This presentation by Denmark (DCCA), was made during the presentations on “Tools for Addressing Competitive Neutrality” held at the 67th meeting of the OECD Working Party No.2 of the Competition Committee on 3 June 2019. More information on the topic can be found at ww.oecd.org/competition/competitive-neutrality.htm.

1. The Danish State Aid Rule
Bitten Thorgaard Sørensen, Deputy Director General
03-06-2019
A beauty or a beast?

2. Section 11a of the Danish Competition Act:
The Danish Competition and Consumer Authority may issue
orders for the termination or repayment of aid granted
from public funds to support certain forms of commercial
activity – provided the aid:
- distorts competition (decision from the DCCA)
and
- is not lawful according to public regulation (decision from
the relevant minister or the relevant municipal supervisory
authority)
Aid which is ordered to be repaid shall be paid to the state
treasury

3. Good Cases:
• The Danish Ministry of Education was ordered to terminate aid given
to a specific publisher which exclusively and free of charge received
teaching materials at its disposal. Amount of the aid 85,118 €. No
order on repayment as the Ministry declared that it would offer the
teaching materials to everybody via the internet.
• A county was ordered to terminate aid given to a company with a
view to the setting up and development of an Internet portal. The
recipient of the aid was ordered to repay an amount of 6,257 €.

4. Bad Cases:
• Was a municipality’s rent of a property lower than the market rent?
2010 DCCA decision: Rent too low (based on expert appraisal). Illegal aid. Order on the
repayment of 10,714 €
2011 Danish Competition Appeal Tribunal: Illegal aid, but order on repayment of 10,715
€ wasn’t enough to secure effective competition
2011 DCCA Decision: Order on the repayment of 107,146 €
2012 Danish Competition Appeal Tribunal: Confirmation
2013 Maritime and Commercial Court: The rent wasn’t too low. No illegal aid.
• Was a municipality’s selling price of the rights to use its name too
low?
2014 Municipal supervisory authority: Indirect aid cannot be excluded
2014-2018: Expert appraisal 1: Not the market price. Expert appraisal 2: The market
price.
2019: The DCCA closed the case

5. Pros and cons:
• Deterrence
• National enforcement of prohibition against state
aid in cases where no effect on trade between EU-
Member States
• The DCCA’s enforcement depends on decision from
another authority (if any) on the lawfulness of the
aid
• Difficult to determine and prove the exact amount
of the aid

6. Further initiatives:
2016: Report from the Danish Competition Council
“Public activities on commercial markets”
2019: Public hearing on draft bills:
- A new council for complaints about public
business activities
- The price determination of municipalities
business activities