GCR THE HANDBOOK OF COMPETITION ECONOMICS. A Global Competition Review special report published in association with: Copenhagen Economics

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1 THE HANDBOOK OF COMPETITION ECONOMICS 2017 A Global Competition Review special report published in association with: GCR GLOBAL COMPETITION REVIEW

2 Overview Henrik Ballebye Okholm and Kirstine Rødsgaard Madsen The past year has seen a number of larger and smaller mergers, and some article 101 decisions. The most attention has been given to the Danish Competition Appeals Tribunal s decision on the road-marking consortium case from last year. This article builds on interviews with Denmark s Competition and Consumer Authority (the DCCA) and with competition lawyers from the following Danish law firms: Accura, Bech-Bruun, Bruun-Hjejle, Danders & Moore, DELACOUR, Gorrissen Federspiel, Horten, Kammeradvokaten, Kromann Reumert, LETT, Njord and Plesner. New decision on the road-marking consortium from 2015 On 12 April 2016, the Danish Competition Appeals Tribunal confirmed the decision of the Competition Council in the 2015 road-marking consortium case. The two companies in the consortium was found to be actual competitors because they were able to bid on one part of the contract alone, and the object of the agreement to be a restriction of competition infringing article 101. Most of the lawyers interviewed remark that the case takes a hard stance on the calculation of capacity, and that in their opinion the case requires that companies make in-depth calculations of capacity and the possibility of expanding capacity in a short time frame. According to the lawyers, the case has led to an increase in the resources needed to evaluate the legality of consortia. The interviewed lawyers further remark that the fact that the decision is by object and not by effect implies a large degree of risk for the companies involved in consortia. Finally, some of the interviewed lawyers remark that they have experienced a chilling effect from the decision where companies refrain from forming even procompetitive consortia; others do not recognise this. All lawyers experience an increased attention to competition law when firms build consortia. Mergers As with previous years, the DCCA has been busy with mergers. In November 2015, Danish Crown withdrew its merger notification, accepting that it would not be possible for the merger of Danish Crown and Tican to be approved within the necessary deadlines. The merger was under review from the DCCA for seven months. At the moment, the DCCA is investigating the merger between JP/Politikens Hus A/S and Dagbladet Børsen A/S. The DCCA received a draft notification of the merger in January Many interviewed lawyers remark that the DCCA asks more questions in relation to mergers than neighbouring jurisdictions and that the processes generally take longer. According to the lawyers, this puts an unnecessary large burden on the companies, especially in cases that are small and seemingly unproblematic. On the other hand, the DCCA also receives praise from some lawyers stating that it is open to a dialogue, and that it is a great improvement that the DCCA has hired a number of experienced deputy heads of unit. Generally, the lawyers interviewed remarked that the fact that resources are being tied up in mergers lead to few other cases being investigation. Many of the lawyers interviewed also remarked that it is difficult to get the DCCA to take on abuse cases. The end of the article 102 case against Post Danmark On July , Post Danmark decided to drop its appeal at the Maritime and Commercial High Court of the 2009 case concerning anticompetitive retroactive rebates. The conclusion of the case followed the decision of the Court of Justice from October 2015 stating in favour of the DCCA that the as efficient competitor test was not necessary to this particular case and that, while the exclusionary effect of a rebate scheme must be probable, there is no need to show that it is of a serious or appreciable nature. Appeals strategy During the past five years, the Danish Competition Appeals Tribunal has upheld the decision of the Competition Council in all but one case. In response to this, the lawyers interviewed remarked that cases need to be won at a very early stage, around the time of the statement of objections. 33

3 They further remarked that it is well known that cases are usually not won in front of the Appeals Tribunal, but need to be brought before the court in order to be challenged. The lawyers saw this trend as a combination of reluctance from the Appeal Tribunal to go into a critical review of the assessments made by the CCA and a rise in the quality of the work of the DCCA. 34 The Handbook of Competition Economics 2017

4 Henrik Ballebye Okholm Dr Henrik Ballebye Okholm is an expert in competition economics. He is a partner at specialising in advising clients on economic aspects of competition cases, particularly concerning damage claims and state aid, as well as economic aspects of regulation, including policy impact assessments. Henrik has appeared in court as expert witness in several competition cases. Before joining, Henrik was an assistant professor at the University of Copenhagen. He holds a PhD in economics from the University of Copenhagen. Kirstine Rødsgaard Madsen Kirstine Rødsgaard Madsen is an experienced competition economist working as an economist with. She advises clients on a wide range of competition issues including mergers and abuse of dominance, as well as advocacy projects. Prior to joining, Kirstine worked for the Danish Competition and Consumer Authority for four years. Kirstine holds a master s degree in economics from the University of Copenhagen. Langebrogade 1 (B3) 1411 Copenhagen K Denmark Henrik Ballebye Okholm Tel: hbo@copenhageneconomics.com Kirstine Rødsgaard Madsen Tel: krm@copenhageneconomics.com is the leading economic consultancy in the Nordic region. We have more than 70 employees located in offices in Copenhagen, Stockholm and Brussels. We provide independent and effective counselling services based on recognised research methods particularly within antitrust, mergers, agreements, state aid and damage claims. Based on our mission, Better decisions through hard facts and clear stories, we focus on providing valuable advice that is valid and to the point. We advise companies, authorities and politicians, where the market meets regulation and conflicts arise. For the past eight years, we have been ranked in Global Competition Review s top 20 of the world s best economics consultancies. Solving problems and creating value is our passion, and we excel in communicating the practical results of our analyses to the public. Our key experts have significant professional experience from companies, regulators or governments, and we have ambitious programmes for developing our skills. Most of our competition economists have previously worked for national and European competition authorities. We regularly cooperate with top-level academic economists from universities and business schools. 35

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