Competition Litigation Comparative Guide

• Jurisdiction: European Union
• Law Firm: Accura Advokatpartnerselskab
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Author: Mr Christian Monberg and Ann Sophie Juul Hird
• Published date: 17 January 2023

1 Legal framework

1.1 Which laws regulate competition in your jurisdiction?

The legal framework for competition law in Denmark comprises:

• the Competition Act
• the Competition Damages Act; and
• a number of executive orders on specific matters.

In addition, certain sectors are governed by sector-specific competition regimes - for example:

• telecommunications;
• the food supply chain;
• payment services; and
• pharmaceuticals.

The Danish competition rules to a large extent mirror EU competition law and are interpreted in accordance with the case law of the Court of Justice of the European Union and the decisional practice of the European Commission.

1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?

Three different authorities are engaged in competition cases, depending on the nature of the case:

• the Competition and Consumer Authority (CCA);
• the Competition Council; and
• the Special Crime Unit.

The CCA is responsible for enforcing the Competition Act and EU competition law in cases where agreements or conduct affects trade between member states.

The Competition Council has overall responsibility for the CCA's administration of the Competition Act and renders decisions in cases of principle or of particular importance.

The Special Crime Unit investigates competition cases concerning individuals' participation in company infringements of competition law.

The CCA's general approach to enforcement is based on the following criteria:

• the gravity of the infringement;
• the expected impact on the market;
• the competitive landscape and the economy as such;
• the importance of the case (ie, whether it involves an issue that has not previously been clarified in legal practice); and
• the expected resource required.

Like most other national competition authorities, the CCA prioritises restrictions of competition 'by object'; however, both horizontal and vertical restrictions are deemed an enforcement priority and the CCA investigates a relatively high number of resale price maintenance cases annually. Relatively few cases concern abuse of a dominant position.

2 Private claims

2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?

A party to a decision rendered by the competition authorities may bring a civil action for annulment before the courts.

In addition, the following types of private claims are possible:

• an action for declaration (eg, brought by either party in a refusal to supply conflict);
• an action for injunction before the ordinary courts or the enforcement court (eg, brought by customers and/or competitors in cases concerning discriminatory pricing or by competitors in cases concerning predatory pricing); and
• a claim for damages suffered as a consequence of breach of competition law (eg, brought by the customers of cartel participants).

2.2 What is the legal basis for bringing a claim for breach of competition law?

The legal basis for bringing a claim for breach of competition law depends on the nature of the claim.

The legal basis for an action for the annulment of a decision by the competition authorities is Section 20(3) of the Competition Act, which provides that decisions of the Competition Appeals Tribunal (CAT) or of the Competition and Consumer Authority must be brought before the courts no later than eight weeks after the party in question has been notified about the decision. After the amendments in the Competition Act in 2021, transposing the ECN+ Directive, an appeal to the CAT is no longer mandatory and decisions of the Competition Council can thus be brought directly before the ordinary courts.

A claim for breach may be brought before the ordinary courts without the involvement of the competition authorities. The basis for such claim is derived from the substantial competition provision relevant to the case at hand. Under Danish law, private persons or companies are generally not entitled to invoke legislation passed in the general interest of the public (actio popularis). However, in relation to a breach of competition law, it is generally accepted that any person or company with a specific legal interest in the breach may bring an action.

The legal basis for a claim for damages due to breach of competition law is set out in:

• the Competition Damages Act, which transposed the EU Damages Directive (2014/104/EU) into national law; and
• the Danish common legal principles on damages.

3 Parties

3.1 Who has standing to bring a claim for breach of competition law?

The basic principle in Denmark is that parties with a legal interest in a case have standing to bring a claim for breach of competition law.

In practice, a customer, competitor or supplier which is individually affected by the breach in question may bring an action.

In relation to a claim for damages, any natural or legal person that has suffered a loss caused by an infringement of competition law can bring a claim. This may, for example, be customers, competitors or suppliers.

3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?

A claim for breach of the Competition Act can be brought against parties outside Denmark if the anti-competitive conduct claimed in breach of competition law affects the Danish market.

If the violation has an effect on the Danish market, the rules of the Competition Act apply.

If the violation also affects trade between EU member states, Article 101 or 102 of the Treaty on the Functioning of the European Union also applies.

3.3 Can a claim for breach of competition law be brought against individuals, or only companies?

According to Section 2(1) of the Competition Act, the act applies to any form of undertaking. Hence, the prohibitions in Section 6 and 11 do not as such apply to individuals.

However, the term 'undertaking' within the meaning of the act is interpreted broadly and includes any kind of economic activity. Thus, public entities, non-profits and other economic organisations established for other purposes than mere commercial purposes are subject to the act, regardless of their non-commercial character.

Collective bargaining on wages and working conditions is exempt from the act and unions undertaking such collective bargaining are not subjected to the Competition Act (Section 3). However, a distinction must be made between collective bargaining on wages and collective negotiation on pricing towards companies in the case of, for example, solo self-employed individuals. The European Commission's guidelines on collective agreements by solo self-employed persons will most likely be applied in Denmark in such cases.

Although individuals are not in themselves subject to the Competition Act, by means of participation, an individual can be fined (or imprisoned in case of cartel cases) for a company's competition law violations.

For instance, the authorities often bring charges against members of the executive management if they have participated in or failed to take action against anti-competitive practices/behaviour by the business.

4 Collective actions

4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?

Consumers and companies may bring a class action for breach of competition law before the courts. In addition, it follows from Section 10 of the Competition Damages Act that the Consumer Ombudsman may act as a class representative of several neutral and/or legal persons which claim that they have suffered a loss caused by competition law infringements committed by one or more undertakings. The Consumer Ombudsman may only act as a class representative in a class action based on clear evidence of an infringement.

Class actions for breach of competition law are determent in accordance with Chapter 23a in the Administration of Justice Act.

Class action claims are instituted by filing a writ of summons with the court. In addition to what is described under question 10.2, such writ of summons must set out:

• a brief description of the class;
• information on how the class member can be identified and notified about the case; and
• a proposal for a group representative that is willing to take on the role of class representative.

The writ of summons can be filed by anyone that can be appointed as a class representative.

4.2 Do collective actions proceed on an 'opt-in' or an 'opt-out' basis?

In general, a class action only comprises claimants registered as members of the class (ie, 'opt-in').

In special cases, the court may decide that the class action may include class members which are not included in the class action (ie, 'opt-out').

4.3 Do collective actions...