1. Introduction

Article 101 of the Treaty on the Functioning of the European Union (TFEU) is one of the principal provisions governing restrictive business conduct in Denmark. It prohibits agreements, decisions of associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition, where they may affect trade between EU Member States.

Denmark applies Article 101 TFEU alongside its domestic competition rules. Section 6 of the Danish Competition Act substantially mirrors Article 101(1), while Sections 7–8 provide the framework for exemptions corresponding to Article 101(3). Danish competition authorities and courts therefore frequently analyse EU and Danish law together.

This is particularly important because Danish markets are often closely integrated with the wider European market. Conduct occurring entirely within Denmark may therefore fall under Article 101 where it is capable of affecting trade between Member States.

2. Legal Framework in Denmark

A. Article 101(1) TFEU

Article 101(1) prohibits:

1. agreements between undertakings;
2. decisions by associations of undertakings; and
3. concerted practices,

which:

• have as their object or effect the restriction of competition; and
• may affect trade between EU Member States.

Examples include:

• price fixing;
• market sharing;
• customer allocation;
• bid rigging;
• output limitation;
• information exchange;
• resale-price maintenance;
• restrictions on cross-border sales;
• collective boycotts; and
• certain restrictive vertical arrangements.

The Danish Competition Act substantially reproduces this structure. The current Danish Act expressly provides rules corresponding to the EU competition provisions and also recognises the role of Denmark's competition authority as a national competition authority for Articles 101 and 102 TFEU.

3. Elements of Article 101 in the Danish Context

A. "Undertaking"

Article 101 applies to undertakings, rather than merely companies incorporated under Danish corporate law.

The concept is functional. An entity may be an undertaking where it engages in economic activity, irrespective of its legal form or method of financing.

Thus, Danish companies, associations, professional bodies, public enterprises and other economically active organisations can potentially fall within Article 101.

B. Agreement

An agreement does not necessarily require a formal written contract.

Article 101 can apply where businesses reach an understanding concerning their competitive behaviour.

Examples include:

• competitors agreeing on prices;
• distributors agreeing not to compete for particular customers;
• suppliers imposing prohibited restrictions;
• competitors coordinating tenders.

This is particularly significant in Denmark's procurement markets because apparently cooperative bidding arrangements can constitute prohibited coordination.

C. Concerted Practices

Article 101 also covers concerted practices, which occupy the area between a formal agreement and independent market behaviour.

The concept becomes particularly important where competitors:

• exchange commercially sensitive information;
• communicate future pricing intentions;
• coordinate responses to market conditions;
• signal future conduct;
• align bidding strategies.

The Danish Hugo Boss litigation illustrates the practical importance of information exchange under Article 101.

4. Restriction "By Object" and "By Effect"

A central distinction under Article 101 is between:

Restriction by object

Certain conduct is sufficiently harmful to competition that it can be classified as restrictive by object without requiring an extensive analysis of its actual market effects.

Typical examples include:

• price fixing;
• market sharing;
• customer allocation;
• bid rigging.

Restriction by effect

Where conduct is not inherently sufficiently harmful, its actual or likely effects on competition must be examined.

Relevant factors can include:

• market shares;
• market structure;
• barriers to entry;
• market power;
• duration;
• actual competitive effects;
• counterfactual conditions.

The distinction is particularly important in Danish cases involving cooperation between competitors, because not every form of cooperation automatically constitutes a cartel.

5. Effect on Trade Between Member States

Article 101 requires a potential effect on trade between EU Member States.

This does not necessarily mean that Danish undertakings must actually export or import goods.

The relevant question is whether the conduct is capable of influencing the pattern of cross-border trade to an appreciable degree.

Consequently:

• a Danish agreement affecting international distribution can fall within Article 101;
• a national agreement can potentially affect intra-EU trade;
• purely local conduct with no appreciable cross-border effect may instead be dealt with principally under Danish competition law.

This is one reason why Danish competition cases may involve both Article 101 TFEU and Section 6 of the Danish Competition Act.

6. Article 101(3): Exemption

An agreement caught by Article 101(1) may nevertheless be permitted under Article 101(3) where the four cumulative conditions are satisfied.

The agreement must:

1. contribute to improving production or distribution or promoting technical/economic progress;
2. give consumers a fair share of the resulting benefit;
3. impose only restrictions indispensable to achieving those benefits; and
4. not eliminate competition in respect of a substantial part of the products concerned.

This framework is important for legitimate cooperation such as:

• research and development;
• technology cooperation;
• production agreements;
• specialisation;
• certain distribution arrangements.

The existence of economic efficiencies therefore does not automatically save an otherwise restrictive agreement.

7. Relationship Between EU and Danish Competition Law

Danish competition law closely follows EU competition law.

The Danish Competition and Consumer Authority (DCCA) can investigate conduct under the Danish Competition Act, while Article 101 TFEU can apply where the cross-border trade requirement is satisfied.

Danish courts and competition authorities consequently rely heavily on EU competition-law principles when interpreting national provisions. Contemporary Danish practice describes the national rules as substantially mirroring Articles 101 and 102 TFEU.

The Danish Competition Appeals Tribunal also provides an important avenue of review before litigation reaches the ordinary courts. Under the Danish procedural framework, formal authority decisions generally go through the Competition Appeals Tribunal before court proceedings.

8. Important Danish Case Laws

1. Danish Road Marking Consortium Case

Facts

Several road-marking businesses participated in joint bidding arrangements for public procurement contracts.

The Danish courts examined whether the cooperation between otherwise competing undertakings went beyond legitimate consortium cooperation and amounted to coordination of competitive bidding.

Decision

The Danish courts ultimately treated the joint bids as a restriction by object, finding an infringement of Article 101(1) TFEU and Section 6(1) of the Danish Competition Act. The Eastern High Court characterised the arrangements as cartel-type coordination involving bids.

Principle

The case demonstrates that competitors cannot simply describe coordinated bidding as a "consortium" and thereby avoid Article 101.

The crucial question is the substance of the cooperation and whether it eliminates independent competitive bidding.

Significance

It is particularly relevant to:

• public procurement;
• joint ventures;
• bidding consortia;
• subcontracting arrangements;
• information exchange between bidders.

9. Hugo Boss / Kaufmann / Ginsborg Case

Facts

Hugo Boss operated a dual-distribution structure involving its own commercial activities and independent retailers.

Information was exchanged between Hugo Boss and retailers including Kaufmann and Ginsborg.

Decision

The Danish Maritime and Commercial High Court upheld findings that the information exchange violated Article 101(1) TFEU and Section 6(1) of the Danish Competition Act.

Hugo Boss was fined DKK 12 million, while Kaufmann was fined DKK 6 million. Ginsborg received immunity under the Danish leniency system.

Principle

Information exchange can constitute an infringement even where the parties do not expressly agree upon a particular selling price.

Commercially sensitive information can reduce strategic uncertainty and thereby facilitate coordination.

Significance

The case is especially relevant to:

• dual distribution;
• retail markets;
• commercially sensitive information;
• vertical/horizontal overlap;
• information exchange.

10. Rosendahl Case

The Rosendahl matter concerned resale-price maintenance (RPM) and restrictions affecting sales by retailers.

The Danish authorities imposed a DKK 7.5 million fine in 2022 after finding that the company had pursued an RPM policy and restricted cross-sales between retailers.

Principle

A supplier cannot ordinarily dictate the minimum price at which independent retailers must resell products merely because it wishes to maintain a particular retail-price structure.

Article 101 significance

RPM can constitute a serious vertical restriction because it removes or substantially reduces the retailer's ability to compete through price.

Danish significance

The case demonstrates that Article 101 principles are not limited to horizontal cartels. Vertical relationships can also create serious competition concerns.

11. Botex Case

Facts

Botex was a voluntary retail chain whose arrangements included restrictions concerning advertising and geographical territories.

The Danish Competition Council initially regarded aspects of the arrangements as involving horizontal market sharing.

Subsequent development

The Danish Competition Appeals Board took a different view and overturned and remitted the Competition Council's decision in October 2023.

Principle

The case demonstrates the importance of examining the economic and organisational context before classifying an arrangement as a restriction by object.

Significance

It is particularly useful for analysing:

• voluntary retail chains;
• territorial restrictions;
• active sales;
• market sharing;
• object restrictions.

It also illustrates the importance of appellate review in Danish competition enforcement.

12. Codeex / Barcode People Case

The Danish Competition Council examined arrangements between businesses active in data harvesting and barcode solutions.

The parties had previously operated a joint venture and subsequently separated into competing businesses. A post-termination non-solicitation/customer restriction remained in place for 36 months.

Article 101 issue

The central question was whether a non-compete/customer-allocation arrangement that emerged from a former joint venture could restrict competition between businesses that had subsequently become competitors.

Principle

Ancillary restraints associated with legitimate cooperation may sometimes be justified, but their duration, scope and commercial necessity must be carefully assessed.

A restraint extending beyond what is necessary to protect the legitimate transaction may become an independent restriction of competition.

13. Electricity Cartel / Horizontal Cooperation Cases in Denmark

Danish enforcement has also addressed horizontal cooperation involving electricity markets.

The Danish Competition Council's practice has treated certain coordination between competing undertakings as potentially falling within the core prohibition of Article 101 and its Danish equivalent. Danish competition-law commentary identifies electricity-cartel enforcement among the significant horizontal Article 101 developments.

Principle

Where competitors coordinate strategically important commercial conduct rather than independently determining their market behaviour, Article 101 concerns arise.

The electricity sector is particularly sensitive because:

• supply can be concentrated;
• prices can be highly transparent;
• capacity can be limited;
• market participants may have repeated interactions.

14. AFA Decaux / Clear Channel Denmark

A more recent Danish example involves the advertising sector.

The Danish Competition and Consumer Authority recorded an Article 101/Section 6 investigation involving AFA Decaux A/S and Clear Channel Denmark, concerning alleged price-fixing conduct. The authority announced an infringement decision in October 2025 with fines totalling DKK 10 million.

Article 101 significance

Price coordination between competitors is among the clearest categories of conduct falling within Article 101(1).

The case demonstrates that enforcement remains active in Denmark in traditional industries, not merely in digital markets.

15. Recent Danish Enforcement: Diesel Motor Nordic / Deutz

In May 2026, the Danish Competition and Consumer Authority announced an Article 101/Section 6 infringement decision concerning Diesel Motor Nordic and Deutz AG, involving restrictive agreement/price-fixing concerns in train spare parts. Fines totalling DKK 1 million were imposed.

This illustrates that Article 101 enforcement in Denmark remains relevant to industrial supply chains and specialised equipment markets.

16. Core Categories of Article 101 Risk in Denmark

17. Article 101 and Digital Markets in Denmark

Article 101 increasingly has relevance to digital markets operating in Denmark.

Potential concerns include:

• algorithmic coordination;
• exchange of commercially sensitive data;
• platform parity obligations;
• restrictions on multi-homing;
• exclusivity arrangements;
• platform-to-business information exchange;
• coordinated pricing algorithms;
• restrictions on access to digital infrastructure.

The fact that conduct is implemented through software rather than traditional contracts does not remove it from Article 101.

If two competing undertakings use a common algorithm or intermediary to coordinate their competitive conduct, the legal analysis may still focus on whether there is an agreement, decision or concerted practice and whether competition has been restricted.

18. Article 101 and Information Exchange

Information exchange is particularly important in Denmark.

Information concerning:

• future prices;
• discounts;
• production quantities;
• customer allocation;
• capacity;
• strategic business plans;
• future commercial policies

may reduce uncertainty between competitors.

The Hugo Boss litigation demonstrates that Danish courts can treat information exchange as an Article 101 infringement even within complex vertical/dual-distribution structures.

Businesses therefore need to distinguish between:

Generally lower-risk information

• historical information;
• aggregated market statistics;
• publicly available information.

and

potentially high-risk information

• individualised future prices;
• customer-specific data;
• planned output;
• future commercial strategy;
• unpublished discounts.

19. Article 101 and Public Procurement

Public procurement presents particular risks in Denmark.

Competitors bidding for the same government contract must generally make their commercial decisions independently.

Potentially problematic conduct includes:

• agreeing who will win;
• submitting complementary bids;
• rotating winners;
• allocating geographic territories;
• exchanging tender prices;
• coordinating subcontracting arrangements;
• agreeing not to bid.

The Danish Road Marking Consortium case is especially important because the courts treated coordinated joint bidding as a restriction by object.

20. Article 101 and Vertical Agreements

Article 101 is not restricted to competitor agreements.

Supplier-distributor relationships may also be caught.

Examples include:

• RPM;
• restrictions on online sales;
• territorial restrictions;
• customer restrictions;
• platform parity obligations;
• restrictions on cross-border sales.

However, vertical agreements require a more nuanced analysis because some restrictions can generate legitimate efficiencies.

The modern EU vertical framework therefore distinguishes between permissible vertical cooperation, restrictions requiring closer scrutiny and hardcore restrictions.

21. Enforcement Architecture in Denmark

The principal institutional actors include:

Danish Competition and Consumer Authority

The authority investigates competition concerns and can take enforcement action under Danish competition legislation and, within the EU framework, Articles 101 and 102 TFEU.

Danish Competition Appeals Tribunal

It provides an appellate mechanism for decisions of the competition authorities.

Danish Courts

Competition decisions can ultimately reach the Danish courts. Danish judicial practice has been significant in Article 101 cases, including the Road Marking and Hugo Boss cases.

European Commission

Where EU-wide or cross-border competition concerns are involved, the European Commission can apply Article 101.

Court of Justice of the European Union

The CJEU provides authoritative interpretation of Article 101 through preliminary references and direct EU litigation.

22. Penalties and Compliance

Article 101 infringements can produce significant consequences.

Potential consequences include:

• administrative fines;
• criminal proceedings in appropriate circumstances under Danish law;
• liability of individuals in relevant circumstances;
• leniency;
• commitments;
• cease-and-desist orders;
• private damages actions;
• reputational consequences;
• contractual consequences.

The Danish enforcement framework includes leniency, commitments and fines, while proceedings involving natural persons can involve the criminal prosecution authorities.

23. Private Enforcement

Article 101 is also relevant to private litigation.

Businesses or consumers suffering harm from cartel conduct may seek compensation.

Potential damages may arise from:

• overcharges;
• lost sales;
• reduced output;
• inflated procurement prices;
• exclusion from markets.

This means that an undertaking exposed to Article 101 enforcement can face consequences beyond a public fine.

24. Six Major Doctrinal Lessons from Danish Practice

1. Substance prevails over contractual form

Calling an arrangement a "consortium", "distribution agreement" or "cooperation agreement" does not determine its competition-law status.

2. Information can itself be competitively sensitive

The Hugo Boss litigation demonstrates the importance of information-exchange controls.

3. Public procurement is highly sensitive

Competitors must be especially careful when collaborating in tenders. The Road Marking case demonstrates the risk of coordinated bidding.

4. Vertical arrangements can infringe Article 101

The Rosendahl RPM case demonstrates that competition-law exposure extends beyond traditional cartels.

5. Danish and EU competition law are closely integrated

Section 6 of the Danish Competition Act broadly corresponds to Article 101, making EU jurisprudence central to Danish interpretation.

6. Enforcement continues across traditional and modern sectors

Recent Danish cases involving advertising and train spare parts show that Article 101 enforcement remains active across different industries.

25. Conclusion

The application of Article 101 TFEU in Denmark operates through a closely integrated EU–Danish competition-law system. Section 6 of the Danish Competition Act substantially parallels Article 101, while Danish authorities and courts apply EU competition principles when assessing restrictive agreements and concerted practices.

The Danish case law demonstrates several recurring areas of concern: cartel agreements, coordinated bidding, information exchange, resale-price maintenance, market sharing, territorial restrictions and restraints associated with cooperation between competitors.

The Danish Road Marking Consortium case demonstrates the treatment of coordinated bidding as a restriction by object; Hugo Boss/Kaufmann/Ginsborg illustrates the treatment of commercially sensitive information exchange; Rosendahl demonstrates the enforcement of RPM; and Botex illustrates the importance of analysing the actual economic and legal context before characterising a restriction as an Article 101 infringement.

Accordingly, Article 101 in Denmark should not be understood merely as a prohibition on traditional price-fixing cartels. It constitutes a broader framework governing how Danish undertakings cooperate, exchange information, bid for contracts, distribute products, structure commercial relationships and interact with competitors throughout the EU internal market.