The European Antitrust Review 2015

Denmark: Merger Control

The Danish merger control regime was implemented in 2000 and is largely based on the principles of the EU merger control regulation. Generally, the Danish merger regulation in the Competition Act is interpreted in accordance with EU law and practice from the European Commission and the European Courts.

The substantive test under Danish law is equivalent to the test under EU law. Similarly, jurisdiction is based on turnover thresholds largely calculated in accordance with EU law principles. The notification forms are also very similar to the EU model.

Legislation and competent authority

The Danish merger control rules are set out in chapter 4 of the Danish Competition Act. Detailed rules on the calculation of turnover and the notification of concentrations are set out in two executive orders.

The Danish Competition and Consumer Authority (the Authority) and the Danish Competition Council (the Council) are responsible for the administration of Danish merger rules. The Authority prepares the cases and decides less complicated cases on behalf of the Council. Phase II mergers are generally decided by the Council.

The decisions of the Council can be appealed to the Danish Competition Appeals Tribunal (the Tribunal). The Tribunal is an independent administrative appeals body chaired by a Danish Supreme Court justice. The decisions of the Tribunal may in turn be appealed to the ordinary courts. No Danish merger decision has until now been subject to appeal.

Mergers

Definition

Pursuant to section 12a of the Competition Act, the following constitutes a merger:

  • two or more previously independent undertakings amalgamating into one undertaking;
  • one or more persons who already control one or more undertakings – by an agreement to purchase shares or assets or by any other means – acquiring direct or indirect control of the entirety of or parts of one or more other undertakings; or
  • the establishment of a joint venture that will perform all the functions of an independent business entity on a permanent basis.

Control can be obtained through rights or agreements or in other ways that will, either separately or in combination, make it possible to exert decisive influence on the operations of the undertaking. The acquisition of a minority shareholding may also constitute a merger in so far as the acquirer obtains decisive influence on the undertaking, for example, through agreements concerning voting rights, or if important decisions require a qualified majority or may be vetoed.

Jurisdictional thresholds

A concentration shall be notified to the Authority if:

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

The concept of undertakings concerned in the Competition Act – the direct participants in a merger – is identical to the EU concept, and the Commission’s practice and the Consolidated Jurisdictional Notice provide guidance.

The Danish rules on the calculation of turnover are set out in more detail in Executive Order No. 808 of 14 August 2009 on the calculation of turnover. Generally, the rules correspond to the Consolidated Jurisdictional Notice. Special Danish rules apply to undertakings subject to joint management (horizontal groups) and undertakings controlled by central, local and regional authorities.

The turnover of an undertaking (eg, the acquirer) includes the total turnover of all companies controlled by the undertaking or by the company or person who controls the undertaking. This also includes the turnover of companies that have a joint management with the undertaking – namely, companies where the joint management coordinates the operations, where the participating undertakings have all subjected themselves to the joint management and an arrangement has been put into place for allocating business risks and the financial results between the participating undertakings. For joint ventures, the turnover corresponding to the acquirer’s ownership share in the company shall be included.

The turnover of the target only includes turnover relating to the target and companies controlled by the target. If part of an undertaking is acquired, only the turnover related to this part, including any subsidiaries, is taken into account.

The relevant turnover is the net turnover derived from the sale of products and the provision of services falling within the undertakings’ ordinary activities. Value added taxes and other taxes related to sales are excluded. Internal turnover between the different undertakings in a group is excluded. Geographically, the turnover is allocated to the country where the product is delivered, or where the service is provided.

Notification procedure

If the jurisdictional thresholds are met, prior notification to the Authority is mandatory. In 2013, a total of 41 notifications were filed with the Authority, 33 of which were notified under the simplified procedure and 8 pursuant to the full-form procedure.

The timing of the notification

Notification to the Authority can be made when there is a merger agreement (which may be subject to conditions) between the parties, a takeover bid has been made public or a controlling interest has been acquired. The notification must be made before the merger is carried through. In most cases, a letter of intent or the like is not sufficient for the Authority to accept the notification.

Time frame for the Authority’s assessment

There is no legal requirement for a pre-notification phase. Once the notification has been filed, the Authority must declare the notification complete or specify any missing information within 10 working days. However, the Authority recommends that the parties contact it as soon as possible after it has been established that the merger is notifiable. During the pre-notification phase, the drafting of the notification can be discussed with the Authority and draft notifications can be submitted to and reviewed by the Authority. In practice, it will often take from four to eight weeks to have a full form notification declared complete and it may take from to two to four weeks in case of a short form notification.

As of 1 August 2013, fees for merger filings must be paid before a merger notification is deemed complete. The fee for a simplified notification is 50,000 kroner, whereas the fee for a full notification is 0.015 per cent of the combined turnover in Denmark of the undertakings concerned. The fee is capped at 1.5 million kroner. The fees are generally not reimbursable.

Once the notification has been declared complete by the Authority, Phase I, which lasts 25 working days, begins. In Denmark, most mergers are approved in Phase I. If the merger is not approved in Phase I, including for reasons of time, the Authority will open Phase II.

A Phase II investigation is more thorough, and the Authority will usually contact customers and other market participants if this has not already been done in Phase I. If commitments are to be discussed, Phase II will most often be opened – but it may be closed quickly once an agreement on commitments has been reached. Phase II investigations must be completed within 90 working days from the expiry of Phase I. The time frame for a Phase II investigation will automatically be extended by up to 20 working days if commitments are proposed by the parties during the last 20 working days of Phase II. Further, the Council may, at any time, extend the deadline by up to 20 working days provided that the undertakings concerned have requested or consented to the extension.

Formats of the notification

Since 2010, a full-form procedure and a simplified notification procedure have been available; both inspired by the EU merger regime. The simplified procedure offers substantial time savings as less detailed data has to be submitted.

The simplified procedure may be used in the following cases:

  • mergers in which two or more undertakings acquire joint control of an undertaking and where the turnover of the joint venture or of the transferred activities is less than 100 million kroner in Denmark, or where the total value of the assets or the turnover generated by the assets transferred to the joint venture is less than 100 million kroner in Denmark;
  • mergers where one undertaking acquires sole control of another undertaking over which it already has joint control; or
  • mergers where two or more undertakings are merged or one or more undertakings acquire sole or joint control of another undertaking and in which:
  • none of the parties have activities in the same product and geographic market or in a product market which is downstream or upstream from a product market in which another party to the merger is engaged;
  • two or more of the parties to the merger are active in the same product and geographic market but will have a combined market share below 15 per cent in Denmark; or
  • one or more of the parties to the merger are active on a downstream or upstream product market where another party operates, provided that neither their individual nor their combined market share on these markets is 25 per cent or more in Denmark.

Even if these conditions are fulfilled, the Authority may, at its discretion, require a full notification. Accordingly, it is recommended to discuss the type of notification procedure with the Authority during the pre-notification phase.

The notification forms are available on the Authority’s website, www.kfst.dk. Normally, notifications are filed in Danish, but the Authority may accept notifications in English. This should be agreed with the Authority before submission.

Substantive test

The substantive test under Danish law corresponds to the SIEC-test under EU-law and is interpreted in accordance with the case law of the European Courts and the case law and guidance of the Commission. Only concentrations that significantly impede effective competition, primarily as a result of the creation or strengthening of a dominant position, will be blocked by the Council or the Authority.

However, until now, the Council and the Authority have arguably had a more static, market-share based approach to findings of dominance and unilateral effects than the Commission. It is hoped that the increasing use of economic evidence in Danish merger proceedings will help to reverse this.

In the Arcus/Pernod Ricard case of 2012, where the market shares were very high (above 90 per cent on some markets), the use of diversion ratios and UPP calculations were central to the Authority’s analyses and approval of the transaction subject to divestiture. Subsequent cases and public statements from the Authority indicate that use of diversion ratios and UPP calculations is the ‘new standard’ in cases concerning consumer-related markets; both in relation to market definition and the substantive assessment.

Diversion ratio analysis was also central in the approval of the JYSK/IDdesign merger from autumn 2013. Both companies sold furniture at the retail level and consumers were asked via surveys where they would buy their furniture if their preferred shop was no longer available. The analysis was significantly affected by the fact that IDdesign was found to disappear from the market due to bankruptcy ‘but for’ the merger. Due to this unusual counterfactual, the diversion ratio analysis showed that larger competitive pressure would exist from or on the remaining competitors – primarily IKEA – with the merger than without.

Similarly, the EY/KPMG merger from 2014 follows the trend towards a more economic substantive assessment. On the markets for tax and accountancy services to large companies, the Authority stated that it was not enough merely to look at the Herfindahl–Hirschman Index (HHI) figures. Instead, the Authority applied a more in-depth assessment and found that the markets were ‘characterised by Bertrand competition and product differentiation’; suppliers had available capacity in the short run and the long run; and large tenders played a great role in the market. Due to these factors, only suppliers with a certain critical mass were found to apply a competitive pressure on the incumbents.

Public statements from the Authority indicate that the use of diversion ratios and UPP calculations may become the new standard in cases concerning consumer related markets, and that diversion ratios and UPP calculations may also be used for the market definition. However, the classic approach is still used in the initial assessment of a merger. Insofar as the Authority finds that the merger could potentially give rise to concerns, it may supplement the classic approach with a more economic test including diversion ratios and UPP calculations. Moreover, as shown by the JYSK/IDdesign and EY/KPMG mergers, the Authority may also use diversion ratios and UPP calculations to check for concerns even if a traditional market share and entry barrier approach does not indicate concerns.

 As with joint ventures under EU law, the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall be considered a concentration under Danish law. Similarly, if the joint venture may also have as its object or effect the coordination of the behaviour between parent companies, this is appraised according to the rules on anti-competitive agreements (the Danish equivalent of article 101 TFEU).

Until now, the vast majority of Danish merger cases have been approved with or without remedies. In fact, only one merger, the Lemvigh Müller/AO case from 2008, has been prohibited since the introduction of merger control in Denmark in 2000. However, substantive commitments have been imposed in a number of cases – for example, in the Nykredit case, where Nykredit sought unsuccessfully to have certain commitments annulled (see judgment of the Danish Supreme Court of 3 June 2014).

Remedies

If a merger is found by the Authority to give rise to competition concerns, the parties may propose remedies in order to obtain an approval. With the exception of cases dealt with under the simplified procedure, commitments – structural or behavioural – are quite common.

According to the Danish Competition Act, remedies may include:

  • the divestiture of a company, parts of a company, assets or other owner interests;
  • the grant of access to third parties to the merged entity’s technology, production facilities, distribution facilities or similar facilities; or
  • other measures that may promote efficient competition.

After the introduction of the Danish merger control regime in 2000, behavioural remedies were often accepted by the Council – even in cases where the merged entity had a market share close to 90 per cent in major markets, the Council was willing to rely heavily on behavioural remedies. However, controlling the merged entity’s compliance with behavioural remedies was difficult and required substantial resources from the Authority. Also, the decisional practice showed that behavioural remedies often gave rise to additional case-handling – either because the remedies were violated by the merged entity, or because the merged entity tried to have the remedies changed or removed with reference to reduced market shares or a new market situation. Due to this, the more recent decisional practice shows greater reliance on structural remedies, alone or in combination with behavioural remedies.

In the Arcus/Pernod Ricard Denmark merger of 2012, the post-merger entity would achieve a market share of more than 90 per cent in two of the most important markets, which gave rise to concerns of unilateral effects. The problem was solved by the divestiture of one of the target’s most popular brands, which brought the HHI figures down to the same level as before the concentration. Diversion ratios and UPP calculations were central in relation to both market definition and the testing of remedies.

The 2013 case of Vilomix/Hatting was about a number of markets in the agricultural sector, including the market for veterinary medicine for amimal-yielding marketable produce in Denmark. A subsidiary of the target company, Hatting-Vet, was considered a ‘maverick’ firm which, prior to the merger, had increased both its market share and competition in the market. The Council found that the acquisition of a maverick firm by a large player gave rise to concerns, and Hatting-Vet was consequently divested to a third party to the merger.

In EY/KPMG from May 2014, the Authority found that the merger would significantly reduce competition in the markets for accountancy and tax services to large companies in Denmark, and one of the concerns was that the Big 4 (KPMG, EY, PWC and Deloitte) in Denmark would be reduced from four to three. To remedy these concerns, the Authority improved access to the market for the new member of KPMG International/Accura Tax – by agreeing to remedies, according to which a number of partners and employees could change from the merging parties to KPMG International/Accura Tax without being bound by competition clauses.

According to the Authority’s guidance paper on merger filings, the parties are encouraged to consider remedies as early in the process as possible if the concentration may give rise to concerns. Otherwise, there could be a risk that the approval process would be prolonged. Further, the parties can expect the Authority to market test the remedies. Either the Authority will contact third parties directly, or the proposed remedies will be published on the Authority’s web page with a request to third parties to comment. For a merger filing to be complete, the parties must therefore also provide a non-confidential version of the filing.

Ancillary restrictions

As with EU notifications, Danish merger approvals automatically cover ancillary restrictions. The Authority will not deal with ancillary restrictions to the merger, and it is up to the parties to assess whether there are any ancillary restrictions that need to be evaluated by the Authority. The Commission guidelines and practice apply.

Judicial review

The Council’s decisions in merger cases may be appealed to the Tribunal by the notifying parties, and the Tribunal’s decisions may in turn be appealed to the ordinary courts. An appeal must be lodged within four weeks of the Council’s decision. The Tribunal has the competence to examine all the aspects of the decision. Also, it is possible to appeal only parts of the decision – for example, remedies imposed by the authorities. After a merger has been approved, the Council may impose injunctions necessary to secure timely compliance with the accepted remedies.

Third parties have no right to appeal merger decisions to the Tribunal. However, a third party may, if sufficient legal interest is demonstrated, bring the decision of the Council directly before the ordinary courts.

To date, there are no examples of merger decisions having been appealed to the Tribunal or the courts.

Bruun & Hjejle

Nørregade 21
1165 Copenhagen
Denmark
Tel: +45 33 34 50 00
Fax: +45 33 34 50 50

Olaf Koktvedgaard
oko@bruunhjejle.dk

Erik Kjær-Hansen
ekh@bruunhjejle.dk

www.bruunhjejle.com

Bruun & Hjejle is a leading Danish law firm for complex transactions and disputes.

Our competition practice covers all aspects of Danish and EU competition law, including merger control. Our practice also handles public procurement and EU and trade law matters.

We have extensive expertise in dominance issues, State aid and the legal issues faced by publicly owned and regulated companies. We act in groundbreaking competition and state aid litigation before the Danish courts, the General Court and the Court of Justice.

We assist our clients proactively and engage in early competition law compliance to avoid matters becoming contentious. Our insight in infringement cases and discussions and negotiations with the competition authorities allows us to deliver operative compliance advice.

We are among the most experienced merger control advisers. Over the last decade we have been among the top of all firms by number of Danish merger control notifications. We have strong industrial insight, and in recent years we have been engaged in the media, transport, retail, energy and postal sectors.

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