DENMARK Law and Practice Contributed by: Thomas Weitemeyer, Pernille Nørkær, Jonas Høst and Jacob Kreutzmann, Moalem Weitemeyer
ing documents. They should also expect that the non- confidential decision will still set out the core com - petitive assessment at a sufficiently detailed level to explain the outcome. 4.9 Appeals and Judicial Review of Merger Decisions Merger control decisions under the Competition Act (including conditional clearances, prohibitions and fines) can generally be appealed to the Competition Appeals Tribunal (in Danish:“ Konkurrenceankenævn et ”). Appeal rights are primarily held by the notifying parties, while third-party standing is more limited. The Competition Appeals Tribunal may review both legal and factual issues, including the Danish Com - petition and Consumer Authority’s assessment of evi - dence and economic analysis. In practice, the level of scrutiny may be more intensive for questions of law and procedure, while the authority is typically afforded a degree of discretion in complex economic assessments (subject to review for manifest error and adequacy of reasoning). 5. FDI and National Security Screening 5.1 Existence and Objectives of FDI/National Security Regime Denmark has a formal foreign investment and nation - al security screening regime that applies to foreign investments, including M&A transactions. The regime is established by the Danish Investment Screening Act and aims to ensure that foreign direct investments and certain security-relevant agreements do not pose a threat to Danish national security or pub - lic order. The Danish Business Authority can approve, condition or prohibit a transaction where necessary to address such risks. The Danish Business Authority is bound by the principle of proportionality and will only intervene in investments where such intervention is deemed necessary. 5.2 Scope of Transactions and Investors The Danish FDI and national security screening regime applies to all foreign investors, including investors from the EU and EFTA.
It covers a broad range of M&A-relevant transaction types, including acquisitions of 10% or more of the shares or voting rights, subsequent increases in own - ership, acquisitions of control or decisive influence, the establishment of joint ventures, and certain long- term supply, service or co-operation agreements. The regime is focused on investments and agreements involving “particularly sensitive sectors and activities”, including in particular defence and defence-related activities, dual-use goods and technology, IT secu - rity and classified information, critical technologies (including certain advanced digital and encryption technologies), and critical infrastructure such as ener - gy and telecommunications. It may also apply where transactions involve security-relevant assets or infra - structure linked to national security or public order. 5.3 Triggers and Thresholds In “particularly sensitive sectors and activities”, a mandatory prior authorisation requirement is triggered when a foreign investor acquires a qualified holding, defined as 10% or more of the ownership interests or voting rights (or equivalent influence/control by oth - er means). Further filings/authorisation are required when the investor’s holding subsequently increases and crosses 20%, 33%, 50%, 67% and 100%. Outside those sensitive sectors, the Danish Invest - ment Screening Act provides a voluntary notification option for certain investments and special econom - ic agreements, including where a foreign investor acquires 25% or more of the ownership interests or voting rights. Furthermore, the Danish Business Authority may, on its own initiative, initiate a review of certain non-noti - fied investments or special financial agreements for up to five years after completion, where such investments or agreements may be considered to pose a threat to national security or public order. 5.4 Mandatory v Voluntary Filings For investments and special economic agreements within “particularly sensitive sectors and activities”, prior authorisation is mandatory and must be obtained before implementation.
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