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.
  • Minority acquisition. In an unprecedented move, the Norwegian Competition Authority requested the acquirer of a 34% stake in a rival to submit a merger filing.

Cartels

  • Buses. At the beginning of 2016, the Finnish competition authority proposed a total fine of 38 million euros for a cartel in the buss sector. The hearings of the Market Court took place at the beginning of 2017, so stay tuned for more on our blog.

Cooperation

  • Standard terms and conditions. The Finnish competition authority gave a commitment decision in November 2016 concerning a non-binding model clause cooperation between the Finnish Banks within the Federation of Finnish Financial Services. The decision indicated a tightening approach to model clause cooperation between competitors in Finland.
  • Consortia agreements. Consortia agreements have seen a lot of attention in the Nordics in 2016. The EFTA Court issued an advisory ruling against two local taxi cooperatives who had been fined by Norway’s competition authority. The cooperatives had submitted a joint for a public contract through a jointly-owned company (the ruling is available here and a comment on the earlier judgment by an appeals court in Norway is available here). Norway’s Supreme Court is set to hear the case in May 2017. In Denmark, the Danish Competition Appeals Board upheld the Danish Competition Council’s decision stating that a consortium agreement was a hard core competition law infringement. The case is pending in court; hence, stay tuned on the blog for an update.

Dominance

  • Raw milk. The Finnish Supreme Administrative Court upheld the Market Court’s decision of a 70 million euro fine for pricing below average variable costs in the market for production and wholesale of fresh milk in Finland in 2010 – 2012. Our blog on the earlier Market Court’s decision is available here.
  • Airport fees. The Swedavia case took another interesting turn. In 2011 Sweden’s Market Court had concluded that a special charge imposed by Swedavia (the owner of Stockholm Arlanda Airport) on taxi companies using name signs when collecting passengers from the arrivals hall was abusive. Following this judgment, the Swedish Competition Authority took Swedavia to court and requested fines. However, in 2016 the District Court found against the authority. The court found that while there was an abuse of dominance, it was objectively justified and therefore no damages have been imposed. The Authority chose not to appeal the decision.

Private enforcement

  • Successor liability. The Helsinki Court of Appeal gave its decisions in 40 asphalt cartel follow-on damages actions in October 2016 dismissing the majority of the claims, which amounted to 120 million euros in total. One of the main legal questions was the liability for damages of the third party companies to whom the Supreme Administrative Court imposed fines on the basis of the EU principle for economic succession. Our blog on the verdicts, some of which are not final, is available here.
  • Damages directive. A new Act on Antitrust Damages Actions (No. 1077/2016) entered into force on 26 December 2016 in Finland. Our blog updates on the national particularities here. The Act is not available in English to date, however the Swedish version is available here. The damages directive has also been implemented in Denmark. The Danish act entered into effect 27 December 2016 and is available in Danish here. In Norway, however, the situation remains complicated, as explained in this guest post.

Procedure

  • Setting the amount of a fine. The Finnish Market Court ruled at the end of February 2016 that evidence on harmful effects of an infringement “by object” is required if harm is used to justify a certain level of fines. The decision clarifies that the gravity of an infringement cannot be assumed on the basis of the “by object” nature of the infringement when setting the amount of fines. Our blog on the topic is available here.
  • The right of defence. The Market Court found in March 2016 that the Finnish competition authority’s violation of right of defence during the administrative proceedings concerning an alleged cartel constituted a material procedural defect. Our blog discussed on the available remedies in Finland here.
  • Updated leniency guidelines. The Finnish competition authority updated its Guidelines on immunity from and reduction of penalty payments in cartel cases at the end of 2016. The updated guidelines now reflect the new Act on Antitrust Damages Actions. Guidelines are available here.
  • Fines in Denmark are changing gear. 8 November 2016 Opel Denmark was fined more than DKK 8 million for resale price maintenance. The fine was remarkably higher than previous fines and marking that Denmark has changed gear when it comes to fines for infringing the Danish Competition Act. Read our blog post on the Opel case here. The Opel case was followed by another case on retail price maintenance concerning a wholesale business within the furniture industry. In this case, the wholesaler was fined DKK 600,000, which was also an increase of the fine level considering the business’ revenue. Read about the furniture case here.
  • Changes to Norway’s competition act. Norway made some changes to its competition act, including rules on mergers and cartel settlements. A new competition appeals board will be established during 2017.
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Michael Klöcker is a Partner at LETT's Copenhagen office.

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