Competition Law and Foreign-to-Foreign Mergers Affecting Denmark

1. Introduction

A foreign-to-foreign merger is a transaction in which the merging parties are incorporated or principally active outside Denmark, but the transaction nevertheless has actual or potential effects on competition in Danish markets.

Examples include:

• a German company acquiring a Swedish company where both sell substantially into Denmark;
• a US technology company acquiring a UK platform used by Danish consumers;
• two non-Danish airlines merging while competing on routes involving Copenhagen;
• foreign digital platforms combining where Danish users, suppliers or advertisers are affected.

The important principle is that the place of incorporation of the merging companies does not by itself determine whether Danish or EU merger control is relevant. The decisive questions include turnover, jurisdictional thresholds, the geographic markets affected, competitive overlaps, and whether the transaction may significantly impede effective competition.

Denmark's merger-control provisions are contained principally in Part 4 of the Danish Competition Act. Current Danish thresholds include aggregate Danish turnover exceeding DKK 900 million, together with Danish turnover exceeding DKK 100 million for at least two parties; there is also a higher cross-border threshold involving DKK 3.8 billion Danish turnover and DKK 3.8 billion worldwide turnover. Since 1 July 2024, Denmark has additionally possessed a call-in mechanism for certain below-threshold transactions.

Because Denmark is an EU Member State, many large foreign-to-foreign transactions are instead reviewed principally under the EU Merger Regulation (EUMR). Where the EUMR applies, the European Commission generally has exclusive jurisdiction over the concentration, subject to the Regulation's referral mechanisms.

2. Meaning of a Foreign-to-Foreign Merger Affecting Denmark

The expression can cover several situations.

A. No Danish subsidiary, but Danish sales

Two foreign corporations may have no Danish headquarters but sell products or services directly to Danish customers.

Example:

German Manufacturer A + Swedish Manufacturer B → both sell industrial equipment in Denmark.

The transaction may affect Danish customers even though neither party is Danish.

B. Foreign parent companies with Danish subsidiaries

A US or European multinational may acquire another foreign multinational whose Danish subsidiary operates in a concentrated Danish market.

The acquisition may therefore alter:

• Danish market shares;
• supply relationships;
• distribution;
• access to infrastructure;
• innovation;
• prices;
• data access;
• interoperability.

C. Digital foreign-to-foreign mergers

Digital transactions are particularly important because physical establishment in Denmark is often unnecessary.

A foreign platform may have:

• Danish users;
• Danish merchants;
• Danish advertisers;
• Danish developers;
• Danish suppliers; or
• Danish data assets.

Consequently, a transaction between two companies incorporated outside Denmark can have substantial Danish competitive effects.

D. Pan-European mergers

A transaction may be reviewed by the European Commission because it affects competition throughout the EEA, including Denmark.

This is particularly common in:

• aviation;
• telecommunications;
• pharmaceuticals;
• technology;
• logistics;
• energy;
• financial services;
• digital platforms.

3. Legal Framework

A. Danish Competition Act

The Danish Competition Act provides the domestic merger-control framework.

The Danish Competition and Consumer Authority explains that merger control is designed to prevent concentrations from hindering effective competition.

The substantive standard is essentially whether the transaction produces a significant impediment to effective competition, particularly through the creation or strengthening of a dominant position.

B. EU Merger Regulation

For sufficiently large transactions, the EU Merger Regulation, Regulation 139/2004, is central.

A transaction satisfying the EUMR's EU-dimension thresholds may fall within Commission jurisdiction even though the parties are both foreign to Denmark.

The Commission can:

1. clear the transaction unconditionally;
2. clear it subject to commitments; or
3. prohibit it.

The Commission expressly describes these as the possible outcomes following its merger review.

4. Why Denmark Can Matter in a Foreign-to-Foreign Transaction

A foreign-to-foreign transaction can affect Denmark through several competitive mechanisms.

1. Horizontal overlap

Both companies sell competing products in Denmark.

2. Vertical foreclosure

One party supplies an input required by competitors of the other party.

3. Conglomerate effects

The merged company combines complementary products and uses one product to strengthen another.

4. Digital ecosystem effects

A platform acquisition may reinforce network effects or ecosystem advantages in Denmark.

5. Loss of potential competition

A foreign company may have been an important potential entrant into Denmark.

6. Access to essential infrastructure

The transaction may give the merged undertaking control over infrastructure needed by Danish competitors.

7. Data concentration

Foreign companies may combine datasets containing Danish users or business information.

5. Danish Turnover Is Particularly Important

The foreign status of the parties does not eliminate Danish merger-control concerns.

The Danish rules expressly use Danish turnover as a principal jurisdictional criterion. The Danish Competition and Consumer Authority currently states the principal thresholds as:

Therefore, foreign incorporation does not provide a jurisdictional safe harbour.

6. Denmark's 2024 Below-Threshold Call-In Power

One of the most important developments is Denmark's introduction of a below-threshold merger call-in mechanism from 1 July 2024.

The Danish Competition and Consumer Authority may require notification of a transaction below the ordinary thresholds where:

• the parties' aggregate Danish turnover is at least DKK 50 million; and
• there is a risk that the transaction significantly impedes effective competition, particularly through creation or strengthening of dominance.

The Authority generally has three months from specified transaction events to request notification, subject to special circumstances.

This is especially significant for foreign-to-foreign transactions involving:

• startups;
• digital platforms;
• technology companies;
• emerging markets;
• innovation competition;
• nascent Danish competitors.

7. Six Important Case Laws / Decisions

Case 1 — Air France/KLM, Case M.3280

This is a classic foreign-to-foreign European merger with substantial relevance to competition in Denmark and the wider Nordic aviation market.

Air France, a French company, acquired KLM, a Dutch company. The European Commission reviewed the transaction under the EU merger regime and cleared it subject to commitments.

Competition significance

The case demonstrates that:

• neither party needs to be Danish;
• aviation markets can be assessed route-by-route;
• competition effects can arise in individual European markets;
• commitments can preserve effective competition where concentration creates concerns.

Its importance for Denmark is particularly apparent because aviation is inherently cross-border and Copenhagen is an important Scandinavian aviation hub.

The broader Commission case material concerning Air France/KLM continued to address commitments and competitive effects years after the original merger decision.

Principle

Foreign ownership does not prevent merger scrutiny where the transaction affects European or Danish competitive markets.

Case 2 — Ryanair/Aer Lingus

Ryanair, an Irish airline, sought to acquire Aer Lingus, another Irish airline.

The Commission and EU courts examined the transaction in considerable detail because of competitive overlaps on numerous European routes.

Competition significance for Denmark

The case illustrates why airline nationality is less important than:

• origin-destination routes;
• airport substitutability;
• passenger demand;
• capacity;
• frequencies;
• barriers to entry;
• slot availability.

A foreign-to-foreign airline merger may therefore have implications for Danish airports or routes involving Denmark even if neither merging company is Danish.

Principle

In network industries, the relevant competitive effects may be geographically local despite the international nationality of the merging parties.

Case 3 — Booking Holdings/eTraveli, Case M.10615

This is particularly important for modern digital foreign-to-foreign mergers.

Booking Holdings proposed acquiring eTraveli Group. Both were international businesses rather than Danish companies, but the transaction had potential effects throughout the European Economic Area, including Denmark.

The Commission prohibited the transaction in 2023.

The case is significant because the Commission considered the interaction between Booking's hotel accommodation platform and eTraveli's flight-booking business. Commission policy materials identify Booking/eTraveli as its first prohibition involving concerns associated with an ecosystem theory of harm.

Danish relevance

The transaction illustrates how a merger can affect Danish consumers without the parties being Danish.

Potential concerns include:

• platform network effects;
• consumer dependence;
• cross-selling;
• data;
• traffic acquisition;
• ecosystem expansion;
• barriers to entry.

Principle

A foreign-to-foreign digital merger can be competition-relevant in Denmark even where the competitive mechanism operates through an international digital ecosystem.

Case 4 — Microsoft/Activision Blizzard, Case M.10646

Microsoft's acquisition of Activision Blizzard was an international technology transaction.

The Commission identified concerns concerning:

• console gaming;
• PC video games;
• multi-game subscription services;
• cloud game streaming;
• operating systems.

The Commission ultimately cleared the transaction subject to commitments concerning cloud-game streaming. The Commission's merger materials identify the transaction as a Phase II commitments case.

Danish significance

The case demonstrates that foreign-to-foreign transactions can affect Danish competition through:

• digital distribution;
• software ecosystems;
• cloud services;
• interoperability;
• licensing;
• access to content.

There does not need to be a traditional Danish physical market for competition law to become relevant.

Principle

Digital markets allow international mergers to produce competition effects directly within national markets such as Denmark.

Case 5 — Illumina/GRAIL, Cases C-611/22 P and C-625/22 P

This case is extremely important for jurisdiction over transactions that may initially appear too small for conventional merger-control thresholds.

Illumina, a US company, sought to acquire GRAIL, another US biotechnology company.

The transaction became central to the EU debate over whether transactions falling below traditional EU merger thresholds could nevertheless be referred to the Commission under Article 22 EUMR.

The Court of Justice ultimately rejected the Commission's broad interpretation of Article 22 as it had been applied in the case. The Commission's own 2024 merger policy discussion expressly identifies the judgment and its consequences for merger-control jurisdiction.

Danish relevance

The case is important because it demonstrates that:

• traditional turnover thresholds do not answer every modern merger-jurisdiction question;
• national referral powers matter;
• innovative or nascent markets can create jurisdictional difficulties;
• Member States can play an important role in identifying transactions with competitive significance.

Principle

Jurisdictional analysis is increasingly important where the target has low turnover but significant competitive or innovation potential.

Case 6 — Towercast

Towercast is not itself a conventional foreign-to-foreign merger-control decision, but it is highly relevant to transactions falling outside conventional merger thresholds.

The Court of Justice recognised the possibility of applying Article 102 TFEU to certain concentrations that fall outside the scope of the EUMR.

Importance for Denmark

The principle matters for Danish merger analysis because a transaction may potentially encounter:

• EU merger control;
• Danish merger control;
• Article 102 TFEU;
• national abuse-of-dominance rules.

This is particularly important for:

• digital platforms;
• telecommunications;
• infrastructure;
• essential facilities;
• nascent markets.

Principle

Failure to meet a conventional merger threshold does not necessarily mean that competition-law scrutiny is impossible.

This complements Denmark's own 2024 below-threshold call-in regime.

8. Danish Cases: Uber/Dantaxi and OneMed/Kirstine Hardam

Although these are not foreign-to-foreign mergers, they are important recent Danish authorities for understanding the country's new approach.

The first Danish below-threshold call-in decisions included:

Uber/Dantaxi

The Danish Competition and Consumer Authority required notification of the transaction in the taxi-intermediation market.

OneMed/Kirstine Hardam

The Authority likewise required notification of a below-threshold transaction in the healthcare-procurement market.

Academic analysis of the first two call-in decisions identifies them as important examples of Denmark's new Section 12(6) regime.

These decisions matter to foreign-to-foreign transactions because they demonstrate that Danish market effects can become decisive even where conventional turnover thresholds are not satisfied.

9. Danish Competition Authority vs European Commission

A foreign-to-foreign merger affecting Denmark may potentially encounter several layers of review.

The Nordic cooperation framework is also relevant. Denmark participates in Nordic competition cooperation, and the agreement specifically contemplates cooperation where a merger falls within another participating state's jurisdiction or where one or more parties are incorporated or organised under another participating state's laws.

10. Substantive Competition Issues

A. Horizontal mergers

The first question is whether both foreign companies compete in Denmark.

Relevant factors include:

• market shares;
• closeness of competition;
• concentration;
• customer switching;
• entry barriers;
• imports;
• countervailing buyer power.

B. Potential competition

A foreign company may not currently have significant Danish sales but may represent a credible future entrant.

This is especially important in:

• pharmaceuticals;
• technology;
• AI;
• digital platforms;
• energy;
• telecommunications.

A merger eliminating a potential competitor may therefore harm Danish competition even without substantial existing overlap.

C. Vertical foreclosure

Suppose:

Foreign Company A controls a key technology input, while Foreign Company B operates a Danish downstream platform.

The merger could allow the combined company to:

• raise input prices;
• refuse supply;
• degrade interoperability;
• discriminate against Danish competitors;
• bundle products.

11. Digital Platforms and Danish Markets

Foreign-to-foreign transactions are especially important in digital markets.

A merger can affect Denmark through:

Network effects

More Danish users make a platform more attractive, reinforcing market power.

Data advantages

Combining datasets can improve:

• targeting;
• pricing;
• recommendation systems;
• advertising;
• AI models.

Default positions

The acquiring company may use an existing dominant interface to promote the acquired service.

Interoperability

The merged company may restrict technical access by Danish competitors.

Multi-sided markets

Competition authorities may need to analyse several sides simultaneously:

consumers → platform → advertisers → merchants → suppliers.

The Commission has increasingly analysed ecosystem and non-price effects in digital merger cases, including Meta/Kustomer, Amazon/MGM, Microsoft/Activision and Booking/eTraveli.

12. Foreign-to-Foreign Mergers and Danish Infrastructure

Infrastructure is another important category.

Potential areas include:

• telecommunications;
• fibre networks;
• ports;
• airports;
• energy grids;
• charging infrastructure;
• payment systems;
• cloud infrastructure.

A transaction between two foreign infrastructure companies can affect Denmark where one controls an important facility or network used by Danish competitors.

The recent Copenhagen Airport transaction illustrates how airport infrastructure and airline competition can interact. The Commission's 2025 case M.11871 examined the proposed acquisition of Copenhagen Airports by the Danish Ministry of Finance and specifically noted the Ministry's minority interest in SAS.

Although that transaction was not foreign-to-foreign, it illustrates the cross-market and infrastructure relationships that authorities can consider when assessing transactions affecting Denmark.

13. Remedies

Where a foreign-to-foreign merger raises Danish concerns, remedies can be structural or behavioural.

Structural remedies

• divestiture of Danish assets;
• sale of a subsidiary;
• transfer of customer contracts;
• disposal of infrastructure;
• divestiture of intellectual property.

Behavioural remedies

• non-discrimination;
• interoperability;
• licensing;
• access commitments;
• data-access commitments;
• prohibition of tying;
• firewall arrangements.

The Commission expressly recognises commitments as a means of addressing competition concerns and may approve a transaction subject to such commitments.

14. Foreign-to-Foreign Merger Risk Assessment for Denmark

A practical analysis can follow this sequence:

Step 1 — Identify the transaction

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Step 2 — Identify the parties and ultimate parents

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Step 3 — Calculate Danish turnover

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Step 4 — Check Danish merger thresholds

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Step 5 — Check EU-dimension thresholds

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Step 6 — Consider Danish below-threshold call-in

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Step 7 — Define relevant Danish/EEA markets

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Step 8 — Identify horizontal, vertical and conglomerate overlaps

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Step 9 — Examine potential competition and innovation

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Step 10 — Assess digital/network/ecosystem effects

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Step 11 — Consider referral possibilities

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Step 12 — Develop remedies where necessary

15. Important Doctrinal Principles

The principal lessons from the authorities can be summarised as follows:

Principle 1 — Nationality is not decisive

Two foreign companies can create competition concerns in Denmark.

Principle 2 — Danish turnover matters

The Danish market can establish merger-control jurisdiction even where both parties are foreign.

Principle 3 — EU merger control is central

Large foreign-to-foreign transactions frequently fall within the EUMR rather than being examined independently by Denmark.

Principle 4 — Digital markets weaken traditional geographic assumptions

Danish users and businesses can be affected even when the parties have little physical presence in Denmark.

Principle 5 — Potential competition matters

A target's future competitive significance can matter even where current Danish turnover is modest.

Principle 6 — Below-threshold transactions are increasingly important

Denmark's post-2024 call-in regime significantly increases the relevance of Danish competitive effects for smaller transactions.

Principle 7 — Remedies can preserve cross-border transactions

The existence of competition concerns does not automatically mean prohibition; commitments may address identified concerns.

16. Conclusion

Foreign-to-foreign mergers affecting Denmark are governed by an effects-oriented and increasingly sophisticated competition-control framework. The fact that neither merging company is Danish does not prevent Danish or EU scrutiny.

The principal issues are:

1. Danish turnover and jurisdictional thresholds;
2. EU Merger Regulation jurisdiction;
3. Danish below-threshold call-in powers introduced in 2024;
4. horizontal overlaps in Danish markets;
5. vertical and conglomerate foreclosure;
6. potential competition and innovation;
7. digital platforms and ecosystem effects;
8. network effects and data concentration;
9. infrastructure and essential-facility access; and
10. cross-border remedies and regulatory cooperation.

The cases of Air France/KLM, Ryanair/Aer Lingus, Booking/eTraveli, Microsoft/Activision Blizzard, Illumina/GRAIL and Towercast, together with Denmark's early Uber/Dantaxi and OneMed/Kirstine Hardam call-in decisions, show the evolution from traditional turnover-based merger control toward a system increasingly attentive to local competitive effects, potential competition, digital ecosystems and transactions involving strategically important but low-turnover businesses.