After enduring numerous instances in the Danish civil- and criminal courts, the protracted Danish case involving a Road Marking Consortium has ultimately concluded with the participants being found guilty of a criminal violation of the competition law. However, neither the companies nor employees are facing any penalties.

The case concerns LKF Road Marking (now GVCO) and Eurostar Denmark, who entered into a consortium agreement. The origin of the case leads back to two tenders performed by The Road Directorate in 2013 and 2014. In both tenders, LKF Road Marking (“LKF”) and Eurostar Denmark (“Eurostar”) entered into a consortium agreement and submitted joint bids for the projects. At the time, the two companies were the largest players on the market of road marking in Denmark.

The road marking case has gone through several legal instances, both civil and criminal proceedings. After the final chapter of the civil case by the Supreme Court's ruling in 2019, which definitively established that the companies had violated the Danish competition law, the criminal proceedings began. 

At first instance, the City Court found that the consortium agreements were legal in the sense of the criminal law. The judgement was appealed to the Danish Court of Appeal. 

First, the Court of Appeal assessed whether LKF and Eurostar should be considered competitors in relation to both tenders. The Court of Appeal concluded that competition existed in the individual districts of Denmark, which both companies had the capacity to bid on, inevitably making them competitors.

Secondly, the Court of Appeal assessed whether the consortium agreement had as its object to restrict competition. It was found that the agreements in question in fact included market sharing in relation to who should carry out the work in specific districts, thereby effectively eliminating competition between the participants in the consortium. Conclusively the Court of Appeal found the agreement had as its object to restrict competition and thereby falls under the prohibition set out in Article 101(1) of the TFEU and the Danish equivalent. 

Finally, the Court of Appeal considered the nature of the infringements. Under Danish competition and criminal law, an infringement must have a certain level of willfulness and the nature of the infringement should be defined as “gross” for it to statue liability. The court found that the consortium did in fact fall under the scope of gross-nature, based on the fact that there were only very few actors in the market at the time of the tenders and that LKF and Eurostar were the two largest players. 

However, the Court of Appeal found that the defendants were under a mistaken belief that the two consortium agreements did not constitute a violation of competition law, which entailed that the required amount of willfulness was not present in their conduct leading to the conditions for imposing criminal liability not being fulfilled. 

The Court of appeal thereby ends the saga of the infamous road marking consortium, which has been of great importance for Danish case law in the field between competition and procurement law. 

If you need more information or further guidance in this area, please contact Morten Nissen or Nanna Sofie Krabbe. 

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