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149–155Part I, Ch. 3, Overview of Substantive Provisions149. Subsection (4) of section 11 provides the Danish Competition Council withpowers to bring infringements of subsection (1) to an end. In turn, subsection (4)refers to section 16, a non-exhaustive list of enforcement tools that can be used notonly to bring an abuse of dominance to an end, but also for anti-competitive agreementsand Articles 101 and 102 TFEU infringements. 11. Section 16 non-exhaustively lists the types of orders that the Danish Competition Council mayissue to eliminate the adverse effects of anti-competitive activity, including: termination of agreements,decisions or trading conditions; a cap on specific prices or profits, or procedures for the calculationof prices or profits; an obligation to sell on usual terms; or access to infrastructure. The Councilcan also order that commitments made by an undertaking are to be binding (see s. 16a(1)).150. The preparatory works to the Act state that ‘dominance’ should be interpretedin accordance with the decisions of the Commission and the case law of theECJ regarding Article 102 TFEU. Similarly, in general terms, the Danish definitionof ‘abuse’ is in line with the corresponding term under EU rules.151. Section 11(2) of the Danish Act states that an undertaking can request theDanish Competition Council to declare whether or not it holds a dominant position.Declarations in the negative, confirming that no dominant position is held, are bindinguntil revoked.152. Undertakings can also request the Council to make a declaration that certainconduct does not fall under the prohibition in subsection (1) and therefore, willnot be subject to an order under subsection (4). The section’s final provision, subsection(7), confers the Council with a right to refrain from making such declarationswhere it may have implications for abuse of a dominant position in thecommon market or an essential part of it, and trade between the EU Member Statesmay be appreciably affected. However, in practice, section 11(7) is rarely invoked.153. The scope of the Act is regulation of the Danish market. Both national andforeign companies can be subject to section 11 of the Act if they engage in activitiesthat restrict competition and the effects of their behaviour extend to Denmark.This is mentioned explicitly in the preparatory works to the Act. 11. At L 242 (Bill 242).II. Power to Obtain a Dominant Undertaking’s General Trading Terms154. According to section 10a and Regulation 466/2005 (which was introducedwith amendments to the Act in 2004 and came into effect on 1 February 2005), theDanish Competition Council has the power to order dominant undertakings to submittheir general trading terms for review.155. However, this rule only applies when either: (i) the Danish CompetitionAuthority has received a complaint from a competitor and the Authority considersthat the complaint has some foundation; or (ii) special market conditions exist and46 – Denmark Competition Law – (February 2011)
336–341Part II. The Application of the ProhibitionsChapter 1. Restrictive Agreements§1. INTRODUCTION336. The section 6 prohibition against anti-competitive or restrictive agreementsis one of two fundamental prohibitions in the Danish Competition Act.337. Similar to EU competition law, Danish competition law distinguishesbetween horizontal and vertical agreements. Horizontal agreements are concludedbetween operators at the same level of trade, whereas vertical agreements are concludedbetween operators at different levels of trade.§2. HORIZONTAL AGREEMENTSI. CartelsA. Introduction338. Like EU competition law, Danish competition law recognizes and prohibitscartels as the most detrimental form of restrictive agreements or concerted practices.339. Relatively few cartel cases have been decided in Denmark. Despite anincrease in cases over time generally, there are less than ten Danish cartel cases altogether.Unfortunately, the cases regarding these cartels are also limited with respectto legal reasoning. Most are largely devoid of in-depth legal discussion and turn ontheir facts – therefore the bulk of many decisions is a discussion about the facts.340. A few cases are brought to court by Denmark’s Public Prosecutor for SeriousEconomic Crime, 1 but most cases result in an out-of-court pleaded fine or settlement,for which few legal details are published.1. In Danish, Statsadvokaten for Særlig Økonomisk Kriminalitet or SØK.341. The most prominent two cartel cases in Denmark involve trade services.The first was a cartel in the electricity installation sector involving more thanCompetition Law – (February 2011)Denmark – 77
Page 1 and 2: DenmarkbyErik Bertelsen, Morten Kof
Page 3 and 4: The AuthorsThe authors and assistan
Page 5 and 6: Table of ContentsThe Authors 3List
Page 7 and 8: Table of Contents§4. OTHER PROHIBI
Page 9 and 10: Table of Contents1. Non-compete Cla
Page 12 and 13: Table of ContentsIII. Turnover Calc
Page 14 and 15: List of Abbreviations14 - Denmark C
Page 16 and 17: 5-9General Introductionpopulation (
Page 18 and 19: 15-20General Introductiontypes of c
Page 20 and 21: 27-31General Introduction27. Public
Page 22 and 23: 37-42General Introduction37. Separa
Page 25 and 26: Selected BibliographyDanish-languag
Page 27 and 28: 48-52Part I. The Structure of Antit
Page 29 and 30: Part I, Ch. 1, Sources of Antitrust
Page 37 and 38: Part I, Ch. 2, Scope of Application
Page 39 and 40: Part I, Ch. 2, Scope of Application
Page 42 and 43: 125-129Part I, Ch. 2, Scope of Appl
Page 44 and 45: 135-142Part I, Ch. 3, Overview of S
Page 48 and 49: 342-343Part II, Ch. 1, Restrictive
Page 50 and 51: 348-352Part II, Ch. 1, Restrictive
Page 53 and 54: Part II, Ch. 1, Restrictive Agreeme
Page 67 and 68: Part III. Administrative Procedure7
Page 69 and 70: Part III, Ch. 1, Administrative Inv
Page 81 and 82: Part III, Ch. 2, Voluntary Notifica
Page 87 and 88: IndexThe numbers here refer to para
Page 89 and 90: IndexFinancial aid, 116Financial an
Page 91 and 92: Indexunilateral, 397, 401reciprocal

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