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)
A concentration does not arise where:
(a) Credit institutions or other financial institutions or insurance companies, the normal activities of which include transactions and dealing in securities for their own account or for the account of third parties, hold, on a temporary basis, securities they acquired in an undertaking with a view to reselling them, provided they don’t exercise voting rights in respect of those securities with a view to determining the competitive behavior of that undertaking or, provided they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that any such disposal takes place within one year from the acquisition date. That period may, on request, be extended by the Commission where such institutions or companies can show that the disposal was not reasonably possible within the period set,
(b) The control is exercised by a person duly authorized with respect to liquidation, bankruptcy or other analogous proceedings,
(c) The actions relating to the acquisition of direct or indirect control of the whole or parts of one or more other undertakings are carried out by investment companies, provided however that the voting rights in respect of the holding are exercised, in particular in relation to the appointment of members of the management and supervisory bodies of the undertakings in which they have holdings, only to maintain the full value of those investments and not to determine directly or indirectly the competitive conduct of those undertakings,
(d) Property is transferred due to death, by will, or intestate devolution.
The rules apply to all economic sectors.
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)
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)
In the event where a notified concentration has also been notified to other EU Member State Competition Authorities, the Service forwards the ECA1 Notice communicating the fact that said concentration was also notified to the Commission.
The Commission cooperates with the European Commission as well as with antitrust authorities in other jurisdictions of the Member States on any competition issue arising from cases before it.
1. European Competition Authorities Network
25. Available avenues: What are the opportunities for appeal or judicial review?
(Section 146 of the Constitution)