NORDIC COMPETITION LAW UPDATE - DLA Piper · NORDIC COMPETITION LAW UPDATE ... and Market Court and...

www.dlapiper.com 0 7 June 2017

7 June 2017

NORDIC COMPETITION LAW UPDATE

DLA Piper webinar


Introduction

Nordic state of play

Hot topics

Q&A

Agenda


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


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


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.



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.



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.


2 Hot topics: Enforcement trends


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


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


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


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


Thank you for your attention!

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