DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
9. Due Diligence/Data Privacy 9.1 Technology Company Due Diligence Publicly listed companies are allowed to provide bidders with the information necessary to con- duct their due diligence. However, bidders who are competitors of the target must limit access to sensitive information through “clean team” pro- cedures. They must also comply with the rules on disclosure of inside information and prohibi- tion of insider dealing, which may restrict share acquisitions outside the bidding process, and generally ensure compliance with the EU Market Abuse Regulation. Target companies are not specifically required to provide the same information to all bidders but often do so in practice to facilitate the best possible offer being made to the shareholders. The board may allow detailed technology due diligence, balancing access to sensitive infor- mation with the need for protection, especially when bidders are competitors. The board and management may make themselves available for Q&A sessions with bidders. 9.2 Data Privacy Data privacy restrictions in Denmark can result in limitations in the due diligence of a technology company. The primary regulation governing data privacy is the EU’s GDPR, which applies to the processing of personal data. When conducting due diligence, the following considerations must be taken into account. • Compliance with GDPR – any disclosure of personal data during due diligence must comply with GDPR requirements. This includes ensuring that the data processing is lawful, transparent, and limited to what is necessary for the purposes of the transaction.
employees. If an asset sale involves collective bargaining agreements, the acquirer can opt out by following specific procedures. Non-competi- tion and non-solicitation restrictions are allowed within employee protection rules, including limit- ed duration and compensation, with non-poach- ing enforceable for six months post-closing. Denmark does not have a mandatory works council system, but companies with more than 35 employees must establish a co-operation committee if requested. Although the commit- tee’s opinion is non-binding, the company must inform and consult on significant employee changes. 7.7 Currency Control/Central Bank Approval Denmark does not have currency control regula- tions or require central bank approval for M&A transactions. 8. Recent Legal Developments 8.1 Significant Court Decisions or Legal Developments Litigation in Danish M&A transactions is rare – although claims under W&I in private deals are rising. Many private M&A agreements include arbitration clauses to maintain confidentiality. Recent changes in technology M&A are driven by stricter FDI regulations, enhanced ESG stand- ards for gender diversity, and tighter General Data Protection Regulation (GDPR) and privacy regulations affecting data-driven businesses.
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