DENMARK Law and Practice Contributed by: Thomas Weitemeyer, Pernille Nørkær, Jonas Høst and Jacob Kreutzmann, Moalem Weitemeyer
unilateral effects and, where relevant, co-ordinated effects in concentrated markets. Where concerns arise, clearance may be granted sub - ject to binding commitments that remove the impedi - ment. Prohibitions are possible, but remain uncom - mon. 4.4 Theories of Harm and Key Issues The Danish Competition and Consumer Authority assesses the full range of theories of harm under the SIEC test. The most common are horizontal unilateral effects, co-ordinated effects in concentrated markets, and vertical effects (including input or customer fore - closure). Conglomerate/portfolio effects may also be considered where relevant. In practice, the assessment often turns on market definition, closeness of competition, barriers to entry or expansion, and buyer power. In digital or technol - ogy-adjacent deals, issues such as multi-sided mar - ket dynamics, access to data or key technology, and potential competition can be particularly important. 4.5 Efficiencies and Failing Firm Defence Efficiencies and failing-firm arguments can be raised, but they are assessed as part of the overall SIEC anal - ysis and must be well supported by evidence. In practice, the Danish Competition and Consumer Authority will expect claimed efficiencies to be merg - er-specific, verifiable, and likely to be passed on to customers (eg, through lower prices, better quality or innovation). Failing-firm submissions must demonstrate a credible counterfactual, including that the target would exit in the absence of the merger and that there are no less anti-competitive alternative purchasers or solutions. 4.6 Remedies and Commitments Remedies may be structural, behavioural or hybrid, depending on the competition concerns identified. In practice, structural remedies (eg, divestments) are generally preferred where they can address horizontal overlaps, while behavioural remedies may be used in particular for vertical or access-related issues.
Commitments are negotiated with the Danish Compe - tition and Consumer Authority and are often market- tested with third parties. Once accepted, they become legally binding as a condition of clearance. Implementation and monitoring are typically man - aged through detailed commitment terms, often including reporting obligations and, where relevant, the appointment of a monitoring trustee (particularly for divestment remedies). The Competition Act also allows the authority to reopen or revoke a clearance if it was based on incorrect or misleading information or if commitments are breached, which makes remedy design and implementation planning critical. 4.7 Third-Party Participation Third parties do not have party status in Danish merg - er control proceedings, but they can play an important evidential role. Competitors, customers and suppliers (and occasionally other stakeholders) may influence the Danish Competition and Consumer Authority’s assessment through complaints, submissions and responses to market questionnaires. In practice, the authority frequently uses market inquiries to test theories of harm, especially in Phase II and when remedies are proposed and market-tested. Third parties’ access to case materials is limited, and disclosure of sensitive information is constrained by confidentiality rules. 4.8 Confidentiality and Transparency In cases handled under the simplified notification procedure, the Danish Competition and Consumer Authority will often publish only a short public sum - mary, while the full notification is not made publicly available. Where decisions are published, business secrets and other confidential information are pro - tected, and any public version is drafted to present the main conclusions without disclosing sensitive data. The Danish Public Access to Information Act (in Danish:“ Offentlighedsloven ”) does not apply to Com - petition Act cases, but the parties have access rights within the statutory procedure. In practice, parties should identify and substantiate confidentiality claims in the filing and in any support -
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