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The Competition Council may publish its decision on anti-competitive agreements and concerted practice between seven local banks

15. august 2007

On 15 August 2007 the Danish Competition Appeal Tribunal confirmed that the Competition Council may publish all parts from the Council’s decision of 28 March 2007 on anti-competitive agreements and concerted practice between seven local banks.

With its decision of 28 March 2007, the Council concluded that the behaviour of the seven banks in the period 2004-2006 contravened section 6 of the Danish Competition Act which prohibits collusion between undertakings. The infringement consisted of three parts: an agreement to abstain from opening branches in the towns where the head offices of each of the seven banks were located; an agreement not to contact each others’ customers; and, finally, the sharing of information of importance to prices and fees.

The behaviour of the banks prior to 2004 did not violate section 6 of the Danish Competition Act since their total turnover was below the de minimis threshold value of 1 billion DKK (see section 7(1) of the Danish Competition Act).

Under section 13(2) of the Danish Competition Act, the Competition Council’s decisions shall be published. However, under section 13(4) disclosure of information under subsection 2 shall not apply to information on technical matters, including information on research, production methods, products and operational and business secrets, provided always that such information is of substantial economic importance for the person or undertaking concerned.

The seven banks objected to the Council’s decision to publish information from documents confiscated during inspections at the premises of the seven banks insofar as the information related to the period prior to 2004, i.e. when their behavior was not illegal due to section 7(1) of the Danish Competition Act. The banks claimed that the obligation to publish the Council’s decisions did not apply when their conduct was not illegal. Moreover, the banks submitted that the information from the period prior to 2004 in its entirety was exempted from publication pursuant to section 13(4) of the Danish Competition Act.

The Danish Competition Appeal Tribunal rejected the pleadings of the seven banks. First, the Tribunal noted that the Competition Council’s decisions shall be published except for information included under section 13(4) of the Danish Competition Act. Secondly, after an examination of the information related to the period prior to 2004, the Tribunal found that the information did not qualify for exemption under section 13(4) and, accordingly, the Council may publish its decision in full.