NORDIC COMPETITION LAW UPDATE

Transcription

1 NORDIC COMPETITION LAW UPDATE DLA Piper webinar 7 June June

2 Agenda Introduction Nordic state of play Hot topics Q&A 7 June

3 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 7 June

4 1 Nordic state of play

5 Overview of recent developments and enforcement trends 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. 7 June

6 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. 7 June

7 Overview of recent developments and enforcement trends 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 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. 7 June

8 Overview of recent developments and enforcement trends 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 Administrative sanctions include fines (up to 10% of group turnover), behavioural sanctions, and trading prohibitions. Active enforcement with four cartel decisions in 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. 7 June

9 2 Hot topics: Enforcement trends

10 Cartel 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 A leniency case with MEUR 35 fines proposed considered timebarred by the Market Court in 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 With one exception, all cases relate to procurement markets. 7 June

11 Public procurement / consortia agreements 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. 7 June

12 Dominance: selected developments and trends Post Danmark s use of rebates final judgment handed down on 31 May Case Valio price/cost analysis in an industry with joint costs, role of management s 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). 7 June

13 3 Hot topics: Merger control

14 Merger control: selected developments and trends 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 (EUR ) 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. 7 June

15 4 Q&A

16 Thank you for your attention! 7 June