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Competition and Consumer Authority acted correctly in merger case

The Competition Appeals Tribunal has ruled that the Competition and Consumer Authority acted correctly in connection with the notification of the merger between Dansk Supermarked A/S and Wupti.com A/S in the summer of 2015.

Danish merger control

  • Under the Danish Competition Act, a merger which does not significantly impede effective competition should be approved. Conversely, mergers which impede effective competition should be prohibited.
  • Merger control can be very extensive. It should be clear which markets the merger may affect. And how precisely these markets are defined in terms of both products/services and geography. It may be necessary to conduct a market survey, and often major economic analyses of various scenarios have to be carried out.
  • The Competition and Consumer Authority has 25 days to process a merger if it is uncomplicated, and a further 90 days if it is complicated. The deadlines can be extended if, for example, the parties give certain commitments. The clock starts ticking from the moment the parties submit a complete notification.
  • If a merger cannot be immediately approved, it may be approved with certain commitments. A commitment is a proposal to amend the notified merger which the parties themselves draw up and undertake to fulfil. For example, they may commit to divesting a business area in connection with the merger.
  • The merging parties are obliged to wait to complete the merger until it has been approved. Non-compliance with rules can be punished with a fine.

Notification of mergers

• A merger must be notified in a simplified or regular manner.

• Whether a simplified or full notification should be submitted depends, among other things, on the companies’ market share.

• Even if a merger apparently falls within the simplified notification categories, there may be circumstances pertaining to the merger which mean that it may, however, not be appropriate for simplified notification and should therefore be notified in a regular manner.

• The fee for simplified notification is DKK 50,000, while the fee for regular notification comprises 0.015 percent of the participating companies' total annual turnover in Denmark, though no more than DKK 1.5 million.