifying the case without the requirements for leniency in Art. 23 d or 23 e having been met.
(4) A civil fine to an undertaking, an association of undertakings or any other legal person may as a maximum amount to 10 per cent of the party’s total turnover on a global level in the financial year prior to the decision. If the undertaking etc. is part of a group, the fine may amount to maximum 10 per cent of the total turnover on a global level in the group in the financial year prior to the decision.
(5) If an infringement committed by an association of undertakings concerns the members’ activities, the maximum fine amounts to 10 per cent of the total turnover on a global level for each of the members active on the market affected by the infringement committed by the association. If one of the members is part of a group, the total turnover on a global level for the group is included in the sum after the first sentence instead of the member’s own turnover. However, the individual member’s economic responsibility in connection with payment of the fine may not exceed the maximum amount fixed under paragraph (4).
Art. 23.c.
The limitation period is five years for the imposition of a civil fine on an undertaking, an association of undertakings or any other legal person for an infringement of this Act or of Art. 101 or 102 of the TFEU. If the limitation period is interrupted, cf. paragraphs (3) and (4), a new statute of limitation will start to run. Limitation will occur no later than 10 years after the commencement date according to paragraph (2).
(2) The limitation period for a civil fine is counted from the day when the infringement or the omission ceased.
(3) The limitation period for a civil fine is interrupted from the day when at least one undertaking in enforcement proceedings is notified about the first formal investigative step from the Competition and Consumer Authority, from a national competition authority in another Member State in the European Union or from the Commission that carries out enforcement proceedings concerning the same agreement, the same resolution within an association of undertakings or the same concerted practice or other conduct prohibited under this Act or Art. 101 or 102 of TFEU. The interruption applies to all undertakings etc. having participated in the infringement.
(4) The interruption of the limitation period for a civil fine shall end on the day the enforcement proceedings are closed by a final decision being taken that this Act or Art. 101 or 102 of the TFEU has been violated, the commitment by undertakings or associations of undertakings have been made binding, or an undertaking, an association of undertakings or any other legal person has been ordered to pay a fine, or when it has been concluded or decided that there are no grounds for further action.
(5) The limitation period for a fine to a natural person is five years.
Art. 23.d.
The undertaking acting contrary to Art. 6 or Art. 101(1) of the TFEU by participating in a cartel will on application obtain immunity from the fine the undertaking would otherwise be ordered to pay for its participation in the cartel if the applicant satisfies the requirements in paragraphs (2) and (3).
(2) The applicant has to be the first to provide documentation which
- at the time when the Competition and Consumer Authority receives the application enables the Authority to carry out an inspection visit in connection with the cartel, provided that the Authority is not already in possession of sufficient documentation that enables the Authority to carry out such inspection, or that the Authority has not already carried out such inspection visit; or
- in the Competition and Consumer Authority’s opinion, it is sufficient for establishing an infringement which is covered by the leniency scheme, provided that the Authority is not already in possession of sufficient evidence to establish such infringement, and that no other applicant has previously been entitled to immunity under no. 1 in connection with the cartel.
(3) Immunity may only be obtained if the applicant:
- discloses its participation in a cartel;
- has brought its participation in the cartel to an end no later than immediately after submitting the application for leniency, except for the activities which the Competition and Consumer Authority believes are necessary for safeguarding the integrity of the inspection;
- has not during the planning of its submission of an application for leniency to the Competition and Consumer Authority
- destroyed, falsified or concealed evidence of the cartel or
- disclosed its planned submission of the application or some of its content to others than competition authorities in the European Union, the EEA or in third countries;
- has not taken steps to force other undertakings to join the cartel or to remain in it; and
- cooperates genuinely, in full, permanently and quickly with the Competition and Consumer Authority from the time when the application is submitted, and until the enforcement proceedings have finally been concluded vis-à-vis all the parties covered by the inspection, or the case has been closed by other means.
(4) The cooperation under paragraph (3), no. 5 implies that the applicant meets the following requirements:
- The applicant provides the Competition and Consumer Authority immediately with all relevant information and documentation regarding the cartel which the party concerned has access to or comes into possession of, including the following:
- the name and address of the applicant.
- the names of all other undertakings that participate or have participated in the cartel.
- a detailed description of the cartel, including the affected products and territories concerned and the duration and nature of the cartel conduct.
- information on any past or possible future applications for leniency made to other competition authorities in the European Union, in the EEA or in third countries in relation to the cartel.
- The Applicant remains at the Competition and Consumer Authority's disposal to answer any request that may contribute to the establishment of facts.
- The Applicant will make directors, managers and other members of staff available for interviews with the Competition and Consumer Authority and makes reasonable efforts to make former directors, managers and other members of staff available for interviews with the Competition and Consumer Authority.
- The Applicant will not destroy, falsify or conceal relevant information or evidence.
- The Applicant will not disclose the fact of, or any of the content of, its application for leniency before the Competition and Consumer Authority has issued a statement of objections in the enforcement proceedings before it, unless otherwise agreed.
Art. 23.e.
If an application for immunity from a fine does not meet the requirements in Art. 23 d(2), the application will be considered an application for reduction of the fine, cf. paragraphs (2)-(4).
(2) An undertaking that acts contrary to Art. 6 or Art. 101(1) of the TFEU, by participating in a cartel, will obtain a reduction of the fine which the undertaking would otherwise be ordered to pay for its participation in the cartel, if the applicant produces documentation regarding the cartel that represents a substantial additional value compared to the documentation which the Competition and Consumer Authority is already in possession of at the time of the application, and meets the requirements in Art. 23 d(3) and (4).
(3) If the applicant provides conclusive evidence which the Competition and Consumer Authority uses to demonstrate additional matters that result in the participants in the cartel being ordered to pay larger fines than would otherwise have been the case, such additional matters will not be taken into consideration when fixing a fine, if any, to the concerned applicant.
(4) The reduction of the fine for the first applicant that meets the requirements in paragraph (2) is 50 per cent of the fine which the applicant would otherwise be ordered to pay for its participation in the cartel. For the applicant that meets the requirements in paragraph (2), the reduction of the fine is 30 per cent. For subsequent applicants that meet the requirements in paragraph (2), the reduction of the fine is up to 20 per cent.
Art. 23.f.
A preliminary application for immunity from or reduction of a fine may be submitted with a view to the applicant being given a place in the queue for such leniency.
(2) A preliminary application must include the information about the cartel that is available to the applicant at the time of submission of the preliminary application. The information may e.g. concern the following
- The name and address of the applicant.
- The grounds for the concerns that have led to the application.
- The names of all other undertakings that participate or have participated in the cartel.
- The affected products and territories.
- The duration and nature of the cartel conduct.
- Information on any past or possible future applications for leniency made to competition authorities in the European Union, in the EEA or in third countries in relation to the cartel.
(3) A preliminary application must be completed within the time limit stipulated by the Competition and Consumer Authority. The Competition and Consumer Authority will fix the time limit in such a way that the applicant may collect the necessary information and documentation to fulfil the conditions for either immunity from or reduction of a fine. If the preliminary application is finalised within the time limit, the application is considered submitted at the time when the preliminary application is submitted.
(4) The Competition and Consumer Authority is empowered to grant or reject an application under paragraph (1).
Art. 23.g.
A summary application for immunity from or reduction of the fine if the applicant has submitted an application to the European Commission by submitting either a full or a preliminary application in relation to the same cartel, provided that this application covers more than three
Member States in the European Union as affected territories.
(2) A summary application must consist of a brief description of the following
- the name and address of the applicant.
- the names of the other participants in the cartel.
- the affected products and territories.
- the duration and nature of the cartel conduct.
- the Member States in the European Union where documentation about the cartel is assumed to be located.
- information on any past application for leniency or any possible future applications for leniency made to any other competition authority in the European Union, in the EEA or in third countries in relation to the cartel.
(3) When the European Commission receives a full application and the Competition and Consumer Authority receives a summary application regarding the same cartel, the Commission is, in the period until it has been clarified whether the Commission will pursue the matter wholly or partly, the primary contact for the applicant, especially with regard to giving directions to the applicant to carry out any additional internal audit. The Competition and Consumer Authority can only demand from the applicant that the applicant provides specific specifications regarding the items mentioned in paragraph (2) before the Authority demands a full application under paragraph (5).
(4) When the Competition and Consumer Authority receives a summary application, the Authority will verify whether it has already received a summary or full application for leniency from another applicant in relation to the same cartel. If the Competition and Consumer Authority has not received such application from another applicant and considers the summary application to satisfy the requirements in paragraph (2), the Authority will notify the applicant accordingly.
(5) A full application may be submitted to the Competition and Consumer Authority as soon as the Commission has informed the Authority that it does not intend to pursue the case in whole or in part. Only by way of exception, when necessary for defining the case or its allocation, the Competition and Consumer Authority may demand that the applicant submits a full application before the Commission has informed the Authority that it does not intend to pursue the case in whole or in part. The Competition and Consumer Authority may fix a reasonable time limit within which the applicant must submit its full application together with the relevant information and documentation. This does not affect the applicant’s right to voluntarily submit a full application at an earlier stage.
(6) An applicant submitting a full application under paragraph (5) within the time limit stipulated by the Competition and Consumer Authority is considered to have submitted the full application at the time when the summary application was received, provided that the summary application covers the same affected product(s) and territories and the same duration of the cartel as in the application for leniency submitted to the Commission and which may have been updated.
Art. 23.h.
An application for immunity from or reduction of a fine, including a summary application under Article 23 f or a summary application under Art. 23 g, may be submitted in writing or orally to the Competition and Consumer Authority. The application may be submitted in Danish or English. According to the agreement between the Competition and Consumer Authority and the applicant, the application may also be submitted in another official language of the EU.
(2) An application under paragraph (1) is considered based on the following procedure
- at the applicant’s request, the Competition and Consumer Authority will confirm in writing that it has received an application for immunity from a fine stating the date and time of receipt.
- the Competition and Consumer Authority will make a preliminary commitment containing information as to whether the requirements in Art. 23 d, paragraph (2) and (3), or Art. 23 e, paragraph (2), have been met, and as to whether there are any grounds for rejecting the application because the requirements in Art. 23 d(3) and (4) have not been met.
- as soon as the enforcement proceedings have been finally concluded vis-á-vis the other parties involved in the cartel, the Competition and Consumer Authority will notify the applicant in writing whether the requirements in Art. 23 d(3) and (4) have been met, and, if so, whether immunity from or reduction of the fine may occur in accordance with the preliminary commitment which the applicant has received under paragraph (2).
(3) Different undertakings cannot submit a joint application for leniency unless the undertakings are affiliated and the application identifies which undertakings are to be covered by the application.
Art. 23.i.
An application for immunity from or reduction of a fine from an undertaking automatically includes present and former board members, executives and other staff members.
(2) A natural person who is covered by an application under paragraph (1) will have all charges dismissed and be relieved of a separate claim for seizure if the following requirements are met
- The undertaking’s application meets the requirements in Art. 23 d(2) and Art. 23 d(3), no. 1.
- The undertaking individually satisfies the requirement in Art. 23 d(3), no. 5, see Art. 23 d(4).
- The undertaking’s application predates the time when the natural person was made aware by the Competition and Consumer Authority or the Public Prosecutor for Serious Economic and International Crime of the case which the application concerns.
(3) If an undertaking’s application for immunity from a fine does not satisfy the requirements, a natural person covered by an application under paragraph (1) will obtain immunity from a fine if the undertaking’s application meets the requirements in Art. 23 e(2), and the natural person individually satisfies the requirements in Art. 23 d(3), no. 5, cf. Art. 23 d(4). Art. 23 e(3) and (4) shall apply correspondingly. Any separate claim for forfeiture shall be reduced by the same percentage rates as mentioned in Art. 23 e, paragraph (4).
(4) A natural person may submit an individual application for leniency. A natural person will have all charges dismissed and exemption from any separate claim for forfeiture if the natural person meets the requirements in Art. 23 d(2)-(4). If the requirements for dismissal of all charges have not been met, the natural person will obtain a reduction of the fine and reduction of any separate claim for forfeiture if the natural person individually satisfies the requirements in Art. 23 e(2). Art. 23 e(3) and (4) shall apply correspondingly.
(5) The provisions in Art. 23 f and Art. 23 h (1) and (2), apply correspondingly to applications under paragraphs (1) and (4). Furthermore, Art. 23 h(2), no. 2, shall apply correspondingly; however, the Public Prosecutor for Serious Economic and International Crime shall accept that the requirements for this are present before making a preliminary commitment to a natural person.
(6) As soon as the case has been finally clarified and assessed, the Public Prosecutor for Serious Economic and International Crime will dismiss all charges against natural persons covered by paragraphs (1) and (4) if the requirements for this are met.
Art. 23.j.
In cases concerning an undertaking’s or an association of undertakings’ infringement of this Act or Art. 101 or 102 of the TFEU, the Competition and Consumer Authority may declare in a fine notice that the case may be settled without legal action if the person having committed the infringement pleads guilty to the infringement and indicates a willingness to pay a civil fine within a specific time limit as stated in the fine notice.
(2) According to paragraph (1), a fine notice must contain
- the name, address and CVR no. of the undertaking or the association of undertakings to whom the fine notice is addressed; and
- information on the matter which the civil fine concerns.
(3) The information in paragraph (2), no. 2, must contain
- the authority to impose the civil fine.
- a brief description of the infringement of the Competition Act or Art. 101 or 102 of the TFEU which gives rise to the issuing of the fine notice, stating the date, place, object, manner in which the contract is to be performed and any other detailed circumstances which are necessary to provide a sufficient and clear description.
- Any mitigating and aggravating circumstances, see Art. 23 b(2) and (3).
(4) If the civil fine is accepted, there will be no further prosecution.
Part 9
Proceedings concerning the imposition of civil fines
Art. 24
The rules in this part shall apply to cases concerning civil fines, see Art. 23, paragraphs (1)-(3).
(2) The case is conducted as a civil procedure.
(3) The court is not bound by the parties’ claims concerning the size of the civil fine.
Art. 24.a.
The case may be brought before the court by the Competition and Consumer Authority when the decision on infringement of the competition rules has been considered by the Competition Appeals Board.
(2) If the party to whom the decision is addressed brings the Competition and Consumer Authority’s or the Competition Appeals Board's decision before the court, see Art. 20(3), the question concerning imposing of a civil fine will be decided upon during such case.
(3) Notwithstanding paragraph (1), the case may be brought before the Competition and Consumer Authority as soon as the time-limit for complaints to the Competition and Consumer Authority or for bringing the case before the courts has expired without a complaint having been made or without the case having been brought before the courts, cf. Art. 20(2), first sentence, and (3), or if the case concerns a civil fine under Art. 23(3).
Art. 24.b.
A third party who may be held liable in terms of criminal law for the infringement which the case concerns may not enter as a party to the case under Art. 251 of the Danish Administration of Justice Act.
(2) A third party who may be held liable in terms of criminal law for the infringement which the case concerns may enter as a party to the case to safeguard its interests, irrespective of whether this party supports one of the parties to the case. Art. 252, paragraphs (3) and (4) of the Danish Administration of Justice Act apply correspondingly. Upon request, the court will assign an attorney to the party. As regards fee and payment of expenses to the assigned attorney, the same applies as in the situation where free legal aid has been granted, see part 31 of the Danish Administration of Justice Act.
Art. 24.c.
A civil fine shall be paid to the Danish Competition and Consumer Authority.
(2) At the request of the convicted party, the Danish Competition and Consumer Authority may allow for deferred payment or payment by instalments of a civil fine.
(3) If a civil fine is not paid, it will be collected by the debt recovery authority.
(4) The debt recovery authority may allow for deferred payment or payment by instalments of civil fines.
(5) A civil fine will accrue to the state treasury.
(6) The Minister of Industry, Business and Financial Affairs may after negotiations with the minister of tax lay down provisions on collection and recovery of civil fines, including on the administrative processing of cases concerning deferred payment or payment by instalments of civil fines.
Part 9a
(Repealed).
Part 9b
(Repealed).
Part 10
Commencement and interim provisions etc.
Art. 27.
(1) This Act shall enter into force on 1 January 1998. However, the provisions of Art. 14(3) and 15 shall enter into force on 1 July 1997.
(2) The entry into force of this Act shall mean the repeal of the Competition Act, i.e. Consolidation Act No. 114 of 10 March 1993, and the Act on Control of Compliance with the Regulations of the European Economic Community on Monopolies and Restrictive Practices, i.e. Consolidation Act No. 449 of 10 June 1991. An approval granted under Art. 14(1) of the Competition Act, i.e. Consolidation Act No. 114 of 10 March 1993, shall remain in force until the Competition Council may decide to withdraw the approval, but cf. paragraph (6) below. Such a decision shall be made according to the rules then in force.
(3) Proceedings conducted under the Competition Act, i.e. Consolidation Act No. 114 of 10 March 1993, which have not been completed at the date when this Act enters into force shall lapse. However, this does not apply to complaints and cases pending before the Competition Appeals Tribunal.
(4) Anti-competitive agreements, decisions and concerted practices which are in existence on the date when this Act enters into force and come under the prohibition set out in Art. 6(1), may, if an application for exemption under Art. 8 is submitted before 1 July 1998, be maintained for up to three months after the Competition Council has made its decision in the case, even if the Council rejects the application. The Competition Council may extend the three-month time limit.
(5) The administrative rules that are applicable in accordance with Art. 7(2) in the Competition Act cf. Consolidated Act no. 114 of 10 March 1993 remain in effect until any new rules become applicable in accordance with Art. 5(3) in the Danish Price Marking and Display Act, as stated in Art. 28 paragraph (i) of this Act. The Administration of the existing applicable rules shall, as mentioned in paragraph (i), be transferred to the Danish Competition and Consumer Authority. Intentional or grossly negligent violations of the existing rules shall be punishable by a fine as mentioned in paragraph (i). Criminal liability may be imposed on companies etc. (legal persons) under the provisions of Part 5 of the Criminal Code.
(6) Irrespective of the provisions of paragraph (2), second and third sentence, above, Part 2 of this Act shall apply to agreements and concerted practices between undertakings as well as decisions made in an association of undertakings concerning fixed resale prices for the retail sale of books.
Art. 28.
(Repealed).
Art. 29.
This Act shall not extend to the Faeroe Islands and Greenland.
*************
Act no. 1541 of 13 December 2016 on proceedings regarding claims for damages due to infringement of the competition rules* contains the following commencement provision:
*Lovændringen vedrører Art. 13, stk. 2, nr. 2 og 3, kapitel 9 a og 9 b.
Art. 17.
(1) This Act will enter into force on 27 December 2016 but see paragraph (2) and (3).
Paragraph (2)-(3). (Omitted)
*************
Act no. 1545 of 19 December 2017 (Exemption from the prohibition against agreements restricting competition, mergers, own access, data protection rules, preliminary applications for leniency and Nordic cooperation)* contains the following commencement provision:
* Lovændringen vedrører Art. 7, § 12 d, stk. 1, 2. pkt., Art. 12 d, stk. 3, Art. 12 d, stk. 5, Art. 12 d, stk. 6, Art. 12 d, stk. 9, Art. 13, stk. 1, 1. og 2. pkt., Art. 13 a, Art. 14, stk. 4, Art. 15 a, stk. 1, Art. 17, stk. 3, Art. 18, stk. 9, 1. pkt., Art. 18, stk. 10, Art. 18 a, stk. 2, Art. 19, stk. 1, Art. 19, stk. 2, nr. 2, 2. pkt., Art. 23, stk. 5, 2. pkt., Art. 23 a, stk. 1, Art. 23 a, stk. 5, 4. pkt., Art. 23 a, stk. 6, Art. 23 a, stk. 7, 1. pkt., Art. 23 a, stk. 7, nr. 1-3, Art. 23 a, stk. 8, 1. og 2. pkt., Art. 23 a, stk. 9, 1. og 2. pkt., og Art. 23 a, stk. 11, 2. pkt.
Art. 2.
(1) This Act will enter into force on 1 January 2018 but see paragraph (2).
(2). Art. 1, no. 9, of this Act will enter into force on 25 May 2018.
(3) Art. 1, nos. 4 and 6, of this Act shall not apply to applications for approval of mergers which - according to rules issued under Art. 12 b(3) of the Competition Act - are either considered complete or are declared complete before the coming into force of the Act.
The rules previously in force shall apply to such application for approval of a merger.
(4) Art. 1, no. 8, of this Act shall not apply to requests for own access received prior to the coming into force of the Act. The rules previously in force shall apply to such requests.
(5) The rules issued under Art. 7(5), second sentence, of the Competition Act, and Art. 14(5), cf. Consolidation Act no. 869 of 8 July 2015, shall remain in force until the rules are repealed or replaced by new rules.
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Act no. 207 of 15 February 2021 (Introduction of the possibility of civil fines, structural enforcement notices, interviews, inspections in private homes, etc.)* contains the following commencement provision:
*Lovændringen af konkurrenceloven vedrører fodnote til lovens titel, overskriften til kapitel 1, Art. 2, stk. 6, Art. 5 b, Art. 13, stk. 1, 1. pkt., Art. 13, sk. 2, nr. 4, Art. 14, stk. 5, Art. 14 a, Art. 14 b, Art. 15, stk. 2, Art. 15, stk. 3, 3. pkt., Art. 15, stk. 5, Art. 15 a, stk. 2, Art. 16, stk. 1, Art. 16, stk. 1, nr. 5-7, Art. 16, stk. 2, Art. 16, stk. 4, Art. 16 a, stk. 1, Art. 16 a, stk. 2, Art. 16 a, stk. 4, nr. 3, Art. 16 b, Art. 17, stk. 1, Art. 17, stk. 2, Art. 17, stk. 3, Art. 17 a, Art. 17 b, Art. 17 c, Art. 18, stk. 1, Art. 18, stk. 4, 1. pkt., Art. 18, stk. 9, 1. pkt., Art. 18 a, Art. 18 b, Art. 18 c, Art. 18 d, Art. 19, stk. 1, Art. 19, stk. 2, Art. 19, stk. 2, nr. 2, Art. 19, stk. 6, Art. 20, stk. 1, Art. 20, stk. 2, 1. pkt., Art. 20, stk. 3, 1. pkt., Art. 21 a, Art. 22, Art. 23, Art. 23 a, Art. 23 b, Art. 23 c, Art. 23 d, Art. 23 e, Art. 23 f, Art. 23 g, Art. 23 h, Art. 23 i, Art. 23 j og lovens kapitel 9. Lovændringen af straffeloven vedrører Art. 299 c.
Art. 3.
(1) This Act shall come into force on 4 March 2021.
(2) The Act shall not apply to cases where the Competition and Consumer Authority, before the coming into force of the Act under Art. 15 a(2), cf. Consolidation Act no. 155 of 1 March 2018, has issued a statement of objections, or where the Public Prosecutor for Serious Economic and International Crime, before the coming into force of the Act, has laid charges under the Danish Administration of Justice Act against an undertaking or an association of undertakings for infringement of the provisions in the Competition Act or Art. 101 or 102 of the TFEU. The rules previously in force shall apply to such cases; however, Art. 20(1), (2), first sentence, and (3), as worded in nos. 36-39 of this Act, shall apply to complaints filed after the coming into force of the Act.
The Ministry of Business, 4 March 2021
Simon Kollerup / Tine Rønde