Legislation and jurisdiction

Relevant legislation and regulators

What is the relevant legislation and who enforces it?

Although Greenland is part of the Kingdom of Denmark, Greenland has its own competition regulation. The main legislation on Greenlandic merger control is contained in the Greenlandic Competition Act (Act of the Home Rule Parliament No. 1 of 15 May 2014), which is modelled on Danish competition law (and thereby EU competition law) and entered into force on 1 July 2014. The Act brought about a reform of merger control in Greenland, and replaced the previous regime, which provided for a mere post-notification obligation. The main difference from the Danish Competition Act is the notification thresholds, which are significantly lower. This chapter reflects the provisions of the Competition Act and the law preparatory documents accompanying the bill, but at the time of writing, the situation remains that no decisions have been adopted and there is accordingly no administrative practice.

For merger control, the provisions of the Greenland Competition Act are accompanied by executive order No. 3 of 10 March 2016 on the Notification of Mergers, and executive order No. 13 of 23 July 2015 on the Calculation of Turnover.

The legislation can be accessed in Danish or Greenlandic on www.lovgivning.gl.

The Competition Tribunal is the principal enforcer of competition law in Greenland. It consists of a chairman and six members appointed by the Home Rule Parliament. The chairman and three of the members must be independent of commercial and consumer interests while, of the remaining three members, one is nominated by a commercial interest organisation, one by a consumer organisation, and one is nominated by the organisation Kanukoka, which represents the interests of municipalities in Greenland.

The day-to-day administration of the Competition Act is handled by the Consumer and Competition Authority, which serves as the secretariat of the Competition Tribunal.

Scope of legislation

What kinds of mergers are caught?

The provisions of merger control apply to ‘concentrations’. In accordance with the EU Merger Regulation, a concentration will be deemed to arise where either:

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

What types of joint ventures are caught?

The creation of a full-function joint venture (ie, a joint venture performing all the functions of an autonomous economic entity on a lasting basis) also constitutes a concentration.

Is there a definition of ‘control’ and are minority and other interests less than control caught?

The Greenlandic regulation follows Danish legislation (which is consistent with EU law), entailing the following definition of control: control shall be constituted by rights, contracts or any other means that, either separately or jointly, confer the possibility of exercising decisive influence over an undertaking.

In cases where outright legal control is not acquired, rights attached to shares or contained in shareholder agreements, board representation, ownership and use of assets and related commercial issues may be considered. In the case of the acquisition of minority shareholdings, it is most likely that the Consumer and Competition Authority will assess the situation by looking at the strength of voting rights and other factors. Such considerations may lead to the conclusion that the possibility of exercising control as defined exists. It will most likely not matter whether control has actually been exercised. The European Commission’s practice may be expected to serve as guidance.

Thresholds, triggers and approvals

What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?

The merger control provisions apply to concentrations where the combined aggregate turnover in Greenland of all the undertakings concerned is more than 100 million kroner and the aggregate turnover in Greenland of each of at least two of the undertakings concerned is more than 50 million kroner.

Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?

The filing of merger notifications in Greenland is mandatory if the turnover thresholds are met.

Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?

Foreign-to-foreign mergers satisfying the turnover thresholds are subject to Greenlandic merger control even where no actual effects in the Greenland market can be shown. However, the thresholds have been defined so as to require actual turnover in Greenland.

Are there also rules on foreign investment, special sectors or other relevant approvals?

No.

Notification and clearance timetable

Filing formalities

What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?

Concentrations falling within the thresholds must be notified to the Consumer and Competition Authority after the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest; and in any event before implementation. A specific deadline can be expected in the future executive orders.

Fines may be imposed for failure to notify (and unlawful implementation).

Which parties are responsible for filing and are filing fees required?

In principle, all the parties involved in a concentration are responsible for filing. In practice, however, the filing of acquisitions can be expected to be made by the acquiring party. The fee amounts to 50,000 kroner for simplified notifications and 0.015 per cent of the parties’ turnover for non-simplified notifications. However, the filing fee is capped at a maximum of 1.5 million kroner. Fees have to be paid at the same time as the filing of the notification.

What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?

A concentration that is notifiable to the Consumer and Competition Authority must not be put into effect before it has been approved by the Competition Tribunal or the Council’s time limits have expired.

This creates waiting periods of 40 working days (Phase I) or additionally 90 working days (Phase II) after the expiry of the first waiting period.

Pre-clearance closing

What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?

Fines may be imposed for (failure to notify and) unlawful implementation. Moreover, where clearance is subsequently denied or made conditional, the transaction will have to be annulled or otherwise reopened and modified. The Competition Tribunal has not yet issued decisions in this relation.

Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?

In principle, the same sanctions are applicable to foreign-to-foreign mergers as to other mergers.

What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?

There are still no decisions or administrative practice from the Competition Tribunal in these cases.

Public takeovers

Are there any special merger control rules applicable to public takeover bids?

No.

Documentation

What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?

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, and is only a little less detailed than the Form CO used under the EU Merger Regulation. For straightforward cases that are unlikely to raise competition concerns, a simplified ‘short-form’ filing using a form known as Annex 2 is also possible. This form is similar in structure to Annex 1 but requires less information to be submitted. Both forms require the lodging of a non-confidential version, which is intended to be used for market testing. The forms are similar to the applicable Danish forms.

Investigation phases and timetable

What are the typical steps and different phases of the investigation?

Pre-notification consultations with the Consumer and Competition Authority may and should take place.

The Competition Tribunal may approve a concentration before the expiry of the initial investigation (Phase I). The Competition Tribunal cannot prohibit a concentration within Phase I but may initiate an in-depth investigation (Phase II) if there are serious doubts regarding the concentration’s compatibility with the Competition Act.

What is the statutory timetable for clearance? Can it be speeded up?

The timetable for clearance is the same whether the merger is filed under the simplified procedure or the full notification procedure.

The Competition Tribunal must make its decision on the substance within 40 working days (Phase I) from the receipt of a complete notification. It will decide to either approve the concentration or initiate further proceedings. In the latter case, the Competition Tribunal must make a final decision within 90 working days (Phase II) after the expiry of the original 40 working days. These time limits may be extended with up to 20 days if the undertakings propose new or revised commitments at a late stage (ie, fewer than 20 days remaining of the original deadline). The deadline is only extended with as many days required to provide 20 days for the assessment of the new or revised commitments. The deadline can also be extended with up to 20 days on request by the parties or with the parties’ consent.

Substantive assessment

Substantive test

What is the substantive test for clearance?

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

In the case of full-function joint ventures, which may also have the object or effect of coordinating the competitive behaviour of undertakings that remain independent, such coordination shall be appraised in accordance with 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)).

Is there a special substantive test for joint ventures?

The substantive test for clearance of concentrations that have as their object or effect the coordination of the competitive behaviour of undertakings is similar to that set out in the EU Merger Regulation. Such aspects of coordination shall therefore be appraised in accordance with the criteria laid down in the provisions of the Competition Act, which are the domestic equivalents of article 101(1) and (3) TFEU. This test applies in addition to the SIEC test.

Theories of harm

What are the ‘theories of harm’ that the authorities will investigate?

There are still no decisions or administrative practice from the Competition Tribunal. However, as in Denmark, the Competition Tribunal is expected to follow the European Commission’s practice with regard to the applicable ‘theories of harm’.

Non-competition issues

To what extent are non-competition issues relevant in the review process?

The Competition Act entered into force on 1 July 2014. There have been no decisions or administrative practice from the Competition Tribunal that can constitute the foundation for such an assessment. However, the Competition Tribunal is expected to apply the above substantive test without taking account of non-competition issues.

Economic efficiencies

To what extent does the authority take into account economic efficiencies in the review process?

No decisions or administrative practice from the Competition Tribunal can constitute the foundation for such an assessment. However, section 1 of the Competition Act states that the purpose of the Competition Act is to promote ‘efficient resource allocation’ and, consequently, it can be argued that efficiency should be considered. In practical terms, an efficiency argument can be raised if available, and will be considered in the assessment of the case. However, in raising the efficiency defence the undertakings concerned might risk the competition authorities interpreting the argument as an indication of increased dominance, as the efficiency gained will make competition even more difficult for competitors that do not benefit from similar efficiencies. Therefore, the efficiency defence should be applied with due caution.

Remedies and ancillary restraints

Regulatory powers

What powers do the authorities have to prohibit or otherwise interfere with a transaction?

The transaction may be approved, approved with conditions, or prohibited. Commitments may be offered to eliminate competition concerns. The Competition Tribunal has the power and duty to impose conditions; therefore, it may not, according to the principle of proportionality, prohibit the transaction if it can design suitable remedies. The parties to the merger might therefore be in the position of deciding whether to proceed with the transaction on the basis of remedies accepted by the Competition Tribunal.

Remedies and conditions

Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?

If the competition authorities assess that the concentration cannot be approved without conditions, the undertakings concerned will enter into a dialogue or negotiation with the competition authorities to agree on suitable commitments. The commitments agreed with the competition authorities will be formulated as conditions in the approval of the concentration. Such conditions can be appealed separately after approval of the concentration, even though they are agreed during the negotiations with the competition authorities. The Competition Tribunal may attach conditions including divestment orders or behavioural remedies for clearance of a concentration and may also issue orders to ensure that the parties fulfil these.

What are the basic conditions and timing issues applicable to a divestment or other remedy?

No decisions or administrative practice from the Competition Tribunal can constitute the foundation for such an assessment.

What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?

No decisions or administrative practice from the Competition Tribunal can constitute the foundation for such an assessment.

Ancillary restrictions

In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?

The notifying parties are not required to identify ancillary restrictions. It is therefore up to the parties to assess whether there are ancillary restrictions that need to be evaluated by the Consumer and Competition Authority.

Involvement of other parties or authorities

Third-party involvement and rights

Are customers and competitors involved in the review process and what rights do complainants have?

The Consumer and Competition Authority can be expected to conduct market tests.

Publicity and confidentiality

What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?

The Act on public access to documents in public files does not apply to merger cases, and information will generally be treated as confidential information. Section 24 of the Competition Act provides which information is considered to be confidential.

Cross-border regulatory cooperation

Do the authorities cooperate with antitrust authorities in other jurisdictions?

The Consumer and Competition Authority cooperates with the other Nordic countries, (ie, Denmark, the Faroe Islands, Iceland, Sweden and Norway).

Judicial review

Available avenues

What are the opportunities for appeal or judicial review?

The decisions of the Competition Tribunal are not subject to administrative appeal. The decisions of the Competition Tribunal can be brought before the court in Greenland.

Time frame

What is the usual time frame for appeal or judicial review?

The time frame for an appeal before the court in Greenland can be expected to be around six to nine months.

Enforcement practice and future developments

Enforcement record

What is the recent enforcement record and what are the current enforcement concerns of the authorities?

There have been no decisions or administrative practice from the Competition Tribunal to shed light on this question.

Reform proposals

Are there current proposals to change the legislation?

With the entering into force of the Competition Act of 15 May 2014 as recently as 1 July 2014, no further changes are expected in the near future.

Update and trends

Key developments of the past year

What were the key cases, decisions, judgments and policy and legislative developments of the past year?

No updates at this time.