6. Consolidated Competition Act

Consolidated Act No. 785 of 8. August 2005

Promulgation of the Act on Competition, cf. Consolidated Act No. 539 of 28 June 2002, as amended by Act No. 381 of 28 May 2003, Act No. 1461 of 22 December 2004, Act No. 431 of 6 June 2005 and Act No. 601 of 24 June 2005. The promulgated wording of the Act shall not be fully effective until 1 January 2007, cf. section 85 of Act No. 431 of 6 June 2005 and section 5 of Act No. 601 of 24 June 2005 reproduced at the end of this Consolidated Act.

Part 1 Purpose and scope of the Act

1. The purpose of this Act is to promote efficient public resource allocation by means of workable competition for the benefit of companies and consumers.

2. - (1) This Act shall apply to any business activity and to aid from the public funds granted to business activities.

(2) The provisions in parts 2 and 3 of this Act shall not apply if an anticompetitive practice is a direct or necessary consequence of public regulation. An anti-competitive practice determined by a local government shall only be considered a direct or necessary consequence of public regulation in so far as the anti-competitive practice is indispensable for fulfilling the statutory responsibilities assigned to the local government.

(3) Decisions made by the board of a municipal partnership, cf. section 60 of the Local Government Act, are comparable to decisions made by the local government, cf. subsection 2.

(4) Questions whether an anti-competitive practice is compatible with subsection 2 shall be determined by the minister who is responsible for the regulation concerned. If the Competition Council requests the relevant minister to determine whether an anti-competitive practice is covered by subsection 2, the minister must reach a decision not later than 4 (four) weeks after receipt of the Council's enquiry. The Competition Council may extend this deadline.

(5) If the Competition Council finds that a public regulation or an aid scheme is likely to be detrimental to competition, or otherwise likely to impede an efficient public resource allocation, the Council may deliver a reasoned opinion to the minister and to the Minister for Economic and Business Affairs stating potentially detrimental effects on competition, and make recommendations for promotion of competition in the area concerned. Having consulted the Minister for Economic and Business Affairs, the relevant minister is obliged to respond to the Competition Council's opinion not later than 4 (four) months after receipt of the opinion submitted. The Competition Council may extend this deadline.

(6) (Repealed).

3. This Act shall not apply to pay conditions and labour relations. In carrying out its duties, the Competition Council may, however, to assist in its work, request information from organisations and undertakings concerning pay conditions and labour relations.

4. (Repealed)

5. -(1) The provisions of part 2 of this Act shall not apply to agreements, decisions and concerted practices within the same undertaking or group.

(2) Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down rules on the application of subsection 1, including rules on how agreements etc. within the same undertaking or group shall be defined.

5a. - (1) Under this Act, the definition of the relevant market shall be based on examination of demand substitutability, supply substitutability and potential competition. The potential competition must be examined, once the position of the undertakings concerned has been ascertained and this position raises doubts as to whether this Act has been violated.

(2) The Competition Council may make use of external expertise in its appraisal under subsection 1.

Part 2 Prohibition against certain anti-competitive agreements

6. - (1) Any conclusions of agreements between undertakings etc., which have as their direct or indirect object or effect to restrict competition shall be prohibited.

(2) Agreements under subsection 1 may, for instance, be such agreements which

i. fix purchase or selling prices or any other trading conditions;

ii. limit or control production, markets, technical development, or investments;

iii. share markets or sources of supply;

iv. apply dissimilar conditions to equivalent transactions with trading parties, thereby placing them at a competitive disadvantage;

v. make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts;

vi. co-ordinate the competitive practices by two or more undertakings through the establishment of a joint venture; or

vii. determine binding resale prices or in other ways try to make one or more trading partners not to deviate from recommended resale prices.

(3) Subsection 1 shall apply correspondingly to decisions made by an association of undertakings and to concerted practices between undertakings.

(4) The Competition Council may issue orders for the termination of infringements of subsection 1, cf. section 16. In order to meet the concerns harboured by the Competition Council in relation to subsection 1, the Council may, furthermore, make commitments, provided by the undertaking, binding, cf. section 16a (1).

(5) Any agreements and decisions prohibited under subsections 1-3 shall be void, unless otherwise excepted under section 7, exempted under sections 8 or 10, or comprised by a declaration under section 9.

7. - (1) The above prohibition under section 6 (1) shall not apply to agreements between undertakings, decisions made by an association of undertakings, or concerted practices between undertakings, provided that the undertakings concerned have

i. an aggregate annual turnover of less than DKK 1bn and an aggregate share of less than 10 per cent of the product or service market concerned, cf. subsections 2-4; or

ii. an aggregate annual turnover of less than DKK 150m, cf. subsections 2-4.

(2) The exceptions in subsection 1 shall not apply in cases where

i. undertakings or associations of undertakings agree, coordinate or determine prices, profits etc. for the sale or resale of goods or services; or

ii. two or more undertakings agree etc. to carry out or seek to carry out a preceding regulation of tenders, fix or seek to fix the conditions for the opening of tenders, undertake or seek to arrange elimination of tenders, commit themselves to preceding notification of tenders or otherwise commit themselves to cooperate before submitting tenders.

(3) Notwithstanding subsection 1, the prohibition entailed in section 6 (1), applies to an agreement between undertakings, a decision made by an association of undertakings, and a concerted practice between undertakings if the agreement etc., together with other similar agreements etc., restricts competition.

(4) Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down further rules on the calculation of turnover under subsection 1, including rules to the effect that the mentioned turnover thresholds shall be calculated on the basis of other values for financial undertakings.

(5) The exception of subsection 1 shall apply even if the undertakings exceed the above thresholds in two consecutive years. Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down further rules in that respect, including rules on minor transgressions of the mentioned thresholds.

8. - (1) The above prohibition under section 6 (1) shall not apply if an agreement between undertakings, decisions made by an association of undertakings, or concerted practices between undertakings

i. contribute to improving the efficiency of production or distribution of goods or services or to promoting technical or economic progress;

ii. allow the consumers a fair share of the resulting benefits;

iii. do not impose on the undertakings restrictions which are not indispensable to the attainment of these objectives; and

iv. do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(2) After notification the Competition Council can exempt an agreement between undertakings, a decision within an association of undertakings or a concerted practice between undertakings from the prohibition under section 6 (1) if the Council finds that the provisions under subsection 1 are satisfied. Notification of the agreement in question etc., including also an application for exemption under subsection 1, shall be submitted to the Competition Authority. The Competition Council shall lay down further rules on notification, including rules on the use of specific notification forms.

(3) Decisions made under subsection 2 shall specify the period in which the exemption is effective. Exemption can be granted on specific terms.

(4) Upon notification, the Competition Council may extend the term for exemption provided always that the Competition Council finds that the provisions under subsection 1 still apply. Subsection 3 shall apply corre-spon-dingly.

(5) The Competition Council may refrain from considering a notification under subsections 2 or 4, if the agreement etc. will appreciable affect the trade between the EU member states.

(6) The Competition Council may amend or revoke a decision under subsections 2 or 4 if

i. the facts have changed in any respect forming the basis of the decision;

ii. the parties to the agreement fail to meet the terms and conditions made; or

iii. the decision is based on incorrect or misleading information from the parties to the agreement etc.

9. - (1) Upon notification by an undertaking or association of undertakings, the Competition Council may certify that, on the basis of the facts in its possession, an agreement, decision or concerted practice shall be outside the scope of the prohibition under section 6 (1), and that, accordingly, there shall be no grounds for issuing an order under section 6 (4). The Competition Council shall lay down rules on notification, including rules on the use of specific notification forms.

(2) The Competition Council may refrain from considering a notification under subsection 1 if an agreement etc. will appreciable affect the trade between the EU member states.

10. - (1) Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down rules on granting exemption from the prohibition under section 6 (1) to categories of agreements, decisions and concerted practices which satisfy the provisions under section 8 (1).

(2) Where agreements, decisions within an association of undertakings or a concerted practice are comprised by a category of exemption issued under subsection 1 have effect in a concrete case which is incompatible with the provisions under section 8 (1), the Competition Council may revoke the above category of exemption for the undertakings etc. that have entered into this agreement etc.

Part 2 a Trading terms of dominant undertakings

10 a. - (1) The Competition Council may order a dominant undertaking to submit its general trading terms to the Competition Authority if

i. there is a not unfounded complaint from a com-petitor;

ii. special market conditions prevail;

iii. due to these conditions there is a special need for the Competition Authority to acquire insight into how the dominant undertaking fixes its prices discounts etc.

The order shall only cover trading terms for the markets covered by the complaint.

(2) Orders under subsection 1 shall only apply for 2 (two) years from the time when the decision is final.

(3) “Trading terms” means the basis in force at any time on which an undertaking in general fixes its prices, discounts, marketing contributions and free services and the terms and conditions on which the company will grant financial benefits in relation to its trading partners.

(4) Undertakings which have submitted trading terms under subsection 1 may request that the Competition Council makes an assessment of such terms and conditions. The Competition Council shall make its decision within 6 (six) months. This time-limit will start when the Competition Authority has received the information from the undertaking which is necessary to make an assessment of the trading terms. If no decision has been made by the Competition Council within this time-limit, the trading terms shall be deemed to constitute an approval.

(5) The Competition Council may refrain from making a decision if the decision may be of importance to one or more undertakings abusing a dominant position on a common market or an essential part hereof and if the trading between member countries of the EU may be appreciable influenced hereby.

(6) If the trading terms are deemed to constitute an infringement of section 11 (1) or are administered in contravention of section 11 (1), the Competition Council may order that one or more of the stipulations of the trading terms be revoked or amended. If the trading terms are prepared in such a manner that the Competition Council has an insufficient basis for decision in order to assess whether the trading terms constitute an infringement of section 11 (1), the Competition Council may order that one or more of the terms be clarified.

(7) If a dominant undertaking, which is issued an order under subsection 1, uses prices, discounts, financial benefits or other terms in relation to trading partners on the Danish market, which to large extent deviate from or do not appear from the trading terms submitted to the Competition Authority, importance can be attached to such factors in relation to general production of evidence in a case under section 11.

(8) The provisions under subsection 7 shall also apply if a dominant undertaking acts in contravention of an order under subsection 6. This shall not apply, however, where a complaint against the order acts as a stay of execution pending the outcome of the complaint, cf. section 19 (4).

Part 3 Abuse of a dominant position

11. - (1) Any abuse by one or more undertakings etc. of a dominant position is prohibited.

(2) Upon request the Competition Council must de-clare, whether one or more undertakings have a dominant position, cf. subsection 7. If the Competition Council declares that an undertaking does not have a dominant position, this decision shall be binding until revoked by the Competition Council.

(3) Such abuse under subsection 1 may, for instance, consist in

i. directly or indirectly imposing unfair purchase or sales prices or other unfair trading conditions;

ii. limiting production, markets or technical development to the prejudice of consumers;

iii. applying dissimilar conditions to equivalent transactions with trading parties, thereby placing them at a competitive disadvantage; or

iv. making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

(4) The Competition Council may issue orders for the termination of infringements of subsection 1, cf. section 16. In order to meet the concerns harboured by the Competition Council in relation to subsection 1, the Council may, furthermore, make commitments provided by the undertaking binding, cf. section 16 a (1).

(5) Upon notification by one or more undertakings, the Competition Council may declare that, on the facts in its possession, a certain course of conduct shall not come under the prohibition of subsection 1, and that, accordingly, there shall be no grounds for issuing an order under subsection 4.

(6) The Competition Council may lay down further rules on the material required to make a decision under subsections 2 or 5.

(7) The Competition Council may refrain from making a decision under subsection 2 or 5 if the decision may contribute to the effect that one or more undertakings will abuse a dominant position on the common market or an essential part hereof, and the trade between the EU member states may be influenced significantly by this.

Part 3a Aid which distorts competition

11a. - (1) The Competition Council may issue orders for the termination or repayment of aid granted from the public funds, which have been granted to the benefit of specific forms of business activities.

(2) An order under subsection 1 may be issued, when the aid

i. directly or indirectly has as its object or effect to distort competition; and

ii. is not legitimate according to public regulation.

(3) The decision regarding the legitimacy of aid granted according to public regulation is made by the minister in question or the relevant municipal supervisory authority unless otherwise provided by law. Decisions as to the legitimacy of aid granted under public regulation shall be made not later than 4 (four) weeks after receipt of the Competition Council's request. The Competition Council may extend this deadline.

(4) An order for repayment of aid under subsection 1 may be issued to private undertakings, self-governing institutions and corporate undertakings which are owned by the public in full or in part. The Minister for Economic and Business Affairs may lay down further rules to the effect that orders under subsection 1 for repayment of aid may also be issued to specific corporate undertakings owned by the public in full or in part.

(5) The Competition Council's powers to order repayment of aid under subsection 1 shall be statutebarred 5 (five) years after the aid is paid out. In accordance with the Act on Calculation of Interest, the Competition Council fixes the amount of interest accrued in connection with a repayment order under subsection 1, including rules that the interest due may be calculated from the time of payment of the distortive aid.

(6) Upon notification, the Competition Council may declare that on the basis of the facts in its possession, the public aid is not covered by subsection 2, paragraph 1 and accordingly, there are no grounds for issuing an order under subsection 1. The Council may lay down further rules on notification, including rules on the use of specific notification forms.

Part 4 Merger control

12. - (1) The provisions entailed in part 4 of this Act apply to mergers, where

i. the combined aggregate annual turnover in Denmark of all the undertakings concerned is more than DKK 3.8 bn and the aggregate turnover in Denmark of each of at least two of the undertakings concerned is more than DKK 300m; or

ii. the aggregate annual turnover in Denmark of at least one of the undertakings concerned is more than DKK 3.8 bn and the aggregate annual worldwide turnover of at least one of the other undertakings concerned is more than DKK 3.8 bn.

(2) Where a merger consists in the acquisition of parts of one or more undertakings, only the turnover relating to the parts, which are subject to of the transaction, shall be taken into account with regard to the seller or sellers.

(3) However, two or more transactions, as defined in subsection 2, which take place within a 2-year period between the same persons or undertakings shall be treated as one and the same merger arising on the date of the last transaction.

(4) Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down further rules on the calculation of turnover under subsection 1, including rules to the effect that the turnover thresholds for financial institutions shall be based on other values.

(5) The provisions in part 4 of this Act shall not apply to mergers subject to the Merger Control Regulation unless the European Commission refers the merger to the Competition Council.

12a. - (1) Under this Act, a merger means:

i. two or more previously independent undertakings merging to become one undertaking; or

ii. one or more persons already controlling at least one undertaking, or one or more undertakings acquiring, whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of one or more other undertakings in full or in part. (2) The establishment of a joint venture performing on a lasting basis all the functions of an autono-mous economic entity shall be deemed to constitute a merger within the meaning of subsection 1, paragraph 2.

(3) For the purpose of this Act, control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of having decisive influence on an undertaking.

(4) A merger shall not be deemed to arise under subsection 1 where:

i. Credit institutions or other financial institutions or insurance companies, the normal activities of which include transactions and dealing in securities for their own account or for the account of others, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling these, provided always that they do not exercise voting rights in respect of those securities with a view to determining the competitive conduct of that undertaking or provided always that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that any such disposal takes place within 1 (one) year of the date of acquisition;

ii. Control is acquired by an office-holder according to the Insolvency Act or analogous proceedings who can dispose of the undertaking; or

iii. The transactions referred to in subsection 1, paragraph 2 are carried out by the financial holding companies as defined in the Council Directive on the annual accounts of certain types of companies, provided, however, that the voting rights in respect of the holding are exercised, in particular in relation to the appointment of members of the management and supervisory bodies of the undertakings in which they have holdings, only to maintain the full value of those investments and not to determine directly or indirectly the competitive conduct of these undertakings.

(5) Upon request the Competition Council may extend the period in subsection 4, paragraph 1 where the credit institute or the financial undertaking or the insurance company can substantiate that the disposal was not reasonably possible within the period set.

12b. - (1) A merger covered by this Act shall be notified to the Competition Authority after entering into a merger agreement, publication of takeover offer or acquisition of a controlling share and before it is implemented.

(2) The Competition Authority may publish a notice to the effect that a merger has been notified to the Competition Authority. The notice shall specify the names of the parties to the merger, the nature of the merger and the economic sectors involved.

(3) Having consulted the Competition Council, the Minister for Economic and Business Affairs shall lay down rules on the notification of mergers, including rules on the use of specific notification forms.

12c. - (1) The Competition Council shall decide whether a merger, which is subject to an obligation to give notice under section 12 b (1), or which has been referred to the Competition Council by the European Commission, cf. section 12 (5), may be approved or prohibited.

(2) A merger which would not significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, shall be approved. A merger impeding effective competition significantly, particularly as a result of creation or strengthening of dominant position, shall be prohibited.

(3) To the extent that the establishment of a joint venture constituting a merger under section 12 a (2), also has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent, such coordination shall be assessed in accordance with the criteria laid down in sections 6 (1) and 8 (1), in order to establish whether the transaction can be approved.

(4) When making the assessment under subsection 3, the Competition Council shall, in particular, take into account:

i. whether two or more parent companies retain to a significant extent activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market; and

ii. whether the coordination which is the direct consequence of the establishment of the joint venture affords the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(5) A merger, as defined in this Act, shall not be put into effect neither until it has been notified nor until it has been approved by the Competition Council under subsection 1. This shall not prevent the implementation of a public bid or a series of transactions in securities which can be negotiated on a market as well as a stock exchange whereby different sellers acquire control, cf. 12 a, if the merger is reported to the Competition Authority and the acquirer does not exercise the voting right attached to the securities in question or only does it to maintain the full value of his investment and on the basis of a derogation granted by the Competition Council, cf. subsection 6.

(6) The Competition Council may, on request, grant derogation from the obligations imposed in subsection 5 and such derogation may be made subject to conditions and obligations in order to ensure conditions of effective competition.

(7) If it is evident from information already in the possession of the Competition Authority or from information submitted by an undertaking that a planned merger may be authorised without conditions or obligations, the Competition Council can approve the merger, cf. subsections 2 and 3, without publication of the fact that a merger has been notified to or approved by the Council. At the time of approval the Competition Council sets a date for publication of its decision.

(8) If the Competition Council informs the undertakings concerned that a planned merger cannot obtain approval under the procedure laid down in subsection 7, the undertaking may withdraw its notification or request that a decision not be made under the other provisions in part 4, until the obligation to notify according to section 12 b (1) has come into effect.

12d. - (1) Within 4 (four) weeks after receipt of a complete notification under section 12 b (1) or section 12 (5), the Competition Council must decide whether to approve a merger or to initiate a separate investigation hereof.

(2) If the Competition Council has decided to initiate a separate investigation of a merger under subsection 1, a decision whether to approve or prohibit a merger under section 12c (1) must be reached within 3 (three) months after receipt of a complete notification.

(3) If the Competition Council has not made a decision in accordance with the deadlines laid down in subsections 1 and 2, the merger shall be deemed to be approved. In exceptional cases, the Competition Council may suspend the periods set out in subsections 1 and 2, including with a view to obtain further information, cf. section 17.

12e. - (1) Under section 12 c (2) the Competition Council may attach terms and conditions and orders to its approval in order to ensure that the undertakings involved comply with the commitments they have entered into vis-à-vis the Competition Council with a view to eliminating the detrimental effects of the merger.

(2) Such terms and conditions and orders may e.g. imply that the undertakings concerned

i. dispose of an undertaking or parts of an undertaking, assets or other proprietary interests;

ii. grant third-party access; or

iii. take other measures which may further effective competition.

(3) After approval of a merger, the Competition Council may issue orders necessary to ensure due and correct fulfilment of the obligations given to the Council by the companies concerned, cf. subsection 1.

12f. The Competition Council may revoke its approval of a merger, where

i. its approval is to a substantial extent based on incorrect or misleading information for which one or more of the undertakings concerned are responsible; or

ii. the undertakings concerned fail to comply with a condition or obligation under section 12 e (1).

12g. Where a merger has already been implemented, the Competition Council may, in a decision under section 12 c (1), require the undertak-ings or assets brought together to be separated or the cessation of joint control or any other action that may be appropriate in order to restore condi-tions of effective competition.

Part 5 Access to documents

13. - (1) The Act on Public Access to Documents in Public Files shall not apply to cases under this Act, except for cases concerning the issuing of rules under section 5 (2), section 7 (4) and (5), second sentence, section 8 (2), third sentence, section 9, (1) second sentence, section 10 (1), section 11 (6), section 11a (4), second sentence and (6), second sentence, section 12 (4), section 12b (3), section 14 (3), section 18 (7), second sentence, section 18a (3) and section 21 (3).However, sections 4 (2) and 6 of the Act on Public Access to Documents in Public Files shall apply equally to cases covered by this Act. Sentences one and two are also applicable if information obtained under this Act has been divulged to another administrative authority.

(2) Such terms and conditions and orders may e.g. imply that the undertakings concerned

i. dispose of an undertaking or parts of an undertaking, assets or other proprietary interests;

ii. grant third-party access; or iii. take other measures which may further effective competition.

12f. The Competition Council may revoke its approval of a merger, where

i. its approval is to a substantial extent based on incorrect or misleading information for which one or more of the undertakings concerned are responsible; or

ii. the undertakings concerned fail to comply with a condition or obligation under section 12 e (1).

Part 5 Access to documents

(2) Decisions made by an authority under section 2 (4), first sentence, and section 11a (3), first sentence, recommendations made by the Competition Council and responses to such recommendations by the relevant minister under section 2 (5), and the Competition Council's decisions made under this Act shall be published. Furthermore, decisions made by the Competition Authority on behalf of the Competition Council shall be published, unless such decision is considered to be of no importance for the understanding of the application of the Competition Act, or otherwise considered to be of no interest to the public. In cases where a fine is imposed or accepted under section 23, the decision, acceptance of the fine or a summary thereof shall be published.

(3) The Competition Council may publish information concerning its activities as well as general reviews.

(4) Disclosure of information under subsections 2 and 3 shall not apply to information on technical matters, including information on research, production methods, products and operational and business secrets, provided always that such information is of substantial economic importance for the person or undertaking concerned. Nor shall customerrelated information from undertakings, which falls under the jurisdiction of the Financial Supervisory Authority, be disclosed.

(5) Any party, required to submit information to the Competition Council may make a request to the Chairman of the Council that such information, which is not to be disclosed or made publicly accessible under subsection 4, shall not be given to the members of the Council. The Chairman shall make the final decision as to which extent and in which manner the information should be given.

Part 6 The Competition Authority, Organisation and powers

14. - (1) The enforcement of this Act and any subordinate rules issued under this Act shall come under the jurisdiction of the Competition Council, cf. sections 2 (4), first sentence, and 11a (3), first sentence. The Competition Council may review cases on its own initiative, upon notification or complaint, or cases, which are referred to it by the European Commission or other EU competition authorities. The Competition Council decides whether a complaint gives sufficient grounds for investigation and decisions including whether the administration of a case shall be suspended temporarily or finally. The Competition Council may also decide not to review cases where undertakings have previously committed themselves under section 16a (1).

(2) The Competition Authority is the secretariat of the Competition Council with respect to cases under this Act and handles the day-to-day enforcement of the Act on behalf of the Competition Council.

(3) The Minister for Economic and Business Affairs shall lay down rules of procedure for the Competition Council as well as rules on the activities of the Competition Council and the Competition Authority, including rules on dismissal of Council members or their deputies, on the recommendation of the Chairman of the Competition Council, before the expiry of a period.

15. - (1) The Competition Council is composed of a Chairman and 17 members. The King shall appoint the Chairman for a term of up to 4 (four) years. The Minister for Economic and Business Affairs shall appoint the other members for a term of up to 4 (four) years. The Competition Council shall have comprehensive knowledge of public as well as private business activity, including experience in legal, economic, financial and consumerrelated matters. The Chairman and 8 (eight) of the members shall be independent of commercial and consumerrelated interests. One of these members shall have a special insight into governmental business activity. According to further directions by the Minister for Economic and Business Affairs, 7 (seven) members shall be appointed on the recommendation of trade organisations, 1 (one) member shall be appointed on the recommendation of consumer organisations, and 2 (two) members with special insight into public business activity shall be appointed on the recommendation of the National Association of Local Authorities in Denmark (Kommunernes Landsforening).

(2) The Minister for Economic and Business Affairs shall appoint permanent deputies for the members of the Competition Council.

15a. - (1) The right of access to information as an involved party under the Public Administration Act only comprises the part of the correspondence and the exchange of documents between the European Commission and the competition authorities of the member states or between the competition authorities of the member states, which contains information about the actual matters of facts of the case that are of essential importance to the decision of the case.

(2) In cases where a consultation procedure is carried out under the Public Administration Act, the parties must have access to the entire draft decision. The deadline for making a statement regarding the draft decision is at least 3 (three) weeks, unless other deadlines apply according to the Public Administration Act, or the decision is made under the provisions in part 4 of this Act.

15b. The Minister for Economic and Business Affairs may lay down further rules on the use of electronic communication to and from the Competition Council, the Competition Authority and the Competition Appeals Tribunal, including rules on the use of digital signature.

15c. The Competition Council can administer cases and make decisions in English if requested by the addressees of the decision and considerations for the parties to the case do not form a decisive argument against using English. If the Competition Council has made a decision in English, a Danish summary hereof shall be available.

16. - (1) The orders which the Competition Council may issue under section 6 (4) and section 11 (4), first sentence, or with reference to Article 81 or Ar-ticle 82 of the EC Treaty, cf. section 23a (1), in order to bring the detrimental effects of an anticompetitive practice to an end, can e.g. imply:

i. termination of agreements, decisions, trading conditions etc. in full or in part;

ii. that given prices or profits shall not be exceeded, or that the calculation of prices and profits shall be made subject to specified calculation rules;

iii. obligation for one or more of the undertakings concerned to sell to specified buyers on the conditions usually applied by the undertaking to equivalent sales. The undertaking is, however, always entitled to demand payment in cash or adequate security;

iv. that access shall be granted to an infrastructure facility which is essential in order to market a product or service.

(2) (Repealed)

16a. - (1) Obligations provided by undertakings which can meet the concerns of the Competition Council in relation to section 6 (1), section 11 (1) or Article 81 or 82 of the EC Treaty, cf. section 23a (1) can be made binding on the undertaking by the Council. An obligation can be limited in time.

(2) After an obligation has been made binding, cf. subsection 1, the Competition Council can issue orders which are necessary to ensure timely and correct fulfilment of the obligations made.

(3) The Competition Council may revoke a decision under subsection 1 if

i. the actual conditions have changed on a count essential for the decision;

ii. the participant of the agreement etc. act in contravention of obligations submitted; or

iii. the decision was made on the basis of false or misleading information from the parties to the agreement etc.

17. - (1) The Competition Council may request any information, including accounts, accounting records, copies from the books, other business records and electronic data, which are considered necessary for its business or for deciding whether the provisions of this Act shall apply to a certain matter.

(2) With a view to applying Articles 81 and 82 of the EC Treaty or Article 53 or 54 of the EEA Agreement, the information stated in subsection 1 can also be required for use in the Competition Authority's assistance to the European Commission and other competition authorities within the EU or the EEA area.

18. - (1) The Competition Authority may, for the use of the Competition Council's business, conduct investigations, which imply that the Competition Authority is granted access to the premises and means of transport of an undertaking or association with the purpose of becoming acquainted with and making copies of any information on the site, including accounts, accounting records, books and other business records, regardless of information medium. In connection with the investigation the Competition Authority may require oral explanations.

(2) If the information of an undertaking or an association is stored with or processed by an external data processor, the Competition Authority is entitled to be given access to the premises of the external data processor to become acquainted with and make copies of the information on the site, cf. subsection 1. It is a precondition for such access that is not possible for the Competition Authority to obtain the information concerned directly from the undertaking or association being the object of the investigation.

(3) The Competition Authority's investigations require a court order and due proofofidentity.

(4) If matters relating to the undertaking or association make it impossible for the Competition Authority to be given access to or make copies of the relevant information on the day of the investigation, cf. subsections 1 and 2, the Competition Authority is entitled to seal off the relevant premises of the business and the information for up to 72 hours.

(5) Under the same provisions of subsection 4, the Competition Authority is entitled to seize the documents or the medium, where the information is stored, in order to make copies thereof. Any material which the Competition Authority has seized must be returned to the undertaking or association together with a set of the copies that the Competition Authority has made for its further examination, not later than 3 (three) workdays after the day of the investigation.

(6) In special cases the deadlines of subsections 4 and 5 may be extended.

(7) The police shall grant assistance to the Competition Authority in exercising the powers assigned to it under subsections 1 and 2 and subsections 4 and 5. The Minister for Economic and Business Affairs may, if so agreed with the Minister for Justice, lay down rules in that respect.

(8) The Competition Authority may conduct investigations in order to grant assistance to the European Commission or other competition authorities within the EU in connection with the authorities' application of Articles 81 and 82. The provisions of subsections 1-7 shall apply correspondingly.

18a. - (1) Subject to reciprocity, the Competition Authority may divulge information covered by the rules of professional secrecy to other countries' competition authorities if such information is necessary to improve the enforcement of the competition rules of those countries, including the fulfilment of any bilateral or multilateral agreement entered into by the Kingdom of Denmark.

(2) If such information is divulged under subsection 1, the Competition Authority shall make the divulgement subject to the following conditions:

i. the addressee must have a similar obligation of professional secrecy;

ii. the information divulged may exclusively be used for the purposes set forth in a bilateral or multilateral agreement if the divulgement takes place according to such agreement; and iii. the information divulged may only be passed on with the express consent of the Competition Authority and only for the purpose covered by the consent.

(3) The Minister for Economic and Business Affairs may lay down further rules on the divulgement of information to foreign authorities covered by the Competition Authority's professional secrecy.

Part 7 Appeal

19. - (1) Decisions made by the Competition Council under section 2 (1), section 3, first sentence, section 5 (1), section 6 (1), section 7 (1)-(3), section 8 (2), first sentence, (3), second sentence, (4) and (6), section 9 (1), section 10 (2), section 10a (1) and (6), section 11 (1)-(2) and (5), section 11a (1) and (6), first sentence, section 12a (5), section 12b (1), section 12c (1)-(3) and (6), section 12d (3), first sentence, section 12e (1) and (3), section 12f, section 12g, section 13 (4), section 16, section 16a (2) and (3), section 23a (2), cf. (1) and section 27 (4), second sentence, of this Act, may be brought before the Competition Appeals Tribunal for appeal.

(2) Appeal under subsection 1 may be instituted by

i. the party to whom the decision is directed; and

ii. other parties who have an individual and substantial interest in the case. This does not apply, however, to decisions made by the Competition Council under section 12a (5), section 12b (1), section 12c (1)-(3) and (6), section 12d (3), first sentence, section 12e (1) and (3), section 12f, section 12g and section 16a (2) and (3).

(3) Decisions under section 14 (1) cannot be brought before the Competition Appeals Tribunal for appeal.

(4) The appeal against a decision under section 13 (4) will act as a stay of proceedings. Appeal against other decisions can be granted a stay of proceedings by the Competition Council or the Competition Appeals Tribunal.

(5) The Competition Appeals Tribunal can proceed cases and make decisions in English if so requested by the addressees of the decision and considerations for the parties to the case do not form a decisive argument against using English. If the Competition Appeals Tribunal has made a decision in English, a Danish summary hereof shall be available. If the Competition Council, cf. section 15c, has made a decision in English, these documents shall form the basis of the Tribunal's administration of the case in question regardless of whether the Tribunal's case administration and decision are made in English.

20. - (1) Decisions made by the Competition Council under this Act cannot be brought before any other administrative authority than the Competition Appeals Tribunal and cannot be brought before the courts of law until the Appeals Tribunal has made its decision.

(2) Appeals can be lodged with the Competition Appeals Tribunal within 4 (four) weeks after the decision has been communicated to the party concerned. If justified by weighty reasons the Appeals Tribunal may disregard that the timelimit be exceeded.

(3) Decisions made by the Competition Appeals Tribunal can be brought before the courts of law within 8 (eight) weeks after the decision has been communicated to the party concerned. If the time limit is exceeded, the decision of the Appeals Tribunal shall be final.

(4) Copies of judgments passed under application of the present Act or Articles 81 and 82 of the EC Treaty shall be submitted to the Competition Board by the court, though in criminal cases by the CPS, to inform the European Commission about judgments relating to Articles 81 and 82 of the EC Treaty.

21. - (1) The Competition Appeals Tribunal consists of a Chairman, who shall be qualified for the post as a Supreme Court Judge, and 4 (four) other members of which 2 (two) shall be legal experts and 2 (two) economic experts, respectively.

(2) The Chairman and the members shall be appointed by the Minister for Economic and Business Affairs. They shall be independent of commercial interests. Their appointment shall cease by the end of the month in which they will be 70 years old.

(3) The Minister for Economic and Business Affairs shall lay down rules on the activities of the Appeals Tribunal, including rules on the fees chargeable for bringing decisions before the Appeals Tribunal.

Part 8 Penalty provisions

22. - (1) If a party fails to

i. submit such information which the Competition Council may request under this Act;

ii. comply with a condition or an order issued under this Act; or

iii. fulfil an obligation made binding, cf. section 16a (1)

the Minister for Minister for Economic and Business Affairs, or any authority authorised for this by the Minister, may, as a coercive measure impose on the party concerned daily or weekly penalty payments.

(2) Penalty payments imposed under subsection 1 can be recovered by distraint, deduction from wages etc. under the Act on Withholding Tax.

(3) The collection authority may waive claims under subsection 1 in conformity with the provisions of the Act on Collection of Public Debts.

23. - (1) Unless subject to higher penalty by other law, fines shall be imposed on any party, who intentionally or by gross negligence

i. infringes section 6 (1);

ii. infringes or fails to fulfil a condition attached to a decision made under section 8 (3), second sentence, or subsection (4), second sentence;

iii. violates or fails to fulfil a condition under section 10a (1) or (6);

iv. violates section 11 (1),

v. violates or fails to fulfil a condition under section 11a (1);

vi. fails to notify a merger under section 12b (1);

vii. conducts a merger despite a decision not to do so under section 12c (2), infringes the prohibition on conducting a merger before having obtained an approval under section 12c (5), first sentence, infringes a condition or obligation attached to a decision under section 12c (6) or section 12e (1), or (3), or infringes or fails to comply with an order under section 12g;

viii. infringes or fails to comply with an order issued under section 16;

ix. infringes or fails to comply with an obligation made binding under section 16a (1);

x. infringes or fails to comply with an order under section 16a (2);

xi. fails to comply with a request made under section 17;

xii. supplies, the Competition Authority, the Competition Council or the Competition Appeals Tribunal with incorrect or misleading information or conceals matters of importance for the case in question for which the information was collected; or

xiii. infringes the prohibition in Articles 81 (1) or 82 of the EC Treaty, cf. section 23 a (1).

(2) Subsection 1, paragraph 1, shall not apply as from the date when an agreement etc. has been notified to the Competition Authority under section 8 (2) or (4) and until the Competition Council has communicated its decision under section 8 (2), (4) or (5).

(3) Penalty may be imposed on companies etc. (legal persons) under the provisions of part 5 of the Penal Code. When assessing the penalty under subsections 1 and 2, the penalty limit of the fine shall be fixed in consideration of the general rules of Part 10 of the Penal Code as well as the turnover obtained by the legal person in question during the last year before the judgment is obtained or a fine is imposed.

(4) The limitation period for imposing a penalty is 5 (five) years.

Part 9 EU competition rules

23a. - (1) Cases under Articles 81 and 82 of the EC Treaty, including cases involving parallel application of sections 6 and 11 of this Act, can be administered by the national competition authority if the case has ties to the Kingdom of Denmark. Ties to Denmark exists if agreements, decisions within an association, concerted practice between undertakings or the conduct of an undertaking have detrimental effects on the competition on the Danish market, or if an undertaking located in Denmark has entered into an agreement etc. which has a detrimental effect on the competition within the EU.

(2) The provisions in parts 5-8 of this Act are also applicable to the executive powers assigned to the Competition Council, cf. subsection 1, to the extent that Regulations or Directives under Article 83 of the EC Treaty do not prevent this.

(3) The assistance granted to the European Commission and other member states under Article 83 of the Treaty is granted by the Competition Authority.

24.-26. (Repealed)

Part 10 Commencement and transitional provisions

27. - (1) This Act shall come into force on 1 January 1998, notwithstanding the provisions of section 14 (3) and section 15, which shall come into force on 1 July 1997.

(2) As from the date when this Act comes into force, the Competition Act, cf. Consolidated Act No. 114 of 10 March 1993, and the Act on Control of Compliance with the European Economic Community's Regulations on Monopolies and Restrictive Practices, cf. Consolidated Act No. 449 of 10 June 1991, shall be repealed. An approval granted under section 14 (1) of the Competition Act, cf. Consolidated Act No. 114 of 10 March 1993, shall remain valid, until the Competition Council may decide to withdraw the approval. Such decision shall be made according to the rules then in force.

(3) Cases under the Competition Act, cf. Consolidated Act No. 114 of 10 March 1993, which have not been settled at the date when this Act comes into force, shall be discontinued, except for cases based on complaints and cases pending with the Competition Appeals Tribunal.

(4) Anti-competitive agreements, decisions and concerted practices which exist at the date when this Act comes into force, and which come under the prohibition of section 6 (1), may, if an application for exemption under section 8 is submitted before 1 July 1998, be maintained for up to 3 (three) months after the Competition Council has made its decision in the case, even though the application for exemption is refused. The Competition Council may extend the time limit of 3 (three) months.

(5) (Repealed.)

(6) The subordinate rules which are laid down under section 7 (2) of the Competition Act, cf. Consolidated Act No. 114 of 10 March 1993, shall remain in force until new rules be issued under section 4 (3) of the Price Marking and Display Act, as drawn up in section 28, paragraph 1, of this Act. The enforcement of existing rules, as referred to in the first sentence of this subsection, shall be assigned to the National Consumer Agency. Intentional or grossly negligent infringement of existing rules, as referred to in the first sentence of this subsection, shall be punishable by a fine. Penalty may be imposed on companies etc. (legal persons) under the provisions of part 5 of the Penal Code.

28. The Price Marking and Display Act, cf. Consolidated Act No. 456 of 17 June 1991, as amended by Act No. 429 of 1 June 1994, shall be amended as follows:

1) In section 4 the following shall be inserted as subsection 3:

“(3) In product and service markets where it is considered to be of special importance as price guidance to the consumers, the National Consumer Agency may lay down rules on invoicing and other documentation of the price calculation.”

2) After section 9 the following shall be inserted:

“10. In product and service markets of special importance to the consumers, the National Consumer Agency may carry out and publish comparative investigations of prices, discounts and bonuses etc.”

29. This Act shall not apply to the Faroe Islands and Greenland.

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Act No. 431 of 6 June 2005, amending section 22 (2) and (3), contains the fol
lowing section on commencement:
85

(1) This Act shall come into force on 1 November 2005, cf. subsection 2.

(2) Section 52 (viii) has effect on the information communicated by bodies under duties of deduction to individual qualifying for income taxed at source (A-income) on 1 September 2005 and later.

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Act No. 601 of 24 June 2005, as amended by section 15 (1), contains the following section on commencement: 5

This Act shall come into force on 1 January 2007.

The Ministry of Economic and Business Affairs, this 8th day of August 2005

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