Sammenstødet mellem selvfinansieringsforbuddet og efterfølgende fusioner
– En undersøgelse af dansk ret i en komparativ belysning
i Nordisk Tidsskrift for SelskabsretThis article critically analyses the Danish administrative practice according to which a merger may not be possible because it infringes the prohibition on financial assistance.
First, this article outlines the Danish Business Authority’s current administrative practice and sheds a critical light on this practice.
Second, this article evaluates whether the Danish Business Authority’s current administrative practice is appropriate. This article finds that the Authority’s practice is not appropriate as the practice extends so far that it is detrimental to the competitive conditions for the Danish business community.
Third, this article considers whether the Danish Business Authority has the necessary legal foundation for their current administrative practice. This article concludes that there is not a legal basis for the current practice.
Fourth, this article explores whether the rules on mergers of companies in the Danish Companies Act should be considered lex specialis. It concludes that the rules should be considered lex specialis. This point of view is supported by case U 2006.145 H and the fact that chapter 11 of the Danish Companies Act is to be considered as lex specialis.
Finally, this article seeks to determine possible alternative approaches to the Danish Business Authority’s practice. First, this article finds that it is possible for the Danish Business Authority to implement a more lenient approach to the conflict between the administrative practices of the Danish Business Authority and subsequent mergers. This is discussed via a comparative analysis to the practice in Norway. Second, this article finds a more liberal approach is possible. Finally, this article presents recommendations that could support Danish corporates competitiveness while ensuring adequate protection for creditors and other stakeholders.