DENMARK Law and Practice Contributed by: Jakob Østervang, Peter Østergaard Nielsen, Anders Hørlyck Jensen and Tejs Degn Leth Ernst, Accura Advokatpartnerselskab
8. Disclosure 8.1 Making a Bid Public
Public companies are not legally required to provide the same information to all offerors. However, to ensure fairness and avoid potential legal challenges, it is common practice to offer similar levels of informa- tion to all credible offerors. In case the offeror gains access to inside information, such inside information must be disclosed to the pub- lic before the offer is completed. 7.2 Restrictions In Denmark, legal restrictions on due diligence in energy and infrastructure transactions arise from com- petition law, data protection regulation, and sector- specific confidentiality rules. Under antitrust regulation, parties must ensure that competitively sensitive information is not disclosed to individuals from acquiring companies who operate in the same market as the target. This may require the establishment of “clean teams” – isolated groups of advisors or personnel who can access such informa- tion without risking unlawful coordination or market distortion. Denmark is subject to the General Data Protection Regulation (GDPR), supplemented by the Danish Data Protection Act (DDPA). Due diligence must comply with strict requirements for necessity, proportion- ality, and confidentiality. Personal data should be anonymised or pseudonymised where possible, and sensitive data may not be processed unless specific legal grounds exist. Additionally, the Danish Act on Strengthened Prepar- edness in the Energy Sector imposes confidentiality obligations on information related to physical security, cybersecurity, and operational preparedness. Such information may not be disclosed if it is essential to the functioning of the company or the energy supply at local, national, or EU level. These restrictions must be considered when structuring data room access and determining which documents can be shared during due diligence.
In Denmark, a decision to make a public tender offer must be disclosed immediately to ensure transpar- ency and market integrity. In the case of mandatory tender offers, the obligation to make a public offer must be announced as soon as the obligation arises. Additionally, the actual offer document must be made public within four weeks from the publication of the decision. This four-week period begins from the date the decision to make the offer is announced. Publication must occur via an announcement that reaches the public through electronic media in the countries where the target company’s shares are admitted to trading on a regulated market. This typi- cally includes platforms such as Nasdaq Copenhagen or other relevant regulated markets. The offeror or the target company must notify the Dan- ish FSA and the regulated market where the shares are traded no later than at the time of publication. The Danish FSA will then publish the notice on its website. 8.2 Prospectus Requirements Prospectus Requirement Depending on the size of the offer, a prospectus is generally required for the issuance of shares in a stock-for-stock takeover offer or business combi- nation. The prospectus must comply with the EU Prospectus Regulation (Regulation (EU) 2017/1129), which mandates detailed disclosures and must be approved by the Danish FSA before the shares can be issued. A prospectus is required when the offer of new shares does not fall within the exemptions from the obligation to publish a prospectus, as set out in the EU Prospec- tus Regulation. Such exemptions include, among others: • public offerings and listings of securities fungible with securities already admitted to trading, provid- ed the new securities represent no more than 30%
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