Denmark: Important limitations to the protection afforded “business secrets”
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Denmark
I'm a partner and co-head of our international Competition & EU group. I also lead the Competition & EU team in Denmark. I have a particular focus on applying competition & EU law as a tool to achieve specific and measurable business objectives for our clients.
Associate
Denmark
I'm an associate in our international Competition & EU group in Denmark, advising both national and international clients on Danish and EU competition law.
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In a recent decision, the Danish High Court clarified that several specific types of information concerning companies and their conduct must be made public in decisions by the Danish Competition Council (“DCC”), even where the applicant considers the information to be commercially sensitive.
The High Court reviewed a decision by the DCC from 2018, in which Teller (now “Nets”) was found to have abused its dominant position by offering certain customers loyalty rebates from 2012 - 2016.
By law, decisions by the DCC must be published, so that case law is accessible and understandable and to enable potential claimants such as consumers and competitors to claim damages against the infringing company.
Nets had requested that some information was exempted from publication in the DCC’s decision, as business secrets are exempt from publication pursuant to the Danish Competition Act.
Nets’ claim in particular concerned the identity and number of customers to which Nets’ conduct related, Net’s product range, and specific contractual terms such as prices and discounts. Nets claimed that the publication of this information could potentially have significant harmful effects if not kept confidential, and therefore constituted business secrets.
As the Danish Competition and Consumer Authority (“DCCA”) denied this request, Nets subsequently brought the case before the Maritime and Commercial Court, and later appealed this the judgment this court’s judgment to the High Court.
In its judgment, the High Court provides that the information in the DCC’s decision concerns matters which the authorities have considered to constitute an infringement of the Danish Competition Act, which will generally not be exempt from publication pursuant to the Danish Competition Act, as the exemption for “business secrets” is to be interpreted narrowly.
Further, the High Court specifies that factual information concerning operational and business matters which is necessary to understand and apply the decision to a certain extent could – and should – be referenced, albeit specific prices should only be published in spans (as done by the DCC). Thus, such information must be published in DCC decisions.
In its press release commenting on the case, the DCC emphasized that the judgment clearly demonstrates that there must be publicity about the DCC's decisions, so that interested parties can safeguard their interests, and so the greatest possible clarity about competition authorities’ practice is ensured.
The DCC attached importance to the fact that if customers and competitors in a market have been exposed to anti-competitive behaviour, it is crucial that they are given the opportunity to react, for example by raising a claim for damages.
The DCCA will later publish the decisions with the full information that the High Court has now ruled is not confidential.
The press release by the DCC can be found here, and the High Court’s judgment can be found here (Both only available in Danish).
Please contact Morten Nissen or Alexander Brøchner for more information.
Visit our Competition & EU homepage here.
