As of 1 March 2013 the Danish Competition Act is now including imprisonment as part of the punishment to cartels applying the same definition as within the EU regulation in article 101 of the Treaty on the Function of the European Union (TFEU) meaning agreements or concerted practices between 2 or more participants. It is stressed that this will only apply for cartels made by participants in the same level of the distribution chain just as imprisonment can only be applied where a cartel was intended and of a particularly aggravated nature.

It will be hard to imagine a cartel which was not set up deliberately!

The introduction of imprisonment has been part of a long going debate for the last 7-8 years and besides now introducing imprisonment the levels of fines are also significantly raised:

Less severe breaches rise from DKK 10,000 – DKK 400,000 to DKK 10,000 – 4,000,000

Severe breaches rise from DKK 400,000 to DKK 15,000,000 to DKK 4,000,000 – 20,000,000

Very severe breaches rise from “more than DKK 15,000,000” to “more than DKK 20,000,000”

Looking back the history shows that the previous highest fine ever given in a Danish cartel matter was from 2008 and of no more than DKK 4,000,000. It is therefore fair to conclude that the former regime was far from exercising the ranges provided for fines. Whether the new ranges for fines will be assessed to its limits is hard to tell, but the individual fines will most likely increase.

The new level of fines also apply to any company’s abuse of its dominant position, just as the specific level of fines given to the individuals of the management is suggested to be at least

DKK 15,000 for less severe breaches

DKK 100,000 for severe breaches

DKK 200,000 for very severe breaches

Niels Christian Døcker