1. Merger Control April 2010
Contacts
For further information,
Amendment of Danish Competition Act
please contact your usual
Eversheds contact or adopted
Mogens Vind
Partner
+45 33 75 05 05
On 29 April 2010 a new competition law package was adopted by the
mogensvind@eversheds.com Danish Parliament. The package contains several amendments of the
Danish Competition Act and the overall purpose of the package is to
enhance and strengthen effective competition.
For a full list of our offices and
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The most significant of the proposed amendments is the lowering of
www.eversheds.dk the thresholds for notifying concentrations. The amendments also
include a simplified merger clearance procedure for straightforward
concentrations and extensions of the applicable time-limits.
Eversheds regularly
issue newsletters and Lowering of existing thresholds
briefings on competition
law. Should you or your The upper turnover threshold is reduced to DKK 900 million, as opposed to
company wish to stay DKK 3.8 billion today. The lower threshold value is reduced to DKK 100
updated and receive our million, contrary to DKK 300 million today.
newsletters and The second set of the thresholds remain unchanged as it was considered that
briefings lowering this threshold would only entail notification of concentrations, which
automatically it is are not likely to harm effective competition on the Danish market.
possible to sign up via
www.eversheds.dk or by Once the amendments enter into force a concentration must be notified to
e-mailing your contact the Danish Competition Authority (hereinafter the “DCA”) if:
details to
• the undertakings concerned have an annual turnover in Denmark of
CopenhagenCompetition
at least DKK 900m and at least two of the undertakings each have an
@eversheds.com .
annual turnover in Denmark of at least DKK 100 million; or
• at least one of the undertakings has an annual turnover in Denmark
of at least DKK 3.8 billion and at least one of the undertakings
concerned has an annual worldwide turnover of at least DKK 3.8
billion.
Introduction of simplified merger clearance procedure
Concentrations which are not likely to harm effective competition can now
make use of a simplified notification procedure .
The simplified procedure will allow the DCA to appro ve a concentration on the
basis of less detailed information from the undertakings concerned (including
possible feedback from third parties).
The DCA will not undertake a detailed review of the information provided and
this could turn out to be a two-edged sword for the undertakings involved
since the DCA may recall an approval under the simplified procedure if it
turns out that the approval was based on incorrect or misleading information.
1

2. The DCA does not - as otherwise required - need to demonstrate that the
undertakings concerned have acted intentionally or gross negligently in this
regard.
Upon the coming into force of the new merger control rule s a new notification
order and new guidelines for simplified notifications will be issued.
Extension of the time-limits for merger clearance
The time -limit for approving concentrations have been extended and are now
aligned with EC Merger Control rules.
Concentrations that does not harm effective competition shall therefore be
approved in phase I within 25 working days from receipt of a complete
notification.
The time -limit for clearance of more complex concentrations in phase II is
extended to 90 working days from the day of the decision to open phase II
proceedings.
The time -limit in phase II can be extended with up 20 to working days on the
request of the undertakings concerned or if commitments is offered at a late
stage in the phase II proceedings.
Statement of objections
Statement of objections has not previously been used in Danish merger
contro l cases.
The preparatory works now states that the DCA shall issue a stateme nt of
objections upon initiating phase II proceedings. However, it is equally clear
that the DCA - as opposed to the European Commission - may issue
additional statements at a later stage in the proceedings if other issues are
uncovered.
The DCA will prepare more detailed guidelines for the use of the statement of
objections.
Entry into force
The amendments will enter into force on 1 October 2010.
Comments
As a direct result of the lower thresholds more concentrations will be subject
to merger control in Denmark. The timing of possible acquisitions should
therefore be carefully considered in the months to come as acquisitions are
less likely to escape notification requirements after 1 October 2010.
The possibility to get unproblematic concentrations approved on the basis of
a simplified procedure is welcomed as this may offset some of the
administrative burdens that companies will face as a result of the lower
thresholds.
The alignment of the time -limits for approving concentrations to EC Merger
Control rules are also welcomed and this will hopefully bring an end to or
reduce some of the uncertainty that exists today in relation to more arbitrary
extensions that have been applied from time to time in practice.
This briefing is correct as at 15 april 2010. It is intended as general guidance and is not a substitute for detailed advice in
specific circumstances.
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