Danish Court upholds decision regarding competition law infringement by Deutz AG and its national distributor in railway sector
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Associate
Denmark
I am an Associate in the EU & Competition and International Projects and Procurement groups. I work with a strong commitment to achieve pragmatic and measurable commercial solutions for our clients.
Partner
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.
The case centred around a consortium that was handling the renovation of the engines of the IC3 trains of the Danish State Railways. A member of the consortium, Fleco ApS (Fleco), was in several ways restricted from buying spare parts to be used in the renovation of the train engines.
The attempt by Deutz AG (Deutz) to block the delivery of the spare parts to Fleco was carried out through a refusal to supply as well as an agreement between Deutz and Danish distributor Diesel Motor Nordic A/S (DMN) to block alternative accesses and passive sales to Fleco. As a consequence of this restriction, Fleco was only able buy the spare parts at a significantly higher rate directly from DMN, the Danish distributor of Deutz.
In 2013, the Danish Competition Appeals Board (CAB) concluded that the behaviour of Deutz constituted an abuse of dominance through Deutz’s refusal to supply. Furthermore, the CAB deemed the agreement regarding the prevention of the parallel import and passive sales between Deutz and DMN to be anti-competitive.
On appeal, the decision by CAB was brought before the Danish Maritime and Commercial High Court (MCC). On 11 January 2021, the MCC confirmed that Deutz had abused its dominant position by consistently and systematically refusing to supply the unique Deutz-spare parts to Fleco. Additionally, MCC confirmed the findings of CAB regarding the anti-competitive nature of the agreement between Deutz and DMN.
Throughout the investigation of the case the Danish Competition and Consumer Authority has been collaborating closely with the competition authorities from Germany, Sweden and the Netherlands. For example, the Danish Competition and Consumer Authority was assisted by its European colleagues when carrying out dawn raids in the above-mentioned countries.
For more information, please refer to the decision of 9 December 2013 from the Danish Competition Appeals Board available in Danish here. The judgment of the MCC is yet to be published as it currently awaits confidentiality clearance.
For more information please contact Morten Nissen or Frederik Haugsted.
