Yes, the Competition Act (Consolidation Act No 360 of 3 April 2021) provides the main Danish rules on merger control which are based on EU competition law. The provisions in the Competition Act are implemented by the Executive Order on the Calculation of Turnover in the Competition Act (No. 1286 of 26 November 2019) and the Executive Order on the Notification of Concentrations (No. 690 of 25 May 2020). The relevant legislation is available online at the website of the Danish Competition and Consumer Authority ("DCCA") at www.kfst.dk. Further guidance can also be found in the European Commission’s jurisdictional notice and ancillary restraints notice.

Merger control is enforced by three independent administrative bodies established and regulated under the Competition Act: the Danish Competition and Consumer Authority ("DCCA"), the Competition Council and the Competition Appeals Tribunal.

The Competition Council includes seven members appointed by the Minister for Industry, Business and Financial Affairs: a chairman, a vice-chairman and two additional members with knowledge of competition law or other relevant academic backgrounds, two members with managerial background from the business world, and one member with special knowledge of consumer affairs. The main function of the Council is the administration of the Competition Act and regulations issued thereunder. In particular, the Competition Council is in charge of making decisions on matters of principle or of singular importance.

The DCCA is responsible for the day-to-day administration of the Competition Act. Acting as the secretariat of the Council, it prepares the latter's decisions and issues its own rulings in matters the Council does not deal with. Although the DCCA is organized in different units responsible for different areas of business and industry, there are also transversal units and a management and administration secretariat.

The decisions of the competition authorities are subject to appeal before the Competition Appeals Tribunal. This Tribunal consists of a Supreme Court judge and four other members with expertise in either economics or law. As the Appeals Tribunal is also an administrative body, its decisions are in turn subject to appeals by the affected undertakings before the ordinary Danish Courts.

Following the one-stop-shop principle, in cases where the transaction has a ''community dimension'' according to the EU Merger Regulation (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings), the European Commission has jurisdiction to review the merger instead of the DCCA.

Concentrations below the thresholds may exceptionally be referred to the Commission under Article 22 of the EC Merger Regulation. On 3 April 2020, the Danish Competition and Consumer Authority ("DCCA") referred a proposed merger between Mastercard and Nets to the European Commission, since the DCCA came to the conclusion that the merger could affect markets in a number of other EU member states. This is the first time that the DCCA has requested a referral to the European Commission under Art. 22, whereas the DCCA has in several other cases requested the Commission to refer mergers notified under the EUMR to the DCCA. In July 2022, the DCCA - together with a number of other member states - referred the merger between Viasat and Inmarsat to the Commission.

Yes. The merger filing requirements are set out under the Competition Act (Consolidation Act No 360 of 4 March 2021).

The provisions of merger control only apply to transactions falling within the concept of ‘concentrations’. In accordance with the EU Merger Regulation, a concentration will be deemed to arise in any of the following circumstances:

• two or more previously independent undertakings merge; or
• one or more persons already controlling at least one or more undertakings, acquire, whether by the purchase of securities or assets, by contract or by any other means, de jure or de facto, direct or indirect control of the whole or parts of one or more other undertakings.

The preparatory works accompanying the Competition Act explicitly refer to the notices of the European Commission on merger control regulation.

The acquisition of minority shareholdings is subject to Danish merger control, as any other transaction, when the Competition Council considers that control is acquired and the jurisdictional thresholds are met.

In what particularly concerns the acquisition of control, the Council will analyze whether the strength of voting rights and other factors may lead to the possibility of exercising control. It should be noted that the mere possibility is sufficient, it does not matter if control has actually been exercised. The European Commission’s guidance and decisional practice will be followed in that regard.

Even where no actual effects in the Danish market can be shown, foreign-to-foreign mergers meeting the turnover thresholds are subject to Danish merger control. However, it should be noted that the thresholds have been defined so as to require an actual turnover in Denmark (generally interpreted as sales to customers located in Denmark or the provision of services in Denmark) of a substantial magnitude.

The merger control provisions apply to concentrations where either:

• the combined aggregate turnover in Denmark of all the undertakings concerned is more than DKK 900 million and the aggregate turnover in Denmark of each of at least two of the undertakings concerned is more than DKK 100 million; or
• the aggregate turnover in Denmark of at least one of the undertakings concerned is more than DKK 3.8 billion and the aggregate worldwide turnover of at least one of the other undertakings concerned is more than DKK 3.8 billion.

The preparatory works to the Competition Act state that the notion of ‘undertakings concerned’ is to be interpreted and applied in accordance with the practice of the European Commission. Moreover, the Competition Act explicitly provides that where the concentration consists of the acquisition of parts (regardless of whether they are constituted as legal entities such as assets constituting a separate business) of one or more undertakings, only the turnover relating to the parts that are the subject of the transaction will be taken into account with regard to the seller or sellers.

Furthermore, two or more transactions that take place within a two-year period between the same persons or undertakings will be treated as one and the same concentration arising on the date of the last transaction.

Filing of any concentration is mandatory provided that the turnover thresholds are met.

Every concentration meeting the turnover thresholds shall be notified to the DCCA after the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest. However, in any event, the filing must take place before the implementation of these arrangements.

A concentration that is notifiable to the DCCA shall not be implemented before approval by the DCCA or expiry of the statutory time limits (the so-called "stand-still obligation").

Waiting periods can account up to 25 working days (Phase I) or additionally 90 working days (Phase II) after the expiry of the first waiting period. A Phase II review can be extended by 20 working days in three scenarios (i) if the undertakings propose new or revised commitments late in the process (ie, later than 20 days before the expiry of the original deadline); (ii) at the request by the parties; or (iii) with the parties’ consent.

The DCCA may ‘stop the clock’ at any time during the formal review periods in Phase I and II if the parties do not provide requested additional information within the time frame given. The time limits are discontinued until the DCCA has received the requested information.

Once the notification is filed, the DCCA must declare whether the filing is complete within ten working days. In practice, the DCCA may raise several additional questions and sometimes even begin negotiations with the parties on possible commitments at this stage, implying that the official deadlines are not triggered.

There are two exceptions to the stand-still obligation: first, the DCCA can grant a (conditional) derogation upon request; secondly, notified public bids are exempted if the acquirer does not exercise the voting rights attached to the securities in question or does so only on the basis of a derogation granted by the DCCA and to maintain the full value of those investments.

Filing under the Competition Act requires the use of a specific form known as Annex 1. The form requires the provision of information about the parties, the markets, customers, suppliers and competitors, being just slightly less exhaustive than the Form CO in the EU merger control regime.

For straightforward cases that are unlikely to raise competition concerns, there is a simplified ‘short-form’ filing available using a form known as Annex 2. This form is similar in structure to Annex 1 but requires the submission of less information.

Both forms require the lodging of a non-confidential version, which is intended to be used for market testing.

Annex 1 and 2 are accessible from the DCCA’s website.

The filing fee amounts to DKK 50,000 for simplified notifications and 0.015 percent of the parties’ turnover for non-simplified notifications. However, the fee is capped at a maximum of DKK 1.5 million.

Pre-notification consultations with the DCCA are strongly recommended as these consultations often have a significant impact on the outcome of the procedure. It should be noted that they also provide the undertakings concerned with the opportunity to address possible competition concerns in Annex 1 – with the effect that the procedure is accelerated. To initiate this informal procedure, a briefing paper is often delivered to the DCCA.

In respect of the official procedure, the timetable for clearance is the same whether the merger is filed under the simplified procedure or the full-form notification procedure. Once the notification is filed, the DCCA must within 10 working days declare whether the filing is complete – thereby confirming that the time began running upon notification – or specify any missing information to be submitted. In respect of simplified notifications, the DCCA also must within 10 working days decide whether to accept the simplified procedure or to demand a full-form notification. Unless the notification has been accepted as complete during the pre-merger notification consultation, the parties are often sent such requests, which in practice extend the waiting period.

In Phase I, the DCCA shall issue its decision on the substance within 25 working days from the receipt of a complete notification. The DCCA can extend the Phase I deadline of 25 working days up to 35 working days (extended Phase I) if one or more of the participating undertakings are proposing commitments or behavioral remedies. The Competition Council will decide to either approve the concentration or initiate further proceedings (Phase II).

In Phase II, the Competition Council shall issue a final decision within 90 working days after the expiry of the original 25 working days of Phase I. However, the 90-working-day time limit may be extended by up to 20 days under two circumstances: (i) if the undertakings propose new or revised commitments at a late stage (ie, less than 20 days remaining of the original deadline), then the deadline is only extended by as many days required to provide 20 days for the assessment of the new or revised commitments; or (ii) on request by the parties or with the parties’ consent.

The DCCA may ‘stop the clock’ at any time during the formal review periods in Phase I and II if the parties do not provide requested additional information within the time frame given. The time limits are discontinued until the DCCA has received the requested information.

Similarly to the EU Merger Regulation, the Danish merger control scheme builds on close contacts as early in the process as possible. Transactions that do not present any substantive issues can often be cleared according to a simplified procedure. Once a complete notification has been received, the DCCA decides within 25 working days whether a concentration may be approved on the basis of a simplified procedure. In practice, approval on the basis of a simplified procedure will be given quickly, depending on the nature of the pre-notification.

The substantive test applied by the Competition Council is whether the concentration significantly impedes effective competition (SIEC), in particular as a result of the creation or strengthening of a dominant position. Otherwise, the concentration must be approved.

Regarding full-function joint ventures, when they may also have the object or effect of coordinating the competitive behavior of undertakings that remain independent, such coordination must be assessed following the criteria of the provisions of the Competition Act applying to anticompetitive agreements (similar to article 101(1) of the Treaty on the Functioning of the European Union ("TFEU")).

The transaction may be approved, approved with conditions, or prohibited. Commitments may be offered to eliminate competition concerns. However, the Competition Council may also impose conditions and obligations; therefore it may not, according to the principle of proportionality, prohibit the transaction if suitable remedies can be designed and are offered. Following acceptance of the remedies by the Competition Council, the parties to the merger might decide whether to proceed with the transaction.

Yes, the undertakings concerned will discuss or negotiate suitable commitments with the competition authorities if they consider that the concentration cannot be approved without conditions. The commitments agreed with the competition authorities will be formulated as conditions in the approval of the concentration. Such conditions can include divestment orders or behavioral remedies. The competition authorities may also issue orders to ensure that the parties honor the conditions. The conditions can be appealed separately after approval of the concentration, even though they are agreed during the negotiations with the competition authorities.

The competition authorities can impose fines for failure to notify (before the implementation of the concentration) and for providing incomplete or misleading information in a notification procedure. In the latter case (which in practice has led to the issuing of fines), the DCCA can revoke the approval of a merger when based on incorrect information provided by one of the undertakings concerned.

Most recently, a fine of DKK 6 million was accepted out-of-court for infringing the rules on merger control in the Danish Competition Act by not notifying a merger to the DCCA.

Fines of DKK 50,000 have been imposed in two unrelated merger cases involving the submission of incomplete information in one instance and omission to correct previously submitted incorrect information in another. Furthermore, in another case, two fines of DKK 4 million each have been accepted out-of-court for failure to notify a notifiable transaction.

If the merger has already been implemented, the authority may impose that the undertakings or assets brought together are separated or order the cessation of joint control or any other action suitable to restore effective competition in the market concerned.

Fines may be imposed for unlawful implementation of a concentration prior to clearance or for implementation of a prohibited merger. In one case, two fines of DKK 4 million each were accepted out-of-court for failure to notify a notifiable transaction and infringement of the "gun-jumping"-prohibition. In another case, a company was fined DKK 6 million for failure to notify a notifiable transaction and infringement of the "gun-jumping"-prohibition. The company accepted the fine.

The amount of the fine will depend on the size and turnover of the undertakings concerned, the duration of the violation and whether the merger has impeded effective competition in the relevant market. Nevertheless, the DCCA can also apply aggravating and mitigating circumstances, and a cap is applied amounting up to 10 percent of the undertaking’s revenue. In any event, substantive violations of the competition rules may trigger fines according to the following base amounts: up to DKK 4 million for minor violations; DKK 4 million to DKK 20 million for serious violations; and more than DKK 20 million for very serious violations.

However, it should be noted that fines for procedural infringements are likely to be significantly lower than these base amounts, probably in the magnitude of some DKK 10,000 to DKK 500,000. Where clearance is subsequently denied or made conditional, the transaction will have to be annulled or otherwise reopened and modified.

Concentrations below the thresholds may in exceptional circumstances be referred to the European Commission under Article 22 of the EU Merger Regulation.

If the competition authorities find that the transaction should have been notified, it would issue a decision to prohibit the transaction and thus order it to be canceled. Furthermore, a fine would most likely be issued.

In 2021, the EU’s ECN+ Directive was implemented in the Danish Competition Act. With it came among other things a two-tiered investigation and sanction system. This sanction system authorizes the DCCA to press civil charges and impose ‘civil fines’ on undertakings without the involvement of the Danish State Prosecutor for Serious Economic and International Crime. The amendment applies to all types of competition cases regardless of type, including merger control.

Moreover, in March 2021, the European Commission revised its guidelines regarding the ‘Dutch clause’ in the regulation on the control of concentrations between undertakings Article 22 about the ability of member states to refer to a merger. The revisions encourage the competition authorities to refer transactions when one parties’ turnover does not reflect its actual or potential position on the market, such as start-ups within the IT or pharmaceutical sectors. These referrals are not limited to transactions above the merger thresholds according to the new guidelines. This article has only been used once by the DCCA, but with the revised guidelines, Danish companies should be aware of the possibility of a referral to the Commission for examination. However, the DCCA has not yet provided any information on their envisaged approach in light of the European Commission’s revised Article 22 Guidelines, but this is currently being prepared and we expect that it will be in line with that of EU practice.

In May 2021, the Danish parliament passed the Investment Screening Act, which entered into force on 1 July 2021. The Act should be seen in the light of the European Foreign Direct Investment Regulation, which became effective on 11 October 2020, and the Danish government emphasizing the need for an FDI regime that secures Denmark’s security and public order but does not undermine Denmark’s position as an open economy or jeopardize its ability to attract foreign investments.

The goal of the Investment Screening Act is to prevent foreign direct investments and certain economic agreements from posing a threat to national safety and public order in Denmark. The Act introduces a Danish screening instrument that may be used to assess foreign investments (incl. greenfield investments) and specific economic agreements and makes it possible to take action and set out requirements for the investment or agreement or completely prohibit it, insofar as it poses a threat to national security in Denmark.

The Act introduces a mandatory authorization regime for all foreign investors investing in particularly sensitive sectors and a voluntary cross-sectoral notification regime for non-EU/European Free Trade Association investors.

The mandatory sectoral authorization regime requires foreign investors intending to acquire a ‘qualifying holding’ in a Danish undertaking that operates in a particularly sensitive sector to apply to the Danish Business Authority for authorization.

The Act defines a qualifying holding as 'direct or indirect possession or control of no less than 10 percent of the shares or voting rights or similar control by other means'. Investors seeking to set up new businesses (greenfield investments) must also apply for authorization if the business will be operating in a particularly sensitive sector.

Finally, non-EU/EFTA investors and investors in the EU/EFTA that are controlled by a non-EU/EFTA owner wishing to enter into a special financial agreement (such as a joint venture or a service and operating agreement) with a Danish business operating in a particularly sensitive sector must also apply for authorization.

According to Section 6 of the Act, particularly sensitive sectors, which are all defined in greater detail in an executive order, include businesses:

• in the national defense industry;
• providing IT security services or processing classified information;
• manufacturing dual-use items (as defined in Article 1(1) of Council Regulation (EC) 428/2009 (as amended);
• providing critical technology other than the types mentioned above; and
• in critical infrastructure industries.

Authorization must also be obtained where an existing ownership interest is increased to more than one-fifth, one-third, half, two-thirds or total ownership. Further, a new authorization must be obtained if the ownership structure of the foreign company authorized to make the investment changes. If, for instance, a Chinese subsidiary of a Chinese group has been authorized to acquire 50 percent of a Danish undertaking in a particularly sensitive sector, and the Chinese subsidiary is later acquired by a Japanese group, then it must apply for a new authorization in Denmark.

The voluntary cross-sectoral notification regime provides an opportunity for investors outside the EU/EFTA to notify the Danish Business Authority of investments in Danish undertakings, whereby they, directly or indirectly, gain ‘possession or control of no less than 25 percent of the shares or voting rights’.

Under the Investment Screening Act, non-EU/EFTA investors may also notify the Danish Business Authority of ‘special financial agreements’, if the investment or agreement is likely to pose a threat to national security or public order in Denmark.

A guide will be prepared to make it easier for investors to determine when to use the voluntary cross-sectoral notification regime if the investment may constitute a threat to national security or public order.

Unlike the mandatory sectoral authorization regime, the cross-sectoral notification regime does not apply in connection with the setting up of a business (greenfield investments).

Investments falling within the cross-sectoral notification regime will be subject to notification only if they qualify for the mandatory sectoral authorization regime. By notifying the Danish Business Authority in any circumstances, the investor is sure to have authorization, thus eliminating any future doubt as to whether the investment threatens national security or public order.

If no notification is made, the Danish Business Authority may, for a period of up to five years after the date of the investment, decide to undertake scrutiny to determine if the investment constitutes a threat to national security or public order. If so, the Danish Business Authority may issue an unwinding order.

In addition to the Investment Screening Act, the Danish Act on War Material (consolidated Act No. 1004 of 22 October 2012) is the only legislative act that regulates foreign acquisitions and investments on the basis of national security interests in Denmark. It follows from the Danish Act on War Material, that special FDI screening mechanisms apply to undertakings producing materials constructed for military purposes (e.g, firearms, ammunition, gunpowder and explosives)

On May 4. 2021, the Danish Parliament adopted the bill for the Investment Screening Act. The Act entered into force on July 1, 2021. The bill makes it possible to screen foreign investments and financial agreements and to intervene against and set conditions for such investments if they represent a security risk to Denmark. The bill introduces a mandatory sectoral authorization regime and a voluntary cross-sectoral notification regime. The regulation is comprehensive and complex.

The simplified procedure has proven an efficient tool for undertakings and the DCCA alike to deal with unproblematic concentrations, which represent the vast majority of cases. However, the DCCA may always require a full notification, which, of course, delays the entire reviewing process and triggers a full filing fee.

This was the case in a recent decision by the Western High Court. The Western High Court agreed with the DCCA that the Authority was right in demanding a full-form notification of the merger, thus increasing the filing fee payable by the parties from DKK 50,000 to DKK 1.45 million.

Further, it should be noted that the duration and complexity of pre-notification consultations (based on complete drafts of the notification) appear to be increasing. Even under the simplified procedure, the process often involves several rounds of requests for information before the final filing can be made. Although this means that part of the actual case handling is made before the actual filing, it does not necessarily have any bearing on the entire review period (from the first informal approach to clearance), since the DCCA will often not need all 25 working days before a decision can be issued.