Merger Control 2023 Comparisons

The Danish rules on merger control are based on chapter 4 of the Danish Competition Act, and generally reflect the principles of the EU Merger Control Regulation. The Danish merger control rules are supplemented by the Executive Order on Notification of Concentrations and the Executive Order on Calculation of Turnover. The Danish Competition and Consumer Authority (the “DCCA”) has issued several guidance papers on merger control, and the DCCA regularly informs the public of merger filings on its website.

The Danish merger control regulation is similar to that of the European Commission, which means that decision-making practice, case law and guidance papers from the European Commission and the European Court is relevant for Danish merger matters. 

Foreign-to-foreign transactions fall within the scope of the Danish merger control rules provided that the transaction constitutes a concentration, and the turnover thresholds are met.

Insofar as a transaction involves a foreign investor and a target operating within a particularly sensitive sector or activity, the transaction may also fall within the scope of the Danish Investment Screening Act and therefore be subject to the Danish Business Authority’s mandatory authorisation scheme. This regulation was adopted in 2021 and is therefore relatively new. However, it has already proven to be quite extensive, with more than 300 transactions having been notified to the Danish Business Authority since the rules were adopted.

The DCCA and the Danish Competition Council (the “Council”) enforce the Danish merger control rules (see section 15(1) and (3) of the Danish Competition Act). The Council has overall responsibility for the enforcement of the Danish Competition Act. While the DCCA renders decisions in many merger control cases, the Council renders decisions in principle or landmark cases based on a recommendation from the DCCA. Normally, mergers subject to remedies or prohibitions will be decided by the Council. The DCCA and the council are considered one authority.

Notification to the DCCA is compulsory provided that the transaction constitutes a concentration, and the turnover thresholds are met (see section 12b (1) of the Danish Competition Act). There are no exceptions to this rule.

The DCCA normally welcomes parties who are in doubt in order to discuss informally whether a transaction needs notification. Such guidance by the DCCA is not legally binding. 

A transaction comprised by the Danish merger control rules must be notified to the DCCA (see section 12c (5) of the Danish Competition Act). Failure to notify may result in civil fines under section 23 (2),(4) of the Danish Competition Act. Civil fines may only be imposed on legal persons and in cases of intent or gross negligence.

In 2019, Circle K Danmark A/S paid a fine of DKK6 million (approximately EUR0.8 million) for failing to notify its acquisition of 72 service stations in Denmark.

In 2018, the utility companies SEAS-NVE Holding A/S and Syd Energi Holding A/S each received fines of DKK4 million (approximately EUR0.5 million) for failing to notify and, thus, for pre-implementing their joint acquisition of ChooseEV A/S.

Case law shows that failure to notify will result in a fine.

Transactions resulting in a lasting change of control by way of mergers, acquisitions, or formations of fully functioning joint ventures constitute concentrations that fall within the scope of the Danish merger control rules (see section 12a 1) and (2) of the Danish Competition Act). The definition of control in Denmark corresponds with the definition used by the European Commission. Internal restructurings or reorganisations generally fall outside the scope of the Danish merger control rules.

Concentrations typically arise by way of agreements or rights; eg, transfer of shares, voting rights, or assets, but may also arise under other circumstances (see section 12a (3) of the Danish Competition Act).

Certain types of transactions are exempt from the Danish merger control rules (see section 12a (4) of the Danish Competition Act):

• transactions where credit institutions, other financial undertakings, or insurance companies whose normal activities include transactions and dealing in securities for their own account or for the account of others are temporarily in possession of interests which they have acquired in an undertaking, if such interests will be disposed of within one year of the acquisition date, and the voting rights attached to interests will not be exercised;
• transactions in which control is acquired by a professional who has powers under insolvency legislation to deal with and dispose of the undertaking; and
• transactions carried out by holding companies that fall within the scope of the Annual Accounts Directive, provided that voting rights are only exercised to retain the full value of an investment.

Control is obtained through rights, agreements, or other circumstances that enable the exercise of decisive influence on an undertaking (see section 12a (3) of the Danish Competition Act). Control may be obtained on a de jure or de facto basis. Hence, the acquisition of minority interests in an undertaking may amount to control. The definition of control in Denmark corresponds to the definition used by the European Commission.

The Danish merger control thresholds are based on the turnover of the undertakings concerned. The thresholds are met, if:

• the combined aggregate annual turnover in Denmark of all undertakings concerned is at least DKK900 million (approximately EUR121 million), and the aggregate annual turnover in Denmark of at least two of the undertakings concerned is at least DKK100 million (approximately EUR13.5 million) each (see section 12 (1)(1) of the Danish Competition Act); or
• the aggregate annual turnover in Denmark of at least one of the undertakings concerned is at least DKK3.8 billion (approximately EUR0.5 billion), and the aggregate annual turnover of at least one of the other undertakings concerned is at least DKK3.8 billion worldwide (see section 12(1)(2) of the Danish Competition Act); or
• transactions involving two or more commercial providers of electronic communication networks in Denmark may be referred by the Danish Business Authority to the DCCA regardless of whether turnover thresholds are met (see section 12 (1)(3) of the Danish Competition Act); or
• the European Commission may refer a concentration to the DCCA despite the turnover thresholds not being met (see section 12 (5) of the Danish Competition Act).

The Danish merger control rules on the calculation of turnover are based on the Executive Order on Calculation of Turnover. The turnover must be based on the net sales of products and services, and value-added tax and other taxes directly related to the sales must be deducted from the turnover. The turnover must stem from the audited annual accounts from the preceding financial year. Turnover in foreign currency must be converted to DKK pursuant to the average currency rate of the National Bank of Denmark in the preceding financial year.

The Danish merger control rules on the calculation of turnover reflect the European Commission’s Jurisdictional Notice.

The business/corporate entities relevant for the calculation of turnover are the undertakings concerned.

For the acquirer, the group turnover must be included in the calculation of turnover. Therefore, all the entities ultimately controlled, whether directly or indirectly, by the same entity as an acquirer are part of the same group. As for the target, only the target’s turnover – ie, including the turnover of direct or indirect subsidiaries subject to control by the target – must be included in the calculation of turnover.

If either the acquirer or target has divested or acquired control of any undertakings or assets following the preceding financial year, the turnover data must be adjusted accordingly.

Foreign-to-foreign transactions may be subject to the Danish merger control rules regardless of local effects or local presence, insofar as the turnover in Denmark is based on the products and services sold to companies or consumers in Denmark.

Market shares are currently not used as a jurisdictional threshold. It is, however, expected that this could change in 2024 due to the introduction of a call-in option for the DCCA. It is not yet known what the criteria for a call-in will be, but market shares are likely to be part of them.       

The formation of a joint venture may constitute a concentration subject to the Danish merger control rules, if the joint venture will perform all the functions of an autonomous economic entity on a lasting basis (see section 12a (2) of the Danish Competition Act). Thus, only so-called “fully functioning” joint ventures are subject to the Danish merger control rules.

The DCCA’s mandate to investigate concentrations is limited to those that meet the turnover thresholds. If thresholds are not met, the DCCA has no power to investigate or regulate the transaction.

In addition, the DCCA may investigate transactions involving two or more commercial providers of electronic communication networks in Denmark if referred by the Danish Business Authority, regardless of whether turnover thresholds are met (see section 12 (1)(3) of the Danish Competition Act). The DCCA may also investigate other concentrations that do not meet the turnover thresholds, provided that such concentrations are referred from the European Commission (see section 12 (5) of the Danish Competition Act).

The DCCA it expected to implement a call-in option, which will likely come into effect in 2024.

Transactions must not be implemented prior to obtaining approval from the DCCA (see section 12c (5) of the Danish Competition Act). However, in exceptional cases the DCCA may grant an exemption, setting conditions or issuing orders for the purpose of ensuring effective competition (see section 12c (6) of the Danish Competition Act).

Implementing a transaction prior to obtaining approval from the DCCA will result in civil fines under section 23 (2)(5) of the Danish Competition Act. Civil fines may only be imposed on legal persons and in cases of intent or gross negligence.

In 2014, the Council approved Ernst & Young Europe LLP’s acquisition of KPMG Denmark under remedies. However, the Council concluded that the parties had begun implementation of the transaction prior to obtaining approval. The case was appealed to the Danish Maritime and Commercial High Court, which referred the case to the Court of Justice of the European Union for a preliminary ruling (C-633/16). Contrary to the Council, it found that the parties had not implemented the transaction prior to approval as the actions did not change the control of KPMG Denmark. As a result, the Danish Maritime and Commercial High Court repealed the Council’s decision.

In 2019, Circle K Danmark A/S paid a fine of DKK6 million (approximately EUR0.8 million) for failing to notify its acquisition of 72 service stations in Denmark.

In 2018, the utility companies SEAS-NVE Holding A/S and Syd Energi Holding A/S each received fines of DKK4 million (approximately EUR0.5 million) for failing to notify and, thus, for pre-implementing their joint acquisition of ChooseEV A/S.       

There are certain exemptions to the standstill obligation in section 12c (5) of the Danish Competition Act. Included in the exemptions are public bids and a continuous transaction in securities, including securities that can be converted into other securities and exchanged traded in a market such as the stock exchange market (see also section 12c (5) of the Danish Competition Act). Moreover, the DCCA may decide to exempt a transaction from the standstill obligation by way of remedies, including commitments or orders, in order to ensure effective competition (see section 12c (6) of the Danish Competition Act).       

The DCCA applies the failing firm defence. However, there has not yet been examples of a matter approved subject to failing firm. That said, in a number of bank mergers, the DCCA has been able to approve these very quickly in order to avoid serious practical consequences with banks reporting risk of bankruptcy.

In 2010, the DCCA permitted Dansk Landbrugs Grovvareselskab A.m.b.A. and Danish Agro A.m.b.A. to interact in a supply agreement entered into by the target business, Aarhusegnens Andel A.m.b.A. The target was on the brink of bankruptcy; as a result, Dansk Landbrugs Grovvareselskab A.m.b.A. and Danish Agro A.m.b.A. had agreed to take over the business. A supply agreement needed immediate attention, which led to the DCCA accepting that Dansk Landbrugs Grovvareselskab A.m.b.A. and Danish Agro A.m.b.A. could act, at their own risk, under the supply agreement. It was underlined by the DCCA that this exemption had no influence on whether the merger would be approved.

In exceptional cases, the DCCA may grant an exemption (see section 12c (6) of the Danish Competition Act). However, it is important to note that there have been no instances in Danish decision-making practice where closing before clearance has been permitted. There are a few examples of the DCCA granting a specific exemption allowing the acquirer to initiate specific steps; eg, service a client of the target or agreeing to buy goods or products for the target or hiring staff for the target. In these cases, the acquirer must accept the risk of prohibition or remedies and be prepared to unwind the steps taken, including bearing all related costs.

There are no statutory deadlines to notify a merger. However, transactions that require merger notification cannot be implemented prior to the DCCA’s approval. 

A binding agreement is required in order to notify a merger to the DCCA; eg, a share purchase agreement. However, it is possible to inform the DCCA of an upcoming merger and thereby allow the DCCA to prepare a case team before the merger notification is submitted. The DCCA will normally not start its investigations until a binding agreement, or another trustworthy proof of a transaction, has been submitted.

There is a fee to file mergers in Denmark.

The filing fee for a simplified merger notification is DKK50,000 (approximately EUR6,700). The filing fee for a full-form notification is 0.015% of the combined turnover in Denmark of the undertakings concerned. The filing fee is capped at DKK1.5 million (approximately EUR200,000).

The filing fee is not required to submit a draft notification and enter pre-notification discussions with the DCCA. However, in order for the DCCA to declare the merger notification complete, the filing fee must be paid.

As a general rule, the fee is not reimbursable. However, there are a few exceptions, such as if the transaction was not notifiable, including if the Danish Business Authority did not have the mandate to request a filing (see 2.5 Jurisdictional Thresholds), if the transaction was withdrawn prior to the notification being complete or if a transaction including the undertakings concerned has been prohibited by another Danish authority.

According to section 1 of the Executive Order on Notification of Mergers, a merger notification must be filed by the merging parties, but it is not stated who is responsible for filing the merger notification.

However, the DCCA guidance paper concerning merger notifications and fees clarifies who is responsible for filing the merger.

• Mergers, whereby two undertakings merge into one: The merger notification should be jointly filed by the merging parties.
• Acquisition of sole control, when a company acquires sole control of a target: The undertaking acquiring sole control should file the merger notification.
• Acquisition of joint control, when companies acquire joint control of a company: The merger notification should be jointly filed by the parties acquiring joint control.
• Acquisition by public takeover bids: The undertaking submitting the public takeover bid should file the merger notification.

The merging parties may choose to let the acquirer file the merger or file it jointly. The DCCA may regardless contact both parties as the DCCA in its assessment may request confidential information from both parties.

Generally, it is the acquirer who is subject to fines if the parties fail to notify the merger. In 2019, Circle K Danmark A/S was fined for failing to notify its acquisition of 72 service stations. In 2018, SEAS-NVE Holding A/S and Syd Energi Holding A/S acquired joint control of ChooseEV A/S and failed to notify the acquisition. Both acquirers were fined.

In practice, the acquirer will take the lead and be responsible for notification.

A merger can be filed using the full-form notification or the simplified notification form. The full form is the standard, while the simplified is an exemption. This also means that the DCCA can always request the parties to submit a full-form notification even though the parties may meet the conditions for filing the simplified form. The difference between the two forms is the level of information to be submitted and the filing fee, as the fee for a full form is often a lot higher.

The merger notification must be made in Danish, but the DCCA may allow the notification and the following information to be provided in part or wholly in English.

The full-form notification requires extensive information concerning:

• the merging parties;
• notification to other competition authorities;
• the transaction/merger structure;
• turnover information from the undertakings concerned for the past three years;
• a description of the relevant markets;
• market shares and Herfindahl-Hirschman Index (HHI) on the affected markets for the past three years;
• conditions on the affected markets;
• efficiency gains if applicable;
• information concerning coordinated effects in case of a joint venture;
• overview of competitors, suppliers and customers;
• annual reports;
• market studies; and
• internal documents.

Under the simplified form, the parties will need to submit basic information from the previous year. Internal documents can be disregarded.

If the DCCA deems a merger notification incomplete this will not result in penalties, but the DCCA will request further information in order to receive a complete notification.

The DCCA may issue fines if the merging parties submit incorrect, incomplete, or misleading information.

In 2017, a fine of DKK50,000 (approximately EUR6,700) was imposed on the company METRO Cash & Carry Danmark ApS as it failed to provide the DCCA with all the relevant information for the DCCA’s merger review.

The DCCA applies a very flexible and informal pre-notification system. The duration of the pre-notification phase is not fixed and can vary from a few days to several months. Often, parties accept a long pre-notification phase in order to secure approval in phase 1.

It follows that the DCCA may render a decision in phase I or phase II.

In phase I, the DCCA shall decide no later than 25 working days after receiving a complete merger notification whether to approve the merger or open phase II investigation. Phase I may be extended to 35 working days if remedies are offered in phase I.

In phase II, the DCCA shall decide whether to approve or prohibit the merger within 90 working days from the decision to open phase II proceedings. The time limits are extended by 20 working days if remedies are offered after 70 working days from the decision to enter phase II. The time limits may be further extended by an additional 20 working days provided this is accepted or requested by the notifying party.

If the DCCA misses the 25 or 90-day deadline, it follows from the Competition Act that the merger is approved.

Until 2023, the DCCA was of the view that merger notifications submitted after 16:00 were considered submitted the following day. This was challenged in 2023, where the NDI Group A/S was to acquire Euromaster Denmark A/S. The complete notification was submitted on a Friday evening at around 7 PM. The DCCA considered the notification submitted on the following Monday. 25 working days from this Monday, the DCCA decided to open a phase II investigation. The parties argued that the DCCA missed the deadline by a day; hence, the merger was automatically approved per the Competition Act. The DCCA disagreed, which resulted in an appeal to the Danish Competition Appeals Tribunal. The Tribunal ruled that a merger notification submitted before midnight was to be considered submitted on the same day. It follows that the Tribunal agreed with the parties. The Tribunal, however, surprisingly concluded that the merger was not automatically approved. The Tribunal argued that the parties were aware of the DCCA counting the deadline wrongly. The Tribunal also pointed to the importance of the purpose of the competition act, regardless that the DCCA at the time of the appeal had not assessed the substance of the matter. The DCCA, however, now acknowledges that a notification submitted before midnight is submitted on the same day. However, the wording of the Competition Act stating that the DCCA’s failure to meet the deadline will automatically result in an approval seems not to be the case even though this outcome conflicts with the wording of the Act. 

The overall timeframe for a simplified notification is approximately six weeks. There is no standard timeframe for a full-form notification. The longest-running merger case so far is about 15 months. Many full-form notifications will take around six months.

An informal pre-notification phase is standard. The process is confidential unless the parties waive this. In order for the DCCA to clear a merger, the DCCA must announce the merger to the public. Hence, a decision cannot be rendered unless the parties accept such public announcement.

Requests for information from the DCCA are common in both simple and complex cases. The parties will usually receive questions even if the undertakings concerned have no overlapping activities.

In simple cases, the requests for information will usually be few and simple.

In complex cases, significant requests for information are to be expected, and the requests may have short deadlines. If deadlines are not met, the DCCA is entitled to stop the clock.

If the DCCA requests information pursuant to section 17 of the Danish Competition Act, and the requested information is not handed to the DCCA within the deadline set by the DCCA, the DCCA may stop the clock. According to section 17 of the Danish Competition Act, the DCCA may demand all information. This includes accounts, accounting records, transcripts of books, other business documents and electronic data, which the person concerned has access to, and which the authority deems necessary to carry out its tasks. In general, this means that any information the company has access to must be submitted, while the company cannot be obliged to produce new documents.

A simplified merger notification is available for mergers that meet the requirements. The simplified merger notification has its origin in the EU merger regime and requires less information than the full-form merger notification.

Under certain circumstances, the DCCA may apply a very accelerated procedure. This has been the case for several bank mergers, where it was necessary to render decisions quickly to avoid panic in the financial market.

The merging parties may use the simplified merger notification if the merger meets one of the four categories outlined below:

• mergers in which two or more undertakings acquire joint control of a joint venture which has no, or negligible, actual, or foreseen business activities in Denmark; such cases occur where:
1. the turnover of the joint venture and/or the turnover of the transferred activities is less than DKK100 million annually in Denmark; and
2. the total value of the assets transferred to the joint venture, if any, is less than DKK100 million in Denmark;
• mergers in which one undertaking acquires sole control of another undertaking over which it already has joint control together with one or more other undertakings;
• mergers in which two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, and none of the undertakings concerned are engaged in business activities in the same product market and in the same geographic market covering Denmark or part thereof, or in a product market which is downstream or upstream of a product market and a geographic market comprising Denmark or a part thereof, in which another undertaking concerned is engaged;
• mergers in which two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, and the following conditions are met:

1. the combined market share is less than 15% for all the undertakings concerned which are engaged in business activities in the same product market and geographic market comprising Denmark or a part thereof (horizontal connections); and
2. the individual or combined market shares are less than 25% for all the undertakings concerned which are engaged in business activities in a product market which is downstream or upstream of a product market in which one or more of the other undertakings concerned operate, in a geographic market comprising of Denmark or a part thereof (vertical connections).

Even though a merger may be covered by one or more of the categories referred to above, the DCCA may at its own discretion require a full-form notification of the merger.

When reviewing a merger, the DCCA applies the same tests as the European Commission. Thus, guidelines and case law from the European Commission apply.

The test is stated in section 12c (2) of the Danish Competition Act  stating:

“A merger that will not significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be approved. A merger that will significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be prohibited.”

The provision reflects the Significant Impediment of Effective Competition (SIEC) test laid down in Article 2 (2) and (3) of the EU Merger Control Regulation.

Pursuant to the preparatory legislative works to section 12c (2) of the Danish Competition Act, the DCCA shall conduct a specific assessment of the merger’s effect on competition on the relevant markets. This includes an assessment of the counterfactual scenario. To conduct this assessment, the DCCA will require the merging parties to provide certain information, such as quantitative data on audited annual accounts and customers.

Mergers that may create or strengthen a dominant position are typically subject to a more extensive review by the DCCA. In recent years, the DCCA has increased its focus on local effects. In 2021, the DCCA approved the acquisition by STARK Danmark A/S of Jens Schultz A/S. The DCCA approved the merger without remedies, but prior to rendering a decision, the DCCA expressed concerns regarding the catchment areas in Southern Funen and it took the DCCA many months to assess the local effects in Southern Funen. Even if a dominant position is neither created nor strengthened as a result of a merger, the DCCA has stated that the merger may still raise concerns (see the DCCA’s guidance paper on merger control). This may be the case for matters with vertical overlaps or for mergers on oligopoly markets.

The merging parties are required to provide information on any affected market in the full-form merger notification. The description of the relevant market is based on the same principles as for matters under the EU-regulation; ie, studies of demand and supply substitution. 

A market is considered affected if:

• the undertakings concerned have combined market shares above 15% on markets with horizontal overlaps; or
• the undertakings concerned have market shares exceeding 25% on markets with vertical overlaps.

The DCCA will normally initially assess markets subject to a conservative delineation and if the merger does not result in concerns on such market, the transaction is also not likely to result in concerns on a wider relevant market.

The DCCA relies on case law from other jurisdictions when reviewing a merger, especially when delineating the relevant market. The DCCA will mostly rely on case law from Denmark and the European Commission, but the DCCA also relies on case law from other national competition authorities in the EU.

The DCCA applies the same tests as the European Commission when assessing a merger. Thus, the DCCA investigates the same concerns as the European Commission; eg, unilateral effects, co-ordinated effects, conglomerate or portfolio effects, vertical concerns, and elimination of potential competition.

The DCCA may take economic efficiencies into account using the same tests as the European Commission. When assessing a merger, the DCCA will require the merging parties to present evidence of economic efficiencies. The burden of proof for the merging parties is high. In most mergers, economic efficiencies are not argued by the parties as the DCCA is reluctant to accept such arguments unless they are substantiated by a thorough economic analysis.

The DCCA is generally reluctant to take non-competition issues into account as this falls outside the scope of the Danish Competition Act. However, the DCCA – like other Danish authorities – has a fair degree of discretion. As a result, the DCCA can informally take into account elements such as market dynamics. It is rarely necessary to take such elements into account.

The regulation of foreign direct investments, on the other hand, falls under the Danish Investment Screening Act, governed by the Danish Business Authority. This legislation is distinct from the Danish merger control regulation, implying a separate governance structure for these two regulatory frameworks.

Fully functioning joint ventures are subject to merger control. Besides the ordinary merger review, the DCCA will include an assessment of the coordination between the joint venture’s parent companies in accordance with the criteria concerning anti-competitive agreements in section 6 (1) and 8 (1) of the Danish Competition Act or Articles 101 (1) and (3) of the Treaty on the Functioning of the European Union (TFEU) (see section 12c (3) of the Danish Competition Act).

The DCCA will prohibit mergers that it finds significantly impede effective competition (see section 12c (1) of the Danish Competition Act). If the DCCA has objections to a merger, it is up to the merging parties to propose remedies that can address the DCCA’s concerns. It is stated in Section 12e (1) that the DCCA may attach conditions to its approval of a merger; ie, make the merger’s approval conditional on certain remedies:

“The Competition and Consumer Authority may attach conditions to its approval of a merger under Section 12c (2) or issue orders to ensure, for example, that the undertakings involved comply with the commitments they have accepted vis-à-vis the Competition and Consumer Authority to eliminate any anti-competitive effects of the merger.”

In 2008, the Danish Competition Council prohibited Lemvigh-Müller’s acquisition of Brdr. A & O Johansen. The DCCA assessed the merger would result in co-ordinated effects on the market for plumbing items and the market for electricity items. In order to meet the concerns, the parties proposed two remedy packages to the DCCA. The DCCA assessed both remedy packages but found that they did not address the DCCA’s concerns, therefore the DCCA prohibited the merger.

This case remains the only merger that has been blocked. However, in situations where the DCCA signals its likely blocking of a merger, it has become common practice for merging parties to withdraw their notification. At least six mergers have been withdrawn for this reason.

When the DCCA has concerns regarding a transaction, the merging parties may suggest remedies to address such concerns. The DCCA accepts both structural remedies, behavioural remedies, and a mixture of both. The DCCA prefers structural remedies.

Remedies may only be proposed by the merging parties and not by the DCCA, but the DCCA will enter into discussions with the merging parties concerning the requirements to resolve the DCCA’s concerns.

The DCCA has issued guidance concerning remedies. The DCCA has five material requirements:

• the remedy has to eliminate the competition concerns related to the merger;
• the remedy must be capable of being implemented effectively;
• it must be possible to monitor the remedies;
• the remedy must be proportionate to the concerns; and
• the remedy must not create new competition issues.

The are no requirements as to the format of remedy proposals, but the DCCA has issued two templates for remedies in 2018: one model text for divesture commitments and one model text for trustee mandate. The templates are the ones applied by the European Commission but translated into Danish.

The DCCA prefers structural remedies; ie, divestitures. However, the DCCA accepts both structural remedies, behavioural remedies, and a mixture of both. Remedies are only required to address competition issues.

In 2022, the DCCA approved Bremse Systeme für Schienenfahrzeuge GmbH’s acquisition of DSB’s Component Workshop, part of the acquisition by DSB Vedligehold A/S and Norlys Tele Service A/S of Verdo Tele A/S subject to behavioural remedies as the remedies ensured access to spare parts for trains to small Danish customers and access to fibre infrastructure.

In 2020, the DCCA approved the acquisition by SEAS-NVE Holding A/S of Radius Forsyningsnet A/S, Ørsted City Light A/S, Ørsted Privatsalg El & Gas A/S og Ørsted Varmeservice A/S. The DCCA had concerns that the merger would significantly impede effective competition on the market for retail sale of natural gas. As a result, SEAS-NVE offered commitments to divest retail customers of natural gas, thereby addressing the DCCA’s concerns. As a result, the DCCA approved the merger.

The DCCA cannot propose remedies, but the DCCA may address the need for remedies in order to approve the merger and the DCCA may discuss the sufficiency of remedies proposed by the merging parties. The DCCA cannot impose remedies that have not been agreed by the merging parties.

The Danish Competition Act does not establish a specific process to propose remedies, so the merging parties can discuss remedies with the DCCA throughout the merger process. However, the DCCA suggests in its remedy guidelines that the parties start with an oral discussion of possible remedies with the DCCA before submitting the remedies in writing. Further, the DCCA suggests in its guidelines that the parties do not sign the remedies until a draft version of the proposed remedies has been discussed with the DCCA.

The DCCA will usually market test remedies once a signed version of the remedies has been submitted unless the DCCA already finds the remedies insufficient. When the DCCA conducts a market test of the remedies, the DCCA will usually send the proposed remedies along with questions to other market players; eg, competitors, customers, and suppliers.

Once the market test has been conducted, the DCCA will finalise its assessment and either conclude that the remedies are sufficient or insufficient. If the remedies are considered insufficient, the merging parties will be given the opportunity to adjust the remedies and submit new remedies.

According to the DCCA’s guidelines, most remedies are handled within one to two months from the date when the written draft version of the remedies was sent to the DCCA.

The introduction of remedies also extends the DCCA’s time limits to render a decision. If remedies are proposed during phase I, the time limits in this phase are extended by 10 working days, to a total of 35 working days. If the merging parties propose remedies in phase II, and 70 working days or more have elapsed since the decision to enter phase II, the time limits will be extended by 20 working days. Remedies must be offered no more than 90 working days after the decision to enter phase II. In exceptional cases, the DCCA will assess remedies received more than 90 working days after the decision to enter phase II.

A divesture, whereby undertakings concerned sell activities, assets, or parts of their undertakings, can be a sufficient remedy to address the competition concerns of the DCCA. Such a divestiture may involve both the acquirer and the target and can lead to a reduction in market shares of the merging parties while simultaneously creating or strengthening the position of a competitor in the market. Usually, the DCCA will require the following in order to accept a divesture as a sufficient remedy:

• the divesture must constitute a viable business, which, if operated by a suitable acquirer, can compete effectively with the merged entity on a lasting basis; and
• the divesture is transferred to a suitable acquirer independent from the merging parties, and the acquirer has the incentive as well as possesses the financial resources and proven relevant expertise to maintain and develop the divesture.

The DCCA’s requirements are based on the requirements set out in the European Commission’s Notice on Remedies.

In the DCCA’s guidance paper on remedies, the DCCA specifies that it may require one of three different timings for identifying the remedy taker:

• The remedy taker is identified prior to approval of the merger. In such cases, the remedy taker must also be approved by the DCCA prior to approval of the merger.
• The remedy taker is identified after the merger has been approved, but before the merger is implemented. In such cases, the remedy taker must be approved by the DCCA prior to implementation of the merger; ie, the remedy taker has not been identified at the time of the approval of the merger but must be identified within a specified deadline hereafter.
• The remedy taker is identified after the merger has been approved and potentially implemented. In such cases, the remedy taker is approved by the DCCA after the merger has been approved, but there is no requirement for the remedy taker to be identified prior to implementation of the merger. However, the remedy taker must be identified and approved within a specified deadline following the implementation of the merger.

The timing for identifying the remedy taker depends on the specific case.

When approving or prohibiting a merger, the DCCA will issue a formal decision to the merging parties. The DCCA will make the decision public in a non-confidential version. The parties will have the opportunity to comment on confidentiality issues before the non-confidential version is made public.

In Denmark, there has been only one case where a merger was prohibited. In 2008, the Danish Competition Council prohibited Lemvigh-Müller’s acquisition of Brdr. A & O Johansen. The DCCA assessed that the merger would result in co-ordinated effects and thus prohibited the merger as the remedies proposed by the parties did not address the DCCA’s concerns. However, even though there has been only one prohibition case, it is not uncommon for merging parties to withdraw their merger notification when they receive a draft prohibition decision and they are unable to address the concerns raised. In 2022, the acquisition by Royal Unibrew A/S of Aqua d’Or Mineral Water A/S was withdrawn after the DCCA communicated concerns to the parties following comprehensive market surveys. The same happened in 2017 when JP/Politiken tried to acquire Børsen. In this case, the DCCA communicated its concerns to the parties, who tried to address the concerns with remedies. However, the DCCA did not find the remedies sufficient, and the merging parties withdrew the merger notification as a result.

In 2022, the DCCA approved two mergers with remedies. Both matters were addressed with behavioural remedies. The DCCA approved Bremse Systeme für Schienenfahrzeuge GmbH’s acquisition of DSB’s Component Workshop, which was a part of DSB Vedligehold A/S. The remedies ensured access to spare parts for trains to small Danish customers. The DCCA also approved the acquisition by Norlys Tele Service A/S of Verdo Tele A/S subject to behavioural remedies providing access to fibre infrastructure.

There are no examples of foreign-to-foreign transactions being prohibited or approved subject to remedies.

As with notifications to the European Commission, approval from the DCCA covers ancillary restraints as long as the restraints are directly related and necessary to implement the merger. The parties must determine whether there are any ancillary restraints requiring evaluation from the DCCA, as the DCCA will not on its own account deal with ancillary restraints.

The European Commission’s guidelines and practice apply.

The DCCA announces all merger notifications on its website, thereby allowing third parties to comment on the mergers. The DCCA may also reach out to suppliers, competitors, customers and trade organisations if it deems this necessary based on the merits of the merger. The DCCA will include the comments from such third parties in their assessment, and the comments will be provided to the merging parties in a non-confidential version.

Third parties do not have rights in relation to the merger review, and they cannot appeal the merger decision to the Danish Competition Appeals Tribunal. If sufficient legal interest is proved, third parties may bring the decision of a merger before the Danish courts, but this has not happened before.

In all matters, the DCCA conducts a public consultation by announcing the merger notification on its website. Besides this, the DCCA is not bound by specific methods of contacting third parties. The DCCA uses a variety of contact methods including telephone calls, physical and online meetings, written questionaries and market surveys.

When announcing the merger on the DCCA’s website for public consultation, only a short description of the merger is disclosed without confidential information. The DCCA will discuss the timing and text of the public hearing with the notifying parties.

The DCCA does not share confidential information from the merging parties when consulting third parties. Non-confidential information may be shared and tested. Also, a non-confidential version of the notification can be shared with third parties at the DCCA’s discretion.

The DCCA will make its decision publicly available on the DCCA website. The DCCA will exclude confidential information from the merging parties in the public version of the decision, and the DCCA will normally provide the merging parties with a draft decision in order to comment on confidentiality.

The DCCA co-operates with other competition authorities in both the Nordic, EU and EEA in relation to both policy matters and specific transactions. Due to the ECN+ Directive, national competition authorities in the EU are required to actively assist each other. The DCCA’s co-operation with the Nordic competition authorities is based on a co-operation agreement with the Faroe Islands, Greenland, Iceland, Sweden, Norway and Finland.

The DCCA is a member of the International Competition Network (ICN) and the European Competition Network (ECN).

The DCCA is not required to seek the merging parties’ permission prior to sharing information with other jurisdictions.

A merger decision can be appealed to the Danish Competition Appeals Tribunal or directly to the Danish courts. The Danish Competition Appeals Tribunal’s decision can be appealed to the courts.

An appeal to the Danish Competition Appeals Tribunal must be filed no later than eight weeks after the DCCA has rendered a decision. No merger decisions have ever been appealed; however, an appeal would likely run for around six months.

An appeal before the courts must be made no later than eight weeks after the DCCA or the Danish Competition Appeals Tribunal have rendered a decision. No merger decisions have ever been appealed to the courts.

Generally, a merger decision cannot be appealed by a third party to either the Danish Competition Appeals Tribunal or the Danish courts. If sufficient legal interest is proved, a third party may bring a merger decision directly before the Danish courts, but this has never happened.

In 2021, the Danish Investment Screening Act entered into force and introduced a mandatory authorisation scheme and a voluntary notification scheme for foreign direct investments in Danish companies or entities, which means that a transaction may require a separate filing to the Danish Business Authority.

The mandatory authorisation scheme applies to a foreign investor who intends to acquire at least 10% of ownership interests, voting rights, or equivalent control by other means of a Danish company or entity operating within a particularly sensitive sector or activity. Foreign investors who already own a shareholding or hold voting rights in a Danish company or entity and intend to increase it may fall within the scope of the mandatory authorisation scheme, if the foreign investor’s shareholding or voting rights will amount to or exceed 20%, 1/3, 50%, 2/3, or 100% post-transaction. Greenfield investments – ie, whereby a foreign investor intends to establish a new Danish company or invest in a part of the establishment of a Danish company – fall within the scope of the mandatory authorisation scheme if the total capital injection by the foreign investor amounts to or exceeds DKK75 million within the first three financial years. Capital injection includes the inflow of equity and long-term irrevocable loan financing.

The voluntary notification scheme may be utilised if a foreign direct investment does not fall within the scope of the mandatory authorisation scheme. The foreign direct investment must potentially constitute a threat to national security or public order in Denmark, and the foreign investor has to acquire at least 25% of the ownership interests, voting rights, or equivalent control by other means of a Danish company or entity.

The latest change to the Danish merger regime is the implementation of ECN+ in 2021. ECN+ allows the DCCA to litigate civil fines at the Danish courts. Previously, fines were only imposed through criminal litigation led by the State Prosecutor. In relation to merger control, civil fines apply to failure to notify, pre-implementation, and the submission of incorrect, incomplete, or misleading information.

In recent decision-making practice, there have been two notable changes. Firstly, the DCCA was corrected by the Danish Competition Appeals Tribunal in a matter concerning determination on how to calculate deadlines. The DCCA argued that a notification submitted after 4 pm was to be regarded as submitted the following day. The Tribunal ruled that midnight was the relevant deadline. This is a significant ruling, as the DCCA's failure to render a decision before the deadline expires under the Danish Competition Act would normally result in automatic approval of the merger. However, in this case, the Tribunal also ruled that the DCCA was excused, so the merger was not automatically approved.

In a merger involving the acquisition by Volvo Danmark A/S (“Volvo”) of its rival, Titan Lastvogne A/S (“Titan”), the DCCA expressed concerns as Volvo would become a very significant player. However, Titan operated under a contract with Volvo, and Volvo had already terminated the contract before the merger. This meant that Titan would exit the market in any event. The DCCA took this into account as part of its counterfactual analysis, and ultimately approved the merger without remedies.

The DCCA is currently working on an amendment to the Danish Competition Act enabling the DCCA to call in transactions for merger review even though they do not meet the turnover thresholds. This amendment is expected to come into force at the beginning of 2024.

Failure to Notify

The DCCA has not issued any fines concerning failure to notify in 2022 and 2023, but the DCCA has previously issued fines for failure to notify.

After Circle K Danmark A/S acquired Dansk Shell A/S in 2016 with the European Commission’s approval, it terminated lease agreements concerning 72 service stations that had been operated by 12 individual lessees under a trademark license agreement with Shell. Following the termination, Circle K Danmark A/S acquired control of the shops located on the service stations as all assets, including inventory, goodwill, and employees, were transferred to Circle K Danmark A/S. The DCCA concluded that the transaction constituted a concentration separate from the one that had been notified to and approved by the European Commission. As the transaction had been implemented, the DCCA found that Circle K Danmark A/S had failed to notify, and the Danish State Prosecutor for Serious Economic and International Crime imposed a DKK6 million (approximately EUR805,000) fine on Circle K Danmark A/S in 2019.

Two Danish utility companies, SEAS-NVE Holding A/S and Syd Energi Holding A/S, informed the DCCA that they had failed to notify the joint acquisition of ChooseEV A/S before implementation. Consequently, the Danish State Prosecutor for Serious Economic and International Crime imposed a DKK4 million (approximately EUR535,000) fine on each of the utility companies in 2018.

Prohibitions and Remedies

In 2022 and 2023, the DCCA has not prohibited any mergers. Yet, the notification of the acquisition by Royal Unibrew A/S of Aqua d’Or Mineral Water A/S was withdrawn after the DCCA communicated concerns to the parties following comprehensive market surveys.

In 2022 and 2023, the DCCA has approved two mergers subject to remedies. Knorr-Bremse Systeme für Schienenfahrzeuge GmbH’s acquisition of DSB’s Component Workshop, part of DSB Vedligehold A/S, was approved subject to behavioural remedies ensuring access to spare parts for trains for small Danish customers. The acquisition by Norlys Tele Service A/S of Verdo Tele A/S was approved subject to behavioural remedies ensuring access to fibre infrastructure. 

Duty to Disclosure

The DCCA has not recently issued fines concerning the submission of incorrect, incomplete, or misleading information in relation to merger procedures. In 2017, a fine of DKK50,000 (approximately EUR6,700) was imposed on the wholesale company METRO Cash & Carry Danmark ApS as it failed to provide the DCCA with all the relevant information for its review of the merger with Euro Cater A/S.

The DCCA has increasingly used substantial economic analysis in merger cases such as the Critical Loss Analysis, Upwards Pricing Pressure, Compensating Marginal Cost Reductions, and Illustrative Price Rise. Further, the DCCA has in recent years increased its focus on local concerns. In 2021, the DCCA approved without remedies the acquisition by STARK Danmark A/S of Jens Schultz A/S. Prior to approval, the DCCA had concerns regarding local catchment areas in Southern Funen. Following many months of investigations, the DCCA abandoned their concerns.