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)
Two or more legal acts can constitute a single concentration if they result in the acquisition of direct or indirect control of the activities of one or more other undertakings.
A concentration of undertakings which took place in stages, within a period of time not exceeding four (4) years, resulting in the acquisition of control of an undertaking by another, shall be considered to fall within the scope of the Law and deemed to have taken place on the occurrence of the final event as a result of which said control was acquired.
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)
The transaction must always be suspended prior to clearance, as it is prohibited for a concentration falling under the scope of the Law to be implemented prior to the decision of the Commission declaring it compatible with the functioning of competition in the market or deemed to be as such due to expiration of the statutory time limits, as explained under question 12 below, as the case may be.
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)
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)