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CMS Guide to Merger Control in Europe 2014

Editors: Harald Kahlenberg
 
Harald Kahlenberg
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Foreword to CMS Guide to Merger Control in Europe 2014
I am pleased to introduce the 5th edition of the CMS Guide to Merger Control in Europe for 45 jurisdictions, that are the chapters on the EU and EEA merger control rules, and 43 countries. For the first time, the Guide will be published as an electronic online edition (e-guide) as well as in printed form. In the e-guide, you will be able to add comments to the guide for your personal use and receive updates. If you work with the printed form, please check the e-guide for updates. The update of the e-guide includes now a chapter for the Kosovo.
The need to publish a 5th edition of the Guide has also resulted from substantial changes in a number of countries. The new edition of the Guide illustrates the need for practical guidance on merger control regimes all over Europe. This guide perfectly complements our CMS Guide to Cross-Border Mergers which tackles the practical corporate law issues of an international merger for 17 major jurisdictions.
I would like to thank the members of the CMS Competition Group and all others who contributed to the Guide but particularly Angelika Wieczorkowski and Jochen Hörlin for their hard work in drawing the project together.
Harald Kahlenberg
Head of CMS Competition Group
Editor of CMS Guide to Merger Control in Europe

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Overview
Merger transactions, including many joint ventures, which affect European markets can face merger control either at European Union (EU) level by the European Commission, or at national level by the relevant national competition authorities of EU Member States. They may also be reviewed by other European and other national merger control authorities outside the EU. This guide gives an overview of the main merger control rules at EU level and in all European countries.
The EU Merger Control Regulation (Regulation (EC) No. 139 / 2004) (the ECMR) governs merger control at EU level. The EU merger control system imposes strict obligations on the parties to a merger with a Community dimension, requiring notification to the European Commission of that merger or other concentration, and suspension of the transaction prior to clearance. To make the system more flexible, EU merger control includes the ability to notify transactions before the conclusion of binding agreements / announcement of a public bid, and a method of referrals (to EU Member States or from EU Member States to the European Commission). The test of whether EU or EU Member State merger control rules apply to concentrations (as defined in the ECMR) is determined by the ECMR turnover thresholds. In recent years, the European Commission has issued comprehensive informal guidance in the form of notices and guidelines on a large number of procedural and substantive aspects of EU merger control. For practitioners, familiarity with these notices and guidelines has become indispensable in their daily work with the ECMR.
When the transaction falls below the turnover thresholds of the ECMR and the relevant national thresholds of EU Member States are satisfied all mergers and most concentrations (as defined in the ECMR) will typically be subject to relevant national merger control rules. The criteria for applicability of the merger control rules of the diverse countries of Europe vary as between turnover, market share tests and asset tests.
The national merger control rules of non-EU countries can apply whether or not the ECMR applies. National merger control rules of both EU and non-EU countries may also apply to certain transactions which do not qualify as concentrations under EU rules. For example, some joint ventures and some acquisitions of non-controlling minority shareholdings falling outside the ECMR may be subject to national merger control law at EU Member State level, even if they do not constitute a concentration under the ECMR rules (the European Commission is considering changing this and making certain non-controlling minority shareholdings notifiable). Such transactions can also be subject to the general EU competition rules on restrictive agreements contained in Article 101 of the Treaty on the Functioning of the European Union (TFEU).
Whichever rules apply, it is important for the parties to ensure that any compulsory pre-merger notification is made and any standstill periods respected. Even where pre-merger notifications are not compulsory, parties should take account of the risk of proceeding to implement the transaction without (voluntary) prior notification and approval, insofar as the relevant national authorities could order a divestment or other separation of assets or entities following a subsequent investigation and opposition to the transaction.
The treatment of mergers and concentrations does vary as between EU rules and the national rules of the various different EU and other European countries. This manual summarizes the key features of each regime using a consistent, thematic approach. The guide is intended to facilitate a rapid overview of the relevant rules at EU level and in each of the countries of Europe. The rules are explained in each case by reference to the following questions:

  • Which authority is to be notified and what is the source for merger control regulations?
  • Is a notification mandatory or voluntary?
  • When do you need to notify?
  • What are the thresholds?
  • Who is obliged to notify?
  • What are the consequences of:
    • failure to notify,
    • implementing the transaction despite an obligation to suspend until clearance; and
    • implementing the transaction despite a prohibition decision?
  • What are the stages of merger control?
  • Are foreign-to-foreign mergers caught?
  • How are JVs treated?

This manual is intended only to provide an overview of the merger control rules in the EU, the EEA and the European countries listed. The information and views expressed in this manual are not necessarily comprehensive and do not purport to give professional advice. If you would like further information, please contact the CMS lawyers mentioned in the list of contact points.

EU Merger Control
Authority / Source
  • European Commission, DG COMP
  • Council Regulation (EC) No. 139 / 2004 (the ECMR) as amended.

Mandatory / Voluntary
Mandatory
When to notify?
The European Commission will accept a notification once parties can show that there is a “good faith intention to conclude an agreement” and that their plans are sufficiently concrete. The parties must notify before completion (and suspend the concentration until clearance).
Threshold(s)
Either:
  • combined aggregate worldwide turnover of all undertakings concerned exceeds EUR 5,000 m; and
  • aggregate Community-wide (EU 28) turnover of each of at least two of the undertakings concerned exceeds EUR 250 m;


  • unless
    each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide (EU 28) turnover within one and the same EU Member State.

Or:
  • combined aggregate worldwide turnover of all undertakings concerned exceeds EUR 2,500 m; and
  • in each of at least three EU Member States, the combined aggregate turnover of all the undertakings concerned exceeds EUR 100 m; and
  • in each of at least three of the EU Member States included for the purpose of (b), the aggregate turnover of each of at least two of the undertakings concerned exceeds EUR 25 m; and
  • aggregate Community-wide (EU 28) turnover of each of at least two of the undertakings concerned exceeds EUR 100 m;

  • unless
    each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide (EU 28) turnover within one and the same EU Member State.

Obligation on whom
The person(s) acquiring control.
Consequences of failure to notify
  • Fine of up to 10% of the aggregate worldwide group turnover of the undertaking concerned.
  • The concentration will not be valid until it is cleared.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fine of up to 10% of the aggregate worldwide group turnover of the undertaking concerned;
  • the European Commission may also take appropriate interim measures to restore or maintain conditions of effective competition;
  • periodic penalty payments of up to 5% of average daily aggregate worldwide turnover of the undertaking concerned may be imposed for each working day of delay in complying with any interim measures ordered by the European Commission;
  • the validity of the concentration depends upon the European Commission’s ultimate decision in the case.

Consequences of implementing transaction despite prohibition decision
  • Fine of up to 10% of the aggregate worldwide group turnover of the undertaking concerned;
  • the European Commission may also require the parties to dissolve the concentration, so as to restore the situation prevailing prior to implementation of the concentration, or take other restorative measures as required;
  • periodic penalty payments of up to 5% of average daily aggregate worldwide turnover of the undertaking concerned may be imposed for each working day of delay in complying with any requirement to unwind, etc. the concentration.

Stages
Phase I – 25 working days
By the end of 25 working days from complete notification, the concentration will be cleared, or a full investigation opened. The 25 working days deadline may be extended for reasons concerning:

  • referral to an EU Member State where proposed concentration affects competition on a distinct market in that EU Member State (45 working days from the date of referral / notification to the national authority); or
  • submission by the parties of commitments in order that the concentration may be cleared in phase I (extendable to 35 working days).

Phase II – 90 working days from date of decision to conduct an in-depth investigation (unless further extended).
The phase II period may be extended:

  • where undertakings are submitted (extension of up to 105 working days);
  • where the parties or the European Commission request an extension of time (extension of up to 20 working days).

Foreign-to-foreign mergers caught?
Yes, if mergers satisfy the turnover thresholds. No physical presence in the EU is required.
Treatment of JVs
A JV which performs on a lasting basis all the functions of an autonomous economic entity (full- function joint venture) needs to be notified the turnover thresholds are met.
Up to date as of 1 September 2014

Merger Control under the EEA Agreement
Authority / Source
  • EEA Surveillance Authority
  • European Economic Area (EEA) Agreement of 1992, Annex XIV to the Agreement, its Protocols 21 and 24 and Chapters IV and V of its Protocol 4


The European Economic Area Agreement (the EEA Agreement) brings together the EU Member States and the three EEA-EFTA States Iceland, Liechtenstein and Norway. The rules on jurisdiction are such that the European Commission in practice handles all merger control cases and the EEA Surveillance Authority and the authorities of the three EEA-EFTA States are cooperating with the European Commission.
Threshold(s)
Either:
  • the combined aggregate worldwide turnover of the undertakings concerned exceeded EUR 5 bn; and
  • the aggregate turnover in either the EU (EU 28) or in the three EEA-EFTA States (Iceland, Liechtenstein and Norway) of each of at least two of the undertakings concerned exceeded EUR 250 m.

Or:
  • the combined aggregate worldwide turnover of all the undertakings concerned exceeded EUR 2.5 bn; and
  • in each of at least three EU Member States (EU 28) or in each of the three EEA-EFTA States (Iceland, Liechtenstein and Norway) the combined aggregate turnover of all the undertakings concerned exceeded EUR 100 m; and
  • in each of at least three of such EU Member States or in each of the three EEA-EFTA States (Iceland, Liechtenstein and Norway), the aggregate turnover of each of at least two of the undertakings concerned exceeded EUR 25 m; and
  • the aggregate EU-wide (EU 28) turnover or the aggregate turnover in the EEA-EFTA States (Iceland, Liechtenstein and Norway) of each of at least two of the undertakings concerned exceeded EUR 100 m.


The EEA Agreement does not apply to a concentration where each of the undertakings involved generated more than two-thirds of their EU-wide (EU 28) turnover or the turnover allocated to the combined territory of the three EEA-EFTA States (Iceland, Liechtenstein and Norway) in one and the same EU Member State or in one and the same EEA-EFTA State, respectively.
Cooperation
The EEA Agreement provides that where a concentration meets the thresholds of the EU merger control rules, the European Commission has exclusive jurisdiction to review such concentration. However, the European Commission and the EFTA Surveillance Authority must cooperate in the assessment of concentrations if:
  • the aggregate turnover of the undertakings concerned in the combined territory of the three EEA-EFTA States (Iceland, Liechtenstein and Norway) equals 25% or more of their aggregate turnover within the EEA; or
  • each of at least two of the undertakings concerned have a turnover exceeding EUR 250 m in the combined territory of the three EEA-EFTA States (Iceland, Liechtenstein and Norway); or
  • the concentration is liable to significantly impede effective competition in the territories of the three EEA-EFTA States (Iceland, Liechtenstein and Norway), or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position.

In addition, cooperation must also take place where:
  • the concentration threatens to affect significantly competition in a market within an EEA-EFTA state which presents all the characteristics of a distinct market, whether it is a substantial part of the territory covered by the Agreement or not, or
  • an EEA-EFTA State wishes to exercise its rights to adopt measures to protect legitimate interests, principally those of public security, plurality of media and prudential rules.

Concentrations requiring notification under the EEA Agreement but not meeting the EU merger control thresholds must be notified to the EFTA Surveillance Authority. Where a concentration is subject to review by the EFTA Surveillance Authority under the EEA Agreement, the jurisdiction of the three EEA-EFTA States (Iceland, Liechtenstein and Norway) is superseded by the EFTA Surveillance Authority’s jurisdiction.

The EFTA Surveillance Authority’s jurisdiction, is without prejudice to the jurisdiction of the EU Member States’ competition authorities to review a concentration. National merger control rules of EU Member States may therefore apply to a concentration that must be notified to the EFTA Surveillance Authority.
Up to date as of 1 September 2014

Albania
Authority / Source
  • The Competition Authority
  • Competition Law No. 9121 of 28 July 2003 (as amended by the Law No.10317 / 2010)

Mandatory / Voluntary
Mandatory
When to notify?
Notification must be made within 30 days after signature of binding agreements or publication of the offer document.
Threshold(s)
Where:

  • the combined worldwide turnover of all participating companies exceeds ALL 7 bn (approx. EUR 50 m) and at least one of the participating companies has domestic (Albanian) turnover in excess of ALL 200 m (approx. EUR 1.4 m); and
  • the combined domestic (Albanian) turnover of all participating companies exceeds ALL 400 m (approx. EUR 2.8 m) and at least one of the participating companies has domestic (Albanian) turnover in excess of ALL 200 m (approx. EUR 1.4 m).

Obligation on whom
The merging parties, the acquirer or the bidder.
Consequences of failure to notify
Fine up to 10% of total worldwide turnover for preceding year.
Consequences of implementing transaction despite obligation to suspend until clearance
Fine up to 10% of total worldwide turnover for preceding year.
Consequences of implementing transaction despite prohibition decision
Fine up to 10% of total worldwide turnover for preceding year.
Stages
First Stage – two months
The Competition Authority must decide within two months of receipt of notification whether to clear the concentration or refer it for an in-depth investigation.

Second Stage – three months
A decision must be made within three months of the date on which the in-depth investigation commenced.
Foreign-to-foreign mergers caught?
Caught if the thresholds are met. No indication of whether a physical presence is required or imports alone are sufficient.
Treatment of JVs
Full-function JVs are caught by the regime.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Austria
Authority / Source
  • Cartel Court (Kartellgericht) and Appellate Cartel Court (Kartellobergericht)
  • Federal Competition Authority (Bundeswettbewerbsbehörde)
  • Federal Cartel Attorney (Bundeskartellanwalt)
  • Cartel Act 2005

Mandatory / Voluntary
Mandatory
When to notify?
Notification must be submitted sufficiently well in advance for clearance to be obtained before the concentration is “implemented”. Transactions may not be implemented before clearance (standstill obligation).
Threshold(s)
Mandatory notification where, over the last business year:

  • the combined aggregate worldwide turnover of all parties exceeds EUR 300 m; and
  • the combined aggregate domestic (Austrian) turnover of all parties exceeds EUR 30 m; and
  • each of at least two of the parties has a worldwide turnover of more than EUR 5 m.

No mandatory notification (even if the above thresholds are met) where, over the last business year:

  • only one of the parties has domestic (Austrian) turnover of more than EUR 5 m; and
  • the combined aggregate worldwide turnover of other parties is less than EUR 30 m

Austrian law requires the turnover of non-controlled participations exceeding 25 % to be (fully) taken into account.

Specific thresholds (multiplicators 200x / 20x) apply in the field of media mergers.
Obligation on whom
All participating companies are entitled to file a notification.
Consequences of failure to notify
The agreement on the concentration is void as far as it contradicts the ban of implementation. Furthermore, the Cartel Court may:

  • put measures on an undertaking in order to terminate the implementation of an unlawful concentration;
  • declare that the implementation of an unlawful concentration has taken place;
  • impose on each company violating the standstill obligation a fine of up to 10% of the worldwide turnover achieved in the last business year;
  • impose a change of the company structure of an involved undertaking (e.g. forced unwinding) if other measures are not effective.
  • Furthermore, culpable violations of the standstill obligation allow injured parties to claim damages before civil courts.

Consequences of implementing a transaction despite obligation to suspend until clearance
See above (Consequences of failure to notify).
Consequences of implementing transaction despite prohibition decision
See above (Consequences of failure to notify).
Stages
First Stage – four weeks
Official parties may issue a formal request within four weeks. Request initiates an in-depth second-stage investigation by the Cartel Court. Otherwise, concentration is considered cleared. Four-week deadline is extended to six weeks if notifying party requests the extension.

Second Stage – five months
Must be completed within five months, otherwise concentration is deemed cleared. Five-month deadline is extended to six months if notifying party requests the extension.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers are caught if the thresholds are met and the concentration affects the Austrian market.
Treatment of JVs
JVs fall into the scope of merger control if the JVs permanently fulfil all the functions of an independent economic unit.
Up to date as of 1 September 2014

Belarus
Authority / Source
  • Department of Anti-Monopolistic and Pricing Regulation of the Ministry of Economy, and its local agencies.
  • The Act of the Republic of Belarus “On Resistance to Monopolistic Activity and Competition Development”, dated 10 December 1992, as amended.
  • Edict of the President of the Republic of Belarus “On Certain Measures on Improvement of Antimonopoly Regulation and Development of Competition” dated 13 October 2009, as amended.

Mandatory / Voluntary
Mandatory pre-notification for acquisition / merger type transactions.
When to notify?
Pre-transaction approval must generally be sought prior to implementation of the transaction.
Threshold(s)
  • A company having a market share of at least 30% intends to acquire a participatory interest in, or effect transactions with shares of a company operating on a similar product / services market; or
  • acquisition of 25% shares, participatory interest or effecting other transactions resulting in the acquisition of substantial influence on policies and decision making of a company having a dominant position; or
  • acquisition of 20 % shares or participatory interests in any company which has:
    • annual sales proceeds over 200,000 basic units (approx. EUR 2 m), or
    • value of assets on its balance sheet exceeding 100,000 basic units (approx. EUR 1 m).

Obligation on whom
  • The founders (participants) of the companies under reorganisation; founders (participants) of holding companies, unions and other forms of associations;
  • persons acquiring participatory interests / shares.

Consequences of failure to notify
Failure to notify a transaction may give grounds for invalidating the transaction.
Consequences of implementing a transaction despite obligation to suspend until clearance
Fine of up to approx. EUR 1,000.
Consequences of implementing a transaction despite prohibition decision
Non-compliance with a resolution prohibiting the transaction may be grounds for invalidating the transaction.
Stages
In cases requiring pre-transaction notification, the antimonopoly authorities generally issue their decision within 30 days of receipt of all necessary documents.
Foreign-to-foreign mergers caught?
Can be caught if foreign companies have subsidiaries or related entities in Belarus or carry out business activities on the territory of Belarus.
Treatment of JVs
Acquisition of any rights allowing groups of companies or individuals to substantively define the business operating conditions of an undertaking may be interpreted as covering the creation of joint ventures.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Belgium
Authority / Source
  • The Belgian Competition Authority (Autorité belge de la concurrence / Belgische mededingingsautoriteit)
  • Book IV of the Code of Economic Law, inserted by the Statutes of 3 April 2013

Mandatory / Voluntary
Mandatory
When to notify?
Must be notified before implementation, and after either:

  • the conclusion of the agreement; or
  • the announcement of a public bid; or
  • the acquisition of a controlling interest.

Threshold(s)
Transaction must be notified if:

  • the parties have a combined turnover in Belgium of more than EUR 100 m; and
  • each of at least two of the undertakings involved have a turnover in Belgium of at least EUR 40 m.

Obligation on whom
  • By the acquirer.
  • By both parties in case of joint control of a joint venture.

Consequences of failure to notify
Fines of up to 1% of turnover in Belgium may be imposed.

However, in practice the Belgian Competition Authority has only imposed limited fines where parties have failed to notify.
Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines of up to 10% of the annual group turnover in Belgium may be imposed;
  • the transaction will be void.

Consequences of putting transaction into effect despite prohibition
  • Fines of up to 5% of average daily turnover in Belgium may be imposed;
  • the transaction will be void.

Stages
First stage – 40 days
Decision to clear or refer to second stage within 40 days of notification, failing which the transaction is deemed admissible.
Second stage – 60 days
A further 60 days at the end of which the Council must reach its final decision.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers are caught by Belgian merger control where turnover thresholds are met.
Treatment of JVs
Belgian merger control only applies to ‘full-function’ joint ventures, i.e. those which perform “on a lasting basis all the functions of an autonomous economic entity”.
Up to date as of 1 September 2014

Bosnia and Herzegovina
Authority / Source
  • The Competition Council of Bosnia and Herzegovina
  • Competition Act of Bosnia-Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 48 / 05, 76 / 07 and 80 / 09)

Mandatory / Voluntary
Mandatory
When to notify?
Within 15 days of concluding the agreement, the publication of public offering or the acquisition of control, depending on which occurs first. Notification may also be filed when the participants demonstrate the intention to concentrate by means of a concluded agreement in principle, memorandum of understanding, letter of intent signed by all parties to the concentration or by publication of the intention to concentrate.
Threshold(s)
  • The total worldwide annual income of all participants to the concentration achieved by selling goods and / or services is BAM 100 m (approx. EUR 51 m) in the year preceding the concentration; and
  • The total annual income of each of at least two parties to the concentration achieved by selling goods and / or services on the market of Bosnia and Herzegovina is at least BAM 8 m (approx. EUR 4 m) in the year preceding the concentration, or if their joint share on the relevant market exceeds 40% (please note that the 40% market share threshold is independent from the turnover thresholds).

Obligation on whom
When control over the whole or parts of one or more undertakings is acquired by another undertaking, notification must be submitted by the undertaking acquiring control; in all other cases the undertakings must submit a joint application.
Consequences of failure to notify
Fines up to 1% of the total annual income in the previous year, provided that the concentration has not been implemented; fines from BAM 5,000 (approx. EUR 2,500) to BAM 15,000 (approx. EUR 7,500) for the responsible persons.
Consequences of implementing a transaction despite obligation to suspend until clearance
Fine of up to 10% of the total annual income in the preceding year; fines from BAM 15,000 (approx. EUR 7,500) to BAM 50,000 (approx. EUR 25,000) imposed on the responsible persons.
Consequences of implementing a transaction despite prohibition decision
A number of measures may be taken, such as requiring that the acquired shares are transferred, prohibiting or restricting the exercise of voting rights or termination of control over a joint venture or termination of other type of control.
Stages
  • Notification of concentration must be submitted within 15 days, as described above;
  • upon receipt of complete and adequate notification the Competition Council issues a written confirmation of receipt;
  • if the Competition Council finds that the intended concentration does not have adverse effects, it may adopt a decision declaring the concentration as permitted within 30 days of issuing the confirmation of receipt; otherwise it must initiate proceedings within 30 days of issuing the confirmation of receipt. If the Competition Council does not adopt a decision or initiate proceedings within these periods the concentration is deemed to have been cleared;
  • if the Competition Council initiates proceedings, it must make an appraisal of the concentration and adopt a final decision within 3 months of initiation of proceedings; where additional expert opinions or analysis are necessary, or where proposed concentration involves sensitive economic sectors or markets, the deadline may be extended by a further 3 months, of which the parties must be informed in writing; if the Competition Council does not adopt a final decision in these periods the concentration is deemed to have been cleared.

Foreign-to-foreign mergers caught?
Yes, if they have a substantial effect on the market of Bosnia and Herzegovina or a significant part of it.
Treatment of JVs
The creation of long lasting joint ventures acting as independent economic entities constitutes a notifiable concentration to which the Competition Act applies.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Bulgaria
Authority / Source
  • Commission for the Protection of Competition (the “CPC”)
  • The Protection of Competition Act 2008

Mandatory / Voluntary
Mandatory
When to notify?
Prior to implementation of the concentration
Threshold(s)
Where in the previous year:

  • The combined group annual domestic (Bulgarian) turnover of the parties exceeds BGN 25 m (approx. EUR 12.8 m); and
  • The group annual turnover in Bulgaria of either the target or each of at least two of the parties exceeds BGN 3 m (approx. EUR 1.53 m).

Obligation on whom
  • The parties acquiring joint control or merging.
  • The acquirer of sole control.

Consequences of failure to notify
  • Fine of up to 10% of the infringer’s Bulgarian aggregate annual turnover.
  • Review of the transaction on the merits and decision, i.e. unconditional or conditional clearance or prohibition of the concentration.
  • If the CPC finds that the concentration should be prohibited, it may also impose appropriate measures to restore the situation on the market existing prior to implementation.
  • If the imposed measures under the PCA are not complied with, the CPC may impose fines of up to 5% of the infringer’s average daily Bulgarian turnover per each day of failure to comply with the measures.
  • Fine in the range from BGN 500 to BGN 50,000 (approx. EUR 255 to EUR 25,600) imposed on individuals who aided the infringement.
  • Compensation of third parties’ damages from the concentration.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fine of up to 10% of the infringer’s Bulgarian aggregate annual turnover.
  • If the CPC finds that the concentration should be prohibited, it may impose appropriate measures to restore the situation in the market existing prior to implementation.
  • If the imposed measures are not complied with, the CPC may impose fines of up to 5% of the infringer’s average daily Bulgarian turnover.
  • Fine in the range from BGN 500 to BGN 50,000 (approx. EUR 255 to EUR 25,600) imposed on individuals who aided the infringement.
  • Compensation of third parties’ damages from the concentration.

Consequences of implementing transaction despite prohibition decision
  • Fine of up to 10% of the infringer’s Bulgarian aggregate annual turnover.
  • The CPC may impose appropriate measures to restore the situation in the market existing prior to implementation.
  • If the imposed measures are not complied with, the CPC may impose fines of up to 5% of the infringer’s average daily Bulgarian turnover per each day of failure to comply with the measures.
  • Fine in the range from BGN 500 to BGN 50,000 (approx. EUR 255 to EUR 25,600) imposed on individuals who aided the infringement.
  • Compensation of third parties’ damages from the concentration.

Stages
Phase I – three days + 25 business days
Time: three days + 25 business days, with a possibility of extension. CPC shall decide whether (i) the concentration falls outside the scope of the Competition Act; or (ii) to authorise the concentration (conditionally or unconditionally); or (iii) to start the second stage of the proceedings.

Phase II – four months
Time: four months, with a possibility of extension. CPC shall authorise or prohibit the concentration.

However, in practice these time periods are not strictly observed by the CPC and delays are possible.
Foreign-to-foreign mergers caught?
Caught if the turnover thresholds are exceeded even if this is attributable to activities other than those concerned by the concentration. No effect test applies for the purposes of assessing reportability.
Treatment of JVs
JVs which perform on a lasting basis all the functions of a full-function economic entity are caught by the Bulgarian merger control regime.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Croatia
Authority / Source
  • The Croatian Competition Agency (the Agency)
  • Competition Act (Official Gazette No. 79 / 09, 80 / 2013)

Mandatory / Voluntary
Mandatory
When to notify?
Prior to implementation
Threshold(s)
Notification required if:

  • the combined aggregate worldwide turnover of all participating undertakings is at least HRK 1 bn (approx. EUR 131m); and
  • each of at least two participating undertakings achieves aggregate domestic income (in Croatia) of at least HRK 100 m (approx. EUR 13.1m).

Obligation on whom
In case of acquisition, the undertaking which gains control over another undertaking needs to submit the application. In all other cases, all participating undertakings need to submit the application, but only one executed filing is necessary.
Consequences of failure to notify
  • Fine on company up to 1% of its total turnover in the previous financial year.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fine on company of up to 1% of its total turnover in the previous financial year.

Consequences of implementing transaction despite prohibition decision
  • Fine on company of up to 10% of its total turnover in the previous financial year.

Stages
First Stage – one month
The Agency must decide within one month from the date of receipt of the notification whether to clear the concentration or to start a full investigation. Failure to make a decision in this period results in the concentration being deemed cleared.

Second Stage (main examination) – three months
This must be completed within three months of the date of commencement of the main investigation. No automatic clearance if no decision within the three-month period.
Foreign-to-foreign mergers caught?
Caught if they affect competition on the Croatian market.

Physical presence is not required.
Treatment of JVs
Caught if the JV acts as an independent commercial subject on a permanent basis.
Up to date as of 8 September 2014
1 Euro = 7.62 Kuna (exchange rate as of 8 September 2014)

Cyprus
Authority / Source
  • Cyprus Commission for the Protection of Competition (CPC)
  • Control of Concentrations between Undertakings Law No. 83(I)/2014 of 2014
  • As anticipated, the new law was enacted on 20/06/2014 to replace the Control of Concentrations between Undertakings Laws of 1999 – 2000
  • The new legislation reflects the provisions of Council Regulation EC 139/2004 (the Regulation)

Mandatory / Voluntary
Mandatory
When to notify?
Transactions creating concentrations of major importance must be notified in writing and in electronic form to the CPC before they are implemented and after the execution of the relevant agreement, or announcement of the public bid or the acquisition of a controlling interest.

The notification can also be filed if the participating undertakings prove a good faith intention to conclude an agreement or in the case of a public takeover bid if they have announced an intention or definite decision that will result in a concentration of major importance.
Threshold(s)
Mandatory notification where concentration is of ‘major importance’, and:

  • the aggregate turnover achieved by at least two of the participating undertakings exceeds, in relation to each one of them, is EUR 3,5; and
  • at least two of the participating undertakings have a turnover derived from within the Republic of Cyprus; and
  • at least EUR 3,5 of the aggregate turnover of all participating undertakings is achieved within the market of the Republic of Cyprus.

Obligation on whom
Mergers, acquisitions of joint control and joint ventures: both undertakings must notify the concentration either jointly or separately.

Acquisitions: the acquiring party.
Consequences of failure to notify
  • The new law does not impose any obligation to notify within a stipulated timeframe and so there is no penalty stipulated for failure to notify. However the penalty specified below will apply if the merger is implemented without notification.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • The Cyprus CPC may impose an administrative fine of up to 10% of the total turnover of the participating undertakings for the financial year preceding the year in which notification was made if they totally or partially implement a transaction prior to receiving approval / clearance and where it comes to the CPC’s attention that such a concentration has been partially or wholly implemented without it being notified to the CPC;
  • and an additional fine of up to EUR 8,000 may be imposed on the undertakings concerned for each additional day on which the concentration continues to be partially or completely put into effect.

Consequences of implementing transaction despite prohibition decision
  • The concentration is void;
  • in cases where a clearance has been revoked, the Commission may take the measures necessary to dissolve wholly or partially the concentration in order to restore the competitive market;
  • the CPC has the authority to impose a fine of up to 10% of the total turnover of the participating undertakings for the financial year preceding the year in which notification was made and an additional fine of up to EUR 8,000 for each day on which such infringement continues.

Stages
Phase I – one month
Commission has one month (from receipt of complete notification) to decide whether to allow the concentration in question or commence Phase Two proceedings.

For cases of exceptional volume or complexity of the relevant information, the one-month period can be extended by 14 days.

Where no positive action is taken within the one-month period, the concentration is deemed to be declared compatible.


Phase II – three months
The Service, following an in-depth investigation, must submit its finding to the Commission within three months from the date of receipt of the notification or from the date of receipt of the further information which are deemed necessary for the purposes of compliance with the notification in accordance with Schedule III of the Law.

The Commission’s decision either to clear (with or without conditions) or to prohibit the concentration is notified to the sender of the notification within four months of receipt by the Service of the parties’ initial notification or from the date of receipt of the further information, otherwise the concentration is deemed compatible.
Foreign-to-foreign mergers caught?
Yes, foreign to foreign mergers have an obligation to file a notification if the parties’ aggregate turnover in Cyprus meets the mandatory thresholds. In determining the turnover of the undertakings in question the Cyprus CPC takes into account the turnover of the parent companies and subsidiary companies.
Treatment of JVs
Caught JV carries out on a lasting basis all the functions of an autonomous economic entity.
Up to date as of 8 September 2014

Czech Republic
Authority / Source
  • Office for Protection of Economic Competition
  • Competition Act 2001 (No. 143 / 2001)

Mandatory / Voluntary
Mandatory
When to notify?
There is no deadline for submission of a merger notification. However, as it is not possible to implement without clearance, notifications should be submitted without undue delay after conclusion of the agreement establishing the concentration.
Threshold(s)
Either:
  • the combined domestic (in the Czech Republic) turnover of the parties exceeds CZK 1.5 bn (approx. EUR 59 m); and
  • each of at least two of the parties has domestic turnover (in the Czech Republic) exceeding CZK 250 m (approx. EUR 9.8 m);

Or:
  • the turnover of: (i) at least one undertaking being a party to the merger (consolidation); (ii) an enterprise or its part being acquired; (iii) an undertaking whose control is being acquired; or (iv) at least one of the undertakings creating a joint venture, in the Czech Republic exceeds CZK 1.5 bn (approx. EUR 59 m); and
  • the worldwide turnover of the other party to the concentration exceeds CZK 1.5 bn (approx. EUR 59 m).

Obligation on whom
For mergers, acquisitions of businesses and creation of joint ventures, all parties to the operation.

For acquisitions of control, the acquirer.
Consequences of failure to notify
  • Fines of either (i) up to CZK 10 m (approx. EUR 394,000), or (ii) up to 10% of the parties’ combined worldwide turnover (Office’s discretion as to whether to fine as at (i) or at (ii));
  • the Office may require measures unwinding the concentration or part of it to be taken (e.g. sale of acquired shares, termination of agreements);
  • no changes to the company which require registration may be registered in the Czech Register of Companies until approval of the concentration comes into force.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines of either (i) up to CZK 10 m (approx. EUR 394,000), or (ii) up to 10% of the parties’ combined worldwide turnover (Office’s discretion as to whether to fine as at (i) or at (ii)).

Consequences of implementing transaction despite prohibition decision
  • Fines of either (i) up to CZK 10 m (approx. EUR 394,000), or (ii) up to 10% of the parties’ combined worldwide turnover (Office’s discretion as to whether to fine as at (i) or at (ii));
  • the Office may require measures unwinding the concentration or part of it to be taken (e.g. sale of acquired shares, termination of agreements);
  • no changes to the company which require registration may be registered in the Czech Register of Companies until approval of the concentration comes into force.

Stages
Simplified Procedure – 20 days
The Office must issue a decision approving the transaction within 20 days of receipt of a simplified notification otherwise the transaction is deemed to be approved. However, the Office may, within the period of 20 days, request submission of a full notification (for the standard proceedings).

Standard Procedure:
First Stage – 30 days

The Office must issue a decision on whether the transaction is to be cleared or referred for further investigation within 30 days of receipt of a complete notification.
Second Stage – four months
The Office has four months from the date of initiating the Second Stage in which to issue a final decision. Failure to take a decision within these deadlines results in the merger being deemed approved.

n.b. The Office may “stop the clock” where it makes information requests. This will increase the length of the periods.
Foreign-to-foreign mergers caught?
Yes, where they meet the thresholds.
Treatment of JVs
JVs must be notified where they fulfil on a lasting basis the functions of an autonomous economic entity and the thresholds are met.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Denmark
Authority / Source
  • The Competition Council (Konkurrencerådet)
  • Consolidated Competition Act No. 700 of 18 June 2013

Mandatory / Voluntary
Mandatory
When to notify?
Notification must be submitted to the Competition Council after a merger agreement has been concluded, a takeover bid has been published or a controlling interest has been acquired and, in any event, before the merger is implemented.
Threshold(s)
Notification required where, in the preceding financial year:

Either:
  • the combined aggregate domestic turnover (in Denmark) of all of the undertakings concerned is at least DKK 900 m (approx. EUR 120 m), and (ii) the aggregate domestic turnover (in Denmark) of each of at least two of the undertakings concerned is at least DKK 100 m (approx. EUR 13 m);

Or:
  • the aggregate domestic turnover (in Denmark) of at least one of the undertakings concerned is at least DKK 3.8 bn (approx. EUR 510 m), and (ii) the aggregate worldwide turnover of at least one of the other undertakings concerned is at least DKK 3.8 bn (approx. EUR 510 m).

Obligation on whom
All parties may notify.
Consequences of failure to notify
  • Fines;
  • if the concentration has been implemented, the Competition Council may require the undertakings or assets brought together to be separated or require the cessation of joint control or any other action appropriate to restore the conditions of effective competition.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines,
  • if the concentration has been implemented, the Competition Council may require the undertakings or assets brought together to be separated or require the cessation of joint control or any other action appropriate to restore the conditions of effective competition.

Consequences of implementing transaction despite prohibition decision
  • Fines;
  • if the concentration has been implemented, the Competition Council may require the undertakings or assets brought together to be separated or require the cessation of joint control or any other action appropriate to restore the conditions of effective competition.

Stages
Phase I − four weeks
The Competition Council has 25 weekdays from receipt of a complete notification in which either to approve or prohibit the transaction, or to initiate a separate investigation.

If the Competition Council fails to meet these deadlines, the merger is approved.

Phase II − three months

If the Competition Council decides to initiate a separate investigation, a decision to approve or prohibit a merger must be reached within 90 weekdays of receipt of a complete notification.

If the Competition Council fails to meet these deadlines, the merger is approved.

Foreign-to-foreign mergers caught?
Yes, where the thresholds are met.
Treatment of JVs
Creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity is caught by the Danish merger control rules.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Estonia
Authority / Source
  • Estonian Competition Authority (Konkurentsiamet)
  • Competition Act

Mandatory / Voluntary
Mandatory
When to notify?
The concentration must be notified before the entry into force of the concentration, and after:

  • entry into a merger agreement or performance of a transaction or other act for acquisition of parts of the undertaking;
  • performance of a transaction or other act for acquisition of control;
  • performance of a transaction or other act for acquisition of joint control;
  • announcement of a public bid for securities.

The planned concentration may also be notified before any such acts if the parties to the concentration prove their intention to perform such act or transaction or if, in the case of a public bid, the parties to the concentration have publicly announced their intention to make such a bid.

Credit institutions, financial institutions and insurers must notify of a concentration after obtaining permission from the supervisory authority of the corresponding field.
Threshold(s)
A concentration is subject to control and must be notified if during the financial year preceding the concentration the aggregated turnover of the parties to the concentration in Estonia exceeded EUR 6,391,200 and if the aggregate turnover in Estonia of each of at least two parties to the concentration exceeded EUR 1,917,350.
Obligation on whom
Estonian merger control provisions are based on the concept of concentration which is deemed to take place according to the Competition Act in the following situations:

  • previously independent undertakings merge within the meaning of the Commercial Code or parts of undertakings are merged;
  • an undertaking acquires control of the whole or a part of another undertaking, or of several undertakings or parts thereof;
  • joint acquisition of control of the whole or a part of an undertaking, or of several undertakings or parts of thereof;
  • the acquisition of control by a natural person who already has control over another undertaking, or of several undertakings or parts thereof;
  • the acquisition of control of the whole or part of another undertaking, or of several undertakings or parts thereof by several natural persons controlling at least one undertaking jointly; or
  • the creation of a joint venture which is performing on a lasting and independentbasis.

Consequences of failure to notify
If a person implements a concentration which is subject to control and for which no clearance has been given, the ECA has the right to issue a precept requiring the parties to:

  • perform the act required by the precept;
  • refrain from a prohibited act;
  • terminate or suspend activities which restrict competition; or
  • restore the situation prior to the offence.

In case of failure to adhere the precept on time, the ECA may impose a penalty of up to EUR 3,200 on natural persons and up to EUR 6,400 on legal persons. The penalty can be imposed repeatedly until the precept is adhered to.

Effecting a concentration when the permission for concentration has not been granted by the ECA, or violating the prohibition of concentration or violating the conditions of permission for concentration, may also constitute a misdemeanour which is punishable by a fine of up to EUR 32,000 on legal persons and up to EUR 1,200 and / or by arrest on natural persons. If the person commits the above-mentioned offence for the first time, then it may be subject to misdemeanour punishment as described above. Moreover, under the Penal Code, failure to give notice of a concentration prejudicing free competition, if misdemeanour penalties have already been imposed on the offender, constitutes a crime. The maximum punishment for legal persons in such cases is a pecuniary punishment of up to EUR 16 m and for natural persons up to 500 days of average pay and / or up to three years imprisonment.
Consequences of implementing a transaction despite obligation to suspend until clearance
See “Consequences of failure to notify”.
Consequences of implementing transaction despite prohibition decision
See “Consequences of failure to notify”.
Stages
First Stage - 30 days
First stage: 30 calendar days from submission of a notice of concentration.
Second Stage - four months
The Estonian Competition Authority may initiate supplementary proceedings, thereby extending proceedings by another four months.
Foreign-to-foreign mergers caught?
Yes, provided that the thresholds for turnover in Estonia are met.
Treatment of JVs
Joint ventures operating on a lasting and independent basis are subject to Estonian merger control rules where the turnover thresholds are met.
Up to date as of 1 September 2014

Finland
Authority / Source
  • The Finnish Competition and Consumer Authority (FCCA)
  • Competition Act (948 / 2011)

Mandatory / Voluntary
Mandatory
When to notify?
Following conclusion of the agreement but prior to implementation of the transaction. A concentration may also be notified to the FCCA as soon as the parties demonstrate with sufficient certainty their intention to conclude a concentration.
Threshold(s)
  • The combined worldwide turnover of the parties to the concentration exceeds EUR 350 m; 
and
  • the turnover of two or more parties derived from Finland exceeds EUR 20 m each.

Obligation on whom
The acquirer of control or of business operations, the entities party to a merger and the founders of a joint venture.
Consequences of failure to notify
Fine of up to 10% of the worldwide group turnover of the party obliged to notify.
Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fine of up to 10% of the worldwide group turnover of each breaching party; and
  • the Market Court can prohibit, impose conditions on the transaction or order the transaction to be dissolved and competition on the market to be restored.

Consequences of implementing transaction despite prohibition decision
  • Fine of up to 10% of the worldwide group turnover of each breaching party;
  • the Market Court can order the transaction to be dissolved and competition on the market to be restored;
  • the agreement to implement the transaction is considered null and void.

Stages
First Stage - one month from filing
During this period the FCCA must either clear the transaction or initiate second stage. If the FCCA does not give any decision, the transaction is deemed approved.
Second Stage - three months from initiating second stage
The Market Court can extend the time by two months. Within this time, the FCCA must either clear the transaction (with or without conditions) or propose to the Market Court that the transaction be banned. The Market Court may suspend the deadline by at most two months.
Third Stage
If the FCCA proposes to prohibit the transaction, the Market Court must make its decision within three months from the FCCA’s proposal.
Foreign-to-foreign mergers caught?
Yes, if turnover thresholds are met.
Treatment of JVs
A full-function joint venture is considered a concentration which must be notified if the turnover thresholds are exceeded.
Up to date as of 1 September 2014

France
Authority / Source
  • Autorité de la concurrence (ADLC)
  • Articles L. 430-1 et seq. of the Code de commerce (French Commercial Code).

Mandatory / Voluntary
Mandatory
When to notify?
No specified period. As implementation must be suspended until clearance, the parties are advised to notify as soon as possible after they are able to present a sufficiently concrete file to allow the ADLC to assess the case. Notification is possible notably when the parties have signed an agreement in principle, or a letter of intent, or as of the announcement of a public offer.
Threshold(s)
As a general rule, the turnover taken into account for the purpose of assessing whether the thresholds are met is, in respect of the acquirer(s) or of the merging parties, the consolidated turnover of the groups to which they belong.

General case
  • the parties’ combined worldwide turnover exceeds EUR 150 m; and
  • each of at least two of the parties generated domestic turnover in France in excess of EUR 50 m.

Reduced thresholds where
  • at least two of the parties are active in the retail trade; or
  • at least one of the parties operates in whole or in part in one or more overseas departments or territories.

Obligation on whom
The obligation to notify lies:
  • In case of an acquisition, with the undertaking acquiring control over the target company.
  • In case of a change of control from sole control to joint control, with all the parties which are to have joint control after the transaction.
  • In case of a merger or of the creation of a full-function joint venture, with all parties.

Consequences of failure to notify
  • the ADLC shall order the parties, subject to daily penalty payments, to notify the concentration or otherwise restore the situation prevailing prior to the concentration; and
  • The ADLC may impose fines on the legal persons responsible for notifying the concentration of up to 5% of their pre-tax turnover in France during the most recently closed financial year (including the target’s turnover in France where applicable). Natural persons incur a fine of up to EUR 1.5 m.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • the ADLC may impose fines on the legal persons who implemented the concentration before clearance of up to 5% of their pre-tax turnover in France during the most recently closed financial year (including the target’s turnover in France where applicable). Natural persons incur a fine of up to EUR 1.5 m.

Consequences of implementing transaction despite prohibition decision
  • Where the concentration was implemented in violation of a prohibition decision of the ADLC or of the Minister for Economy, the ADLC shall order the parties, subject to daily penalty payments, to restore the situation prevailing prior to the concentration and may impose the same fines as the ones incurred for failure to notify.

Stages
Phase I assessment: 25 working days (extendable by the ADLC up to 40 working days)
  • Examination by the ADLC: Maximum 25 working days starting from the day following the reception of the complete notification (initial period).
  • If commitments are presented, there is an extension of the initial period of 15 extra working days.
  • If the ADLC does not open Phase II, the Minister for Economy may request that such an assessment be opened within five working days from the day on which he receives the ADLC decision (or is informed of a tacit approval). The ADLC has five extra working days to examine this request, which it may deny.
  • At the end of Phase I, the ADLC may decide to clear the concentration or to refer it for further investigation or to propose remedies.

Phase II assessment: 65 working days (extendable by the ADLC by an extra 25 days)
  • Examination by the ADLC: maximum 65 working days from the opening of Phase II.
  • If commitments are presented to the ADLC in the last 20 working days of Phase II, there is an extension of the assessment delay of 20 extra working days.
  • Possible intervention of the Minister for Economy: the Minister for Economy has 25 extra working days from the date on which he receives the ADLC final decision to issue a decision based on grounds of general interest other than the preservation of competition. This power was vested in the Minister for Economy in 2008 but to date has never been used.

Foreign-to-foreign mergers caught?
Caught where the thresholds are met.
Treatment of JVs
Full-function joint ventures (creation of an autonomous economic entity on a lasting basis) are caught where the thresholds are met.
Up to date as of 1 September 2014

Germany
Authority / Source
  • The Federal Cartel Office (FCO) (Bundeskartellamt)
  • Act against Restraints of Competition 1957 (the GWB), as amended.

Mandatory / Voluntary
Mandatory
When to notify?
No deadline, but notifications must be submitted sufficiently well in advance for clearance to be obtained before completion.
Threshold(s)
Pre-notification required where in the last business year preceding the transaction:

  • the combined aggregate worldwide group turnover of all participating undertakings exceeds EUR 500 m; and
  • the group domestic turnover (in Germany) of at least one participating undertaking exceeds EUR 25 m, and
  • the group domestic turnover (in Germany) of another participating undertaking exceeds EUR 5 m;

unless the following de minimis rule applies:

  • one party to the concentration is an independent company with worldwide group turnover not exceeding EUR 10 m.

Obligation on whom
Both parties, but only one filing executed by one of the parties is necessary.
Consequences of failure to notify
Fine of up to EUR 100,000.
Consequences of implementing a transaction despite obligation to suspend until clearance
  • The concentration is void except for real estate agreements and agreements on the transformation, integration or formation of an undertaking or specific enterprise agreements within the meaning of the Stock Corporation Act (Aktiengesetz), once they have become valid by entry in the appropriate register.
  • Fines on natural persons of up to EUR 1 m, and on undertakings of up to 10% of the group turnover in the preceding business year.

Consequences of implementing transaction despite prohibition decision
  • The concentration is void.
  • The FCO may impose a fine on natural persons of up to EUR 1 m and on undertakings of up to 10% of group turnover in the preceding business year.
  • The concentration must be dissolved unless the Federal Minister of Economics and Technology authorises the concentration. The obligation to dissolve a concentration becomes effective on the undertakings concerned when the FCO orders the measures necessary to dissolve the concentration.
  • To enforce its order the FCO may impose, once or repeatedly, a penalty payment of EUR 1,000 up to EUR 10 m, or prohibit the exercise of voting rights. The restraint of competition may also be required to be removed in other ways than by restoring the former situation.

Stages
First Stage – one month
The FCO must decide within one month from receipt of complete notification whether to clear the concentration or to start a stage-2 investigation.

Second Stage (main proceedings) – total of four months

Investigations must be completed within four months from the date of receipt of complete notification. In certain cases, the four-month period may be extended further with the consent of the notifying parties.
Foreign-to-foreign mergers caught?
Yes, if the thresholds are met and the transaction has an effect on competition within Germany. This concept is widely interpreted.
Treatment of JVs
  • JVs are caught by the German merger control regime where:
    a JV is jointly controlled (e.g. by certain veto rights); or
  • each of at least two or more parent companies hold a share of at least 25%.

Up to date as of 1 September 2014

Greece
Authority / Source
  • The Hellenic Competition Commission (the HCC)
  • Law 3959 / 2011 “On the protection of free competition”, in force as of 20 April 2011 (which abolished Law 703 / 1977 previously applicable), as amended and currently in force.

Mandatory / Voluntary
Mandatory
When to notify?
Pre-merger: within thirty days of the conclusion of the relevant agreement or the announcement of a bid to buy or exchange, or the undertaking to acquire of a controlling interest, whichever occurs first. A binding preliminary agreement may trigger such a notification obligation.
Threshold(s)
  • Total worldwide turnover of the participating undertakings of at least EUR 150 m; and
  • each of at least two of them having a total turnover in Greece of at least EUR 15 m.

Obligation on whom
If concentration is made by an agreement, each of the parties. In all other cases, the persons or undertakings, or groups of persons or undertakings, acquiring control.
Consequences of failure to notify

At least EUR 30,000 which may not exceed 10% of the undertaking’s aggregate worldwide turnover.
Consequences of implementing a transaction despite obligation to suspend until clearance
A fine of at least EUR 30,000 and up to 10% of the aggregate worldwide turnover of the party in breach.
Consequences of implementing transaction despite prohibition decision
HCC may order separation of the undertakings or assets merged, disposal of assets or shares acquired, or other measures deemed necessary to revert to the pre-concentration situation.

Upon default, a fine of up to 10% of the aggregate worldwide turnover of the party in breach and an additional penalty of EUR 10,000 per day of non-compliance with the HCC’s decision.
Consequences of any breach of merger control rules
Administrative fines:
For a société anonym, the persons being members of its Board and / or responsible for implementing the company’s decisions are jointly liable for an administrative fine imposed on the company, whereas HCC may impose on those natural persons additional fines of EUR 200,000 – EUR 2 m in specific circumstances.

Criminal penalties:
EUR 15,000–150,000, imposed on natural persons only.
Stages
First level: one month from receipt of initial notification.


Full investigation:
90 calendar days from commencement of the full investigation (or exceptionally, 105 days, when HCC accepted undertakings submitted to it late) which is made following one month from receipt of initial notification.
Foreign-to-foreign mergers caught?
Yes, if they have an effect on competition in Greece, even potentially.
Treatment of JVs
The creation of a joint venture performing on a permanent basis all the functions of an autonomous economic entity is considered a concentration and subject to merger control, provided it does not aim or result in coordination of the competitive behaviour of the undertakings forming it.
Up to date as of 1 September 2014

Hungary
Authority / Source
  • Hungarian Competition Office (HCO)
  • Competition Act 1996, as amended.

Mandatory / Voluntary
Mandatory
When to notify?
No filing deadline from 1 July 2014. However the standstill obligation applies to the transactions, therefore the parties may request preliminary permission if they intend to exercise control rights prior to the final decision (e.g. it is necessary in order to preserve the value of the investment).

Special rules exist for financial institutions, insurance companies and entities of special strategic importance.
Threshold(s)
Where:
  • the combined aggregate net turnover of the participating group of undertakings exceeds HUF 15 bn (approx. EUR 48 m); and
  • there are at least two groups of undertakings each with a net turnover exceeding HUF 500 m (approx. EUR 1.6 m).


“Turnover” relates to domestic Hungarian turnover if the party to the concentration is foreign, i.e. not registered within the territory of Hungary. For Hungarian parties to the merger, the worldwide turnover must be taken into account.

Furthermore, calculations of the HUF 500 m (approx. EUR 1.6 m) threshold shall take account of concentrations which
  • were completed in the last two years preceding the current concentration between the same group of undertakings; and
  • which were previously not subject to approval.

Obligation on whom
Direct participant, or the acquirer of the direct controlling rights, or the acquirer of a part of an undertaking.
Consequences of failure to notify
  • Daily fine ranging from HUF 50,000 (approx. EUR 160) to HUF 200,000 (approx. EUR 640);
  • if the HCO would have prohibited the concentration, it may order:
    • the separation or alienation of the merged undertakings / assets / business units;
    • the termination of joint control; or
    • other obligations.

Consequences of implementing a transaction despite obligation to suspend until clearance
From 1 July 2014 implementing the concentration is explicitly prohibited without approval, thus the acquiring entity may not exercise its control rights before the final decision has been made (standstill clause).

The contracts, deals or any statements made during the period of such standstill obligation shall be interpreted as invalid, however the parties implementing the concentration shall not argue invalidity of any contracts based on such claim.
Consequences of implementing transaction despite prohibition decision
  • Transaction is only legally valid and enforceable if it is approved by the HCO;
  • fine up to 10% of the net turnover of the undertaking or even the group of the undertaking concerned.

Stages
Examination by
  • HCO investigator(s); and
  • Competition Council (CC).


Decision issued by the HCO within 30 calendar days (this period may be further extended by maximum 20 calendar days) or in complex cases four months (this period may be further extended by maximum two months) from the date HCO has all necessary information i.e. the file is complete (the period of answering further questions raised by the HCO is also excluded).The risk of the HCO requiring further information may be minimised by the possibility of a pre-notification meeting. This meeting is dedicated an informal consultation with the HCO officials on the preliminary evaluation of the transaction.

Where the HCO does not act (decision, request, etc.) within the above deadline, clearance is deemed to have been granted.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers are subject to the Competition Act if they have an effect on the Hungarian market.

No physical presence in Hungary is required; imports into Hungary can suffice for an effect on the Hungarian market to be found to exist.
Treatment of JVs
Only full-function JVs are subject to Hungarian merger control, provided that they meet the Hungarian thresholds.
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Iceland
Authority / Source
  • The Competition Authority
  • The Icelandic Competition Law (the Law Gazette A, No. 44 / 2005, as amended by Law No. 52 / 2007, 88 / 2008, 94 / 2008, 87 / 2009, 98 / 2009, 14 / 2011 and 126 / 2011)

Mandatory / Voluntary
Mandatory
When to notify?
Following the conclusion of the merger agreement, or the announcement of the public bid, or the acquisition of a controlling interest in an undertaking, and prior to the implementation of the concentration.
Threshold(s)
Notification required where:

  • the combined total group domestic turnover (in Iceland) of all of the undertakings is at least ISK 2 bn (approx. EUR 13 m); and
  • each of at least two of the undertakings which are parties to the merger has domestic turnover (in Iceland) of at least ISK 200 m (approx. EUR 1.3 m).

Obligation on whom
Mergers: all parties.
Acquisitions: all acquirers.
Consequences of failure to notify
  • The Competition Authority will require the undertakings concerned to produce all the material necessary for assessing the compatibility of the merger with the Law; and will have the same powers as in the case of a duly notified merger;
  • fines of up to 10% of the infringing undertaking’s annual worldwide turnover may be imposed;
  • fines on individuals (unspecified) and / or imprisonment for up to two years are possible.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • The concentration will not be valid until it has been notified and cleared;
  • fines of up to 10% of the infringing undertaking’s annual worldwide turnover may be imposed;
  • fines on individuals (unspecified) and / or imprisonment for up to two years are possible.

Consequences of implementing transaction despite prohibition decision
  • The Competition Authority can require the company to be returned to its pre-merger state by obtaining an injunction against the merged undertaking’s operations;
  • fines of up to 10% of the infringing undertaking’s annual worldwide turnover may be imposed;
  • fines on individuals (unspecified) and / or imprisonment for up to two years are possible.

Stages
Phase I – 25 calendar days
The Competition Authority has 25 calendar days from receipt of a complete notification to either clear the concentration or initiate a further investigation (phase II investigation).
Phase II – 90 calendar days
The Competition Authority has an additional 90 calendar days from the date of initiating phase II, to decide whether to clear or prohibit the merger.
Foreign-to-foreign mergers caught?
Can be caught if merger has an effect on the structural conditions of competition within Iceland. The Competition Authority would probably not claim jurisdiction over a foreign-to-foreign merger unless one or more of the undertakings concerned has activities in Iceland, either through a subsidiary or an agent.
Treatment of JVs
Caught if they perform on a lasting basis all the functions of an autonomous economic entity.
Up to date as of 1 September 2014
Euro exchange rate up to date as of 1 September 2014

Ireland
Authority / Source
  • The Competition and Consumer Protection Commission (the “CCPC”).
  • The Competition Act 2002; the Competition (Amendment) Act 2006; the Competition Act 2002 (Section 18(5) and (6)) Order 2007; the Credit Institutions (Financial Support) Act 2008; the Competition (Amendment) Act 2012; and the Competition and Consumer Protection Act 2014.

Mandatory / Voluntary
  • Mandatory notification is required if the thresholds set out below are met.
  • Voluntary notification is possible if the thresholds are not met.
  • “Media mergers” must be notified (i.e. the thresholds are disapplied).

When to notify?
From 31 October 2014, notification may be made where there is a ‘good faith intention’ to conclude an agreement or, in the case of a public bid, where there is an announced intention to make a bid.
Threshold(s)
From 31 October 2014, mandatory notification is required if:
  • the aggregate turnover in the Republic of Ireland of all undertakings involved in the merger or acquisition (the “transaction”) is not less than EUR 50 m; and
  • the turnover in the Republic of Ireland of each of two or more of the undertakings involved is not less than EUR 3 m.


If two or more of the undertakings involved in the transaction carry on a media business in the Republic of Ireland, or where one carries on a media business in the Republic of Ireland and one carries on a media business elsewhere, notification is mandatory, regardless of whether thresholds are met. From 31 October 2014, parties to a media merger will be required to make two separate notifications – one to the CCPC, or to the European Commission where appropriate, and a second (dealing with media ‘plurality’ issues to the Irish Minister for Communications.
Obligation on whom
Each of the undertakings involved in the transaction. The notification is typically made jointly by all parties to the transaction.
Consequences of failure to notify
It is a criminal offence for a person in control of an undertaking not to notify. The penalties are a fine of up to EUR 3,000 upon summary conviction, and EUR 250,000 upon conviction on indictment. Continuing failure to notify may result in further daily fines.
Consequences of implementing a transaction despite obligation to suspend until clearance
The transaction is void under Irish law.
Consequences of implementing transaction despite prohibition decision
It is a criminal offence for a person in control of an undertaking to implement a transaction despite a prohibition decision. It is also a criminal offence not to notify or to implement a transaction in breach of a conditional clearance. The penalties are a fine of up to EUR 3,000 and a term of imprisonment of up to six months upon summary conviction, and a fine of EUR 10,000 and a term of imprisonment of up to two years upon conviction on indictment. Continuing contravention may result in further daily fines.
Stages
There are two stages in Irish merger control law. At Phase I, from 31 October 2014, the CCPC has 30 working days (subject to limited provisions for extension) to either clear the transaction or refer it to a full Phase II investigation. If referred to Phase II, the CCPC has 120 working days (again subject to limited provisions for extension) from the “appropriate date” to carry out its investigation and make its final determination.

The appropriate date is the date of the notification or the date on which the CCPC has declared a response(s) to a formal request for information (RFI) to be full and complete.

If the CCPC fails to meet either the Phase I or Phase II deadlines, the transaction is automatically cleared (subject to the Ministerial right of veto in the case of media mergers).
Foreign-to-foreign mergers caught?
“Foreign-to-foreign” mergers may be caught if the thresholds are met.
Treatment of JVs
Notification of joint ventures is also required where the joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity.
Up to date as of 10 September 2014

Italy
Authority / Source
  • The Competition Authority (Autorità Garante della Concorrenza e del Mercato)
  • Law 287 / 90 (the Competition Act)

Mandatory / Voluntary
Mandatory
When to notify?
A concentration must be notified prior to its implementation.
Threshold(s)
  • The combined domestic (Italian) turnover of all undertakings concerned exceeds EUR 489 m; and
  • the domestic (Italian) turnover of the target exceeds EUR 49 m.


Where the target achieves no turnover whatsoever in Italy and will continue not to generate turnover in Italy post concentration, no notification is required.

Thresholds current as of 10 March 2014 (updated annually to take inflation into account).

Special rules exist for the film distribution market, financial institutions and insurance companies.
Obligation on whom
Purchaser
Consequences of failure to notify
Fine of up to 1% of the parties’ domestic turnover for the preceding year.
Consequences of implementing a transaction despite obligation to suspend until clearance
No general suspensory obligation, but if one is ordered and the Competition Authority adopts a decision against a violation of the Competition Act and undertakings disregard this decision, the Competition Authority may impose fines.
Consequences of implementing transaction despite prohibition decision
  • Fine of between 1% and 10% of domestic (Italian) turnover of the business forming the target.
  • If the Competition Authority only prohibits the concentration at the end of the second phase procedure, it may decide upon measures to restore conditions of effective competition on the market place, and remove any effects that distort it.

Stages
First Stage – 30 calendar days
The Competition Authority must clear the transaction or open second-phase proceedings within 30 calendar days of receipt of the notification.
Second Stage – 45 calendar days
The Competition Authority has 45 calendar days in which to complete a second-phase investigation. However, if the undertakings have failed to provide information available to them, the term can be extended by a further 30 calendar days.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers must be notified whenever the parties, by their sales in Italy, satisfy the turnover thresholds.

No notification required if the target has no turnover in Italy and this will continue to be the case post-concentration.
Treatment of JVs
Only full-function joint ventures are subject to the Italian merger control regime.
Up to date as of 25 August 2014

Kosovo
Authority / Source
  • Kosovo Competition Authority (Autoriteti Kosovar i Konkurrencës)
  • Law No. 13/L–229 on Protection of Competition (as amended by Law No. 04/L–226)

Mandatory / Voluntary
Mandatory
When to notify?
  • Notifications must be submitted upon signature of the contract acquiring control over the enterprise or part of it respectively, after publication and in any case before the concentration takes place.

Threshold(s)
Notification required if the following thresholds be cumulatively met:
  • the combined worldwide revenues of all participating undertakings exceed EUR 20 m, and at least one of the participants in the concentration is located in the Republic of Kosovo. The financial data of the revenues must result from the financial reports of the fiscal year preceding the concentration;
  • the combined revenue of at least two (2) undertakings within Kosovo’s domestic market exceeds EUR 3 m based on the financial reports of the year preceding the concentration.

Obligation on whom
  • Both parties, but only one filing executed by one of the parties is necessary.

Consequences of failure to notify
  • Fine of up to two percent (2%) of the total income of the enterprise realised during the last year for which the financial report has been released.

Consequences of implementing a transaction despite obligation to suspend until clearance
Fine of up to ten percent (10%) of the total income of the enterprise realised during the last year for which the financial report has been released.
Consequences of implementing transaction despite prohibition decision
  • Fine of up to ten percent (10%) of the total income of the enterprise realised during the last year for which the financial report has been released.

Stages
First Stage – one month
Kosovo Competition Authority must decide within a deadline of thirty (30) days from receipt of complete notification for concentration whether to clear the concentration or to start a stage-2 investigation.
Second Stage – total of three months
Investigations must be completed within ninety (90) days from the date of receipt of complete notification.
Foreign-to-foreign mergers caught?
Yes, if the thresholds are met and the transaction has an effect on competition within Kosovo.
Treatment of JVs
Creation of a joint venture from one or more independent enterprises, which works on a permanent basis as an independent economic, is considered as a concentration.
Up to date as of 1 September 2014

Latvia
Authority / Source
  • Competition Council (Konkurences padome, www.kp.gov.lv).
  • Competition Law (Konkurences likums) as amended, in effect since 1 January 2002.

Mandatory / Voluntary
Mandatory
When to notify?
Notification must be submitted prior to the closing of the merger transaction. There is no specific deadline. The parties’ agreements usually set out the time-frame for submission of the notification.
Threshold(s)
  • Combined turnover of the participants in the merger for the previous financial year in the territory of Latvia has exceeded EUR 35.572 m; or
  • combined market share of the participants of the merger exceeds 40% in any of the relevant markets (geographic scope can be smaller or larger than Latvia).

However
  • Merger notification need not be submitted if the turnover of one of the two undertakings in the territory of Latvia did not exceed EUR 2.134 m during the previous financial year.

Obligation on whom
  • Merger of independent undertakings – all parties;
  • Merger by incorporation of another undertaking – the acquirer;
  • Acquisition of decisive influence – the acquirer.

Consequences of failure to notify
  • A fine of up to EUR 1,400 for each day the transaction should have been, but was not, notified;
  • illegality of the merger;
  • the Competition Council will request the notification to be made.

Consequences of implementing a transaction despite obligation to suspend until clearance
No standstill obligation.
Consequences of implementing transaction despite prohibition decision
  • A fine of up to EUR 1,400 for each day the transaction was put into effect despite the prohibition decision or the commitments imposed by the Competition Council were not observed.
  • The merger is illegal and the Competition Council can require restoration of the pre-merger situation and / or divestiture of the shares / assets.

Stages
Short form
Phase I: one month, Phase II: two months. The total period for merger review must not exceed three months from the day the Competition Council received a complete notification.
Full form
Phase I: one month, Phase II: three months. The total period for merger review must not exceed four months from the day the Competition Council received a complete notification.
Foreign-to-foreign mergers caught?
Such mergers can be caught if the notification thresholds are triggered. The criteria when foreign-to-foreign mergers are caught are vague; prior consultation with the Competition Council is always advised when there are doubts whether the thresholds are exceeded.
Treatment of JVs
Full-function joint ventures must be notified under the merger control regime.
Up to date as of 1 September 2014

Liechtenstein
Authority / Source
There are no specific merger control rules in Liechtenstein.
Mandatory / Voluntary
When to notify?
Threshold(s)
Obligation on whom
Consequences of failure to notify
Consequences of implementing a transaction despite obligation to suspend until clearance
Consequences of implementing transaction despite prohibition decision
Stages
Foreign-to-foreign mergers caught?
Treatment of JVs
Up to date as of 1 September 2014

Lithuania
Authority / Source
  • The Competition Council of the Republic of Lithuania
  • The Law on Competition of the Republic of Lithuania (23 March 1999, No. VIII-1099, replaced by the new edition of 22 March 2012, No. XI-1937).
  • Resolution of the Competition Council of the Republic of Lithuania on approval of the procedure for submission and examination of notification on concentration and of calculation of aggregate turnover (27 April 2000, No. 45, as amended on 13 January 2005, No. 1S-4).

Mandatory / Voluntary
Mandatory
When to notify?
Prior to the completion of concentration.

Can notify before execution of an agreement, or making a public bid, provided the parties can demonstrate a good faith intention to conclude an agreement or make a public bid to buy up shares.
Threshold(s)
Notification required where:

  • the combined aggregate domestic / worldwide (see below) turnover of the undertakings concerned exceeds LTL 50 m (approx. EUR 14.5 m); and
  • the aggregate domestic / worldwide (see below) turnover of each of at least two of the undertakings concerned exceeds LTL 5 m (approx. EUR 1.45 m).

For parties not incorporated in Lithuania, the thresholds refer to domestic (within Lithuania) turnover.

For parties incorporated in Lithuania, the thresholds refer to world-wide turnover.
Obligation on whom
  • Each of the merging undertakings; or
  • the undertaking(s) acquiring control; or
  • the parties to the agreement, where they jointly set up a new undertaking or create a common management body or administrative subdivision, or due to the decisions taken will control at least half of the same members in bodies, administrative boards, or commit themselves to coordinating amongst themselves decisions concerning their business activities, or to transferring to each other all or some of profit, or transferring each other the right to dispose of some or all their assets.

Consequences of failure to notify
  • Parties can be required to perform actions restoring the situation prior to the concentration or eliminating the consequences of concentration where the transaction, if it were to be implemented, would result in a dominant position or substantial restriction of competition in a relevant market.
  • A fine of up to 10% of the parties’ combined domestic / world-wide (see note under “Threshold(s)”) turnover in the preceding business year.
  • Natural persons (e.g. directors, managers) can be subject to fines ranging from LTL 20,000 (approx. EUR 5,793) to LTL 50,000 (approx. EUR 14,481).
  • The transaction will be void if the Council subsequently adopts a decision blocking the merger.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Parties can be required to perform actions restoring the situation prior to the concentration or eliminating the consequences of concentration where the transaction, if it were to be implemented, would result in a dominant position or substantial restriction of competition in a relevant market.
  • A fine of up to 10% of the parties’ combined domestic / world-wide (see note under “Threshold(s)”) turnover in the preceding business year.
  • The transaction will be void if the Council subsequently adopts a decision blocking the merger.

Consequences of implementing transaction despite prohibition decision
  • Parties can be required to perform actions restoring the situation prior to the concentration or eliminating the consequences of con-centration.
  • A fine of up to 10% of the parties’ combined turnover in the preceding business year.
  • The transaction will be void.

Stages
First Stage – one month
Within one month after receipt of notification the Council must clear the transaction or proceed with an in-depth investigation.
Second Stage – three months
Three months, may be extended by one extra month.
Foreign-to-foreign mergers caught?
Yes, if the parties’ turnover in Lithuania meets the thresholds.
Treatment of JVs
“Full-function” joint ventures (same meaning as under EUMR) are caught where the thresholds are met.

Non-full function joint ventures are excluded from the Lithuanian merger control regime.
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Luxembourg
Authority / Source
No specific merger control rules apply under Luxembourg law.
Mandatory / Voluntary
When to notify?
Threshold(s)
Obligation on whom
Consequences of failure to notify
Consequences of implementing a transaction despite obligation to suspend until clearance
Consequences of implementing transaction despite prohibition decision
Stages
Foreign-to-foreign mergers caught?
Treatment of JVs
Up to date as of 2 January 2015

Macedonia
Authority / Source
  • Commission for Protection of Competition
  • The Macedonian Law on Protection of Competition (Law on Protection of Competition) was passed on 5 November 2010 and amended on 3 October 2011.

Mandatory / Voluntary
Mandatory
When to notify?
Notification must be made before the concentration is carried out and after the conclusion of binding merger agreements, or announcement of a public bid, or acquisition of the controlling interest.
Threshold(s)
Mandatory notification in the following cases:

  • where the aggregate combined worldwide annual turnover of all undertakings concerned is at least EUR 10 m and at least one of the undertakings is a resident of the Republic of Macedonia; or
  • where the aggregate combined annual turnover of all undertakings concerned in the Republic of Macedonia is at least EUR 2.5 m; or
  • if the market participation of one of the participants exceeds 40% in the Republic of Macedonia or the combined participation of all participants in the market exceeds 60% in the Republic of Macedonia.

Obligation on whom
On the beneficiaries or owners of any newly-established enterprises resulting from a merger, and, in other cases, the owners of the merging enterprises.
Consequences of failure to notify
  • A fine of up to 10% of the aggregate annual turnover.
  • Temporary prohibition from conducting the business activity for 3 to 30 days.
  • The Commission may impose certain measures for restoring the effective concentration on the domestic market.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • A fine of up to 10% of the aggregate annual turnover.
  • Temporary prohibition from conducting the business activity for 3 to 30 days.
  • The Commission may impose certain measures for restoring the effective concentration on the domestic market.

Consequences of implementing transaction despite prohibition decision
  • A fine of up to 10% of the aggregate annual turnover of the undertaking.
  • Temporary prohibition from conducting the business activity for 3 to 30 days.
  • The Commission may impose certain measures for restoring the effective concentration on the domestic market.

Stages
First Stage – 25 working days
The Commission must decide whether to clear the concentration or commence a full investigation within 25 working days from the date of receipt of the notification. An extension of up to 35 working days is possible if the parties show a special interest in meeting the conditions for harmonization of the concentration. The Commission and the participants in the concentration may agree to extend the terms of the first stage up to 20 working days.
Second Stage – 90 working days
The Commission must decide, within 90 working days from the date of initiating the full investigation, whether to clear or prohibit the concentration. The Commission and the participants in the concentration may agree to extend the terms of the second stage up to 20 working days.
Foreign-to-foreign mergers caught?
Yes, if they have an effect on the competition within the territory of the Republic of Macedonia.
Treatment of JVs
JVs can be caught where they are capable of acting as autonomous economic entities on a lasting basis.
Up to date as of 1 September 2014

Malta
Authority / Source
  • Office for Competition (‘OFC’)
    (Malta Competition and Consumer Affairs Authority)
  • The Control of Concentrations Regulations, 2003

Mandatory / Voluntary
Mandatory
When to notify?
Prior to implementation and within 15 working days of:

  • the conclusion of the agreement; or
  • the announcement of the public bid; or
  • the acquisition of a controlling interest;

whichever occurs the earliest.
Threshold(s)
Double threshold:

  • The combined aggregate turnover in Malta of all of the undertakings concerned in the preceding financial year exceeds EUR 2,329,373.40; and
  • each of the undertakings concerned had a turnover in Malta equivalent to at least 10% of the combined aggregate turnover of the undertakings concerned.

A full-function joint venture is also deemed to constitute a concentration.
Obligation on whom
In the case of a merger or an acquisition of joint control, the obligation to notify the concentration rests, jointly, with the parties to the merger or by those acquiring joint control, as the case may be.
In the case of acquisition of a controlling interest in one undertaking by another, the obligation to notify is on the party acquiring control.
Consequences of failure to notify
Failure to notify attracts a potential administrative fine of between EUR 1,000 and EUR 10,000.
Consequences of implementing a transaction despite obligation to suspend until clearance
If the undertaking(s) obliged to notify put the concentration into effect prior to clearance, an administrative fine of up to 10% of total turnover of the undertaking or association of undertakings concerned in the preceding business year may be imposed.

The validity of a transaction implemented before the decision of the OFC will depend on the nature of the OFC’s subsequent first stage decision.
Consequences of putting transaction into effect despite prohibition
If the concentration is put into effect despite being prohibited, an administrative fine of up to 10% of total turnover of the undertaking or association of undertakings concerned in the preceding business year may be imposed.

Furthermore, the OFC may require the undertakings or assets brought together to be separated or the cessation of joint control or any other action that may be appropriate to restore conditions of effective competition.
Stages
Pre-notification meetings are valuable and recommended. They allow the OFC to determine the nature and context of the transaction and, in certain instances, may result in a significant reduction of the information required. Accordingly, notifying parties are encouraged to hold pre-notification meetings

In a Phase I review a decision has to be taken on whether the notified concentration raises serious doubts as to lawfulness, within six weeks form the submission of a complete notification. If, within five weeks, commitments are proposed, the period is increased to two months.

If the concentration raises doubts as to its legality, the process goes into Phase II which takes a further four months (with a possibility of a further extension of one month).
Foreign-to-foreign mergers caught?
Yes, if the turnover thresholds are satisfied.
Treatment of JVs
Maltese merger control applies to full-function joint ventures.
Up to date as of 1 September 2014

Moldova
Authority / Source
  • Competition Council
  • Moldovan Competition Law No. 183 dated 11 July 2012, in force since 14 September 2012
  • Moldovan Regulation on Economic Concentrations, approved by Decision of the Competition Council No. 17 dated 30 August 2013, in force since 11 October 2013

Mandatory / Voluntary
Mandatory
When to notify?
Before the closing of the transaction. There are no deadlines for filing.
Threshold(s)
  • The cumulative turnover of all the undertakings concerned for the year preceding the transaction exceeds MDL 25 m (approx. EUR 1.5 m) and
  • there are at least two undertakings concerned, each with an aggregate turnover of over MDL 10 m (approx. EUR 600,000) obtained on the territory of the Republic of Moldova during the year preceding the transaction.


Pursuant to the Regulation on Economic Concentrations, when converting MDL to EUR, the Council shall take as a reference the average currency exchange rate for the year previous to the economic concentration. The average exchange rate for MDL to EUR for 2013 was of MDL 16.7207 per EUR 1.

Therefore, for economic concentrations notified in 2014, the thresholds shall be:
MDL 25,000,000 = EUR 1,495,152.71 and MDL 10,000,000 = EUR 598,061.08

Special rules may apply to transactions in the banking, natural gas, electric energy and telecommunications sectors.
Obligation on whom
All parties to the merger (in case of merger of two or more undertakings); persons / undertakings acquiring joint control over undertaking(s); person / undertaking acquiring sole control over one or more undertakings or a part of one or more undertakings.
Consequences of failure to notify
  • Fines of up to 4% of the undertaking’s aggregate turnover for the year preceding the breach, that may be increased by 5% to 10% of the fine for each aggravating or mitigating circumstance. In any event, the fine shall not exceed the maximum of 5% of the undertaking’s aggregate turnover. for the year preceding the breach.
  • Competition Council may also order the undertakings to dissolve the concentration, in particular, by dissolving the merger or by assigning all acquired securities (shares) or assets, so that the situation existing prior to the concentration may be restored. Otherwise, the Council may take other appropriate measures to restore the situation prior to the concentration, to the extent possible.
  • The Council may file a claim in court asking the court to dissolve the concentration. This also applies to the cases where concentrations were performed in breach of the conditions imposed by the Council.

Consequences of implementing a transaction despite obligation to suspend until clearance
The consequences are the same as for failure to notify.
Consequences of implementing transaction despite prohibition decision
The consequences are the same as for failure to notify
Stages
First Stage – 40 working days
Competition Council must examine the complete notification and issue a decision.
Second Stage – 90 working days
Competition Council must perform the investigation procedure if after the examination of the complete notification the Competition Council issues a decision on initiating an investigation.
Under certain conditions the above timeframes may be extended.
Foreign-to-foreign mergers caught?
Yes, if the merger outside Moldova would have an impact on competition in the Moldovan market, provided that the above thresholds are met.
Treatment of JVs
If a JV is created with the object or effect of coordinating the competition behavior of undertakings that remain independent such arrangement must be viewed as an anti-competitive agreement and not as an economic concentration.

Otherwise, fully-functional JVs shall be viewed as economic concentrations and shall be notified.
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Montenegro
Authority / Source
  • The Agency for Protection of Competition
  • The Law on Protection of Competition (Official Gazette of Montenegro, No. 44 / 12)

Mandatory / Voluntary
Mandatory
When to notify?
The application for approval must be filed within 15 days from the date of the signing of the agreement, announcement of the public offer or acquisition of control. The application for approval can be also filed in advance (when market participants show serious intent to conclude the agreement).
Threshold(s)
  • Combined annual revenue in the market of Montenegro of at least two parties to the concentration during the preceding accounting year exceeds EUR 5 m; or
  • combined annual global revenue of all parties to the concentration during the preceding accounting year exceeds EUR 20 m (provided that at least one party to the concentration turnover in Montenegro exceeds EUR 1 m).

Obligation on whom
Participating companies. In cases of total or partial control over market participant(s), the application for approval is filed by the party acquiring control, except in case of joint venture (JV’s) when the application is filled in by all participants jointly.
Consequences of failure to notify
  • Fines ranging from 1% to 10% of the total annual revenue realized in the preceding accounting year for the participant who failed to fill in the application for approval or who doesn’t suspend the concentration process until the completion of the procedure before the Agency;
  • fines ranging from EUR 4,000 to EUR 40,000 for the participant in the concentration who failed to file the application for approval in timely manner.

Consequences of implementing a transaction despite obligation to suspend until clearance
Fines ranging from 1% to 10% of the total annual revenue realized in the preceding accounting year.
Consequences of implementing transaction despite prohibition decision
Fines ranging from 1% to 10% of the total annual revenue realized in the preceding accounting year
Stages
First Stage / Second Stage
Although a two phased merger review system has been adopted (summary and investigation proceedings), in practice this is of no significance as the deadlines for issuing the decisions are the same.
The Agency must render:

  • within 25 working days, decision on dismissal of the decision based on procedural grounds;
  • within 105 working days, a decision unconditionally approving the concentration; or
  • within 125 working days a decision approving the concentration subject to conditions; or
  • within 130 working days a decision prohibiting the concentration when the concentration creates or strengthens a dominant market position and consequently prevents, restricts or distorts competition.

Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers are caught if the thresholds are met.
Treatment of JVs
JVs fall within the scope of the merger control rules if the thresholds are met.
Up to date as of 1 September 2014

The Netherlands
Authority / Source
  • Authority: The Authority Consumer & Market (Autoriteit Consument & Markt, ACM)
  • Source: The Competition Act (Mededingingswet), entered into force on 1 January 1998.

Mandatory / Voluntary
Mandatory.
When to notify?
No deadline for notification, but clearance needed before implementation.
Threshold(s)
Concentrations must be notified, if, in the previous calendar year:

  • the combined aggregate worldwide annual turnover of the undertakings concerned exceeded EUR 150 m; and
  • the aggregate domestic turnover (in the Netherlands) of each of at least two of the undertakings concerned is at least EUR 30 m.

Obligation on whom
  • Either of the undertakings concerned may notify the concentration;
  • only the acquirer is responsible for notification.

Consequences of failure to notify
  • Possible fine of up to EUR 450,000 or 10% of the relevant worldwide (group) turnover of the undertaking concerned in the previous calendar year, whichever is the higher.
  • The ACM may order the parties to notify the implemented concentration.
  • The implemented concentration is void until it has been notified and clearance granted.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Possible fine of up to EUR 450,000 or 10% of the relevant worldwide (group) turnover of the undertaking concerned in the previous calendar year, whichever is the higher.
  • The ACM may order the parties to cease implementation of the concentration and / or unwind any implementation which has already taken place.
  • The concentration is void until clearance has been granted.

Consequences of implementing a transaction despite prohibition decision
  • Possible fine of up to EUR 450,000 or 10% of the relevant worldwide (group) turnover of the undertaking concerned in the previous calendar year, whichever is the higher.
  • The ACM may order the parties to unwind the concentration.
  • The concentration is void.

Stages
First Stage – four weeks
The ACM must decide within four weeks whether to clear the concentration or require the parties to apply for a licence (full investigation).
Second Stage – 13 weeks
The ACM must complete its investigation within 13 weeks of the date of commencement of the full investigation.

n.b. The ACM may “stop the clock”, which will extend the stages.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers can be caught if the thresholds are met. No physical presence is required.
Treatment of JVs
Can be caught by the regime if the joint venture will perform on a lasting basis all the functions of an autonomous economic entity.
Up to date as of 22 August 2014

Norway
Authority / Source
  • Norwegian Competition Authority (Konkurransetilsynet)
  • The Competition Act (Act of 5 March 2004 No. 12 on Competition between undertakings and Control with concentrations), last amended on 14 June 2013, in force from 1 January 2014.

Mandatory / Voluntary
Mandatory
When to notify?
Before implementation of the concentration. Implementation of a concentration which is subject to mandatory notification (see notification thresholds below) is prohibited before the merger/acquisition has been notified and reviewed by the NCA. Non-opposition procedure. Full standstill applies (implementation is prohibited).
Threshold(s)
Mandatory notification if:

  • the undertakings concerned have a combined annual turnover in Norway of at least NOK 1 bn (approx. USD 161 m, or approx. EUR 122 m) and
  • each of at least two of the undertakings concerned have an annual turnover in Norway of NOK 100 m (approx. USD 16.1 m, or approx. EUR 12.2 m) or more.


In addition, the NCA may decide to impose a notification duty, even if the concentration does not meet the thresholds, during a period of up to three months after control has been acquired or the final agreement has been signed (whichever occurs first). So far, this has happened once. The NCA may also intervene in transactions where control is not obtained by the acquirer, but no standstill applies unless a change of control takes place.
Obligation on whom
Mergers / JVs: both / all parties. Acquisitions: the acquiring party / parties.
Consequences of failure to notify
  • Notification will be required; and
  • administrative fines – up to 1% of the undertaking’s world-wide annual turnover; and/or
  • criminal fines (no limit) and/or imprisonment for up to three years (individuals only).

Consequences of implementing a transaction despite obligation to suspend until clearance
Administrative fines, in practice of at least NOK 200,000 (approx. USD 32,000, or approx. EUR 25,000).
Consequences of implementing transaction despite prohibition decision
  • Administrative fines – up to 10% of the undertaking’s worldwide annual turnover; or
  • criminal fines (no limit) and / or imprisonment for up to three years (individuals only); and / or
  • periodic penalty payments until the situation has been rectified.

Stages
Phase I
The NCA may clear the transaction in Phase I within 25 business days (or earlier) following receipt of the notification, with the first day being the first business day after receipt. If remedies are offered by the parties at latest on the 20th business day, the deadline for conditional clearance in Phase I extends to 35 business days. Notice of possible intervention must be issued by the NCA in Phase I within 25 business days following receipt of the notification or, if remedies are offered by the parties in Phase I at latest on the 20th business day, within 35 business days. A notice of possible intervention will bring the merger control proceedings over to Phase II.
Phase II
A reasoned preliminary decision (“statement of objections”) must be submitted by the NCA to the parties no later than 70 business days after receipt of the notification, followed by a deadline of 15 business days for the parties to comment. If remedies are offered after the 55th business day, the deadline may be prolonged. The NCA must issue a decision within 15 business days following receipt of the parties’ comments. If the parties have offered remedies as part of their comments to the NCA’s reasoned preliminary decision, the deadline for the decision may be extended by another 15 business days (up to 30 business days in total).
Appeals
Appeals must be lodged with the NCA within 15 business days. The NCA forwards the appeal to the Ministry of Trade and Fisheries (Nærings- og fiskeridepartementet) within 15 business days following receipt, and the Ministry issues an appeal decision within 60 business days following receipt of the appeal from the NCA.
Foreign-to-foreign mergers caught?
Yes. All transactions which affect or potentially affect the Norwegian market are caught if thresholds are met.
Treatment of JVs
Formation of or acquisition of joint control in a JV must be notified to the NCA insofar as the turnover thresholds are met and the JV is exercising the functions of an autonomous economic entity on a lasting basis (“full-function”).
Up to date as of 8 September 2014
EUR / USD exchange rate as of 8 September 2014

Poland
Authority / Source
  • President of the Office for Competition and Consumer Protection
    (Prezes Urzedu Ochrony Konkurencji i Konsumentów)
  • Act on Competition and Consumer Protection (2007)
  • A major amendment to the Act (also affecting merger control rules) is pending and will come into force on 18 January 2015.

Mandatory / Voluntary
Mandatory
When to notify?
No deadline, but no implementation is permitted until clearance.
Threshold(s)
In the previous financial year:

  • the combined aggregate worldwide turnover of all parties exceeds EUR 1 bln; or
  • the combined aggregate turnover generated in Poland by all parties exceeds EUR 50 m;

unless
the target company’s group turnover in Poland did not exceed EUR 10 m in each of the two preceding financial years.
Acquisition of part of an entity’s assets without changing control over the entity is subject to notification if the turnover generated by these assets in Poland in any of the two financial years preceding the notification exceeded EUR 10 m.
Obligation on whom
  • Acquisitions of control or assets: the acquiring party;
  • mergers or the creation of a new company by at least two business entities: all merging business entities;
  • where the concentration is carried out by a parent through at least two subsidiaries, or a special purpose vehicle: the parent company.

Consequences of failure to notify
  • Fines of up to 10% of the revenues generated in the financial year preceding the year of imposing the fine.
  • Further fines of up to 50 times the average remuneration announced by the Polish Central Statistical Office on persons managing a business entity.

The President of the Office can order a de-merger, i.e. to take all the necessary steps to reverse the effects of the implemented merger and restore competition on the market, in particular by: ordering the division of merged business entities on specified terms; ordering the transfer of assets or the transfer of shares in one or more subsidiaries.
Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines of up to 10% of the revenues generated in the financial year preceding the year of imposing the fine;
  • a de-merger as described above.

Consequences of implementing transaction despite prohibition decision
  • Same fines as described for a failure to notify above;
  • a de-merger as described above.


In addition, the President of the Office can impose fines of up to EUR 10,000 for each day of delay in fulfilling and implementing its decisions, including decisions:

  • setting out conditional clearance;
  • requiring any of the actions aiming at a de-merger as described above;
  • or for delay in implementing any requirements contained in a judgment of the Antimonopoly Court.

Stages
One-stage proceedings:

Decision must be within two months from receipt of notification (however, the two-month time limit does not include the waiting time for providing supplementary information which may be requested).
Foreign-to-foreign mergers caught?
Can be caught if they have or may have an effect on competition in Poland, generally when at least one of the groups involved in the concentration has sales into Poland or has a Polish subsidiary.
Treatment of JVs
The creation of a joint venture is subject to Polish merger control if it involves the establishment of a joint business entity (even if the entity is not a full-function joint venture).
Up to date as of 1 September 2014

Portugal
Authority / Source
  • Portuguese Competition Authority (PCA) (Autoridade da Concorrência)
  • Law No. 19 / 2012, of 08 May 2012

Mandatory / Voluntary
Mandatory
When to notify?
There are is no specific term for submitting the notification to the PCA. However, the legal effects of any acts of implementation of the concentration are, by law, conditional on receiving the prior approval of the PCA. A transaction can be notified prior to the date of conclusion of a binding agreement (if the parties can demonstrate a serious intention to enter into an agreement) and has to be notified following the conclusion of a binding agreement or of the preliminary announcement of a public offer of acquisition or exchange or, in the case of a concentration arising from a public tender, after the tender selection and before entering into the public contract.
Threshold(s)
A concentration has to be notified where:

  • the parties acquire, create or reinforce a market share equal to or greater than 50% of the domestic market in a specific product or service, or in a substantial part thereof; or
  • the parties acquire, create or reinforce a market share equal to or greater than 30% of the domestic market in a specific product or service, or in a substantial part thereof, where the individual turnover, in Portugal, in the previous financial year, of at least two of the undertakings concerned in the concentration is greater than EUR 5 m, net of taxes directly related to such a turnover; or
  • the parties have an aggregate turnover in Portugal, in the previous financial year, of more than EUR 100 m, net of taxes directly related to such a turnover, as long as the turnover in Portugal of at least two of these undertakings is above EUR 5 m.

Obligation on whom
The notification of a concentration to the PCA is made:

  • jointly by the parties involved in the merger, for a newly created joint venture or for acquisition of joint control over the whole or part of one or more undertakings;
  • individually by the party acquiring exclusive control of the whole or part of one or more undertakings.

Consequences of failure to notify
  • All acts implementing the concentration are considered ineffective;
  • Ex officio proceedings may be initiated, in case of non-notification, within five years;
  • The PCA can take whatever measures necessary to restore the pre-merger scenario and apply a periodic penalty payment (with a maximum of 5% of the average daily turnover);
  • Failure to notify is an administrative offence, subjects the company and the members of the board of directors (or equivalent) to a fine of up to 10% of the turnover earned in the previous year.

Consequences of implementing a transaction despite obligation to suspend until clearance
Gun jumping subjects the company and the members of the board of directors (or equivalent) to a fine up to 10% of the turnover and the PCA may take any appropriate measures to restore the pre-merger scenario.
Consequences of implementing transaction despite prohibition decision
  • Implementation of the transaction in the event of a prohibition decision is an administrative offence which subjects the company and the members of the board of directors (or equivalent) to a fine of up to 10% of the turnover;
  • the application of a fine does not release the party(ies) from complying with the prohibition decision;
  • the members of the board of directors (or equivalent), who knowingly participate in the implementation of the transaction in spite of the prohibition decision are liable to criminal prosecution.

Stages
First Stage – 30 working days
Within 30 working days of receiving complete notification, the PCA has to issue either a (a) non-jurisdiction decision or (b) a non-opposition decision (if the concentration is not likely to create a significant impediment to effective competition) (c) or a decision to initiate an in-depth investigation. Failure to issue a decision within this term will be regarded as tacit approval.

The PCA may issue information requests that interrupt the term (standard term for reply is 10 working days).
Second Stage – 90 working days
Within 90 working days of receiving complete notification, the PCA has to issue either (a) a decision not to oppose the concentration (as was notified or subsequently modified) if it is not likely to create a significant impediment to effective competition or (b) to prohibit the concentration. Failure to issue a decision within this term will be regarded as tacit approval.
Foreign-to-foreign mergers caught?
Yes, if the thresholds are met and the transaction has an effect on competition in Portugal. No physical presence is required.
Treatment of JVs
The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a concentration that can be subject to merger control.
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Romania
Authority / Source
  • Competition Council
  • Competition Law 1996 (21 / 1996)

Mandatory / Voluntary
Mandatory
When to notify?
Notification to the Competition Council prior to implementation of the transaction and after the date of signature of binding agreements, the public bid or the takeover of the controlling shareholding.

In exceptional circumstances, notification can be made before signature of binding agreements if the undertakings concerned demonstrate a good faith intention to conclude an agreement.
Threshold(s)
Mandatory notification where:

  • the combined worldwide turnover of the undertakings involved exceeds EUR 10 m; and
  • the domestic turnover (in Romania) of each of at least two of the undertakings involved exceeds EUR 4 m.

Obligation on whom
In the case of acquisition of sole / joint control, the obligation is on the undertaking acquiring control. In the case of a merger, the obligation lies with the parties to the merger.
Consequences of implementing a transaction despite obligation to suspend until clearance
Fine of up to 10% of the aggregate turnover of the undertaking concerned.
Consequences of implementing transaction despite prohibition decision
Fine of up to 10% of the aggregate turnover of the undertaking concerned.

Furthermore, the Competition Council can require the involved undertakings to liquidate the resulting entity or impose any other measure in order to re-establish the initial situation of the parties prior to implementation.
Stages
Scope of the law – 30 days
Within 30 days of confirmation by the Competition Council that the notification is complete and effective, it must inform the applicant if the concentration does not fall within the scope of the law.
First Stage – 45 days
Within 45 days of confirmation by the Competition Council that the notification is complete and effective, it must authorise (a non-objection decision), or open second-stage proceedings.
Second Stage – five months
The second-stage proceedings must be concluded within five months of confirmation by the Competition Council that the notification is complete and effective.
Foreign-to-foreign mergers caught?
Can be caught where the undertakings are active on the Romanian market. No physical presence is required.
Treatment of JVs
Can be caught where they perform on a lasting basis all the functions of an autonomous economic entity, without leading to the coordination of the competitive behaviour of the parents between themselves or between them and the JV.
Up to date as of 1 September 2014

Russia
Authority / Source
  • The Federal Antimonopoly Service of Russia (the “FAS”) and its regional offices.
  • The Federal Law No. 135-FZ dated 26 July 2006 “On Protection of Competition”.

Mandatory / Voluntary
Mandatory
When to notify?
Pre-transaction clearance – before the closing, no specific rules regarding the time limits but the clearance is valid for 12 months.

Intragroup transactions may be subject to specific clearance proceedings involving publication of the group organisational structure 1 month before the closing, and subsequent post-transaction notification to be submitted to the FAS within 45 days after closing.
Threshold(s)
Pre-transaction clearance
  • The aggregate worldwide value of assets of the acquirer’s group and the target’s group exceeds RUB 7 bn (approx. EUR 150 m); or the aggregate worldwide revenue of the acquirer’s group and the target’s group of companies from the sale of goods, works and services during the last calendar year exceeds RUB 10 bn (approx. EUR 210 m); and
  • the aggregate worldwide value of assets of the target’s group of companies exceeds RUB 250 m (approx. EUR 5.3 m); or
  • the acquirer, the target or any company in their group is included in the FAS Register of Business Entities with a Market Share Exceeding 35% (mostly applicable to Russian companies).

Special thresholds apply to financial organisations.
Obligation on whom
As a general rule, on the acquirer, on the founders of a new company (if the capital of the new company is paid by contributions-in-kind such as fixed and intangible assets or shares in other companies).
Consequences of failure to notify
Fines up to RUB 500,000 (approx. EUR 10,500); the General Director may also incur administrative liability (fines up to RUB 20,000, approx. EUR 425).

Possibility for the FAS to unwind the transaction through the court, if it has resulted in, or may lead to, a restriction of competition in the relevant market.
Consequences of implementing a transaction despite obligation to suspend until clearance
The same as above.
Consequences of implementing transaction despite prohibition decision
The same as above.
Stages
First Stage – 30 calendar days (general term)
Consideration of the application.
Second Stage
The general term of examination of the pre-transaction application may be extended by the FAS for an additional period of up to two months if further information is requested; or for an additional period of up to nine months if the FAS concludes that certain conditions should be fulfilled by the parties to the transaction before the clearance.
Foreign-to-foreign mergers caught?
Yes, if they may impact competition in Russia. More specifically, such transactions are subject to clearance if they involve the transfer of more than 50% of shares (participatory interests) in foreign companies that generate turnover on the Russian market in an amount that exceeds RUB 1 bn (approx. EUR 22.21 m) in the year preceding “the date of transaction”; acquisition of rights to determine such a foreign company’s business activities or rights to act as its sole executive body is also caught by the above rule. In addition, acquisition of shares in a non-Russian holding company that owns shares in the Russian subsidiary, may be caught by Russian merger control rules as acquisition of indirect control over the Russian subsidiary.
Treatment of JVs
General rules apply. Depending on the JV structure merger clearance may be required for the transfer of assets or contribution of shares to the JV. In June 2013 the FAS elaborated Guidelines on the assessment of JV projects that cover different aspects of JV functioning (including assessment of non-competition clauses).
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Serbia
Authority/Source
  • Competition Protection Commission
  • Competition Protection Act 2009 (as amended in 2013)

Mandatory / Voluntary
Mandatory
When to notify?
Concentration notification must be filed 15 days after the first of the following activities occurs: signing of an agreement, announcement / closing of a public offer or acquisition of control.

Concentration notification can also be filed in advance (when market participants show serious intent to conclude an agreement).
Threshold(s)
  • combined aggregate annual revenue of all parties to the concentration made on the world-wide market in the preceding year exceeds EUR 100 m, provided that at least one party to the concentration has revenue on the market of the Republic of Serbia of more than EUR 10 m; or
  • combined aggregate annual revenue of at least two parties to the concentration made on the market of the Republic of Serbia in the preceding year is higher than EUR 20 m, provided that at least two parties to the concentration have revenue on the market of the Republic of Serbia of more than EUR 1 m each.

Obligation on whom
  • Acquirer; or
  • Participants in a joint venture.

Consequences of failure to notify
  • fines for the party obliged to notify, which may range from EUR 500 to EUR 5,000 for each day of failure to notify.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines for participants in the transaction, which may range up to 10% of the total annual revenue on the market of the Republic of Serbia in the previous accounting year.
  • Imposition of divestment obligation on the participants in the transaction.

Consequences of implementing transaction despite prohibition decision
See “Consequences of implementing a transaction despite obligation to suspend until clearance”.
Stages
First Stage – one month
The Commission must decide whether to clear the concentration or commence a full investigation within one month from the date of receipt of the complete notification.
Second Stage – four months
The Commission has to clear, conditionally clear or oppose to the concentration within four months from the date of commencement of the full investigation.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers will be caught if the thresholds are met.
Treatment of JVs
JVs fall into the scope of merger control. Co-operative JVs, however, are subject to stricter provisions of CA referring to forbidden agreements.
Up to date as of 1 September 2014

Slovakia
Authority / Source
  • Antimonopoly Office of the Slovak Republic
  • Competition Protection Act (No.136 / 2001), as amended by Amendment No. 465 / 2002 Coll., Amendment No. 204 / 2004 Coll., Amendment No. 68 / 2005 Coll., Amendment No. 165 / 2009
    Coll., Amendment No. 387 / 2011 Coll. Amendment No. 151/2014 Coll.

Mandatory / Voluntary
Mandatory
When to notify?
Notifications must be filed with and approved by the Antimonopoly Office before the concentration is implemented but after the event giving rise to the concentration, e.g. conclusion of the contract, announcement of acceptance of a bid in a public tender, announcement of a takeover bid or announcement by the European Commission to the undertaking that the Antimonopoly Office will deal with the matter. An intention of concentration can also be notified to the Antimonopoly Office for clearance. It must be supported by a written reasoning and written documents substantiating the material facts associated with the concentration.
Threshold(s)
Notification is mandatory if:

Either:
  • the parties’ combined Slovak turnover is at least EUR 46 m; and
  • each of at least two of the parties has Slovak turnover of at least EUR 14 m.

Or:
  • the Slovak turnover of at least one party* is at least EUR 14 m; and
  • the aggregate worldwide turnover of at least one other party is at least EUR 46 m.

* For acquisitions of control, this threshold applies to the turnover of the target and its group; for standard mergers and for transactions creating a full function joint venture, this threshold applies to any party.
Obligation on whom
Acquisitions / takeovers: the acquirer.

Merger or amalgamation of two or more independent undertakings / acquisition of joint control / decision by state authority on merger or amalgamation of undertakings pursuant to special regulations: jointly by the parties.
Consequences of failure to notify
  • A fine of up to 10% of turnover in the previous business year may be imposed on the parties.
  • If the concentration would have been prohibited had it been notified, the Antimonopoly Office may impose the following measures: (i) to restore the original conditions of competition which existed before the concentration took effect, in particular the obligation to divide the merged undertakings or to reassign the gained rights; in such cases, the concentration may be considered null and void; or (ii) to require anything else to be done which will fulfil the decision of the Antimonopoly Office.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • the same as for failure to notify

Consequences of implementing transaction despite prohibition decision
  • the same as for failure to notify

Stages
There are two stages to Antimonopoly Office clearance.

The Antimonopoly Office grants clearance based on notifications which do not raise competition concerns within 25 working days following the date of delivery of complete notification of concentration.

If the concentration requires in-depth analysis due to identification of affected markets, identification of competition concerns, the Antimonopoly Office inform the notifying party of this in writing within the said period of 25 working days, in which case the Antimonopoly Office issues a decision on concentration within 90 working days after the date on which such written notification was delivered.

The Office may extend these time limits by a total of no more than 30 working days subject to a reasoned request from the notifying party or with its consent.

The time limit begins the day after the date of delivery of a notification but there is a standstill if further information and data is required.
Foreign-to-foreign mergers caught?
Caught where the threshold criteria (including local nexus) are met; no physical presence required.
Treatment of JVs
Joint ventures are caught if the joint venture is jointly controlled by two or more undertakings and the respective joint venture performs all functions of an independent economic entity on a lasting basis (full function joint venture) and the threshold criteria are met.
Up to date as of 1 September 2014

Slovenia
Authority / Source
  • Slovenian Competition Protection Agency (the Agency)
  • The Prevention of the Restriction of Competition Act (Official Gazette No. 36 / 2008, 40 / 2009, 26 / 2011, 57 / 2012, 39 / 2013 (decision of the Constitutional Court), 63 / 2013, 33 / 14 ZPOMK-1)

Mandatory / Voluntary
Mandatory
When to notify?
Prior to implementation, although no later than 30 days after conclusion of the agreement, announcement of the public bid or acquisition of control.
Threshold(s)
Notification required if:

  • the aggregate annual turnover in the Slovenian market of all the undertakings concerned, together with other members of their group, exceeded EUR 35 m in the preceding business year; and
  • the annual turnover of the target in the Slovenian market, together with other members of its group, exceeded EUR 1 m in the preceding business year or the annual turnover of each of at least two of the concerned undertakings in the joint venture in the Slovenian market, together with other members of their group, exceeded EUR 1 m in the preceding business year.

Obligation on whom
Merger or acquisition of joint control: jointly.

All other cases: the person or undertaking acquiring control.
Consequences of failure to notify
  • A fine of up to 10% of the annual worldwide turnover of all the undertakings concerned, including other members of their group, in the preceding business year;
  • the responsible individual will be fined between EUR 5,000 and 10,000;
  • prohibition on exercising voting, managing, property and other rights and obligations resulting from the concentration.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • A fine of up to 10% of the annual worldwide turnover of all the undertakings concerned, including other members of their group, in the preceding business year;
  • the responsible individual will be fined between EUR 5,000 and 10,000;
  • actions performed contrary to the prohibition of exercising rights and obligations resulting from the concentration until the Agency renders a clearance decision are null and void.

Consequences of implementing transaction despite prohibition decision
  • A fine of up to 10% of the annual turnover of all the undertakings concerned, including other members of their group, in the preceding business year;
  • the responsible individual will be fined between EUR 5,000 and 10,000;
  • dissolution of the concentration, so as to restore the situation prevailing prior to implementation of the concentration.


In severe circumstances (major damage and / or received illegal means etc.) in the above mentioned cases the responsible individual can be fined between EUR 15,000 and 30,000 and a natural person controlling at least one of the undertakings can be fined between EUR 5,000 and 15,000.
Stages
First Stage – 25 working days
Decision on whether an examination is required must be issued within 25 working days after receiving full notification.

Second Stage – 60 working days
Substantive review must be completed within 60 working days of the date on which the proceedings are initiated.
Foreign-to-foreign mergers caught?
Caught if they affect competition on the Slovenian market by meeting thresholds outlined above.
Treatment of JVs
Caught if the JV acts as an autonomous economic entity on a lasting basis.
Up to date as of 1 September 2014

Spain
Authority / Source
  • The National Markets and Competition Commission (“NMCC”)
  • The Competition Defence Act (Act 15 / 2007), developed by Royal Decree 261 / 2008 that approves the Defence of Competition Regulation

Mandatory / Voluntary
Mandatory
When to notify?
Prior to completion of the concentration.
Threshold(s)
Mandatory notification where:

  • a share equal to or above 30% of a relevant market within Spain is acquired or increased;

    ‘De minimis exemption‘: Even if the 30% market share threshold is met, the transaction will be exempt from compulsory notification provided that two conditions are met: (i) the turnover of the target must not exceed EUR 10 m, and (ii) the undertakings concerned do not have an individual or joint market share equal to or greater than 50% of a relevant market within Spain;

    or
  • (i) the aggregate domestic turnover (in Spain) of the undertakings involved exceeds EUR 240 m in the preceding financial year, and (ii) each of at least two of the participating entities has a domestic turnover (in Spain) of at least EUR 60 m.

Obligation on whom
  • Mergers: participating companies.
  • Acquisitions of control: acquirer(s).
  • Joint venture or common acquisition of control: companies acquiring control.

Consequences of failure to notify
  • NMCC may impose a fine of up to 5% of the aggregate turnover in the preceding financial year in Spain.
  • Possible fines of up to EUR 12,000 for each day of delay in notifying after a 20-day period granted by the NMCC for submission of a notification.

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Fines may be imposed on each of the infringing companies of up to 5% of their respective domestic turnover (in Spain) for the preceding financial year.

Consequences of implementing transaction despite prohibition decision or of failing to fulfil conditions or obligations
  • Fines may be imposed on each of the infringing companies of up to 10% of their respective domestic turnover (in Spain) for the preceding financial year;
  • in case of prohibition, the concentration would not be void, although coercive fines may be imposed until the infringing undertakings unwind the concentration.

Stages
First Stage – one month
NMCC has one month to decide whether to open a second-stage investigation.
Second Stage – two months
NMCC must adopt a resolution within two months following a decision to open a second-stage.
Government control – one month and 15 days
If the resolution of the NMCC prohibits the concentration or submits its authorization to the fulfilment of conditions or obligations, the Minister of Economy and Finance may refer the case to the Council of Ministers within 15 days upon receipt of the resolution issued in the second phase.
Should this be the case, the Council of Ministers has one additional month to decide on the case. The Council of Ministers may confirm the resolution or authorize it with or without conditions.
Foreign-to-foreign mergers caught?
Caught if thresholds are met.
Treatment of JVs
Can be caught where they perform on a lasting basis all the functions of an autonomous economic entity.
Up to date as of 1 September 2014

Sweden
Authority / Source
  • The Swedish Competition Authority (Konkurrensverket)
  • The Swedish Competition Act (SFS 2008:579)

Mandatory / Voluntary
Mandatory
When to notify?
No filing deadline
Threshold(s)
Mandatory notification where:

  • the combined aggregate turnover in Sweden of all parties exceeds SEK 1 bn (approx. EUR 115 m) and
  • each of at least two of the parties has turnover in Sweden exceeding SEK 200 m (approx. EUR 23 m) in the preceding financial year.

If only the first threshold is met, the Competition Authority can require notification. The parties can also notify a concentration voluntarily if only the first threshold is met.
Obligation on whom
The party / parties acquiring control.
Consequences of failure to notify
No fines are imposed. However, the Competition Authority may order the parties to notify subject to an administrative fine.
Consequences of implementing a transaction despite obligation to suspend until clearance
No fines are imposed. However, the Competition Authority may order the parties to observe the standstill period, subject to an administrative fine. (Please note that standstill is only mandatory in Phase I and can be ordered in Phase II-VI if this is motivated by a public interest stronger than the inconvenience caused by such a measure).
Consequences of implementing transaction despite prohibition decision
No fines are imposed. However, any transaction forming part of the concentration is void. Failure to observe a prohibition of a concentration or an order to make a divestment or to adopt some other measure in order to remove competition concerns may be subject to an administrative fine.
Stages
Phase I
The Competition Authority must decide within 25 working days whether to clear the concentration or to start a Phase II investigation. If the parties offer commitments, this period may be extended to 35 working days. The Competition Authority may also “stop the clock” if the parties have not supplied information required by the Authority for its investigation.
Phase II
Within three months from the day of the decision to initiate a Phase II investigation the Competition Authority must grant clearance or submit an application to Stockholm City Court requesting the court to prohibit the concentration. This three-month period may be extended with the parties’ consent or if there are exceptional reasons for such an extension. The Competition Authority may also “stop the clock” if the parties have not supplied information required by the Authority for its investigation.
Phase III
Stockholm City Court must take a decision within six months from the day an application is submitted to the Court. The six-month period may be extended with the parties’ consent or if there are exceptional reasons for such an extension.
Phase IV
The Stockholm City Court decision may be appealed to the Swedish Market Court (leave to appeal is required). The Swedish Market Court has three months from the day the right to appeal expired to make a decision. This time limit may be extended if the parties agree or if there are exceptional reasons for such an extension.

A prohibition may not be imposed more than two years after a concentration has occurred.
Foreign-to-foreign mergers caught?
Yes, if the turnover thresholds are met.
Treatment of JVs
Full-function joint ventures are subject to the merger control rules.
Up to date as of 1 September 2014
Euro exchange rate as of 2 January 2014

Switzerland
Authority / Source
The Federal Competition Commission (Wettbewerbskommission)
The Act of 6 October 1995 on Cartels and other Restraints of Competition (latest amendments became effective on 1 January 2011), and the Regulation of 17 June 1996 on the control of concentrations between undertakings.
Mandatory / Voluntary
Mandatory
When to notify?
Prior to implementation
Threshold(s)
Notification required before implementation of the concentration where, in the financial year preceding the concentration, both the following thresholds are met:

  • the undertakings concerned have (i) a combined aggregate worldwide turnover of at least CHF 2 bn (approx. EUR 1.62 bn), or (ii) a combined aggregate domestic turnover of at least CHF 500 m (approx. EUR 405 m); and
  • at least two of the undertakings concerned each have an aggregate domestic turnover of at least CHF 100 m (approx. EUR 81 m).

Specific thresholds apply to banks and insurance companies.

Irrespective of whether the thresholds are met, notification is mandatory if one of the undertakings concerned has been held to be dominant in a market in Switzerland in a final and non-appealable decision, and if the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof.
Obligation on whom
Mergers: both parties. Acquisitions of control: the party / parties acquiring control.
Consequences of failure to notify
  • Legal effects of concentration remain suspended;
  • fine of up to CHF 1 m (approx. EUR 810,000);
  • fine of up to 10% of combined domestic turnover in the event of repeated failure to comply with a condition or obligation;
  • criminal penalties on individuals of up to CHF 20,000 (approx. EUR 16,200).

Consequences of implementing a transaction despite obligation to suspend until clearance
  • Legal effects of concentration remain suspended; concentration can become void;
  • fine of up to CHF 1 m (approx. EUR 810,000);
  • fine of up to 10% of combined domestic turnover in the event of repeated failure to comply with a condition or obligation;
  • criminal penalties on individuals of up to CHF 100,000 (approx. EUR 81,000) for intentional violation of a decision of the Competition Commission or an appeals body;
  • criminal penalties on individuals of up to CHF 20,000 (approx. EUR 16,200) for intentional violation of other decisions relating to a concentration.

Consequences of implementing transaction despite prohibition decision
  • The concentration is void;
  • fine of up to CHF 1 m (approx. EUR 810,000);
  • fine of up to 10% of combined domestic turnover in the event of repeated failure to comply with a condition or obligation;
  • criminal penalties on individuals of up to CHF 100,000 (approx. EUR 81,000) for intentional violation of a decision of the Competition Commission or an appeals body;
  • criminal penalties on individuals up to CHF 20,000 (approx. EUR 16,200) for intentional violation of other decisions relating to a concentration;
  • may order the unwinding, etc. of the concentration.

Stages
First Stage - one month
The Competition Commission has one month in which to clear the concentration or decide that a second-stage investigation will be opened. Failure to make a decision within the time limit results in the concentration being deemed cleared.
Second Stage - four months
The final decision of the Competition Commission must be issued within four months of the date of the decision to open a second-stage investigation. Failure to make a decision within the time limit results in the concentration being deemed cleared.
Foreign-to-foreign mergers caught?
Caught provided the thresholds are met.
Treatment of JVs
Can be caught if the JV exercises the functions of an independent business entity on a permanent basis.
Up to date as of 1 September 2014
Exchange rate as of 2 January 2014

Turkey
Authority / Source
  • Competition Board

Mandatory / Voluntary
Mandatory if the notification criteria are met (i.e. change of control and turnover thresholds).
When to notify?
The approval has to be obtained before the transaction is closed. The Competition Board reviews a proposed transaction that does not raise any substantive question, in four to six weeks, on average. Hence, it is advisable to make the notification at least four to six weeks prior to the intended closing date.
Threshold(s)
Notification is mandatory if:

  • aggregated turnover of the transaction parties in Turkey exceeds TRY 100 m (approx. EUR 45 m), and turnovers of at least two of the transaction parties in Turkey each exceed TRY 30 m (approx. EUR fourteen million), or
  • In acquisition transactions the asset or the activity that is subject to the acquisition, in merger transactions at least one of the transaction parties has a turnover in Turkey exceeding TRY 30 m (approx. EUR 14 m) and the global turnover of at least one of the remaining transaction parties exceeds TRY 500 m (approx. EUR 225 m)

Obligation on whom
In case of an acquisition, the responsibility to notify lies with the acquirer. Otherwise, (in cases of mergers and joint ventures) either party is responsible for notifying. A notification done by either party relieves the other one from its notification duty. The notifying party is required to inform its counterparty regarding the submission.
Consequences of failure to notify
  • Closing a transaction that is subject to the approval of the Turkish Competition Board prematurely will incur an administrative fine of 0.1% of the turnover generated in the financial year preceding the decision to impose such fine.


The Competition Board will review the transaction (ex officio or upon request of the parties) after becoming aware of the transaction. If the Board finds that a transaction which had been closed instead of being suspended until the clearance decision qualifies as an illegal and prohibited transaction under the Competition Law, the Board may:

  • impose an administrative fine on each party (for an acquisition transaction on the acquirer only) of up to 10% of the turnover of the corresponding party that was generated in the financial year preceding the decision to impose such fine;
  • fine the managers or employees who are determined to have played an instrumental role in the competition law infringement with an administrative fine of up to 5% of the penalty that is imposed on the undertaking due to the same infringement;
  • impose an administrative fine on each party (for an acquisition transaction on acquirer only) of 0.1% of the turnover of the corresponding party that was generated in the financial year preceding the decision to impose such fine;
  • decide to terminate the merger or acquisition;
  • decide for the abolition of all factual states created by the realisation of the unapproved transaction;
  • decide the shares and properties to be returned to their previous owners, or if this is not possible, to transfer these assets to third parties.
  • Order other measures which the Competition Board may deem appropriate.


Furthermore, the transaction will be void.
Consequences of implementing a transaction despite obligation to suspend until clearance
All notifiable transactions are suspended until the approval decision of the Turkish Competition Board. Accordingly, Turkish Competition Law does not have separate rules for failure to notify and consummating the transaction without required approval. For details of the consequences of either demeanor, please refer to the section on the consequences of failure to notify, above.
Consequences of implementing transaction despite prohibition decision
If the Board discovers that the parties have consummated a transaction which the Competition Board had previously found to be an illegal and prohibited transaction under the Competition Law, the Board may impose a daily administrative fine on each party in addition to the above listed measures to be imposed upon failure to notify (for an acquisition transaction on the acquirer only) of 0.05% of the turnover of the corresponding party that was generated in the financial year preceding the decision to impose such fine.
Stages
First Stage - 30 calendar days
If the Board does not respond to or take any action regarding a notification within 30 days of the date of the filing, the transaction will be deemed to have been approved and becomes legally valid.
In practice, the thirty day period of suspension may be prolonged due to official correspondence.
Second Stage - six to 12 months
If the Board decides to conduct a final examination, the transaction will be suspended until the ultimate decision of the Board.
Foreign-to-foreign mergers caught?
Subject to notification if the thresholds are met.
Treatment of JVs
Joint ventures are subject to notification provided that there is change of control and the turnover thresholds are met. A full-function joint venture that is being established outside of Turkey whose parents have a combined Turkish turnover of more than TL 100 m and at least two of whose parents have Turkish turnover in excess of TL 30 m is required to be notified in Turkey. This applies even if the relevant joit venture is not expected to have any commercial activity in Turkey.
Up to date as of 1 September 2014

United Kingdom
Authority / Source
  • Competition and Markets Authority (CMA)
  • The Enterprise Act 2002 (as amended by the Enterprise and Regulatory Reform Act 2014)

Mandatory / Voluntary
Voluntary
When to notify?
No filing deadlines
Threshold(s)
Notification possible when:

  • as a result of the merger situation, at least 25% of all the goods or services of a particular description are supplied or consumed in the UK (or a substantial part of the UK) by the acquiring and target group;
  • the annual UK turnover of the target group exceeds GBP 70 m (approx. EUR 88.6 m).

Obligation on whom
Either the purchaser or the vendor may notify to the CMA.

Normally, notification will be made by the purchaser with the cooperation of the vendor.
Consequences of failure to notify
Notification is voluntary, and therefore there are no penalties for failure to file. However, the CMA may begin its own initiative investigation up to four months after completion (or if the merger was not publicised at the time, four months from the earlier of it being made public or the CMA being informed about it).
Consequences of implementing a transaction despite obligation to suspend until clearance
There is no general obligation to suspend the transaction and no prohibition on completing a transaction without clearance from the CMA. However:
  • The CMA has the power to issue interim orders in order to prevent or unwind pre-emptive integration. Interim orders remain in place until the merger is cleared or remedial action is taken unless varied, revoked or replaced.
  • When a completed merger is referred to the CMA, the merged entity must obtain the CMA’s consent before further integrating the businesses.
  • Where the transaction is referred to Phase 2, the buyer must not acquire any more shares in the target without the CMA’s consent.

  • It is unlawful to breach interim orders. Civil proceedings may be brought and injunctive relief sought by the CMA, Secretary of State or third parties. The CMA also has a new power to impose a financial penalty on a person who, without reasonable excuse, fails to comply with an interim order. This penalty is capped at 5% of the total value of the turnover of all enterprises owned or controlled by that person.

Consequences of implementing transaction despite prohibition decision
It is unlawful to proceed and civil proceedings may be brought in the UK courts to enforce the prohibition decision.
Stages
First Stage - 40 working days
All voluntary notifications must (since 1 April 2014) be made by way of a Merger Notice. The Phase 1 review is subject to a statutory time limit of 40 working days.

Note that, while it is not a statutory requirement, the CMA encourages parties in all cases to engage in “pre-notification” discussions with the CMA at least two weeks before intended notification.
Second Stage – 24 weeks (extendable by a further eight weeks).
Where a merger is referred by the CMA for a Phase 2 investigation, the normal period is 24 weeks (may be extended once by a further eight weeks).
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers will qualify for investigation if one or more of the parties conducts business in the UK which is sufficient to satisfy either of the threshold tests.
Treatment of JVs
Joint ventures can be caught where the shareholders acquire “control” within the meaning of the Enterprise Act.
Up to date as of 1 September 2014
Euro exchange rate as of 1 September 2014

Ukraine
Authority / Source
  • The Antimonopoly Committee of Ukraine (‘AMC’) / Cabinet of Ministers of Ukraine (‘CMU’)
  • Law “On Protection of Economic Competition”, dated 11 January 2001

Mandatory / Voluntary
Mandatory
When to notify?
Before the transaction is put into effect / completed.
The transaction completion shall be suspended until clearance.
Threshold(s)
Financial thresholds (calculated for the financial year preceding the transaction):
  • The aggregate parties’ combined worldwide value of assets or sales (including related entities) exceeds EUR 12 m; and
  • each of at least two of the parties to the transaction, (including related entities) has aggregate worldwide value of assets or sales exceeding EUR 1 m; and
  • at least one party to the transaction (including related entities), has assets or sales in Ukraine with value exceeding EUR 1 m.

Market share threshold:
  • Any single party’s or all parties’ combined market share on any Ukrainian market affected by the concentration / transaction or on markets adjacent to an affected market exceeds 35%.

Obligation on whom
Joint obligation on all persons acquiring control and on the target (including sellers, when applicable).
Consequences of failure to notify
  • Fine of up to 5% of the parties’ worldwide group turnover for the fiscal year preceding the year in which the fine is imposed by the authority. Payment of the fine does not release parties from the clearance obligation;
  • invalidation of the transaction by court decision.

Consequences of implementing a transaction despite obligation to suspend until clearance
Fine of up to 5% of the parties’ worldwide group turnover for the fiscal year preceding the year in which the fine is imposed by the authority. Payment of the fine does not release parties from the clearance obligation;
invalidation of the transaction by court decision.
Consequences of implementing transaction despite prohibition decision
Fine of up to 5% of the parties’ worldwide group turnover for the fiscal year preceding the year in which the fine is imposed by the authority;
invalidation of the transaction by court decision;
compulsory spin-off of the company (where applicable);
elimination of the negative consequences of transaction executed without approval.
Stages
First Stage – 15 calendar days
15 calendar days for the AMC to conduct a formal review of the notification and accept or reject it (after 15 calendar days, notification is deemed to have been accepted);
Second Stage - 30 calendar days
30 calendar days (starting after expiry of the initial 15-day period of review) for the AMC to consider the substance of the transaction (permission is granted or an in-depth investigation is opened);
Third Stage – three months
three months for an in-depth investigation of the transaction (so-called ‘concentration case’) that starts running after the AMC has received all additional information it needs from the notifying parties to reach a decision(in practice, it may take more than three months). In practice in-depth investigation of the transaction may be initiated by the AMC in complicated cases where the joint market share of the parties to the concentration (after execution of the contemplated transaction) exceeds 20%.
Fourth Stage
within 30 days after the AMC decision prohibiting the transaction, the notifying parties may apply for clearance to the CMU if they can prove that the positive social effect of the transaction will outweigh its anti-competitive impact.
This stage in practice is rarely resorted to.
Foreign-to-foreign mergers caught?
Foreign-to-foreign transactions are subject to clearance provided the filing thresholds are met (even if there are no subsidiaries in Ukraine and if the revenues generated in Ukraine by one party only are relatively low (e.g. where volume of import to Ukraine exceeds EUR 1 m).
Treatment of JVs
From the merger control perspective, joint ventures are treated the same way as all other types of business entities in Ukraine unless they are non-incorporated (contractual) ones. Establishment of a non-incorporated (contractual) joint venture may require a so-called “concerted actions” clearance with the AMC if it results in coordination of competition between its founders, including, in particular, incorporation of non-compete clauses.
Up to date as of 1 September 2014

Acknowledgements

This guide has been produced jointly by the competition lawyers of the CMS member firms. The general editor of the guide is Harald Kahlenberg of CMS Hasche Sigle.

The chapters on a number of jurisdictions were written by competition lawyers outside CMS. In this respect, we particularly wish to thank the following non-CMS lawyers and their firms, who have contributed their expertise to the CMS Guide to Merger Control in Europe 2014:
Belarus
Tatiana Emelianova, Vlasova Mikhel & Partners
Cyprus
Ramona Livera and Evyenia Epaminondou, Andreas Neocleous & Co
Denmark
Simon Evers Kalsmose-Hjelmborg and Mark Gall, Bech-Bruun
Estonia
Mariana Hagström, Glikman & Partnerid
Finland
Sari Hiltunen, Castrén & Snellman Attorneys
Greece
Dimitris Emvalomenos, Bahas Gramatidis & Partners
Iceland
Steinar Gudgeirsson and Astridur Gisladottir, Islog Law Firm
Ireland
Niall Collins and Anne-Marie Jenkinson, Mason Hayes+Curran
Latvia
Ivo Maskalans and Laine Skopina, Borenius
Lithuania
Irmantas Norkus and Ieva Sodeikaite, Raidla Lejins & Norcous
Malta
Malcom Falzon and Ron Galea Cavallazzi, Camilleri Preziosi
Moldova
Alexander Turcan, Turcan Cazac Law Firm
Norway
Erling Christiansen and Olav Kolstad, Advokatfirmaet Schjødt
Sweden
Ulf Djurberg and Mikael Rydkvist, Setterwalls
Turkey
Suleyman Cengiz and Mamak Kemal, Hergüner Bilgen Özeke

Contact points
This manual is intended only to provide an overview of the merger control rules and regulatory requirements in the EU, the EEA and the European countries listed. The information and views expressed in this manual are not necessarily comprehensive and do not purport to give professional advice. If you would like further information, please contact any of the following:
CMS EU Law Office in Brussels
Avenue des Nerviens 85
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Belgium
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E edmon.oudeelferink@cms-dsb.com
Albania
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Rr. Sami Frasheri
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1001 Tirana
Albania
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Mirko Daidone
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Austria
CMS Reich Rohrwig Hainz
Rechtsanwälte
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1010 Vienna
Austria
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Bernt Elsner
E bernt.elsner@cms-rrh.com

Robert Keisler
E robert.keisler@cms-rrh.com

Dieter Zandler
E dieter.zandler@cms-rrh.com
Belgium
CMS DeBacker
Chaussée de La Hulpe 178
1170 Brussels
Belgium
T +32 2 743 69 00
F +32 2 743 69 01

Annabelle Lepiece
E annabelle.lepiece@cms-db.com
Bosnia and Herzegovina
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71000 Sarajevo
Bosnia and Herzegovina
T +387 33 94 4600
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Nedzida Salihovic-Whalen
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Bulgaria
Pavlov and Partners Law Firm
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Bulgaria
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Gentscho Pavlov
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Dessislava Fessenko
E dessislava.fessenko@cms-rrh.com
Croatia
Law Firm Bardek, Lisac, Mušec, Skoko
in cooperation with CMS Reich-Rohrwig Hainz
Ilica 1
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Croatia
T +385 1 48 25 600
F +385 1 48 25 601

Hrvoje Bardek
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Czech Republic
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France
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Germany
CMS Hasche Sigle

Brussels
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Harald Kahlenberg
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Hungary
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Italy
CMS Adonnino Ascoli & Cavasola Scamoni

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Kosovo
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Marco Lacaita
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Liechtenstein
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Switzerland
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F +41 44 285 11 22

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Patrick Sommer
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Stefan Brunnschweiler
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Luxembourg
CMS DeBacker
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1170 Brussels
Belgium
T +32 2 74369 00
F +32 2 74369 01

Annabelle Lepièce
E annabelle.lepiece@cms-db.com
Macedonia
Petrikić & Partneri AOD
in cooperation with CMS Reich-Rohrwig Hainz
Cincar Jankova 3
11000 Belgrade
Serbia
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F +381 11 320 38 930

Marija Filipovska
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Raško Radovanović
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Montenegro
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Milica Popovic
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The Netherlands
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Edmon Oude Elferink
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Poland
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Malgorzata Urbanska
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Portugal
CMS Rui Pena & Arnaut
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Luis Miguel Romao
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António Payan Martins
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Romania
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Romania
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F +40 21 52 80 900 / +40 750 095 100

Horea Popescu
E horea.popescu@cms-cmck.com
Russia
CMS Russia
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119019 Moscow
Russia
T +7 495 78 64 000
F +7 495 78 64 001

Maxim Boulba
E maxim.boulba@cmslegal.ru
Serbia
Petrikić & Partneri AOD
in cooperation with CMS Reich-Rohrwig Hainz Cincar Jankova 3
11000 Belgrade
Serbia
T +381 11 32 08 900
F +381 11 32 08 930

Radivoje Petrikic
E radivoje.petrikic@cms-rrh.com

Raško Radovanović
E rasko.radovanovic@cms-rrh.com
Slovakia
Ružička Csekes
in association with members of CMS
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811 06 Bratislava
Slovakia
T +421 2 3233 3444
F +421 2 3233 3443

Nada Spustová
E nada.rostek.spustova@rc-cms.sk
Slovenia
CMS Reich-Rohrwig Hainz
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1000 Ljubljana
Slovenia
T +386 1 620 52 10
F +386 1 620 52 11

Luka Fabiani
E Luka.Fabiani@cms-rrh.com

Uros Bogsa
E Uros.Bogsa@cms-rrh.com
Spain
CMS Albinana & Suárez de Lezo
Calle Génova, 27
28004 Madrid
Spain
T +34 91 451 93 00
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Patricia Linán
E patricia.linan@cms-asl.com

Diego Crespo
E diego.crespo@cms-asl.com
Switzerland
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Switzerland
T +41 44 285 11 11
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Alain Raemy
E alain.raemy@cms-vep.com

Patrick Sommer
E patrick.sommer@cms-vep.com

Stefan Brunnschweiler
E stefan.brunnschweiler@cms-vep.com
United Kingdom
CMS Cameron McKenna
Mitre House
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London EC1A 4DD
United Kingdom
T +44 20 73 67 3000
F +44 20 73 67 2000

Sue Hankey
E susan.hankey@cms-cmck.com

Caroline Hobson
E caroline.hobson@cms-cmck.com

Graeme Young
E graeme.young@cms-cmck.com
Ukraine
CMS Cameron McKenna
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Ukraine
T +380 44 391 33 77
F +380 44 391 33 88

Olexander Martinenko
olexander.martinenko@cms-cmck.com

Olga Belyakova
E olga.belyakova@cms-cmck.com

Nataliya Nakonechna
E nataliya.nakonechna@cms-cmck.com


CMS Reich-Rohrwig Hainz
19B Instytutska Street, 5th floor
01021 Kyiv
Ukraine
T +380 44 500 1718
F +380 44 500 1716


Maria Orlyk
E maria.orlyk@cms-rrh.com

Evgenia Prudko
E evgenia.prudko@cms-rrh.com

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