After a year where a lot has happened in the areas of competition law, merger control and foreign direct investments (FDI), Horten looks into what has happened and what will come in the near future. Here is an overview of five topics we expect to be on the agenda in 2024.
1. FDI – Foreign Direct Investments
In 2023, we gained further experience with notifications and FDI screenings of transactions. As in 2022, a large number of transactions went through the process. In 2023, the process has generally become smoother, with a 45-day processing time in phase 1 and a simpler application form. In addition, the EU notification was moved to phase 2, which also eases the process in uncomplicated cases. We also got a new stand-alone FDI regime for the North Sea Energy Island in 2023. This means that an approval must be obtained before entering into a contract on the establishment, co-ownership and operation of the Energy Island. Looking beyond the Danish borders, FDI regulations were introduced in the majority of the European countries during 2023. Of particular relevance, Sweden has introduced FDI regulation, which will come into play in many Nordic transactions.
2. Gun Jumping
In 2023, the European Commission imposed record fines in the Illumina/GRAIL case for carrying out a merger before final merger approval, also known as gun-jumping. Subsequently, the biotech company Illumina was also ordered to sell off the start-up GRAIL. The case once again highlights the importance of compliance with competition rules between signing and closing.
In 2023, the Danish competition authorities ruled that the Maersk company Damco had violated the Danish merger rules. The acquisition of Pilot Air Freight was not only subject to merger notification in the US, but also in Denmark due to high worldwide turnover. The case is brought before the courts with a view to imposing a fine.
3. Amendment of Merger Rules and New Market Investigation on the Way
At the end of 2023, a proposal to amend the Danish Competition Act was put out for consultation. It is proposed to empower the Danish Competition and Consumer Authority to require a transaction below the turnover thresholds to be notified in cases where the transaction has significant impact on effective competition. The proposal is in line with a general European trend and aims to avoid so-called "killer acquisitions", where new companies are acquired to eliminate a competitor.
It is also proposed to give the Danish Competition and Consumer Authority far-reaching powers to conduct market investigations and take action against anti-competitive market structures that are not covered by the competition rules. The proposed powers include the possibility to issue behavioural injunctions or make commitments from companies binding without establishing a breach of the competition rules. The proposal is planned to enter into force on 1 July 2024 and is therefore expected to be presented in the first half of 2024.
4. Cartel Cases on the Electricity Market
It was established in 2023 that a large number of CHP stations had violated the Competition Act by coordinating prices and bids by participating in the so-called mFRR auctions. The cartel cases come on top of a large number of other cases against electricity companies, including cases regarding market manipulation under the Danish Electricity Supply Act. At the end of 2023, the Danish Competition Council decided to summon the cartel participants with a view to issuing fines. The cases as well as the focus on competition on the electricity market will continue in 2024.
5. Facilitating Cartels
Since the AC Treuhand judgment, it has been known that liability may be imposed for contributing to or facilitating a cartel. This was emphasized in Danish case law in 2023, where it was decided in two cases that a third party was jointly responsible for the cartel and thus violated the competition rules. The cases continue in 2024, highlighting an area that is ever relevant for advisers, trade associations and others with a coordinating role between independent companies.