The Danish Competition and Consumer Authority (the "DCCA") has adopted a new practice of proactively disclosing unannounced inspections at a sector level shortly after they have been carried out. This new approach aligns with the practice of the European Commission (the "Commission") and is intended to enhance transparency.
The new policy
The DCCA has recently changed its practice regarding press releases issued in the aftermath of unannounced inspections, so-called dawn raids. Going forward, the DCCA will issue a short press release following a dawn raid. Such press release will include general information about the relevant sector or market in which the dawn raid was carried out, while refraining from disclosing the identity of the companies involved.
In setting out the reasons for its revised press policy, the DCCA has stated:
"The Danish Competition and Consumer Authority has changed its press policy and will henceforth, as a general rule, announce when it has carried out an inspection, without mentioning the specific companies involved. With this change, the Authority follows the practice of the European Commission, and similar approaches are also seen among the Nordic competition authorities."
This new policy constitutes a clear departure from the DCCA's previous practice, under which no information was disclosed following dawn raids, and no comments were made unless the company subject to the dawn raid publicly confirmed it. The fact that a dawn raid had taken place would instead be disclosed at a later stage, in connection with the DCCA's decision on whether the competition rules had been infringed.
By aligning its press policy with that of the Commission and other Nordic competition authorities, the DCCA is signaling a shift toward greater transparency in its enforcement activities.
Balance between transparency and securing discretion in investigations
Despite the increased emphasis on transparency, the DCCA has underlined that it will continue to withhold the names of the companies involved. This approach reflects the need to safeguard companies against the potentially serious reputational harm that may arise simply from being associated with an ongoing investigation. A dawn raid does not in itself imply that a company has infringed competition law, and premature publicity could unfairly damage a company's public standing and commercial relationships. Maintaining confidentiality as to the identity of the company involved strikes a necessary balance between transparency and discretion.
Implication for companies
Although the practical execution of dawn raids remains unchanged, the public disclosure of their occurrence introduces new strategic considerations for companies. For companies active in the same market that have not been subject to a dawn raid at the time of the press release, such disclosure may indicate that the DCCA is focusing on competition in that market. This, in turn, provides an opportunity for such companies to review their own practices and ensure compliance with competition law. It might also serve as a timely reminder to verify that an effective dawn raid response plan is in place.
For companies trading with entities in sectors subject to dawn raids and considering whether to seek access to file for further insight, it is important to note that the DCCA's revised press policy does not affect the established practice regarding access to file in competition law cases. Thus, third parties are generally not entitled to access to file in cases or investigations under the Danish Competition Act. Nevertheless, a press release may serve as an early indication of a potential infringement case, alerting companies that could be affected by behavior within the sector concerned.
Read DCCA's press release in which, the DCCA announces a change in press policy (in Danish)
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