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)
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)
Filing is mandatory for all concentrations of major importance that fall under the scope of the Law. There are no exceptions to the rule.
Where a concentration that needs to be notified is not so notified but comes to the attention of the Service from a different source, the Service immediately informs those concerned of their obligation to notify and on receipt of such notification proceeds as if the conditions for notification had been duly met from the start, provided that for the purposes of calculating time-limits, the actual date of receipt of the notification will be taken into account.
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)
13. Documentation: What is the level of detail required in the preparation of a filing?
(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)
In the event where the concentration shall undergo full investigation, the Commission may, upon request by one or more of the undertakings concerned, grant a derogation from the rule that a concentration is not implemented until clearance.
The request for a temporary approval must be reasoned and capable of demonstrating that the undertakings submitting the request are likely to suffer serious damage in the event of any further delay in the materialization of the concentration.
For the purposes of deciding thereon, the Commission takes into account, inter alia, the effects that such suspension would have on one or more undertakings or on a third party, as well as the threat to competition posed by the concentration.
In case the Commission grants the derogation, it may make it subject to such conditions and obligations as necessary in order to ensure conditions of effective competition.
A temporary clearance does not affect the final decision of the Commission on the notified transaction.
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)
In the event where they consider the Commission’s decision as unfavorable, the parties to a concentration may proceed with an appeal against said decision to the Administrative Court of Cyprus which acts as the Court of First Instance. The appeal must be filed within seventy five (75) days from the date that the Commission’s decision was notified to the party/ies under the obligation to notify.