Merger of Companies or Selling a Business
Contents:
1. Legislative framework and competent authority: what is the relevant legislation
2. Scope of legislation: what constitutes a concentration?
3. Are there any exemptions from the rule and are there any rules on particular sectors?
(Sections 6(4) & 5 of the Law)
4. What is the definition of ‘control’?
(Section 6(2) & (3) of the Law)
Control is constituted by rights, contracts or any other means which either separately or in combination and having regard to any factual or legal considerations, confer the possibility of decisive influence on the activities of an undertaking either by ownership or usufruct of all or part of the assets of an undertaking and/or the rights or contracts which confer decisive influence on the composition, voting or decisions of the executive and management bodies of an undertaking.
Control is acquired by persons or undertakings which are holders of such rights or entitled to rights under said contracts or are otherwise entitled to exercise the rights deriving therefrom.
5. Can a concentration arise from multiple legal acts or in stages?
(Sections 7 & 8 of the Law)
6. What are the statutory thresholds for notification and are there any exceptions?
(Sections 3 & 5 and Schedule II of the Law)
7. Is filing mandatory or voluntary? If mandatory, do any exceptions exist?
(Sections 10 & 13 of the Law)
8. Filing formalities: what are the deadlines for filing?
(Section 10 of the Law)
9. Which parties are under the obligation to file a notification and do any filing fees apply?
(Sections 10 & 12 and Schedule III of the Law)
10. Do foreign-to-foreign concentrations have to be notified?
(Sections 3 & 6 of the Law)
11. Does implementation of the transaction have to be suspended prior to clearance?
(Sections 11, 24(2) & 29 of the Law)
12. What are the waiting periods?
(Sections 23, 24, 27, 29 & 30 of the Law)
(a) The Commission’s decision is forwarded to the notifying party within (1) month, unless it needs to be extended for fourteen (14) more days, as per the following:
Τhe Commission’s decision is forwarded by the Service to the parties under the obligation to notify one (1) month from the date of receipt of the notification or, as the case may be, from the date on which the Service received any additional information required, following a relevant request by the latter. In the event where the relevant notification fee remains overdue, the time limit commences to count on the date of payment thereof.
In case where, due to exceptional volume or complexity of the information submitted with the notification, the Service considers that the above time limit cannot be met, at least seven (7) days prior to expiration thereof informs the notifying party that the statutory time limit is extended for fourteen (14) days.
Should the time limit expire, as the case may be, without the clearance notice having been forwarded to the notifying party, the concentration is considered to have been declared compatible with the market and thereby cleared.
(b) In the event where a notified concentration undergoes full investigation, the Commission’s decision is forwarded to the notifying party within four (4) months.
Specifically, the Service prepares a report of findings which is submitted to the Commission within three (3) months (unless extended by 14 days as provided by Article 30(1) of the Law), from the date of receipt of the notification or, as the case may be, from the date that any additional information required was received by the Service, following relevant request by the latter. In the event where the applicable notification fee is overdue, the above time limit commences to count from the date of full payment thereof.
The Commission’s decision following full investigation is forwarded to the notifying party four (4) months at the latest from the date of receipt of the notification or, as the case may be, from the date that any additional information was received by the Service. In the event where the applicable notification fee is overdue, the said time limit is extended accordingly and commences from the date of payment thereof.
Should the time limit expire, as the case may be, without the clearance notice having been forwarded to the notifying party, the concentration is considered to have been declared compatible with the market and thereby cleared.
13. Documentation: What is the level of detail required in the preparation of a filing?
(Schedule III of the Law)
The information required for submission upon filing is provided by Schedule III of the Law. There is a high level of detail, ranging from contact information of the participating entities to the calculation of the ΗΗΙ index and includes, inter alia, the contact details of each participating entity and their contact persons, copies of the documents bringing about the concentration, a description of the nature and scope of the concentration, information on ownership and control with respect to each participating entity, a description of the relevant product and geographic markets, etc. For further information on the required documentation please refer to Schedule III of the Law.
14. Investigation procedure and timetable: What are the typical steps phases of the investigation?
(Sections 10, 15, 16, 17, 22 & 24 of the Law)
15. Can concentrations be cleared temporarily?
(Sections 31 & 32 of the Law)
16. What are the sanctions for pre-clearance implementation of the concentration or for any other infringment of the Law?
(Section 40 of the Law)
17. Are there any sanctions for supplying wrong or missing information?
(Section 40 of the Law)
18. What is the procedure followed in case of an infringement of the Law?
(Section 34 of the Law)
19. What is the substantive test for clearance and is there a special substantive test for joint ventures?
(Section 19 of the Law)
20. What are the main factors that the Commission investigates during an assessment?
(Schedule I of the Law)
21.Is it possible to remedy competition concerns, by giving divestment undertakings or other remedies?
(Sections 22, 25, 26, 27 & 28 of the Law)
22. What are the basic provisions applicable to a divestment or other remedy?
(Section 25 and Schedule IV of the Law)
23. What publicity is given to the process and how is confidential information protected from disclosure?
(Sections 22, 28 & 48 of the Law)
24. Cross-border regulatory cooperation: does the Commission cooperate with antitrust authorities in other jurisdictions?
(Section 54 of the Law)
25. Available avenues: What are the opportunities for appeal or judicial review?
(Section 146 of the Constitution)