On 26 May 2025, the Danish Maritime and Commercial High Court (“the Court”) delivered a judgment upholding the Competition Council’s decision from 2020. For the first time, a Danish court has ruled on how a dominant undertaking in an established physical market can leverage its market power to strengthen its position in a growing digital market. 

In 2018, the long-time incumbent postal operator in Denmark, PostNord (formerly known as PostDanmark), decided to withdraw from the unaddressed mail market in Denmark, leaving FK Distribution as the only nationwide distributor. Unaddressed mail is used for the distribution of print circulars (i.e. printed promotional materials announcing sales, discounts etc.), weekly newspapers, and other printed matter.

Around the time of PostNord’s withdrawal from the market, FK Distribution introduced a condition in its agreements tying its customers to the physical distribution of print circulars to also advertise and pay for said advertising via FK Distribution's digital platform called “minetilbud.dk”. FK Distribution’s digital platform allows consumers to browse and find offers in digital circulars from a large range of retailers, such as national supermarket chains. 

The above arrangement was commercially attractive to FK Distribution’s customers, such as large supermarket chains in Denmark, as it offered a comprehensive marketing solution targeting different channels. However, it also meant that businesses seeking only physical distribution of print circulars had no choice but to also use and pay for FK Distribution's digital services.

In a decision from 30 June 2020 (link, in Danish only), the Competition Council found that following PostNord's exit from the market, FK Distribution had a nationwide distribution capacity without any real and competing alternatives, which created significant barriers to entry for new competitors. This structural dominance was further reinforced by FK Distribution’s established customer base and network effects on the market for digital distribution, which is a two-sided market. The network effects entail that the more consumers there are on FK Distribution’s digital platform “minetilbud.dk”, the more attractive it is for the retailers to advertise and have their circulars on the platform, and vice versa. 

According to the Competition Council, FK Distribution abused its dominant position in the market for unaddressed mail by restricting competition in the digital market in violation of Section 11 of the Danish Competition Act and Article 102 TFEU. The tying ensured that a large proportion of FK Distribution’s customers in the market for unaddressed mail also became customers on their digital platform, reducing the latter customers’ incentives to use competing digital platforms. 

The decision was appealed to the Danish Competition Appeals Tribunal, which upheld the Council’s findings on 27 April 2021 (link, in Danish only). 

The Tribunal’s decision was further appealed to the Court, which issued a ruling on 26 May 2025 (the ruling is not yet public due to pending confidentiality issues). Based on the scarce information provided in the public press releases, the Court appears to have upheld the Competition Council’s decision on the same grounds as stated above, finding that FK Distribution had abused its dominant position contrary to Section 11 of the Danish Competition Act and Article 102 TFEU. Following the Court’s ruling, the Competition Council has decided to refer the matter to the police with a view to criminal prosecution, i.e. fine. 

Although tying is a well-known form of abuse under the competition rules, the case is interesting as it is the first Danish case that addresses how a dominant undertaking in an established physical market can leverage its market power to block competitors and thereby strengthen its position in a growing digital market by employing tying practices between separate markets. 

The case also demonstrates that existing competition rules can be used to address problems in digital ecosystems without necessarily requiring new legislation. It could set precedents for future cases where companies seek to exploit dominance in one part of the value chain to gain control over new digital business areas. This is particularly relevant as digital transformation continues across industries.

This judgment also confirms that Danish competition authorities and courts are well-equipped to handle complex cross-market abuse cases, demonstrating the flexibility of the existing competition law framework in addressing modern business practices. With this confirmation, the criminal part of the case, which has been reported to the police, can now continue – a reminder that serious competition law violations can result in both administrative and criminal consequences in Denmark.

For more information or further guidance in this area please contact Morten Nissen, Alexander Brøchner, or Stefan Brkic. 

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