Post on 17-Apr-2018
www.dlapiper.com 0 7 June 2017
7 June 2017
NORDIC COMPETITION LAW UPDATE
DLA Piper webinar
www.dlapiper.com 1 7 June 2017
Introduction
Nordic state of play
Hot topics
Q&A
Agenda
www.dlapiper.com 2 7 June 2017
Speakers & moderator of the webinar Moderator
Daniel Colgan
Partner, Brussels
Speaker
Michael Klöcker
Partner, Denmark
Speaker
Mikko Huimala
Partner, Finland
Speaker
Kjetil Johansen
Partner, Norway
Speaker
Ammar Khan
Senior Associate,Sweden
1 Nordic state of play
www.dlapiper.com 4 7 June 2017
The Danish Competition Act is based on the same principles as EU
competition law.
The Act is enforced by the Danish Competition and Consumer Authority
(DCCA) and the Danish Competition Appeals Tribunal.
– As infringing Danish competition law is a criminal offence, the Act is also
enforced by the State Prosecutor’s Office and Criminal Courts.
Administrative sanctions include only behavioural sanctions, e.g. orders to
stop a violation.
– Criminal sanctions are popular, however fines are still in the low end:
highest fine imposed to date is MDKK 10 (MEUR 1.34).
– Fines are expected to increase dramatically (factor 5–10) in addition to
which imprisonment terms have been introduced.
The DCCA’s policy on information requests and market surveys is changing.
Overview of recent developments and enforcement trends
www.dlapiper.com 5 7 June 2017
The Finnish Competition Act is based on the same principles as EU competition
law, specific dominance threshold for grocery retail.
Enforced by the Finnish Competition and Consumer Authority (FCCA) and the
Market Court. Decisions can ultimately be appealed to the Supreme Administrative
Court.
Administrative sanctions include fines (up to 10% of group turnover) and
behavioural sanctions.
The FCCA is a rather active enforcer and has in recent years consistently pursued
high fines, which have generally been approved by the courts.
The Finnish Competition Act is currently under revision. Two proposals:
– A major overhaul regarding enforcement, including more powers to the FCCA,
higher fines for trade associations, and structural remedies in behavioural
cases.
– All transactions in the social and healthcare industries subject to merger control
without turnover thresholds.
Overview of recent developments and enforcement trends
www.dlapiper.com 6 7 June 2017
The Competition Act contains provisions equivalent to those of EU/EEA law.
The Act is enforced by the Norwegian Competition Authority (NCA), with the
recently established Competition Complaints Board handling appeals.
Both administrative and criminal sanctions possible, although only administrative
sanctions imposed to date.
The NCA is active in all enforcement areas: it has imposed/sent notice of fines
amounting to MNOK 938 (MEUR 98.8) thus far in 2017.
– Telenor warned of possible fine of MNOK 906 (MEUR 95) for abuse of dominant
position.
– The NCA stopped four mergers in 2016/2017.
The EU Damages Directive not yet a part of the EEA Agreement.
Overview of recent developments and enforcement trends
www.dlapiper.com 7 7 June 2017
The Swedish Competition Act is based on the same principles as EU competition
law.
The Act is enforced by the Swedish Competition Authority (SCA), with the Patent
and Market Court and the Patent and Market Appeal Court handling appeals.
– New decision making mandates currently being investigated, proposed
implementation in January 2018.
Administrative sanctions include fines (up to 10% of group turnover), behavioural
sanctions, and trading prohibitions.
Active enforcement with four cartel decisions in 2016. Level of fines is moderate,
however, higher level of activities is to be expected following amendments to
decision making mandates, which will free resources from other areas.
Overview of recent developments and enforcement trends
2 Hot topics: Enforcement trends
www.dlapiper.com 9 7 June 2017
Construction cartel investigation (demolition sector).
Trade association orchestrated a cartel.
Fines are about to accelerate.
MEUR 38 fine proposed in an alleged bus cartel in 2016.
A leniency case with MEUR 35 fines proposed considered time-
barred by the Market Court in 2016.
Expected trial following MNOK 32 (MEUR 3.4) fine for four
publicists.
A Supreme Court ruling on ”by object” restriction in an agreement
(in the taxi market) following an EFTA advisory opinion.
Four cartel cases decided in 2016 of which two have been
appealed and decisions from the Appellate Court are expected in
2017. With one exception, all cases relate to procurement
markets.
Cartel enforcement – trends
www.dlapiper.com 10 7 June 2017
Consortia agreements are considered a cartel in Denmark (see
road marking case).
The DCCA has issued guidelines for consortia agreements.
No fines recently regarding consortia agreements. The FCCA has
investigated several cases of relatively minor significance.
Recent fine for collusive bidding in a contract for sludge handling
discovered following procuring entity's complaint to NCA. In that
case, the only two prequalified companies submitted a joint bid
with little risk of losing the tender.
Three decisions in 2016 relating to procurement markets, an area
which is and will continue to be source of enforcement.
Public procurement / consortia agreements
www.dlapiper.com 11 7 June 2017
Post Danmark’s use of rebates – final judgment handed down on
31 May 2017.
Case Valio – price/cost analysis in an industry with joint costs, role
of management emails – MEUR 70 fines imposed on Valio.
Possible fine of MNOK 906 (MEUR 95) by the NCA for Telenor,
following a four-year investigation which is also investigated by the
ESA and EU Commission in relation to Telenor's Swedish
subsidiary.
Decision in Swedish Match case regarding shelf-space, on
guidance principal question regarding fining in case against
Swedavia, as well as continued investigations against Nasdaq in
the lottery market and the locks market. Investigation of Arla
complete (no futher actions considered).
Dominance: selected developments and trends
3 Hot topics: Merger control
www.dlapiper.com 13 7 June 2017
Fine imposed for submitting incorrect information during the
pre-notification phase.
The DCCA is aggressive in terms of discovery of information.
The FCCA is traditionally a highly practical, reliable and
predictable merger control enforcer; conducts robust
econometric analysis in complex mergers.
Four mergers blocked in the last year – trend towards
assessment of competition proximity and consumer surveys?
Instalco Sverige AB (SWE) fined NOK 300 000 (EUR 31.600)
for not obeying the standstill obligation.
Five recent Phase II mergers, three mergers retracted after the
SCA applied for a prohibition against the mergers. The SCA
continues to pursue narrow market definitions.
Merger control: selected developments and trends
4 Q&A
www.dlapiper.com 15 7 June 2017
Thank you for your attention!