Denmark - International Encyclopaedia of Laws

Part I, Ch. 3, Overview of Substantive Provisions 143–148143. Section 2(2) states that if a restrictive agreement is a direct or necessaryconsequence of public regulation, Parts 2 and 3 of the Act will not apply. Therefore,the agreement will not contravene section 6. Whether or not an agreement directlyor necessarily follows from the public regulation will, however, be investigated bythe Danish Competition Authority. It is only where the Authority decides that theagreement is a consequence of the regulation that it will cease its investigation.144. Section 6 must be read in connection with section 11 – the prohibitionagainst abuse of a dominant position. Since both provisions seek to achieve thesame goals, they must be interpreted in a consistent manner. In accordance with EUpractice, there can be a simultaneous violation of both sections.III. Basic Parallels and Differences with Article 101 TFEU145. Subsections 6(2)(i) through (v) correspond to Article 101 TFEU, whereas6(2)(vi) and (vii) are unique to the Danish legislation.146. According to the preparatory works, section 6 is to be interpreted in accordancewith the EU regulation. Therefore, the practices of the Commission and theECJ are to be used as interpretative guidance for the provision, subject to the particularitiesof the market conditions (and importantly, only to the extent that the factualcircumstances are similar).§2. DOMINANT UNDERTAKINGSI. Section 11 of the Act147. Section 11 of the Act prohibits abuse of dominance. In order to find abuseunder the Act, four criteria must be fulfilled. Section 11 only applies to the acts of:(1) an undertaking; (2) where that undertaking is dominant; and (3) abuses its dominantposition; and (4) the abuse impacts effective competition in Denmark.148. Section 11(1) states broadly that any abuse of a dominant position by oneor more undertakings is prohibited. Examples of ‘abuse’ for the purposes of subsection(1) are provided in subsection (3) as:(i) directly or indirectly imposing unfair purchase or selling prices or other unfairtrading conditions;(ii) limiting production, sales or technical development to the prejudice of consumers;(iii) applying dissimilar conditions to equivalent transactions with trading partners,thereby placing them at a competitive disadvantage; or(iv) making the conclusion of contracts conditional on acceptance of supplementaryobligations which, by their nature or according to commercial usage, have noconnection with the subject of the contracts.Competition Law – (February 2011)Denmark – 45