Judgment by the Court of Appeal of Eastern Denmark: Deutz AG and Diesel Motor Nordic A/S vs. the Danish Competition Council

In it’s excerpt from the case, the Court states:

”The Court found, that the basis for the Competition Council’s Market definition and assessment of dominance was inadequate to an extent, that justified the cancellation and remittance of the part of the Competition Council’s decision concerning Deutz AG’s abuse of a dominant position, cf. section 11 of the Competition Act and TEUF Article 102. Furthermore the Court found that due to the inadequacy of the Market definition it was not proven, that the market-threshold in the applicable Vertical Block Exemption Regulation was exceeded and therefore, that the behavior, found by the Competition Council to constitute illegal restraints on competition, cf. section 6 of the Competition Act and TEUF Article 101, was not exempted by the Regulation. The part of the Competition Council’s decision concerning, an illegal anti-competitive agreement was therefore cancelled and remitted for renewed assessment by the Competition Council.”

The Court of Appeal of Eastern Denmark has remitted a case for renewed assessment by the Competition Council. The Court reasons that remittance is justified as the case has not been sufficiently investigated. The Court cancels the Competition Councils decision and orders the Competition Council to pay the plaintif’s Court costs.

The case concerns whether Deutz and the company’s official distributor in Denmark, Diesel Motor Nordic, in the summer of 2010, prevented the Danish Company Fleco from receiving unique Deutz-spare parts for DSB-s IC3-trains, in breach of the Danish Competition Act.

In June 2013 the Competition Council decided that Deutz had abused it’s dominant position by refusing delivery of engine-spare parts to Fleco via Deutz’ distributor-network. At the same time the Council decided that Deutz and Diesel Motor Nordic had entered into an anti-competitice agreement aiming to stop Fleco from importing the spare parts.

The Competition Councils decision was initially confirmed by the Competition Appeals Board and later by the Danish Maritime and Commercial High Court.