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Afnotering og minoritetsbeskyttelse

Dan Moalem, Henning Hedegaard Thomsen, og Marcus Alexander Svendsen

On 3 January 2018 the Danish Securities Trading Act was replaced by the Danish Capital Markets Act. Pursuant to the Securities Trading Act, Danish listed companies were entitled to de-listing, provided that such would not be likely to be to the detriment of the interests of the investors or the proper functioning of the market. In a landmark decision, the Danish Company Appeals Board (in Danish »Erhvervsankenævnet«) had decided that the fact that the issuer following a de-listing would not be subject to the same disclosure obligations as listed companies, and that shareholders would no longer have access to trade their shares on a regulated market, were consequences of any de-listing and could thus not be deemed detriment to the interests of the investors or the proper functioning of the market. In connection with the introduction of the Capital Markets Act, these provisions on de-listing were repealed. It is stated in the preparatory works that this was due to the fact that they, along with a number of other provisions, were over-implementing EU-legislation and were not deemed necessary to uphold in order to ensure, among other things, sufficient investor protection. Also, it is stated that the reason was an overall intent to reduce the burdens on businesses. Instead, the preparatory works state that any such rules should be set out in the issuer rules set by the operator of the regulated market. Accordingly, Nasdaq Copenhagen stated in its issuer rules, that the established practice would be upheld, while evaluating the future structuring of such internal rules. Proposed new internal rules are expected to generally require approval of the de-listing by a general meeting of the issuer, where the resolution must be passed with a 9/10 majority of the votes cast and the share capital represented, along with a requirement that the shareholders must be entitled to dispose of their shares prior to de-listing at a certain price. The article provides an analysis of the legal implications under Danish law of the introduction of such requirement through an amendment of the issuer rules and thus on a contractual basis. This takes into consideration capital markets law, company law, contracts law and competition law. Based on this analysis, the article concludes that it is doubtful, whether such requirements can be upheld in case of a request for de-listing.