Notification and clearance timetableFiling 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?
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.