After a lengthy process the Danish Supreme Court finally closed the curtain in September 2015 on a potential new, and competing, terminal in Copenhagen Airport, the main Danish airport hub. A group of investors had asked the airport to grant access (a lease) to a plot of land in the airport for the purpose of building a new terminal A. Terminal A would compete with the airport in the supply of services to airlines. Copenhagen airport rejected the request which in turn lead the group of investors to complain to the Danish Competition and Consumer Authority ("DCCA"). In its draft decision the DCCA identified an obligation to grant access under EU Article 102 and the Danish equivalent. However, just before a formal decision was to be made on the matter by the DCCA, the Danish Transport and Construction Agency reversed a previous finding now holding air security regulation to be an obstacle to the application of competition law to the matter at hand. Unhappy, not only with the outcome, but also the process, the access seeking party, Terminal A, lodged a case before the judiciary arguing that air security regulation did not prevent the application of
competition law and an order for the granting of access. This submission was not accepted by the Danish Supreme Court that moreover held EU Article 106 (2) to be applicable as a defence for Copenhagen Airport’s refusal to lease the land to Terminal A. The case provides guidance on the scope of the state action defence under Danish competition law and, indirectly the application of EU Article 102 and the Danish equivalent to refusal to supply cases.