In connection with mergers and acquisitions, one has to consider whether the merger is subject to merger control – either nationally or at a European level. Mergers that are subject to merger control must be filed and approved before they can be implemented. In many situations, the obligation of notification is assessed based on the companies' turnover.

Horten's Merger Control Poster 2019 provides an overview of the thresholds for merger control in Europe. The new merger control poster has for instance new thresholds for Ireland, Italy and Great Britain. Furthermore, we have incorporated the rules about merger notification when purchasing minority shares, which do not entail acquirement of control.

When is it a merger?

According to Danish law as well as EU law, change of control is the decisive element, when establishing whether a merger occurs. This will be the case, when there is a direct or indirect change of control of the ownership of a company.

Transfer of minority stakes is also covered if the transfer entails a change of control in the company. However, some countries also have merger control even if the acquisition of minority stakes does not entail a change of control. Furthermore, joint ventures can also be covered by the merger concept if they manage all of a company's functional work and is established on a permanent basis. The same principles generally apply in many national jurisdictions – although the rules may differ.

Thresholds

Generally, a merger shall be notified to the Commission or the national competition authorities, when the participating companies' turnover exceeds the stipulated thresholds.

The companies' turnover is the total annual turnover and is generally estimated based on the latest audited financial statements. Please notice that the rules for estimating the turnover vary from one country to another.

You can see the thresholds for the various countries in Europe here:

contacts

Andreas Christensen

Partner

Marie Løvbjerg

Attorney

Mia Anne Gantzhorn

Attorney

Kathrine Guldhammer Agerskov

Assistant Attorney