Abstract
This report sets out how SMEs are treated under the Danish Competition Act. Due to their limited turnover and market share, SMEs might be exempted from the prohibition in accordance with Section 6 of the Danish Competition Act on agreements restrictive of competition, and SMEs are most often not covered by the provision on abuse of a dominant position on a market or the rules on merger control.
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- 1.
Consolidated Act no 972 of 13 August 2010 of the Danish Competition Act.
- 2.
Section 7 reads as follows: “The prohibition set out in Section 6(1) above shall not apply to agreements between undertakings, decisions made by an association of undertakings or concerted practices between undertakings, in case the undertakings involved have
i) an aggregate annual turnover of less than DKK 1 billion [EUR 133 million] and an aggregate share of less than 10 per cent of the product or service market concerned, cf. however subsections (2) – (4); or
ii) an aggregate annual turnover of less than DKK 150 million [EUR 20 million], cf. subsections (2)–(4).” Under this part of the provision, there is no limitation on the market share.
- 3.
According to Section 7(2): “The exceptions in subsection (1) above shall not apply in cases where undertakings or an association of undertakings agree, coordinate or decide on
i) prices, profits etc. for the sale or resale of goods or services,
ii) restrictions on production or sales,
iii) sharing of markets or customers, or
iv) fixing bids prior to their tendering, fixing conditions for the opening of bids, deferring bids, prior notification of bids, or any other form of bid rigging.”
- 4.
An undertaking is considered an SME if it has less than 250 employees and a turnover not exceeding EUR 50 million (DKK 375 million).
- 5.
Judgment of the City Court of Horsens of 4 October 2007 in case no SS 785/2007.
- 6.
Judgment of the High court of Western Denmark of 19 May 2010 in department 8, case no. S-0513-10, where the high court upheld a judgment given by the City Court of Aarhus of 24 February 2010 in case no 10-2233/2009.
- 7.
Judgment of the High Court of Eastern Denmark of 4 April 2012 in department 15, case no S-2637-11 and more, where the high court upheld a judgment given by the City Court of Glostrup of 25 March 2011 in case no 954/2011.
- 8.
Judgment of the High Court of Eastern Denmark of 17 January 2012 in department 16, case no S-1656-11, where the high court upheld a judgment given by the City Court of Svendborg of 18 May 2011 in case no R2-2234/2010.
- 9.
Section 14 of the Danish Competition Act.
- 10.
Section 21 of the Danish Competition Act.
- 11.
Section 20 of the Danish Competition Act.
- 12.
Preparatory act no L 171 for an amendment to the Danish Competition Act, presented by the Minister to the Parliament on the 20 March 2002. FT 2001-2002, 2. setting, comments to no 13 (unofficial translation).
- 13.
The preparatory works of 2000 for an amendment of the Danish Competition Act.
- 14.
Public prosecutor v Arla Foods Amba, judgment of the City Court of Aarhus of 10 February 2006 in case SS 8.1420/205.
- 15.
In a follow-on case, damages were awarded to the competitor that was the target of Arla’s abuse. The amount of the damage is not published.
- 16.
See Sect. 6.2.1.1.
- 17.
Judgment of the Supreme Court of 30 August 2010 in case no 319/2009.
- 18.
Judgment of the Supreme Court of 30 August 2010 in case no 320/2009.
- 19.
Decision of the Competition Council of 22 December 2010.
- 20.
Judgment of the City Court of Kolding of 6 September 2011 in case no 1-4944/2010.
- 21.
Decision of the Danish Competition Council of 28 March 2007 on Cooperation between Local Banks, upheld by order of the Danish Competition Appeals Board of 2 October 2007.
- 22.
Judgment of the High Court of Eastern Denmark of 4 April 2012 in department 15, case no S-2637-11 and more, where the high court upheld a judgment given by the City Court of Glostrup of 25 March 2011 in case no 954/2011.
- 23.
Judgment of 26 November 2010.
- 24.
Danish Hostels and Hotels, judgment of the City Court of Horsens of 4 October 2007 in case no SS 785/2007.
- 25.
Judgment of the High Court of Eastern Denmark of 4 April 2012 in department 15, case no S-2637-11 and more, where the high court upheld a judgment given by the City Court of Glostrup of 25 March 2011 in case no 954/2011.
- 26.
Unofficial translation.
- 27.
Judgment of the High Court of Eastern Denmark of 17 January 2012 in department 16, case no S-1656-11, where the high court upheld a judgment given by the City Court of Svendborg of 18 May 2011 in case no R2-2234/2010.
- 28.
Judgment of the Supreme Court of 30 August 2010 in case no 319/2009, which increased the fine set by the High Court of Eastern Denmark in a judgment of 24 September 2009 in department 10, case no S-1011-09.
- 29.
Unofficial translation.
- 30.
Judgment of the Supreme Court of 30 August 2010 in case no 320/2009, which increased the fine set by the High Court of Eastern Denmark in a judgment of 3 September 2009 in department 10, case no S-971-09.
- 31.
Unofficial translation.
- 32.
Judgment of Danish Supreme Court of 15 February 2013 in case 2/2008, Post Danmark A/S vs the Competition Council.
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Poulsen, S.T. (2014). Denmark. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Antitrust for Small and Middle Size Undertakings and Image Protection from Non-Competitors. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54000-4_6
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