Merger Remedies in Denmark

1. Introduction

Merger remedies are commitments offered by merging parties to remove competition concerns identified by the Danish Competition and Consumer Authority (DCCA) and the Danish Competition Council. Instead of prohibiting a concentration outright, the authority may approve it subject to commitments that restore or preserve effective competition.

Under Denmark's merger-control framework, a merger that would significantly impede effective competition cannot simply be approved without addressing the identified concerns. Danish merger guidelines expressly contemplate approval subject to remedies where the parties offer commitments capable of remedying the competition problem.

Danish practice broadly distinguishes between:

1. Structural remedies – divestiture of assets, businesses, subsidiaries, licences or customer relationships.
2. Behavioural remedies – access obligations, non-discrimination, price commitments, restrictions on conduct, transparency obligations, etc.
3. Hybrid remedies – combinations of structural and behavioural commitments.

2. Legal Framework

A. Danish Competition Act

Danish merger control is principally contained in Part 4 of the Danish Competition Act, including the merger-control provisions concerning notification, assessment and approval. The DCCA investigates notified concentrations, while the Competition Council plays the principal decision-making role in significant cases.

The Danish framework is substantially aligned with the EU merger-control model, including assessment according to whether a transaction creates a significant impediment to effective competition.

B. Approval subject to commitments

Where the authority identifies competition concerns, the parties can offer commitments.

The basic sequence is:

Merger notified → Market investigation → Competition concerns → Proposed remedies → Market testing/assessment → Approval subject to commitments → Monitoring

The DCCA's merger guidelines encourage parties to consider possible remedies at an early stage because poorly developed commitments can prolong the review.

3. Objectives of Merger Remedies

Merger remedies seek to:

• preserve competitive market structures;
• prevent foreclosure of competitors;
• maintain access to essential infrastructure;
• preserve independent competitors;
• prevent discriminatory access;
• prevent excessive price increases;
• preserve customer choice;
• reduce barriers to entry;
• prevent vertical leveraging;
• maintain innovation or service quality.

The remedy should address the specific competition problem created by the merger, rather than regulate the market generally.

4. Structural Remedies

Structural remedies change the competitive structure of the merged business.

Common examples

• sale of a subsidiary;
• sale of a business unit;
• divestiture of physical infrastructure;
• transfer of customer contracts;
• sale of intellectual-property rights;
• transfer of licences;
• divestiture of a brand;
• separation of a distribution network.

Structural remedies are particularly important where the merger eliminates an important independent competitor.

Example

The 2026 Uber/Dantaxi decision demonstrates this approach. The Competition Council approved the transaction only after Uber committed to divest a substantial part of Dantaxi, including one of Dantaxi's two dispatch centres, associated taxi licence, brand, app/telephone booking activities and agreements covering a significant fleet.

5. Behavioural Remedies

Behavioural remedies regulate how the merged entity operates after the transaction.

Typical obligations include:

• non-discriminatory access;
• equal treatment of competitors;
• reasonable access pricing;
• transparency;
• information-sharing restrictions;
• restrictions on exclusivity;
• interoperability;
• maintenance of existing supply arrangements;
• price commitments;
• arbitration mechanisms;
• monitoring obligations.

They are especially relevant where the principal concern is vertical foreclosure rather than elimination of a horizontal competitor.

6. Hybrid Remedies

A remedy may contain both structural and behavioural elements.

For example:

Divestiture + transitional supply obligation + non-discrimination + monitoring trustee

This is increasingly important in digital, telecommunications and infrastructure mergers because a simple asset sale may not itself guarantee that the divested business remains viable.

7. Major Danish Case Laws / Decisions

Case 1: Nykredit / Totalkredit — 2003

Danish Competition Authority, Nykredit/ Totalkredit, 14 October 2003

This is one of Denmark's most important historical merger-remedy cases.

Nykredit acquired Totalkredit in the Danish mortgage market. Competition concerns were addressed through a package of behavioural commitments.

The remedies included:

• limitations concerning agreements with distributing banks;
• restrictions concerning fees/profit;
• transparency measures.

A particularly significant commitment involved a 0.5% cap on fees relating to mortgage loans to consumers.

Importance

The case demonstrates that Denmark has historically accepted extensive behavioural remedies where structural divestiture was not regarded as the appropriate solution.

It also demonstrates that remedies can have a very long duration.

In later litigation, the Danish Supreme Court confirmed that the relevant remedy was not time-limited merely because the original decision did not specify an expiry date.

Principle

A merger remedy may continue to bind the merged entity unless the legal framework or the decision itself establishes a limitation.

8. SE / Eniig — 2019

The SE/Eniig merger is a major example of remedies addressing vertical foreclosure.

The parties were active in energy and telecommunications, including fibre infrastructure and broadband services.

The DCCA concluded that the merger could significantly impede competition in wholesale internet access because the merged undertaking could restrict competitors' access to fibre infrastructure.

Remedies

The parties committed to:

• open Eniig's fibre infrastructure;
• provide wholesale internet access;
• provide access on reasonable and non-discriminatory terms;
• establish an audit mechanism;
• provide an arbitration mechanism;
• undertake behavioural commitments concerning OpenNet.

The Competition Council considered the commitments sufficient and approved the merger subject to remedies.

Principle

Infrastructure access remedies can address vertical foreclosure where a merged firm controls an important upstream input.

9. SE / Boxer — Flow-TV Market

The SE/Boxer merger illustrates the importance of empirical investigation in designing remedies.

The transaction concerned the market for flow-TV packages. The DCCA examined whether Boxer customers had access to SE's cable and fibre networks.

The authority used customer-address and network-coverage data to determine the degree of competitive overlap. The investigation identified competition concerns that were addressed through remedies offered by the merging parties.

Importance

This case illustrates that remedies should be based on:

• actual customer overlap;
• network coverage;
• competitive constraints;
• market evidence;
• the likely effects of the transaction.

Principle

A remedy should respond to the demonstrated competitive harm, rather than an abstract concern about market concentration.

10. Norlys / Verdo Tele — 2022

The Norlys/Verdo Tele merger is another important vertical-remedy case.

Norlys and Verdo were involved in fibre infrastructure. The DCCA was concerned that Norlys could use control over Verdo's infrastructure to restrict access by competing downstream broadband and television providers.

The authority identified a risk of input foreclosure.

Remedies

Norlys committed to:

• give competing service providers access to Verdo's infrastructure on equal terms;
• provide access comparable to that available to Norlys' own service provider, Stofa;
• extend previously negotiated wholesale and campaign prices to interested providers for up to three years.

The Competition Council considered these commitments sufficient to remove the identified unilateral vertical effects.

Principle

Where a merger combines upstream infrastructure with downstream retail activities, equal-access and non-discrimination commitments can be used to prevent foreclosure.

11. Norlys / Telia — 2024

The Norlys/Telia Danish activities transaction provides a further example of access remedies in telecommunications.

Norlys acquired Telia's Danish activities, including mobile services, mobile broadband and television services.

The DCCA was concerned that Norlys could leverage its strong position in fibre infrastructure into downstream broadband and potentially mobile services, including through bundled offerings.

Remedy

Norlys committed to provide service providers seeking access to its fibre infrastructure with access on equal and non-discriminatory terms compared with Norlys' own service provider.

The Competition Council concluded that this commitment removed the identified competition concerns and approved the merger subject to the commitment.

Principle

Non-discrimination can be an effective remedy for vertical leverage involving infrastructure.

12. Norlys / EWII Fibernet — 2025

The Norlys/EWII Fibernet case illustrates a more structural form of remedy.

The DCCA identified the possibility that the merger could reduce competition for approximately 135,000 end users in the relevant area because Norlys could combine ownership of fibre infrastructure with existing exclusive supply arrangements involving antenna associations.

Remedy

Norlys committed to ensure that seven antenna associations would receive broadband and television services from a different supplier.

Norlys was also prohibited from obtaining full or partial influence over those activities for a specified period.

The transaction could only be completed after appropriate alternative supplier arrangements or termination arrangements had been approved.

Principle

A remedy can require the creation or preservation of an alternative downstream supplier where the merger would otherwise eliminate an important competitive constraint.

13. Uber / Dantaxi — 2026

The Uber/Dantaxi decision is particularly significant in contemporary Danish merger control.

The Competition Council approved Uber's acquisition of Dantaxi subject to extensive commitments.

The transaction was unusual because the Competition Council intervened after the transaction had already been implemented and because it was the first Danish case in which a below-threshold transaction was required to be notified due to the risk of substantial harm to competition.

Structural remedy

Uber must divest a substantial portion of Dantaxi, including:

• one of two dispatch centres;
• associated taxi licence;
• Dantaxi trademark;
• bookings through the Dantaxi app;
• telephone booking number;
• website activity;
• selected business customer relationships;
• agreements with taxi operators covering a substantial fleet.

Additional behavioural safeguards

Uber also undertook commitments concerning:

• operation of the divested business during the divestiture period;
• assistance with transfer to the purchaser;
• reduced commitment periods for taxi drivers;
• reduced notice periods.

An independent monitoring trustee is to oversee compliance.

Principle

Modern merger remedies may combine:

structural divestiture + transitional safeguards + behavioural obligations + independent monitoring.

14. Historical Danish Remedy Cases

The Danish experience is broader than the recent telecommunications cases.

An OECD review of Danish merger control identified several earlier transactions involving remedies, including:

The OECD noted that Danish merger remedies historically included both structural and behavioural measures, with behavioural remedies particularly common.

15. Structural vs Behavioural Remedies

16. Requirements for an Effective Remedy

A Danish merger remedy should generally be:

1. Competition-focused

It must address an identified competition problem.

2. Proportionate

The commitment should not unnecessarily regulate areas unaffected by the merger.

3. Clear

The obligations should be sufficiently precise to determine what the merged entity must do.

4. Implementable

The remedy must be capable of practical implementation.

5. Verifiable

The authority must be able to determine whether the parties have complied.

6. Durable

The remedy must remain effective for the period necessary to address the competition concern.

7. Capable of monitoring

Complex behavioural remedies may require monitoring mechanisms, audits or trustees.

17. Market Testing of Remedies

The DCCA can examine whether proposed remedies actually resolve the identified competitive problem.

This can involve:

• consultation with competitors;
• customer feedback;
• economic analysis;
• examination of access conditions;
• assessment of likely foreclosure;
• testing the viability of a divestment;
• evaluation of implementation mechanisms.

This is particularly important for behavioural remedies because an apparently neutral access obligation may be ineffective if the merged entity can circumvent it through pricing, technical restrictions or contractual conditions.

18. Monitoring and Enforcement

A remedy is not complete merely because it appears in the clearance decision.

Effective implementation may require:

Commitment → Implementation → Monitoring → Reporting → Investigation of compliance → Enforcement

The Uber/Dantaxi case illustrates the importance of monitoring: the DCCA stated that implementation would be closely monitored and that an independent monitoring trustee would oversee fulfilment of the commitments.

19. Failure of Remedies

A remedy can fail where:

• the divested business is not commercially viable;
• the purchaser is not an effective competitor;
• access conditions are technically inadequate;
• prices remain discriminatory;
• the remedy expires too early;
• monitoring is ineffective;
• the merged firm circumvents the commitment;
• market conditions change substantially.

The Danish Nykredit/Totalkredit experience demonstrates another issue: a remedy may continue for a very long period where the original decision does not impose a temporal limitation.

20. Remedies and Changed Circumstances

Remedies may sometimes become unnecessary because market conditions change.

The Danish experience concerning DONG Energy illustrates this. A commitment imposed in an earlier merger was subsequently cancelled after increased competition, market entry, increased wind capacity, greater transmission capacity and regulatory changes altered the competitive environment.

This demonstrates an important distinction:

Remedies are designed to address competition problems arising from particular market circumstances; if those circumstances materially change, the continuing necessity of the remedy may need reassessment.

21. Key Principles Emerging from Danish Case Law

Principle 1 — Remedies can prevent prohibition

Where commitments adequately remove the identified competition concerns, the Competition Council may approve the merger subject to those commitments.

Principle 2 — Vertical mergers frequently require access remedies

SE/Eniig, Norlys/Verdo and Norlys/Telia demonstrate the importance of access and non-discrimination commitments.

Principle 3 — Structural remedies are particularly important where competition is eliminated

Uber/Dantaxi demonstrates the use of substantial divestiture to recreate an independent competitive force.

Principle 4 — Behavioural remedies can be long-lasting

Nykredit/Totalkredit demonstrates that behavioural commitments can continue beyond the immediate merger period.

Principle 5 — Remedies must be sufficiently precise

Ambiguous commitments can create enforcement difficulties and uncertainty.

Principle 6 — Monitoring is critical

Modern remedies increasingly require auditing, arbitration, reporting or independent monitoring.

Principle 7 — Remedies can combine structural and behavioural elements

A divestiture may need accompanying obligations to ensure that the divested business remains viable and independent.

22. Conclusion

Merger remedies in Denmark constitute an important middle ground between unconditional clearance and prohibition. Danish practice demonstrates considerable flexibility in designing remedies according to the specific theory of harm.

The major categories are:

Structural remedies
→ divestiture, transfer of business, assets, licences or customer relationships.

Behavioural remedies
→ non-discrimination, access, price, transparency and contractual commitments.

Hybrid remedies
→ structural separation combined with transitional and monitoring obligations.

The evolution from Nykredit/Totalkredit to SE/Eniig, Norlys/Verdo, Norlys/Telia, Norlys/EWII Fibernet, and Uber/Dantaxi shows an important development: Danish merger remedies have increasingly focused on preserving effective competitive constraints, preventing vertical foreclosure and ensuring that divestitures or access obligations are practically enforceable.