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)
8. Filing formalities: what are the deadlines for filing?
(Section 10 of the Law)
Concentrations of major importance are notified to the Service of the Commission (“the Service”) in writing, prior to their implementation and following conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest.
A notification may also be submitted where the participating undertakings demonstrate to the Service a bona fide intention to conclude an agreement or, in the case of a public bid, where they have announced an intention or final decision to make such a bid, provided that the intended agreement or bid would result in a concentration of major importance.
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)
In case the concentration is partially or fully implemented prior to clearance, an administrative fine may be imposed not exceeding ten per cent (10%) of the total turnover of the undertaking under the obligation to notify – in the financial year immediately preceding the concentration – and also a fine not exceeding eight thousand (8.000) Euros for each day the infringement continues.
An administrative fine not exceeding ten per cent (10%) of the total turnover of the undertaking under the obligation to notify – in the financial year immediately preceding the concentration – may be imposed in case the concentration is implemented without the fulfillment of a condition imposed by the Commission, and also a fine not exceeding eight thousand (8.000) Euros for each day the infringement continues.
An administrative fine not exceeding ten per cent (10%) of the total turnover of the undertaking under the obligation to notify – in the financial year immediately preceding the concentration – may be imposed in case of an omission to comply, within the time-limit specified by the Commission, with any measure ordered by the Commission, together with an additional fine not exceeding eight thousand (8.000) Euros for each day the infringement continues.
An administrative fine not exceeding fifty thousand (50.000) Euros may be imposed in case of (a) a refusal to comply with the order of the Commission for an inspection, or (b) intentional or negligent provision of incomplete or altered evidence sought.
In addition to the above fines, the Commission may also impose on the infringing undertaking an administrative fine not exceeding seventeen thousand (17.000) Euros for each day it omits to comply with an order of the Commission for conducting an inspection.
The Commission shall instigate the proceedings described under question 18 below in the event where it obtains substantive proof that a concentration has taken place without prior notice thereof by the notifying party to the Commission.
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)
A notification for a proposed concentration is published in the Government Gazette and uploaded on the Commission’s website as soon as possible after receipt thereof. Once the Commission issues its decision on the concentration, it forwards a copy thereof to the party under the obligation to notify, requesting that they specify any confidential information and/or business secrets therein included. A non-confidential version of the decision is then prepared on the basis of the information provided by the parties, which is published in the Government Gazette and uploaded on the Commission’s website. An English summary of the non confidential decision is also uploaded on the website. The confidential version of the decision is disclosed only to the notifying party/parties and is kept in a sealed envelope in the case file as well as in the archives of the Commission.
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)