Order on the Calculation of Qualifying Holdings

Order on the Calculation of Qualifying Holdings¹)

Pursuant to Section 61, paragraph 9, of the Financial Business Act, as per Act No. 1013 of 21 August 2024, Section 87, paragraph 2, of Act No. 718 of 13 June 2023 on Insurance Business, Section 59, paragraph 3, of the Act on Securities Firms and Investment Services and Activities, as per Act No. 232 of 1 March 2024, and Section 51, paragraph 5, of the Capital Markets Act, as per Act No. 198 of 26 February 2024, the following is enacted:

Scope and Definitions

Section 1. This Order applies to the calculation of qualifying holdings pursuant to Section 61, paragraph 1, of the Financial Business Act, Section 87, paragraph 1, of the Insurance Business Act, Section 59, paragraph 1, of the Act on Securities Firms and Investment Services and Activities, and Section 51, paragraph 1, of the Capital Markets Act.

Section 2. Qualifying holdings are understood as the direct or indirect possession of at least 10% of the capital or voting rights, or a share that provides the possibility of exercising significant influence over the management of the company.

Paragraph 2. Controlled company is understood as any company:

1. in which a natural or legal person possesses the majority of voting rights,
2. in which a natural or legal person has the right to appoint or dismiss the majority of the members of the administrative, management, or supervisory body, and in which the person in question is simultaneously a shareholder or participant,
3. in which a natural or legal person is a shareholder or participant, and in which the person in question, pursuant to an agreement with other shareholders or participants in the company, solely controls the majority of the respective shareholders' or participants' voting rights, or
4. over which a natural or legal person has the right to exercise or actually exercises decisive influence or control.

Calculation of Qualifying Holdings

Section 3. The voting rights pursuant to Section 2 are calculated on the basis of all capital shares to which voting rights are attached, even when the exercise thereof is suspended.

Paragraph 2. For the purpose of calculating the share of voting rights or share capital pursuant to Section 2, the voting rights that the shareholder in question can exercise on the basis of one or more of the cases listed in Section 6 shall be included.

Paragraph 3. When applying the definition of a controlled company in Section 2, paragraph 2, voting rights and rights related to appointment and dismissal shall include the rights possessed by any other natural or legal person acting on behalf of the shareholder or on behalf of a company controlled by the shareholder, including if this is done in their own name.

Section 4. The obligation to apply in advance for the Danish Financial Supervisory Authority's approval of a proposed acquisition of a qualifying holding does not apply to:

1. shares acquired exclusively with a view to clearing and settlement within 3 trading days,
2. depositaries that hold shares in their capacity as depositaries, provided that such depositaries can only exercise the voting rights attached to such shares after written or electronic instruction, and
3. a market maker's acquisition or disposal of a larger holding that constitutes a qualifying holding or more, when this is done in the capacity of a market maker, cf. paragraph 2, provided that:
   a) the market maker has permission to trade on own account pursuant to Directive 2004/39/EC, and b) the market maker does not interfere in the management of the company in question or in any way puts pressure on the company to buy such shares or to maintain the share price.

Paragraph 2. A market maker wishing to be exempted pursuant to paragraph 1, no. 3, must notify the Danish Financial Supervisory Authority as soon as possible and no later than within four trading days that the market maker intends to perform activities as a market maker regarding a specific share. When the market maker ceases to perform activities as a market maker regarding the shares in question, the market maker must likewise notify the Danish Financial Supervisory Authority thereof.

Paragraph 3. A market maker is understood as a person who on the financial markets and on a continuous basis is willing to trade on own account by buying and selling securities over own inventory at prices set by the person themselves.

Section 5. Voting rights possessed in the trading book of a credit institution, a securities firm, or a credit institution as defined in Directive 2006/48/EC or an investment firm with permission pursuant to Directive 2004/39/EC shall not be included when calculating the holding in own inventory, provided that:

1. the voting rights in the trading book do not exceed a qualifying holding, and
2. the credit institution, securities firm, credit institution, or investment firm ensures that voting rights attached to capital shares in the trading book are not exercised or otherwise used to interfere in the company's management.

Section 6. The obligation to apply in advance for the Danish Financial Supervisory Authority's approval of a proposed acquisition of a qualifying holding applies correspondingly to natural and legal persons who are entitled to acquire, dispose of, or exercise voting rights that:

1. are possessed by a third party, with whom the natural or legal person has entered into an agreement obliging the parties to jointly use their voting rights to pursue a long-term, common policy regarding the management of the company in question,
2. are possessed by a third party pursuant to an agreement entered into with the natural or legal person regarding the temporary transfer of the voting rights in question in return for consideration,
3. are attached to shares pledged as security to the natural or legal person, provided that the natural or legal person controls the voting rights and declares an intention to exercise them,
4. are attached to shares over which the natural or legal person has lifelong disposal rights,
5. are possessed or can be exercised as mentioned in no. 1-4 by a company controlled by the person in question,
6. are attached to shares deposited with the natural or legal person, which this person can exercise at their own discretion when there are no specific instructions from the shareholders,
7. are possessed by a third party on their own behalf for the account of the person in question, or
8. the person in question can exercise by proxy, and which the person can exercise at their own discretion when there are no specific instructions from the shareholders.

Section 7. The parent company of an investment management company or an administration company, as defined in Directive 85/611/EEC, is not obliged to aggregate its holdings pursuant to Sections 3-6 with the holdings that the investment management company or administration company manages under the conditions referred to in Directive 85/611/EEC, provided that such an investment management company or administration company exercises its voting rights independently of the parent company, and that the conditions in Section 9 are met.

Paragraph 2. Notwithstanding paragraph 1, Sections 3-6 apply if the parent company or another company controlled by the parent company has invested in holdings managed by an investment management company or administration company as mentioned in paragraph 1, and the company itself cannot exercise the voting rights attached to such holdings, but can only exercise them after direct or indirect instruction from the parent company or another company controlled by the parent company.

Section 8. The parent company of a securities firm or an investment firm with permission pursuant to Directive 2004/39/EC is not obliged to aggregate its holdings pursuant to Sections 3-6 with the holdings that the securities firm or investment firm manages for individual clients, provided that the conditions in Section 9 are met, and that:

1. the securities firm or investment firm has permission to provide portfolio management,
2. it can only exercise voting rights attached to such shares after written or electronic instruction, or it ensures through the introduction of appropriate arrangements that individual portfolio management is carried out independently of all other services under conditions corresponding to those in Directive 85/611/EEC, and
3. the securities firm or investment firm exercises its voting rights independently of the parent company.

Paragraph 2. Notwithstanding paragraph 1, Sections 3-6 apply if the parent company or another company controlled by the parent company has invested in holdings managed by a company as mentioned in paragraph 1, and the company itself cannot exercise the voting rights attached to such holdings, but can only exercise them after direct or indirect instruction from the parent company or another company controlled by the parent company.

Section 9. For exemption from aggregation of holdings pursuant to Section 7, paragraph 1, and Section 8, paragraph 1, a parent company must meet the following conditions:

1. The parent company must not interfere in the exercise of voting rights possessed by the controlled company through direct or indirect instruction or in any other way.
2. The controlled company must be able to exercise the voting rights attached to the assets it manages freely and independently of the parent company.

Paragraph 2. A parent company wishing to be exempted from aggregation pursuant to Section 7, paragraph 1, and Section 8, paragraph 1, must immediately notify the Danish Financial Supervisory Authority of the following:

1. A list with the names of group companies, indicating the competent authorities supervising them, or information that no competent authority supervises them, but without any indication of the issuing companies as mentioned in Section 8, paragraph 1, which meet the conditions set out in paragraph 1.
2. A declaration that the parent company meets the conditions set out in paragraph 1 for each of the companies as mentioned in Section 7, paragraph 1, or Section 8, paragraph 1.

Paragraph 3. The parent company must continuously update the list as mentioned in paragraph 2, no. 1.

Paragraph 4. When the parent company only intends to use the exceptions in relation to instruments covered by Annex I, Section C, to Directive 2004/39/EC, the parent company only needs to submit the list as mentioned in paragraph 2, no. 1.

Paragraph 5. As regards paragraph 1, no. 1, Section 7, paragraph 2, and Section 8, paragraph 2, the following is understood:

1. "direct instruction" any instruction given by the parent company or another company controlled by the parent company, specifying how the company covered by Section 7, paragraph 1, or Section 8, paragraph 1, should exercise the voting rights in special cases.
2. "indirect instruction" any general or specific instruction, regardless of form, given by the parent company or another company controlled by the parent company, which restricts the freedom of action for the company covered by Section 7, paragraph 1, or Section 8, paragraph 1, in relation to the exercise of voting rights with the aim of serving specific business interests of the parent company or another company controlled by the parent company.

Paragraph 6. A parent company wishing to be exempted from aggregation pursuant to Section 7, paragraph 1, and Section 8, paragraph 1, must be able to demonstrate to the Danish Financial Supervisory Authority that:

1. the structure of the parent company and the subsidiary makes it possible for the voting rights to be exercised independently of the parent company,
2. the persons who determine how the voting rights are to be exercised act independently, and
3. there is a clear written mandate for a customer relationship on normal market terms between the parent company and the subsidiary in cases where the parent company is a customer of the subsidiary or holds assets administered by the subsidiary.

Paragraph 7. As regards paragraph 6, no. 1, written procedures designed to prevent the spread of information between the parent company and the subsidiary are required as a minimum.

Entry into Force

Section 10. This Order enters into force on 1 January 2025.

Paragraph 2. Order No. 277 of 3 April 2009 on the calculation of qualifying holdings is repealed.

The Danish Financial Supervisory Authority, 5 December 2024 Louise Mogensen / Line Bergmann

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1. The Order contains provisions implementing parts of Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directives 92/49/EEC and 2002/83/EC, Directive 2004/39/EC, Directive 2005/68/EC and Directive 2006/48/EC as regards procedural rules and criteria for the supervisory assessment of acquisitions and increases of shareholdings in the financial sector (OJ 2007 No. L 247, p. 1) (the Capital Acquisitions Directive).

Official Gazette A
2024 Published on 10 December 2024
5 December 2024. No. 1422.
Ministry of Industry, Business and Financial Affairs, Danish Financial Supervisory Authority, Ref. No. 24-019577 CQ003056