ERU, Alm.del - 2016-17 - Bilag 91: Notat om regeringens svar på Europa-Kommissionens høring om fusionskontrolreglerne (fusionsforordning 139/2004), fra erhvervsministeren

Erhvervs-, Vækst- og Eksportudvalget 2016-17
ERU Alm.del Bilag 91
Offentligt

NOTE

13. december 2016

European Commission

Directorate-General for Competition

Ref.: HT.3053

1049 Bruxelles / Brussel

Belgique /België

Comments of the Danish Government on procedural and jurisdic-

tional aspects of EU merger control

General remarks

The Danish Government welcomes this opportunity to comment on the

European Commission’s Consultation on evaluation of aspects of EU

Merger control.

The Danish Government is generally in favour of creating more lenient

procedures for investment, while also maintaining the purpose in the

Merger legislation designed to ensure, that undertakings merging will not

be at the expense of competitors or consumers.

Simplification

The Danish Government supports the idea of excluding certain non-

problematic transactions from the scope of the European Commission’s

merger review. This could for example simplify the procedure for under-

takings in the EEA that establish businesses outside the EEA. Before a

simplification is introduced, especially if a number of mergers notified

today will be exempted from the merger notification procedure, the Dan-

ish Government would welcome a deeper analysis on the scope and the

consequences of the exclusion.

Jurisdictional thresholds

The Danish Government would welcome a thorough analysis of the pos-

sible effects of and sector specific need for an introduction of other and

lower thresholds for specific industries, such as the digital industry and

the pharmaceutical industry.

The Danish Government finds that the current merger legislation to a

large extent ensures that a merger will not significantly impede effective

competition. According to the Danish Competition Act, a merger must be

notified when the participating undertakings have a combined turnover of

at least DKK 900 Million (approx. EUR 120 Million) in Denmark and at

ERU, Alm.del - 2016-17 - Bilag 91: Notat om regeringens svar på Europa-Kommissionens høring om fusionskontrolreglerne (fusionsforordning 139/2004), fra erhvervsministeren

least two of the undertakings each have an annual turnover of DKK 100

Million (approx. EUR 13,4 Million) in Denmark. Transactions involving

small and medium sized enterprises must therefore be notified under the

Danish Competition Act, and are referred to the European Commission

under article 22 (139/2004), if the merger affects the trade between

Member States and threatens to significantly affect competition.

In 2015, sector specific merger control on telecommunications was intro-

duced in Denmark. This merger control entails that a merger between two

or more commercial providers of electronic communications networks,

which involves public electronic communications networks and in which

the merging undertakings have a combined aggregate annual turnover in

Denmark of at least DKK 900 Million (approx. EUR 120 Million) must

be reported to the Danish Business Authority, which refers the case to the

Danish Competition and Consumer Authority. The reason for the intro-

duction of sector specific merger control in this area was to ensure effec-

tive merger legislation in relation to the specific competitive conditions

existing in the telecommunications market.

Simplification and functioning of the case referral system

The Danish Government is generally in favour of making case referrals

between Member States and the European Commission more business-

friendly and effective. An abolishment of the two step procedure under

article 4 (5) will create more efficiency for the merging undertakings

when a case is referred to the European Commission.

An expansion of the European Commission’s jurisdiction to the entire

EEA if it accepts a referral request under article 22 (139/2004) will create

a simpler procedure as the European Commission will assess the case

instead of a number of National Competition Authorities. The second part

which entails the requirement to renounce jurisdiction over the entire

EEA, if one or several Member States oppose the referral request, will

establish a certainty for the undertakings in a situation in which one or

more National Competition Authorities have found that there is no com-

munity effect and that the merger can therefore be examined in the rele-

vant Member States.

The Danish Government supports the removal of the requirement under

Article 4(4) of the Merger Regulation pursuant to which the parties have

to assert that the transaction may significantly affect competition in a

market.

Technical aspects

The Danish Government is in favour of clarifying the Merger Regulation

with the aim of creating more simplicity in the merger notification pro-

cess.

ERU, Alm.del - 2016-17 - Bilag 91: Notat om regeringens svar på Europa-Kommissionens høring om fusionskontrolreglerne (fusionsforordning 139/2004), fra erhvervsministeren

The Danish Government finds, that the following proposals are relevant

amendments;



Amending Article 5(4) of the Merger Regulation to clarify the

methodology for turnover calculation of joint ventures



Clarification that “parking transactions” should be assessed as

part of the acquisition of control by the ultimate acquirer

The European Commission contemplates amending article 5(2)(2) of the

EU Merger Regulation (139/2004) so as to include certain concentrations

between the same parties within a two year period with the aim to capture

real circumvention, including situations where the first concentration was

notified and cleared by a national competition authority. The Danish

Government would like to note that the scope of the concentrations,

which will be included, preferably should be limited to a very few trans-

actions. Those transactions are to have the ambition to circumvent the

Merger Control, as it will lead to the same concentration being assessed

twice - first in the Member States, and a year or two later at the European

Commission in relation to another concentration which include the same

undertakings.

The Danish Government also notes that the European Commission con-

templates amending the EU Merger Regulation (139/2004) so that it can

revoke a decision to refer a concentration to a Member State if it has

based the decision on incorrect or misleading information for which one

of the parties is responsible. While the Danish Government appreciates

the European Commission wishes to regulate such a situation, it must

also take into account that Member States in the meantime might have

approved the concentration under its national merger control rules. The

European Commission should consider how to best solve any issues aris-

ing from such situations.