Merger Controls First Edition - J Sagar Associates

Denmark
Christina Heiberg­Grevy & Malene Gry­Jensen
Accura Advokatpartnerselskab
Overview of merger control activity during the last 12 months
As mentioned below, significantly lower thresholds have been applied under the Danish merger control regime since 1
October 2010, and a simplified notification procedure has been introduced.
As a consequence of the lower thresholds, the Danish Competition and Consumer Authority (the “DCCA”) has received
far more notifications than before 1 October 2010. Before the amendment of the Competition Act, the DCCA received
about 10-12 notifications each year. In comparison, 21 mergers have been notified and approved so far in 2011 (January
– June 2011). 13 of these 21 decisions were notified under the simplified notification procedure, and 8 were notified under
the full procedure. See below for a brief outline of the amendments to the Danish merger control regime.
In 2010, the DCCA issued 10 merger decisions. All 10 decisions were approvals, of which 3 were approvals with
commitments. Furthermore, the DCCA issued 1 decision concerning the breach of a merger commitment1 , 1 revocation
of a merger approval2 and 1 dispensation from the implementation prohibition under the Danish merger control regime3 .
New developments in jurisdictional assessment or procedure
In the fall of 2010, the Danish merger control regime was amended by the adoption of the Danish Consolidated Competition
Act No. 927 of 13 August 2010 and the Danish Executive Order No. 972 of 13 August 2010 on the Notification of Mergers.
The new regulations introduced a number of amendments, including significantly lower thresholds for mergers that must
be notified, and a simplified procedure for the filing of unproblematic mergers. Furthermore, the time-limits within which
the competent authorities must complete their assessment of a notified merger were amended, and the DCCA was
authorised to approve mergers under a simplified procedure if the DCCA finds that such mergers do not raise any concern.
The introduction of these amendments brought about a further approximation of the Danish merger control regime towards
the EU merger control rules and improved the possibilities of approving unproblematic mergers faster and with a less
extensive burden of information for the notifying party.
A merger which is subject to the Danish turnover thresholds must not be implemented until it has been approved by the
Danish Competition Counsel or the DCCA. A penalty will be imposed under section 23(1)(vii) of the Danish Competition
Act if a merger is implemented before it has been approved.
Historically, no Danish cases of gun-jumping have been seen. However, the DCCA has, to some degree, been monitoring
the market and occasionally requested the parties involved in a merger mentioned in the news which had not been notified
to provide documentation showing that the turnover of the parties involved in the merger did not exceed the applicable
thresholds. With the new lower thresholds, however, we may start to see cases of gun-jumping or omission of notification
all together as the number of mergers covered by the rules will increase significantly.
A merger must be notified to the DCCA if:
1) the undertakings concerned have a total annual turnover in Denmark of at least DKK 900 million (previously DKK
3.8 billion) and at least two of the undertakings concerned have a total annual turnover in Denmark of at least DKK
100 million (previously DKK 3.8 billion) each; or
2) at least one of the undertakings concerned has a total annual turnover in Denmark of at least DKK 3.8 billion and
at least one of the other undertakings concerned has a total worldwide annual turnover of at least DKK 3.8 billion.
If, to a significant extent, a merger appears to be based on incorrect or misleading information submitted by the parties,
the DCCA may revoke its approval of the merger.
This right to revoke an approval is not new, but since the reform of the Danish merger control regime it serves the additional
purpose of preventing erroneous decisions under the simplified notification procedure in which the requirements for
information to be provided by the notifying parties are limited compared to the requirements under the full procedure.
Global Legal Insights ­ Merger Control First Edition
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