Monument Installation Permit Exclusivity under Danish Competition Law

1. Introduction

Monument Installation Permit Exclusivity refers to a situation in which a Danish municipality or other public authority grants one undertaking, monument company, contractor, foundation, or cultural operator an exclusive right to obtain, hold, or exercise permits for installing monuments, memorials, statues, plaques, public artworks, or related structures in a defined public area.

The competition-law issue arises when the exclusivity goes beyond legitimate regulation of public space and forecloses competing installers, artists, contractors, suppliers, or monument operators from accessing an economically relevant market.

There does not appear to be a reported Danish competition decision specifically concerning monument-installation permits. The analysis therefore has to be constructed from Danish public-authority/concession cases and the EU jurisprudence on special or exclusive rights, authorisation powers, concessions and regulatory access.

2. Relevant Danish Legal Framework

A. Danish Competition Act

The principal Danish competition rules are contained in the Competition Act (Konkurrenceloven).

The central provisions concern:

• agreements and concerted practices restricting competition;
• abuse of a dominant position;
• public authorities and competition restrictions created through public regulation;
• merger/concentration control where applicable;
• enforcement by the Danish Competition and Consumer Authority and Competition Council.

A municipality granting a permit is not automatically acting as an undertaking. A genuine regulatory decision concerning planning, heritage, public safety or use of public land may be governmental rather than an economic activity.

However, the competition analysis changes where the authority:

1. grants an exclusive commercial right;
2. operates an economic activity itself;
3. gives a selected undertaking privileged access to a market;
4. allows a concession-holder to compete with undertakings whose access it controls; or
5. establishes a regulatory structure that necessarily facilitates an abuse of dominance.

3. What Constitutes Monument Installation Permit Exclusivity?

A problematic arrangement could take several forms.

Example 1 — Exclusive installer

A municipality provides:

"Only Monument Company A may install permanent monuments in the municipal square."

Competitors cannot obtain equivalent permits.

Example 2 — Exclusive permit channel

The municipality establishes a rule under which all monument applications must be submitted through one private cultural organisation, which can approve or reject competing proposals.

Example 3 — Exclusive location rights

A private operator receives an exclusive 15-year right to install and manage monuments in a particular public area.

Example 4 — Regulatory-commercial combination

An organisation receives the power to:

• approve monument proposals;
• determine installation conditions;
• charge installation fees; and
• itself install competing monuments.

This is particularly sensitive because the same entity may simultaneously be regulator and competitor.

Example 5 — Exclusive maintenance and installation package

The municipality permits only one company to:

• install monuments;
• supply foundations;
• perform maintenance;
• replace monuments; and
• receive payments from monument sponsors.

This may create foreclosure in several related markets.

4. The First Competition-Law Question: Is There an Economic Activity?

The existence of a permit does not by itself create a competition-law violation.

The first question is:

What economic activity is being protected or restricted?

Possible relevant markets include:

• monument installation services;
• public-art installation;
• monument fabrication;
• engineering and foundation services;
• monument maintenance;
• memorial management;
• cultural-event services;
• sponsorship/advertising connected with monuments;
• specialised stone, metal or casting services.

If the municipality is simply deciding whether a monument may lawfully occupy public land, the decision will normally involve public-law functions.

But if the authority or concession-holder is simultaneously participating in an economic market, EU/Danish competition principles concerning exclusive rights become much more important.

5. Market Definition

The relevant market should not automatically be defined as "monument services."

Depending upon the facts, the market could be:

Product market

• installation of monuments;
• installation of public art;
• construction/engineering services;
• maintenance of monuments;
• provision of public memorial spaces.

Geographic market

Potentially:

• one municipality;
• a Danish region;
• Denmark; or
• a wider Nordic/EU market,

depending upon transport costs, tender requirements, technical standards and the practical availability of competing contractors.

A municipality may therefore possess substantial market power even where the overall Danish monument industry is competitive if it controls an essential or uniquely attractive public site.

6. Why Permit Exclusivity Can Create Competition Problems

A. Foreclosure

If competitors cannot obtain permits, the selected operator may effectively exclude them from the relevant market.

B. Creation of a dominant position

An exclusive right over a commercially important public location can confer substantial market power.

The EU Court has recognised that statutory or special exclusive rights can create a dominant position where the relevant market is substantially controlled by the right-holder. This principle appears in Höfner, Merci, and later cases.

C. Discrimination

Problems arise where:

• Company A receives permits quickly;
• competitors face additional requirements;
• competing monuments are rejected without objective criteria;
• fees differ without justification; or
• the authority applies technical requirements selectively.

D. Self-preferencing

A particularly serious structure is:

authority/concession-holder controls access + competes in the same market.

This was central to the reasoning in MOTOE, where the Court considered the combination of authorisation power and commercial activity.

7. Six Key Case Laws

1. Case C-41/90 — Höfner and Elser v Macrotron GmbH

Principle

The Court held that an entity may constitute an undertaking when it engages in economic activity, irrespective of its legal status or method of financing.

A statutory monopoly can therefore be subject to competition rules where the monopoly creates conditions in which abuse becomes unavoidable.

Application to monument permits

Suppose a municipality creates or controls an organisation that commercially manages monument installation and gives that organisation exclusive access to municipal sites.

The fact that the organisation is closely connected with public authorities would not, by itself, remove the economic activity from competition law.

The critical questions would be:

• What activity is actually being performed?
• Is it economic?
• Does the exclusive right prevent competitors from entering?
• Does the structure make abusive conduct possible or unavoidable?

2. Case C-179/90 — Merci Convenzionali Porto di Genova

This is one of the most important authorities on exclusive rights granted by public authorities.

The Italian legislation gave certain undertakings exclusive port-operation rights. The Court held that the mere creation of a dominant position is not automatically unlawful, but the State may breach EU competition rules where the exclusive right creates a situation in which the undertaking is induced to abuse that position.

Application

Imagine:

Municipality → exclusive monument installation concession → Company A.

If Company A can use the exclusivity to:

• impose excessive charges;
• prevent competing monument suppliers;
• discriminate between sponsors;
• refuse access without objective justification; or
• make competing installation commercially impossible,

the Merci reasoning becomes relevant.

The existence of a public concession is therefore not a complete competition-law defence.

3. Case C-163/96 — Raso and Others

The Court dealt with an exclusive port-labour right combined with the ability of the right-holder to compete in the same market.

The Court considered the structure problematic because the undertaking's monopoly could be used to distort competitive conditions and impose disadvantageous conditions upon competitors.

Application to monument installation

Consider:

Municipality grants Company A:

1. exclusive authority over monument installations; and
2. the right to provide monument-installation services itself.

Company A could then potentially:

• reject competitors' applications;
• delay competing projects;
• impose onerous conditions;
• reserve attractive sites for itself; and
• channel customers toward its own services.

That combination is considerably more problematic than a neutral municipal permitting system.

4. Case C-49/07 — MOTOE v Elliniko Dimosio

This case is especially relevant to permit/authorisation exclusivity.

A Greek motorcycling association had a special legal power to consent to applications for motorcycling events while also engaging in commercial activities connected with such events.

The Court found that competition rules precluded an unrestricted authorisation power where the entity also participated commercially in the relevant activity.

Application to monument permits

A close hypothetical analogy would be:

Monument Association A has power to approve competing monument installations while itself offering monument installation services.

That structure creates an obvious conflict of interest.

The legal concern is not merely that A possesses market power. It is that A controls market entry while competing within the market.

The Court's reasoning emphasises the need for restrictions, obligations and review mechanisms around such powers.

5. Case C-209/98 — Sydhavnens Sten & Grus / FFAD v Københavns Kommune

This case is particularly important because it concerned Copenhagen Municipality.

The case involved exclusive rights concerning facilities for recycling building waste in Copenhagen. The Court recognised that granting an exclusive right over part of a territory does not, by itself, constitute abuse. However, the exclusivity had to be assessed against the possibility of abuse and the justification for the public-service arrangement.

Application

This provides a useful Danish analogy.

A municipality may legitimately conclude that a particular public service requires an exclusive operator.

But the authority should be able to explain:

• why exclusivity is necessary;
• what public objective it serves;
• why less restrictive alternatives are insufficient;
• how long the exclusivity lasts; and
• how abuse will be prevented.

For monument installation, an exclusive permit might be easier to justify for a heritage-protected historic site than for an ordinary commercial public square.

6. Case C-266/96 — Corsica Ferries / Port of Genoa

The Court reaffirmed that an undertaking enjoying a statutory monopoly over a substantial part of the market may hold a dominant position. The case concerned exclusive rights connected with port services.

Application

A municipality-controlled or concession-based monopoly over a uniquely valuable installation site could similarly create substantial market power if competitors cannot realistically substitute other locations.

For example:

A municipality controls the only authorised location for a particular category of nationally significant memorial installations.

If only one undertaking is permitted to commercialise that location, its market position requires careful competition assessment.

8. Additional Danish Authority: R98

A highly relevant Danish example is the R98 waste-collection concession.

R98 had a long-standing exclusive concession for waste collection in Copenhagen and Frederiksberg. The Danish Competition Council examined the competition implications of the concession, including the argument that it resulted from public regulation. The arrangement ultimately moved toward termination of the long-term monopoly.

The importance for monument installation is methodological:

A municipal concession does not become immune from competition scrutiny merely because it originates from a municipal arrangement.

The duration, necessity and competitive effects of the exclusivity remain important.

9. Public-Regulation Defence under Danish Competition Law

This is particularly important for municipalities.

Danish legislative materials concerning the competition rules explain that a competition restriction established by a municipal council can fall within the public-regulation exception where it is necessary for the municipality to fulfil legally assigned responsibilities. The materials also emphasise that, where several methods are available, the municipality should select the least competition-restrictive solution.

Therefore, a municipality should not simply say:

"The monument is on public land, therefore exclusivity is lawful."

Instead, the analysis should ask:

1. Is the municipality legally responsible for the relevant function?

2. Is exclusivity necessary to fulfil that function?

3. Could the objective be achieved through a less restrictive system?

4. Are objective and transparent criteria available?

5. Is the exclusive period proportionate?

6. Is there an effective review mechanism?

10. Legitimate Reasons for Monument-Installation Exclusivity

Exclusivity may have stronger justification where it is genuinely necessary for:

Heritage protection

Historic squares or protected sites may require:

• uniform materials;
• architectural compatibility;
• structural controls;
• preservation standards.

Public safety

Large monuments can involve:

• structural engineering;
• foundation requirements;
• crowd safety;
• traffic management.

Urban-planning considerations

The municipality may legitimately restrict:

• the number of monuments;
• their dimensions;
• visual impact;
• location;
• installation periods.

Cultural coherence

A memorial project may require a single curator or project manager.

But legitimate cultural or planning objectives do not automatically justify giving one commercial undertaking unrestricted exclusivity.

11. Less Restrictive Alternatives

Instead of permanent exclusivity, the municipality could use:

A. Open permit system

Any qualified applicant can apply.

B. Objective eligibility criteria

For example:

• technical competence;
• safety certification;
• insurance;
• heritage compliance.

C. Competitive tender

If the municipality wants one operator for a defined project, it can competitively select the operator.

D. Time-limited concession

Instead of a 20-year exclusive right, use a shorter term subject to review.

E. Site-specific exclusivity

Restrict exclusivity only to a particular monument or project rather than the entire municipality.

F. Independent permitting authority

Separate:

regulation/authorisation

from

commercial installation activity.

This reduces conflicts of interest.

12. Competition Risks

13. Essential-Facility Dimension

A particularly difficult case arises where the municipality controls a unique installation site.

For example:

A historic monument district is the only legally authorised location for a particular category of memorial.

If access to that location is indispensable for competing commercial operators, refusal or discriminatory access may raise issues analogous to the EU essential-facility jurisprudence.

However, not every attractive public location is an essential facility.

The analysis generally requires consideration of:

• indispensability;
• absence of realistic alternatives;
• elimination of effective competition;
• objective justification;
• proportionality.

14. Duration of Exclusivity

Duration is critical.

Short-term exclusivity

A six-month or one-year project-specific exclusivity may be easier to justify.

Medium-term exclusivity

Three-to-five-year arrangements require greater scrutiny, especially if they cover an entire municipal market.

Long-term exclusivity

Ten-, fifteen-, or twenty-year rights can substantially foreclose competitors and may require particularly strong justification.

The R98 experience demonstrates the competition concerns that can arise from very long municipal concessions.

15. Transparency and Non-Discrimination

A sound Danish municipal regime should ideally establish:

1. publicly available eligibility criteria;
2. clear application procedures;
3. objective technical standards;
4. published fees;
5. fixed decision deadlines;
6. written reasons for refusal;
7. equal treatment of applicants;
8. conflict-of-interest safeguards;
9. appeal/review mechanisms; and
10. periodic reassessment of exclusivity.

The EU Court's more recent jurisprudence similarly stresses that prior-authorisation systems affecting market access should operate through transparent, clear and precise substantive criteria, with procedures capable of effective review.

16. A Hypothetical Danish Example

Assume Copenhagen Municipality creates a "Historic Monument Installation Zone."

It grants Company X an exclusive 15-year right to:

• install monuments;
• approve third-party monument designs;
• collect installation fees;
• maintain monuments; and
• reject competing installers.

Company X itself competes for monument-installation contracts.

Competition concerns

Step 1 — Economic activity

Installation and maintenance are economic activities.

Step 2 — Exclusive right

Company X receives privileged access.

Step 3 — Market power

The zone is commercially important and competitors cannot use equivalent locations.

Step 4 — Conflict

Company X approves applications from its competitors while competing against them.

Step 5 — Foreclosure

Competitors may effectively be prevented from entering.

Step 6 — Justification

The municipality would need to establish why the exclusive structure is necessary for heritage, safety or planning objectives.

Step 7 — Proportionality

If an independent permitting system could achieve the same heritage objective, a 15-year commercial monopoly becomes more difficult to justify.

This hypothetical combines the concerns illustrated by MOTOE, Raso, Merci and the Copenhagen waste-concession jurisprudence.

17. Compliance Framework for Danish Municipalities

A municipality contemplating exclusive monument-installation rights should undertake the following analysis:

Stage 1 — Identify the public objective

Heritage, safety, planning, cultural policy or another legally assigned function.

Stage 2 — Identify the economic activity

Installation, maintenance, fabrication, sponsorship, management, etc.

Stage 3 — Define the relevant market

Product and geographic dimensions.

Stage 4 — Identify the beneficiary

Municipality, public entity, foundation or private concessionaire.

Stage 5 — Assess market power

Particularly whether the public site is indispensable or uniquely valuable.

Stage 6 — Test foreclosure

Could qualified competitors realistically enter?

Stage 7 — Examine conflict of interest

Does the permit-holder also compete commercially?

Stage 8 — Examine justification

Is exclusivity legally necessary?

Stage 9 — Apply proportionality

Could the objective be achieved through:

• open permits;
• tendering;
• shorter concessions;
• independent regulation;
• objective technical criteria?

Stage 10 — Establish review mechanisms

Periodic review, transparency, non-discrimination and appeal.

18. Key Legal Principles from the Case Law

The six principal authorities can be reduced to the following rules:

19. Conclusion

Monument Installation Permit Exclusivity is not automatically unlawful under Danish competition law. The decisive issue is the interaction between public regulatory authority and economic market access.

A municipality can legitimately regulate monuments for heritage, planning, safety and public-space reasons. However, competition concerns become significantly stronger where it:

• grants a private undertaking an exclusive commercial right;
• excludes otherwise qualified competitors;
• gives the right-holder control over competitors' permit applications;
• combines regulatory authority with commercial activity;
• creates a dominant position over a scarce public location; or
• maintains exclusivity for longer than objectively necessary.

The strongest analytical principles come from Höfner, Merci, Raso, MOTOE, Sydhavnens Sten & Grus and Corsica Ferries, together with the Danish experience concerning long-term municipal concessions such as R98.

Exam proposition:

A Danish public authority may regulate access to public space, but where permit exclusivity confers an economic advantage on an undertaking, competition law requires attention to market definition, dominance, foreclosure, necessity, proportionality, transparency and the separation of regulatory and commercial functions.