Denmark: Bad Advertising Has High Cost - Concerted Practice Continued After The Expiry Of Written Agreement

The Danish High Court has in a recent judgment overturned the Danish Maritime and Commercial Court in a case concerning concerted practices in the market for sales of commercials in outdoor media.

Two outdoor media providers, Clear Channel Danmark A/S ("Clear Channel") and AFA JCDecaux ("AFA JCDecaux") (together, the "Parties") were found to have restricted competition law by entering into firstly, agreements and secondly, a concerted practice concerning joint discount rates when selling access to commercials in outdoor media, such as billboards, advertising stands by bus stops, supermarkets, airports, etc.

Initially, in the period from 5 September 2008 to 31 December 2010, the Parties entered into written agreements concerning common joint discount rates in relation to specific price elements such as media provisions and guarantees.

Notwithstanding that the written agreements had expired, the Parties nonetheless upheld the conduct set out in the written agreement in a period from 1 January 2011 to 21 April 2015 and therefore continued to have a parallel conduct.

The Danish Competition Council (the "DCC") issued a decision in December 2018 stating that the Parties' conduct restricted competition in both these periods. This was later confirmed by the appeal body.

The case was subsequently appealed to the Danish Maritime and Commercial Court, which found that the Parties had only been restricting competition in the first period when the conduct was substantiated by a written agreement. This decision has now finally been overturned by the Danish High Court.

The case is especially relevant as a contribution to the understanding of the term "agreement" under Article 6 of the Danish Competition Act, i.e., the Danish equivalent to Article 101(1). From this case it can be seen that absent another valid explanation for the conduct, it may be assumed that parallel conduct based on a prior explicit agreement constitutes a concerted practice.

Originally Published by 14 June 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.