Merger Clearance Process Gorrissen Federspiel | 2019 The information in this publication is not and cannot replace legal advice. Gorrissen Federspiel is not liable for any damage or loss directly or indirectly resulting from the use of this publication. Merger Clearance Process Gorrissen Federspiel | 2019 Contact Martin André Dittmer Managing Partner D +45 33 41 41 43 | M +45 24 28 68 27 [email protected] Michael Meyer Partner D +45 86 20 74 11 | M +45 40 19 91 57 [email protected] Erik Kjær-Hansen Partner D +45 33 41 41 36 | M +45 30 18 87 27 [email protected] Kristian Helge Andersen Senior Legal Counsel D +45 33 41 43 30 | M +45 24 28 68 29 [email protected] Erik Molin Chief Economist D +45 33 41 43 38 | M +45 27 80 40 77 [email protected] Introduction Gorrissen Federspiel has the leading Danish competition law practice with comprehensive experience in advising and representing clients during merger clearance processes. Our merger clearance team includes both legal and economic experts who have extensive experience from both national and international cases and with immeasurable experi- ence from working at competition authorities. We take great pride in representing our clients and ensuring that their process with relevant competition authorities, including the European Commission, is carried out as smoothly as possible. If the transaction is subject to approval by one or more competition authorities – which is the case if it constitutes a “merger” and certain thresholds are met – efficient teamwork and communication between the merging parties and the competition law specialists are key to the merger clearance process. The purpose of this folder is to give an executive understanding of the merger clearance process as well as the terminology used. The focus is on the Danish merger control rules and the terminology as it is used by the Danish Competition and Consumer Authority (“DCCA”), although this is generally similar to the terminology used by other competition authorities, including the European Commission. Words highlighted in bold are explained in further detail from page 20 onwards. Copenhagen and Aarhus, 2019 Gorrissen Federspiel 3 1. Stages of the Merger Clearance Process 4 A Management decision to commence transaction B Merger screening C Substantive assesment Stages of the D Pre-notification period Merger E Notification period Clearance F Post-clearance guidance Process 5 A Management decision to commence transaction 6 Value contribution by Gorrissen Federspiel Ensuring that the final management decision and related documents do not include material or wording that could potentially add unnecessary complexity to the merger clearance process. Possible stages of the management decision Your company Gorrissen Federspiel Management Initial thought of business expansion Pre-merger seminar with guidance and in- decision to formation on focus areas in the pre-merger phase including the standstill obligation, the potential obligation to submit internal docu- ments, conduct between signing and closing, and commence information exchange Drafting documents related to the merger transaction business case Review of drafted management recommendation document Management decision (may await the outcome of stage B and C) Competition law due diligence and potential collection of materials related to synergy effects 7 B Merger screening 8 Value contribution by Gorrissen Federspiel Providing a complete overview of relevant jurisdictions where the merger is subject to notification and notification strategy for each jurisdiction, e.g. filing of a standard or simplified notification. Possible stages of the merger screening Your company Gorrissen Federspiel Merger screening questionnaire to obtain Merger geographical turnover split screening Data is provided to Gorrissen Federspiel for the purposes of the merger screening Decision on limited or full merger screening Merger screening Recommendation and filing strategies for the relevant jurisdictions, e.g. filing with the European Commission, standard or simplified notification, etc. 9 C Substantive assessment 10 Value contribution by Gorrissen Federspiel Providing an assessment of whether the merger will be approved, approved subject to commitments, or prohibited, as well as relevant guidance on what commitments to offer to obtain an approval. Possible stages of the substantive assessment Your company Gorrissen Federspiel Providing further data, depending on the specific Substantive case, in order to identify relevant/affected markets assessment Draft substantive assessment of the merger based on the data provided, i.e. preliminary identification of horizontal/vertical overlaps and the merging parties’ market shares Providing further data or suggesting amendments to the draft assessment Final substantive assessment of the merger (this can be done prior to stage B making the as- sessment part of the final management decision on whether to proceed with the merger) 11 D Pre-notification period 12 Value contribution by Gorrissen Federspiel Ensuring pre-notification contact with the DCCA in order to provide the correct information in the merger notification. Possible stages of the pre-notification period Your company and The DCCA Gorrissen Federspiel Meeting(s) to collect data for the notification Pre-notification and decide strategy period First draft notification Pre-notification meeting(s) either by telephone or in person Draft notification is sent to the DCCA Dialogue, questions and answers to the DCCA Dialogue, additional meetings, either by telephone or in person Final merger notification is filed with the DCCA 13 E Notification period 14 Value contribution by Gorrissen Federspiel Ensuring that the companies are aware of the rules relating to pre-clea- rance behaviour, e.g. the standstill obligation. Communication with the DCCA to ensure a smooth process. Possible stages of the notification period Your company and The DCCA Gorrissen Federspiel Notification Additional dialogue/questions Additional dialogue/questions (both before and after notification is complete) period Phase I Consultation of third parties regarding the merger (more dialogue based on their comments) and deci- ding whether a simplified procedure is possible Continuing communication with the DCCA Guidance on pre-clearance conduct, e.g. the standstill obligation Approval or initiation of Phase II investigation (issues preliminary statement of concerns) Phase II Further market investigations Additional information for defining relevant markets Dialogue on commitments or conditions for approval (note that time limits apply) 15 E+F Notification period + Post-clearance guidance 16 Value contribution by Gorrissen Federspiel Ensuring communication with the DCCA regarding information revealed in the decision and in press releases. Ensuring compliance with commitments in connection with the merger clearance. Possible stages of the notification period and post-clearance guidance Your company and The DCCA Gorrissen Federspiel Stage E Notification Draft decision is provided to the parties period Review of draft decision to prevent publication of confidential information and substantive as- sessment to ensure correctness + Final decision is published Post-clearance guidance Stage F Guidance on press releases regarding the merger Assistance on compliance with potential commitments made to the DCCA 17 2. Merger clearance terminology 18 Affected markets The relevant markets are affected if the merging parties have a combined market share of: – 15 pct. or more where they overlap horizontally; or – 25 pct. or more if they overlap vertically. Change of control The term ”control” covers all types of control irrespective of whether it is obtained directly, indirectly, de jure (e.g. by acquisition of shares) or de facto (e.g. by dispersion of shares) and covers both sole control and joint control. The deciding factor is that the transaction entails a change of control on a Merger lasting basis. clearance Commitments If the DCCA finds that the merger will significantly impede effective competition, they cannot approve the merger unless the merging par- ties propose commitments in order to remedy the identified concerns. terminology The procedure and nature of the commitments will depend on the parti- cular case. Commitments may be structural or behavioural. Final vs. complete merger notification Once the final notification has been submitted, the DCCA will assess whether they view the notification as complete. If a simplified notifi- cation is submitted, the DCCA has 10 weekdays to declare the notifica- tion complete, whereas the DCCA can extend the 10 weekdays by reque- sting additional information if a standard notification is submitted. The standard notification will then be complete from the day on which the DCCA receives the requested information. Once the notification is complete, the time-limits start running. 19 Horizontal and vertical overlaps Horizontal overlaps occur when the merging parties operate on the same market, and thus are competitors on this market. Vertical overlaps occur when the merging parties operate at different levels of the supply chain, e.g. when a manufacturer of a certain product merges with one of its actual or potential distributors. Internal documents Depending on the form of notification, the parties may be required to sub- mit analyses, reports, board minutes, emails, and other internal documents related to the merger. See standard or simplified notification.