The merger between the three parties was implemented already on 1 February 2012, but it has not been notified to and approved by the Authority until now. The merger was subject to notification - both under the former and present Competition Act - and should have been notified earlier as it was covered by the merger concept, and as the turnover of the participating companies exceeded the thresholds of the Competition Act.
SEAS NVE and SE are Danish holding companies, and, at the time of the merger, they were involved in a number of companies within energy and fibre network, including purchase, sale, distribution and production of electricity and supply of fibre infrastructure.
At the time of the merger, Clever A/S was called ChooseEV A/S. ChooseEV's principal activity was delivery of charging solutions to electric cars at private homes, businesses and municipalities and installation of publicly available infrastructure for electric cars.
In connection with the merger, SEAS NVE and SE obtained joint control over the company ChooseEV by acquiring the total share capital of ChooseEV.
The Danish Competition and Consumer Authority has approved the merger as it does not give rise to any objections according to the Authority.
CONTINUED DUTY TO MAKE NOTIFICATIONS IN CASE OF MERGERS
It appears from the Competition Act that a merger subject to notification may not be implemented until it has been approved by the Danish Competition and Consumer Authority. In other words, there is a prohibition against pre-implementation. The purpose of this prohibition against pre-implementation is to ensure an effective prior merger control.
Previously, the Competition Council decided in connection with a merger between Ernst & Young and KPMG that an actual change of control prior to approval is contrary to the prohibition against pre-implementation. The same applies to transactions which may be designated as partial implementation which will prevent an effective merger control.
Approval of the merger between SEAS NVE and SE and Clever will not change this legal position. It is therefore not decisive whether the transaction in question has specifically impaired the market competition, but more whether the merger has a potential effect on the competitive situation which may damage the effective merger control.
It appears from the Competition Act that violation of the prohibition against pre-implementation may be subject to a fine.