Category Archives: Dominance

Cases or issues involving alleged abuse of a dominant position. Assessed under Article 102 TFEU and corresponding national provisions.

2016: This happened in the Nordics

Here’s our roundup of the most interesting competition law developments in the Nordic countries in 2016.

Mergers

  • Non-compete clause. The Stockholm District Court found against the Swedish Competition Authority that a non-compete clause lasting five years did not constitute an infringement of competition rules by object, and was further unable to identify anti-competitive effects. As a result, the Court refused to impose the fines of around EUR 5 million that the SCA had requested. The Patent and Market Court will hear the authority’s appeal in September 2017.
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    Norway’s New Competition Director

    Lars Sørgard speaks to Nordic Competition

    Photo: Paul S. Amundsen

    Photo: Paul S. Amundsen

    A few weeks ago Lars Sørgard (56) took up his new role as the Director of the Norwegian Competition Authority. A former professor at the Norwegian School of Economics (NHH) in Bergen, Mr Sørgard has been the authority’s Chief Economist since last year (after having also held this post from 2004 to 2007). In this interview with Nordic Competition, he signals that the authority is looking for opportunities to go after dominant players and warns media outlets that the crisis in their industry is no excuse for illegal cooperation. Read more

    2015 Roundup: This Happened in the Nordics

    On the European scene, it was the first year with a Competition Commissioner from a Nordic country. We spoke to Margrethe Vestager in December. 2015 also saw several interesting cases and developments in the Nordics.

    Mergers

    • Property agency merger blocked after completion. The Stockholm District Court blocked an already completed takeover by Swedbank Franchise of Svensk Fastighetsförmedling. Read the full blog post here.
    • Norwegian Mobile merger. TeliaSonera, the Finnish-Swedish telecoms player, succeeded in obtaining a conditional clearance to take over Tele2’s mobile operations in Norway in a 3-to-2 merger. Our blog post is available here.
    • Danish deal called off. In September, however, TeliaSonera and Telenor, Norway’s telecoms incumbent, abandoned their plan to merge their Danish operations in the face of opposition from the Commission.
    • Sector specific merger regulation. 2015 was the year when sector specific merger rules were introduced in Denmark. As of 1 June 2015 virtually all telecoms mergers in the Danish market must be notified and assessed under merger control rules. See our blog post here.
    • Stopping the clock. Just one of the updates to Swedish merger control procedures that were formalised in guidelines published this year.
    • Gun jumping. In December 2014 the Danish Competition Council concluded that EY had jumped the gun when taking over KPMG Denmark. Our blog post on the council’s decision is available here. Six months later, the Danish Competition and Consumer Authority decided to refer the case to the public prosecutor’s office. See our blog post here. Clarification on the case is expected in 2016. Keep an eye on the blog in 2016 for an update!
    • Holding back information when notifying a merger has also been on the agenda in Denmark. The Danish Competition and Consumer Authority decided to report Metro Cash & Carry to the state prosecutor for not telling the Authority about a second potential buyer of the company it was acquiring. Our blog post is available here and we hope to update you on the matter in 2016.

    Procedure

    • Fining powers. The Swedish government launched a review into the possibility to give the Swedish Competition Authority its own fining powers. As the law currently stands the Swedish Competition Authority must raise a court action to request imposition of fines both in antitrust and in merger control cases. A report is due to be published on the issue in May 2016.
    • Testing the limits of search powers. The Swedish Market Court ruled at the end of October against the Swedish Competition Authority’s request to extend a search at its premises of electronically copied material seized during a dawn raid relating to a separate suspected infringement.  The SCA must now either request documents from the company in question, or seek permission to launch a new dawn raid to find documents relating to the separate suspected infringement.  Read the full blog post here.
    • Damages directive. The implementation of the Damages Directive is under way in the Nordic countries. We will update our readers on this in 2016.

    Dominance

    • Rogue trading. The Swedish Competition Authority brought a novel dominance case before the Stockholm District Court against Nasdaq OMX, the Nordic stock market operator. The authority claims that Nasdaq abused a dominant position on the market for trading of Swedish, Danish and Finnish equities by excluding a rival trading platform, Burgundy, from installing their trading system on the same premises as Nasdaq’s own trading system (and those of a large number of securities traders). Burgundy was thereby forced to place their system elsewhere, making Burgundy’s connection to Nasdaq’s trading system, as well as to potential securities trading customers, longer and slower. The authority is seeking fines of SEK 31 million (around EUR 4 million) in the case.
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    Setback for electronic searching by Swedish Competition Authority

    ASSA AB v Konkurrensverket (A 3/14)

    The Swedish Market Court ruled at the end of October against the Swedish Competition Authority’s request to extend a search at its premises of electronically copied material.  The ruling is a reminder that a dawn raid is an intrusive measure for which an explicit statutory basis is required.  A forthcoming amendment to the Swedish Competition Law will help clarify the Authority’s scope of review of electronic data in future cases. Read more

    The “as efficient competitor test” is not an efficient test

    The Court of Justice has informed the Danish Maritime and Commercial High Court in a matter concerning Post Danmark’s alleged abuse of dominance that a dominant undertaking may not solely rely on the “as efficient competitor test” when assessing a potential objection on abuse of dominance. According to the “as efficient competitor test” a dominant company should be able to perform a test proving that an as efficient competitor could compete with the dominant player. If such prove could be performed, the European Commission would normally not investigate the dominant undertaking; hence, dominant undertakings have been giving the “as efficient competitor test” a lot of attention as it appeared to be a kind of a safe harbour or at least a test that could easily identify whether a rebate was not likely to be compliant with article 102. Read more