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CMS Guide to Merger Control in Europe 2014

Editors: Harald Kahlenberg
 
Harald Kahlenberg
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Introduction
Authority/Source
Merger Registry DG COMP, European Commission
Council Regulation (EC) No. 139/2004 (the ECMR)
Mandatory/Voluntary
Mandatory
When to notify?
The European Commission will accept a notification once parties can show 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)
Mandatory notification where:
either:
  • the combined aggregate worldwide turnover of all the undertakings concerned exceeds EUR 5,000 million; and
  • the aggregate Community-wide (EU 27) turnover of each of at least two of the undertakings concerned exceeds EUR 250 million;


unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide
(EU 27) turnover within one and the same EU Member State;

or

  • a) the combined aggregate worldwide turnover of all the undertakings concerned exceeds EUR 2,500 million; and
  • b) in each of at least three EU Member States, the combined aggregate turnover of all the undertakings concerned exceeds EUR 100 million; and
  • c) 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 million; and
  • d) the aggregate Community-wide (EU 27) turnover of each of at least two of the undertakings concerned exceeds EUR 100 million;


unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide (EU 27) 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 notified and 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 interim measures appropriate 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 in cases of effects on 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 con- duct an in-depth investigation (unless further extended). The phase II period may be extended:
  • where undertakings are submitted (extension by up to 105 working days);
  • where the parties or the European Commission request an extension of time (extension by up to 20 working days).

The phase II period can never extend beyond 125 working days from the date of initiation of phase II proceedings.
Foreign-to-foreign mergers caught?
The ECMR applies to foreign-to-foreign mergers which satisfy the turnover thresholds. No physical presence in the EU is required.
Treatment of JVs
The formation of a joint venture which will perform on a lasting basis all the functions of an autonomous economic entity (full- function joint venture) will constitute a concentration to which the ECMR will apply where the turnover thresholds are met.
Up to date as of 1 March 2009


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 (thirty) days after the signature of binding agreements or publication of the offer document.
Threshold(s)
Where:
  • (i) the combined worldwide turnover of all participating companies exceeds ALL 7 (seven) billion (approx. EUR 50 million) and at least one of the participating companies has the domestic (Albanian) turnover in excess of ALL 200 million (approx EUR 1.4 million); and
  • (ii) the combined domestic (Albanian) turnover of all participating companies exceeds ALL 400 million (approx. EUR 2.8 million) and at least one of the participating companies has domestic (Albanian) turnover in excess of ALL 200 million (approx EUR 1,4 million).

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 the 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.
The periods may be extended where undertakings are submit- ted.
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 at 12 February 2013
Euro exchange rate as at 12 February 2013


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 so that clearance is 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 million; and
  • the combined aggregate domestic (Austrian) turnover of all parties exceeds EUR 30 million; and
  • each of at least two of the parties hasve a worldwide turnover of more than EUR 5 million.

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 million; and
  • the combined aggregate worldwide turnover of other parties is less than EUR 30 million
  • over the last business year.

Obligation on whom
All participating companies are entitled to file a notification.
Consequences of failure to notify
The concentration and the underlying agreement shall beare void. Furthermore, the Cartel Court may:
  • declare the concentration illegal;
  • impose on each company violating the standstill obligation a order fines of up to 10% of the yearly worldwide turnover of each company involved achieved in the last business year;
  • order a change in conduct of the undertakings involved (e.g. forced unwinding). Enforcement by daily penalty payments.

Furthermore, an amendment to the Cartel Act, which became effective as of 1 March 2013, inter alia explicitly stipulates that 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
The concentration and the underlying agreement shall beare void. Furthermore, the Cartel Court may:
  • declare the concentration illegal;
  • impose on each company violating the standstill obligation a order fines of up to 10% of the yearly worldwide turnover achieved in the last business year of each company involved;
  • order a change in conduct of the involved undertakings (e.g. forced unwinding). Enforcement by daily penalty payments.

Furthermore, an amendment to the Cartel Act, which became effective as of 1 March 2013, inter alia explicitly stipulates that culpable violations of the standstill obligation allow injured parties to claim damages before civil courts.
Consequences of implementing transaction despite prohibition decision
The concentration and the underlying agreement shall beare void. Furthermore, the Cartel Court may:
  • declare the concentration illegal;
  • impose on each company violating the standstill obligation a order fines of up to 10% of the yearly worldwide turnover of each company involved achieved in the last business year;
  • order a change in conduct of the involved undertakings (e.g. forced unwinding). Enforcement by daily penalty payments.

Furthermore, an amendment to the Cartel Act, which became effective as of 1 March 2013, inter alia explicitly stipulates that culpable violations of the standstill obligation allow injured parties to claim damages before civil courts.
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. An amendment to the Cartel Act, which entered into force on 1 March 2013, sets out that the four week deadline is extended to six weeks if the party which filed the merger notification requests the extension.
Second Stage – five months
Must be completed within five months, otherwise concentration is deemed cleared. An amendment to the Cartel Act, which entered into force on 1 March 2013, sets out that the five month deadline is extended to six months if the party which filed the merger notification requests the extension.
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers are caught if the thresholds are met and the concentration affects competition in Austria.
Treatment of JVs
Full-function JVs fall into the scope of merger control if the JVs permanently fulfill all the functions of an independent economic unit.
Up to date as of 1520 February 201309


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;
  • 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;
  • acquisition of 20 % shares or participatory interests in any company which has:
    • (a) Annual sales proceeds over 200 000 basic units (approximately 1,737,620 Euro), OR
    • (b) Value of assets on its balance sheet exceeding 100 000 basic units (approximately 868 809 Euro).

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 rise to grounds for invalidating the transaction.
Consequences of implementing a transaction despite obligation to suspend until clearance
Minor fine between approx. EUR 200900.
Consequences of implementing a transaction despite prohibition decision
Non-compliance with a resolution prohibiting the transaction may give rise to 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 to cover the creation of joint ventures.
Up to date as of 15 February 2013
Euro exchange rate as of 15 February 2013


Belgium
Authority/Source
The Competition Council (Conseil de la concurrence/Raad voor de mededinging)
Law on the protection of economic competition,
Coordinated by the Royal Decree of 15 September 2006;
published on 29 September 2006.
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 million;
  • and
  • each of at least two of the undertakings involved have a turnover in Belgium of at least EUR 40 million.

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 Council 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 17 February 2009


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 intent to concentrate.
Threshold(s)
The total worldwide annual income of all participants to the concentration achieved by selling goods and/or services is 100 million BAM (approx. 51 million EUR) 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 8 million BAM (approx. 4 million EUR) in the year preceding the concentration, or if their joint share on the relevant market exceeds 40%.
Obligation on whom
When control over the whole or parts of one or more undertakings is acquired by another undertaking, the notification is to be submitted by the undertaking acquiring control; in all other cases the undertakings shall submit a joint application.
Consequences of failure to notify
Fines up to 1% of the total annual income in the previous year; fines from 5.000 BAM (approx. 2.500 EUR) to 15.000 BAM (approx. 7.500 EUR) for the responsible persons.
Consequences of implementing a transaction despite obligation to suspend until clearance
Fine in the amount up to 10% of the total annual income in the preceding year; fines from 15.000 BAM (approx. 7.500 EUR) to 50.000 BAM (approx. 25.000 EUR) for the responsible persons.
Consequences of implementing a transaction despite prohibition decision
Several 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 result in negative 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 shall be deemed as permitted;

If it initiates proceedings, the Competition Council must make an appraisal of the concentration and adopt a final decision within 3 months of initiation of proceedings; in case additional expert opinions or analysis are necessary, or when it comes to 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 shall be deemed as permitted.
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 a of 14 February 2013
Euro exchange rate as of 14 February 2013


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

Should the CPC find that the concentration should be prohibited, it may also impose appropriate measures for restitution of 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.
Should the CPC find that the concentration should be prohibited, it may impose appropriate measures for restitution of 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 for restitution of 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 1
Time: three days + 25 business days, with a possibility of extension. CPC shall decide whether (i) the concentration falls out- side 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.

Second Stage
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 as a result of activities other those concerned by the concentration. No effect test applies for the purposes of assessing reportability.
Treatment of JVs
JVs that perform on a lasting basis all the functions of an full-function economic entity are caught by the Bulgarian merger control regime.
Up to date as of 15 February 2013


Croatia
Authority/Source
The Croatian Competition Agency (the Agency).
Competition Act (Official Gazette No. 79/09).
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 billion (approx. EUR 133 million);
  • and
  • each of at least two participating undertakings achieves aggregate domestic income (in Croatia) of at least HRK 100 million (approx. EUR 13.3 million).

Obligation on whom
All participating undertakings, but only one executed filing is necessary.
Consequences of failure to notify
Fines on company up to 1% of its total annual turnover;
the Agency may impose any other measure necessary to restore free competition.
Consequences of implementing a transaction despite obligation to suspend until clearance
The Agency may impose any measure necessary to restore free competition.
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
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)
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 11 February 2013
1 Euro = 7.58 Kuna (exchange rate as of 11 February 2013)


Cyprus
Authority/Source
Cyprus Commission for the Protection of Competition (CPC)
Control of Concentrations between Enterprises Law No. 22(I) of 1999 - 2000
Mandatory/Voluntary
Mandatory
When to notify?
Notification must be submitted within one week (7 days including Saturday & Sunday):
from the date of undertaking the relevant agreement, (that is by executing or signing the said agreement which brought about the concentration in question); or
from the date of publication of the relevant offer of purchase or exchange; or
from the date of the acquisition of a controlling interest, whichever of these events occurs first.
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, EUR €3,417,202.88; 
and
  • at least one of the participating undertakings conducts commercial activities in the Republic of Cyprus; 
and
  • at least EUR €3,417,202.88 of the aggregate turnover of all participating undertakings relates to the disposal of goods or the supply of services within the market of the Republic of Cyprus.

Obligation on whom
Mergers, acquisitions of joint control and joint ventures: both undertakings are obligated to notify the concentration either jointly or separately.
Acquisitions: the acquiring party.
Consequences of failure to notify
The imposition of an administrative fine on the undertaking that is obligated to notify of up to EUR €85,430 and a further fine of up to EUR €8,543 for each additional day for which failure to notify continues.
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 an additional fine of up to EUR €8,543 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 €8,543 for each day on which such infringement continues.
Stages
Phase One – 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 Two – three months
The Service, following an in-depth investigation, must submit 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 our Law, its finding to the Commission.

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 enterprises in question the Cyprus CPC takes into account the turnover of the parent companies and subsidiary companies.
Treatment of JVs
Caught if carries out on a lasting basis all the functions of an autonomous economic entity.
Up to date as of 14th of February 2013


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)
Where:

either
the combined domestic (in the Czech Republic) turnover of the parties exceeds CZK 1.5 billion (approx. EUR 59 million); and each of at least two of the parties has domestic turnover (in the Czech Republic) exceeding CZK 250 million (approx. EUR 9.8 million);

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 billion ((approx. EUR 59 million); and the worldwide turnover of the other party to the concentration exceeds CZK 1.5 billion (approx. EUR 59 million).
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 million (approx EUR 393,933), 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 million (approx EUR 393,933), 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 million (approx EUR 393,933), 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
1) 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).
2) 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 14February 2013
Euro exchange rate as of 14 February 2013


Denmark
Authority/Source
The Competition Council (Konkurrencerådet)
Consolidated Competition Act No. 972 of 13 August 2010, as amended by Act No. 1231 of 27 18 December 2012 and Act No. 1385 of 23 December 2012.
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 has been 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 million (approx. EUR 120 million), and (ii) the aggregate domestic turnover (in Denmark) of each of at least two of the undertakings concerned is at least DKK 100 million (approx. EUR 13 million);

or
the aggregate domestic turnover (in Denmark) of at least one of the undertakings concerned is at least DKK 3.8 billion (approx. EUR 510 million), and (ii) the aggregate worldwide turnover of at least one of the other undertakings concerned is at least DKK 3.8 billion (approx. EUR 510 million).
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 1 − 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 2 − 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 11 February 2013


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 shall notify of a concentration after obtaining permission from the supervisory authority of the corresponding field.
Threshold(s)
Notification of the concentration is mandatory where during the previous financial year if the aggregate turnover in Estonia of the parties to the concentration exceeded 6,391,200 euros and the aggregate turnover in Estonia of each of at least two parties to the concentration exceeded 1,917,350 euros.
Obligation on whom
Notification of a concentration shall be made by:
1) the undertakings jointly if previously independent undertakings merge within the meaning of the Commercial Code or parts of undertakings are merged;
2) the undertaking who acquires control of the whole or a part of another undertaking, or of several undertakings or parts thereof;
3) the undertakings jointly who acquire control of the whole or a part of another undertaking, or of several undertakings or parts thereof;
4) the natural person who acquires control of the whole or a part of another undertaking, or of several undertakings or parts thereof, provided that the natural person is already controlling at least one undertaking;
5) the natural persons jointly who acquire control of the whole or a part of another undertaking, or of several undertakings or parts thereof, provided that such natural persons are already controlling at least one undertaking.
Consequences of failure to notify
Failure to give notice of concentration, enforcement of concentration without permission to concentrate, as well as violation of a prohibition on concentration or the terms of the permission to concentrate
shall be punishable by a fine of up to 300 fine units (currently 1 fine unit is equal to 4 euros) or by detention.
The same act, if committed by a legal person, is punishable by a fine of up to 32,000 euros.
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.
A concentration is not controlled by the Competition Authority if the concentration is subject to control pursuant to Council Regulation 139/2004/EC on the control of concentrations between undertakings (OJ L 24, 29.01.2004, p. 1–22), unless the European Commission appoints, pursuant to Article 9 of such Regulation, the Competition Authority as the authority competent to exercise control over the concentration.
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 15 February 2013


Finland
Authority/Source
The Finnish Competition and Consumer Authority (FCCA)
Competition Act (948/2011).
Mandatory/Voluntary
Mandatory
When to notify?
Following the conclusion of the agreement but prior to the 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 con- centration exceeds EUR 350 million;
and
The turnover of two or more parties derived from Finland exceeds EUR 20 million 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 time, the FCCA must either clear the transaction or initiate stage II. If the FCCA does not give any decision, the transaction is deemed approved.
Second Stage: three months from initiating stage II.
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 shall be notified if the turnover thresholds are exceeded.
Up to date as of 15 February 2013


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 these 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 million;
and

each of at least two of the parties generated domestic turnover in France in excess of EUR 50 million;
and

the parties’ turnover do not meet EU thresholds.

Reduced thresholds where
at least two of the parties are active in the retail trade; or
at least one of the parties operates its activity or part of it in one or more overseas departments or overseas territories.
Obligation on whom
In the case of an acquisition, the obligation to notify lies with the undertaking acquiring control over the target company. A change of control from sole control to joint control must be notified by all the parties intended to have joint control after the transaction.

In the case of a merger or of the creation of a full-function joint venture, all interested parties must file a joint notification.
Consequences of failure to notify
In case of failure to notify a concentration, the ADLC:

  • (i) Shall order the parties, subject to daily penalty payments, to notify the concentration or otherwise restore the situation prevailing prior to the concentration; and
  • (ii) 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 €1.5 million.

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 €1.5 million.
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).

Commitments: If commitments are presented to the ADLC, it is necessary to take into account an extension of the initial period of 15 extra working days.

Possible intervention of the Minister for Economy: If the ADLC does not open a phase II assessment, the Minister for Economy may request the opening of such an assessment 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.

Commitments: If commitments are presented to the ADLC in the last 20 working days of the phase II assessment, it is necessary to take into account 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
Creations of 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 at 15 February 2013



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 that clearance is 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 million; and
  • the group domestic turnover (in Germany) of at least one participating undertaking exceeds EUR 25 million; and
  • the group domestic turnover (in Germany) of another participating undertaking exceeds EUR 5 million;

unless one of the following de minimis rules applies:
  • one party to the concentration is an independent company with worldwide group turnover not exceeding EUR 10 million; or
  • the market concerned has been in existence for at least five years and had a total sales volume of less than EUR 15 million in the last calendar year.

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 million, 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 may be void

The FCO may impose a fine on natural persons of up to EUR 1 million and on undertakings of up to 10% of group turnover in the preceding business year.

The concentration shall 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 million, 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 25 March 2009


Greece
Authority/Source
The Hellenic Competition Commission (the HCC).
Law 3959/2011 “On the protection of free competition”, in force as from 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 million;

and
each of at least two of them having a total turnover in Greece of at least EUR 15 million.
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
Administrative fines:
At least EUR 30,000 which may not exceed 10% of the undertaking’s 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 the separation of the undertakings or assets merged, the 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:
Regarding societe anonymes, the persons being members of their Boards and /or responsible for the implementation of the companies’ relevant 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 – 2,000,000 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 within 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 behavior of the undertakings forming it.
Up to date as of 15 February 2013


Hungary
Authority/Source
Hungarian Competition Office (HCO)
Competition Act 1996, as amended.
Mandatory/Voluntary
Mandatory
When to notify?
Within 30 days of the publication of the invitation to tender, the conclusion of the contract or the acquisition of controlling rights, whichever comes first.
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 billion (approx. EUR 52,000,000);

and
there are at least two groups of undertakings each with a net turnover exceeding HUF 500 million (approx. EUR 1,700,000).

“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, when calculating the HUF 500 million (approx. EUR 1,700,000) threshold, the concentrations shall also be considered that
(i) were completed in the last two years preceding the current concentration between the same group of undertakings; and
(ii) 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 undertaking.
Consequences of failure to notify
Fine of maximum HUF 200,000 (approx. EUR 690) per day;
if the HCO would have prohibited the concentration, it may order:

  • (i) the separation or alienation of the merged undertakings/assets/business units;
  • (ii) the termination of joint control; or

  • (iii) other obligations.

Consequences of implementing a transaction despite obligation to suspend until clearance
No express obligation of suspension. However, the transaction is only legally valid and enforceable if it is approved by the HCO.
Risk: By refusing to approve the concentration, the HCO may require divestment or separation of the merged entities.
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
  • (i) HCO investigator(s); and
  • (ii) Competition Council (CC).


Decision issued by the HCO within 45 calendar days (this period may be further extended by maximum 20 calendar days) or in complex cases 4 months (this period may be further extended by maximum 2 months) from the date HCO has all necessary information i.e. the file is complete.

In case of no act (decision, request, etc.) made by the HCO within the above deadline, the authorisation 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 14 February 2013
Euro exchange rate: 2012 average HUF−EUR exchange rate: EUR 1 = HUF 289.42;
source: http://www.mnb.hu
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 LVL 25 million (approx. EUR 35.57 million, calculated in accordance with the official exchange rate set by the Bank of Latvia: LVL 1 = EUR 0.702804); or
Combined market share of the participants of the merger exceeds 40% in any of the relevant markets in the territory of 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 LVL 1.5 million (approx. EUR 2.13 million) 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 LVL 1,000 (approx. EUR 1,420) 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 LVL 1,000 (approx. EUR 1,420) 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 1: one month,
phase 2: 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 1: one month,
phase 2: 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 12 February 2013


Liechtenstein
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 by 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 million (approx. EUR 14.5 million);

and
the aggregate domestic/worldwide (see below) turnover of each of at least two of the undertakings concerned exceeds LTL 5 million (approx. EUR 1.45 million).

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 half or more 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 the whole or a certain part of profit, or passing over to each other the right to dispose of all or a part of 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
Within one month after receipt of the notification, the Council must clear the transaction or proceed with an in-depth investigation.
Second Stage
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 ECMR) 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 12 February 2013
Euro exchange rate as of 12 February 2013


Luxembourg
Macedonia
Authority/Source
Commission for Protection of Competition
The Macedonian Law on Protection of Competition (Law on Protection of Competition) was passed on 5 November2010 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 million 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 million;

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 15 February 2013


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

Ministry of Economy
Rules on the Form and Content of Applications for the Approval of Concentrations (Official Gazette of Montenegro, no. 36/06)
Mandatory/Voluntary
Mandatory
When to notify?
The application for approval must be filed within 15 days from the date of signing of an agreement, announcement of a public offer or acquisition of control.

The application for approval can also be filed in advance (when market participants show serious intent to conclude an 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 million;

or
combined annual global revenue of all parties to the concentration during the preceding accounting year exceeds EUR 20 million (provided that at least one party to the concentration is registered in Montenegro).
Obligation on whom
Participating companies.
In cases of total or partial control over the market participant(s), the application for approval is filed by the party acquiring control, except in case of joint ventures (JVs), when the application is filed jointly by all participants.
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 has failed to file the application for approval or to 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 has failed to file the application for approval in a timely manner.
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-
The Agency reviews the application for approval to assess whether it fulfills all required formalities. If the application is missing some critical document or information, the Agency will order the applicant to amend the application. The deadlines for issuance of the Agency decision start running from the date of submission of the complete application together with all accompanying documents required by the Agency.
Second stage-
The Agency reviews the complete application to assess whether the proposed concentration meets the threshold criteria and whether the effects of the proposed concentration are detrimental to the competition in Montenegro.
The deadlines for issuance of the Agency decision are as follows:
25 working days for the decision whereby the Agency rejects the application for approval of the concentration because the threshold requirements are not met and/or because the applicant has withdrawn the application for approval;
105 working days for the decision whereby the Agency approves the concentration as non-detrimental to the competition in Montenegro;
125 working days for the decision whereby the Agency approves the concentration conditionally, i.e. subject to the fulfillment of additional conditions by the applicant; and
130 working days for the decision whereby the Agency rejects the application for approval of the concentration in case the concentration may have detrimental effects to the competition in Montenegro.
Foreign-to-foreign mergers are caught if the thresholds are met and the concentration affects the competition in Montenegro.
Treatment of JVs
JVs fall within the scope of the merger control.
Up to date as of 15 February 2013


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), as amended.
Mandatory/Voluntary
Mandatory
When to notify
Before the implementation of the concentration. Implementation of the concentration is prohibited before the merger/acquisition has been notified and reviewed by the Competition Authority. Non-opposition procedure. Full stand still applies.
Threshold(s)
Mandatory notification if:
the undertakings concerned have a combined annual turnover in Norway of more than NOK 50 million (approx. USD 7 million, or EUR 5.9 million).

and
each of at least two of the undertakings has an annual turnover in Norway of NOK 20 million (approx. USD 2.86 million, or EUR 2.35 million) or more.
In addition, the NCA may choose to intervene, even if the concentration is below the thresholds during a period of up to 3 months after control has been acquired or the final agreement has been signed. This has not yet happened in practice. 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: both/all parties.
Acquisitions: the acquiring party/parties.
Consequences of failure to notify
Administrative fines – up to 1% of the undertaking’s world- wide annual turnover; or
criminal fines (no limit); and/or
imprisonment for up to three years.
Consequences of implementing a transaction despite obligation to suspend until clearance
Administrative fines will be imposed. The first decision came shortly after the introduction of the standstill requirement. Fines will likely be at least NOK 150,000 (approx. EUR 17,500).
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; and/or
periodic penalty payments (no guidance on the amounts available) until the situation has been rectified.
Stages
Stage 1:
Notification – before the implementation of the con- centration by “standardised notification”. Stand-still obligation until lapse of 15 business day non-opposition procedure.
Stage 2:
A “complete notification” may be ordered by the NCA before the lapse of the 15 business day non-opposition procedure.
Stage 3:
Notification of possible intervention–must be issued within 25 business days of receipt of the complete notification (“phase II”).
Stage 4:
A reasoned preliminary decision (“statement of objections”) must be presented to the parties no later than 70 business days after having received the complete notification, and granting a deadline of 
15 business days for the parties to comment.
Stage 5:
Decision – issued within 15 business days of receipt of the parties’ comments, may be extended by another 25 business days (to 40 in total) if the parties have offered commitments.
Stage 6:
Appeal – must be lodged within 15 business days from having received the decision. The NCA must forward the appeal to the Ministry of Administrative Affairs, attaching its comments, no later than 15 days after receipt and the Ministry must make their decision regarding the appal no later than 60 days after having received it from the NCA (15+60 in total).

The notifying party may skip Stage 1 and proceed to Stage 2. This is at the discretion of the parties and is a strategic decision.
Foreign-to-foreign mergers caught?
Yes. All transactions which affect or potentially affect the Norwegian market are caught. This means that as long as the turnover thresholds are fulfilled, notification must take place.
Treatment of JVs
May be caught if exercising the functions of an autonomous economic entity on a lasting basis, the definition is the same as under EU competition law.
Up to date as of 2 March 2009
Euro exchange rate = average for 2008


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)
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 the parties exceeds EUR 1 billion;
or
the combined aggregate turnover generated in Poland by the parties exceeds EUR 50 million;
unless the target company’s group turnover in Poland did not exceed EUR 10 million 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 million.
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
the division of merged business entities on specified terms;
the transfer of all or part of a business entity’s assets;
the transfer of shares giving control over a business entity or business entities, or the dissolution of a company over which business entities exercise joint control
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.

The President of the Office can order:
the division of merged business entities on specified terms;
the transfer of all or part of a business entity’s assets;
the transfer of shares giving control over a business entity or business entities, or the dissolution of a company over which business entities exercise joint control.
Consequences of implementing transaction despite prohibition decision
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 any person managing a business entity.

President of the Office can order:
the division of merged business entities on specified terms;
the transfer of all or part of a business entity’s assets;
the transfer of shares giving control over a business entity or business entities, or the dissolution of a company over which business entities exercise joint control.

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 any condition subject to which a concentration may be implemented;
requiring any of the actions described below to be taken:
the division of merged business entities on specified terms;
the transfer of all or part of a business entity’s assets;
the transfer of shares giving control over a business entity or business entities, or dissolution of a company over which business entities exercise joint control;
or for each day of delay in implementing any requirements contained in a judgment of the Antimonopoly Court.
Stages
One-stage proceedings:
Decision must be delivered 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. Sales into Poland or the existence of a Polish subsidiary in at least one of the groups involved in the concentration generally amount to an effect on competition in Poland.
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 a joint venture is not full-functional).
Up to date as of 15 February 2013


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, made conditional of receiving the prior approval of the PCA. A transaction can be notified from the date of conclusion of a binding agreement or of the preliminary announcement of a public offer of acquisition or exchange, or of the announcement of the acquisition of a controlling shareholding in an undertaking with shares listed on a regulated stock market or, in the case of a concentration resulting from a public procurement procedure, after the definitive tender selection and before the public contract is signed off.
Threshold(s)
A concentration has to be notified where:
  • the parties to the concentration 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;
  • the parties to the concentration 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 five million Euros, net of taxes directly related to such a turnover;
  • the parties to the concentration have an aggregate turnover in Portugal, in the previous financial year, greater than 100 million Euros, 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 five million Euros.

Obligation on whom
The notification of a concentration to the PCA is made:
jointly by all the parties involved in the merger, in case of the creation of a joint venture or in the 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
Should the parties fail to notify a concentration that fulfils the notification criteria and falls under the jurisdiction of the PCA, the following consequences may apply:
All acts implementing the concentration are considered ineffective;

Ex officio proceedings may be initiated whenever the PCA becomes aware that the concentration has been implemented in the preceding five years

The PCA may take all measures it deems necessary and appropriate to restore the pre-merger scenario, in particular the splitting up of the merged undertaking(s) or assets, the complete reversal of the transaction or command that control cannot be held by a party.
The PCA may apply a periodic penalty payment, to a maximum of 5% of the average daily turnover in the year immediately before the decision, per day of late payment, counting from the notification date;

The failure to notify the transaction is an administrative offence subject to a fine that cannot exceed 10% of the turnover of the year that immediately precedes the final decision issued by the PCA, for each of the undertakings concerned.
The members of the board of directors (or equivalent), as well as those responsible for the management or supervision of the areas of activity, that knowingly participated (or should have taken appropriate measures to terminate) an administrative offence, are liable to a fine that cannot exceed 10% of their annual income deriving from the exercise of their functions in the undertaking concerned, in the last full year when the prohibited practice occurred, unless they are liable to a more serious sanction through another legal provision.
Consequences of implementing a transaction despite obligation to suspend until clearance
The failure from suspending the implementation of the transaction that is subject to prior notification is an administrative offence, subject to a fine that cannot exceed 10% of the turnover of the year that immediately precedes the final decision issued by the PCA, for each of the undertakings concerned.

The PCA may take all measures it deems necessary and appropriate to restore the pre-merger scenario, in particular the splitting up of the merged undertaking(s) or assets, the complete reversal of the transaction or command that control cannot be held by a party.

The members of the board of directors (or equivalent), as well as those responsible for the management or supervision of the areas of activity, that knowingly participated (or should have taken appropriate measures to terminate) an administrative offence, are liable to a fine that cannot exceed 10% of of their annual income deriving from the exercise of their functions in the undertaking concerned, in the last full year when the prohibited practice occurred, unless they are liable to a more serious sanction through another legal provision.
Consequences of implementing transaction despite prohibition decision
The implementation of the transaction in case of a prohibition decision is an administrative offence, subject to a fine that cannot exceed 10% of the turnover of the year that immediately precedes the final decision issued by the PCA, for each of the undertakings concerned.

The application of a fine does not free the party concerned from complying with the prohibition decision.
The members of the board of directors (or equivalent), as well as those responsible for the management or supervision of the areas of activity, that knowingly participated (or should have taken appropriate measures to terminate) an administrative offence, are liable to a fine that cannot exceed 10% of their annual income deriving from the exercise of their functions in the undertaking concerned, in the last full year when the prohibited practice occurred, unless they are liable to a more serious sanction through another legal provision.

The members of the board of directors (or equivalent), as well as those responsible for the management or supervision of the areas of activity, that knowingly participated in the implementation of the transaction despite the prohibition decision are liable to a criminal procedure, subject to 1 year in prison.
Stages
First Stage
Within 30 working days of receiving a complete notification, the PCA has to issue a decision either that (a) the concentration does not fall within the jurisdiction of the PCA or (b) it does not oppose the concentration if it considers that the concentration, as notified or as modified by the notifying party, is not likely to create a significant impediment to effective competition in the domestic market, or a substantial part thereof or (c) to initiate an in-depth investigation when it considers that the concentration raises serious doubts as to whether it would create a significant impediment to effective competition in the domestic market, or a substantial part thereof.

During first stage the PCA may issue additional information requests that – with a standard term for reply of 10 working days – that stop the counting of the term for the decision.

Should the PCA not issue a decision in such term, the concentration will be deemed to be approved.
Second Stage
Within 90 working days from the date in which the notification was considered complete, the PCA has to issue a decision either (a) not to oppose the concentration if it considers that the concentration, as was notified or modified by the notifying party, is not likely to create a significant impediment to effective competition in the domestic market or in a substantial thereof or (b) to prohibit the concentration when it considers that the concentration, as notified or as modified by the notifying party, is likely to create a significant impediment to effective competition in the domestic market or in a substantial thereof.

Should the PCA not issue a decision in such term, the concentration will be deemed to be approved.
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 15 February 2013
Euro exchange rate as of 15 February 2013


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 in case 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 million;

and
the domestic turnover (in Romania) of each of at least two of the undertakings involved exceeds EUR 4 million.
Obligation on whom
In case of acquisition of sole/joint control, the obligation is on the undertaking acquiring control. In case of a merger, the obligation is on 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.
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 authorize (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 perform on a lasting basis all the functions of an autonomous economic entity, without leading to the coordination of the competitive behavior of the parents between themselves or between them and the JV.
Up to date as of 13 February 2013


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.
Post-transaction notification – within 45 days after the closing.
Threshold(s)
Pre-transaction clearance:
1. The aggregate worldwide value of assets of the acquirer’s group and the target’s group exceeds RUB 7 billion (approx. EUR 175 million); 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 billion (approx. EUR 250 million);

and
2. the aggregate worldwide value of assets of the target’s group of companies exceeds RUB 250 million (approx. EUR 6,25 million);

or
3. 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).
Post-transaction notification:
1. The aggregate worldwide value of assets of the acquirer’s group and the target’s group exceeds RUB 400 million (approx. EUR 10 million); 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 400 million (approx. EUR 10 million);

and
2. the aggregate worldwide value of assets of the target’s group of companies exceeds RUB 60 million (approx. EUR 1,5 million).

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 12, 400); the General Director may also incur administrative liability (fines up to RUB 20, 000, approx. EUR 500).

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 2 months if further information is requested; or for an additional period of up to 9 months if the FAS concludes that certain conditions should be fulfilled by the parties to the transaction before the clearance.

Having examined the application the FAS issues one of the following decisions: unconditional approval of the transaction; approval of the transaction subject to the qualifications issued by the FAS aimed at reducing the effect on competition (e.g. termination of certain contracts, sale of assets, etc.); or refusal of the application.
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 billion (approx. EUR 25 million) 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.
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.
Up to date as of 15 February 2013
Euro exchange rate as of 15 February 2013


Serbia
Authority/Source
Competition Protection Commission
Competition Protection Act 2009
Mandatory/Voluntary
Mandatory
When to notify?
Request for approval must be filed fifteen days after signing of an agreement, announcement/closing of a public offer or acquisition of control.

Request for approval 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 million, provided that at least one party to the concentration has a revenue on the market of the Republic of Serbia of more than EUR 10 million;

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 million, provided that at least two parties to the concentration have a revenue on the market of the Republic of Serbia of more than EUR 1 million 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 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 failure to notify”.
Stages
First Stage
Four months
Second Stage
Difficult to envisage the duration of an administrative dispute procedure
Foreign-to-foreign mergers caught?
Foreign-to-foreign mergers will be captured if the thresholds are met and the concentration affects the competition in Serbia. The assessment of the effect on the competition in Serbia is at the discretion of the Commission.
Treatment of JVs
JVs fall into the scope of merger control. Co-operative JVs, however, are subject to stricter provisions of AA referring to forbidden agreements.
Up to date as of 15 February 2013


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.

The new Amendment is currently drafted by the Antimonopoly Office; however the changes with regards to the notification of concentration would not be fundamental. The new Amendment shall become effective by the end of year of 2013.
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 of 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. Such submission has to be supported by a written reasoning and written documents certifying the facts essential for concentration.
Threshold(s)
Notification is mandatory if:
Either:
(i) the parties’ combined Slovak turnover is at least €46 million; and
(ii)each of at least two of the parties has Slovak turnover of at least €14 million.
or
(i) the Slovak turnover of at least one party* is at least €14 million; and
(ii) the aggregate worldwide turnover of at least one other party is at least €46 million.

* 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.

Public tender: selected bidder.
Consequences of failure to notify
A fine of up to 10% of turnover in the previous business year may be imposed on the parties, or a fine of up to EUR 330,000 if turnover was up to EUR 330 or no turnover, or turnover cannot be calculated.;

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 fulfill the decision of the Antimonopoly Office.
Consequences of implementing a transaction despite obligation to suspend until clearance
the same as above in a case of failure to notify
Consequences of implementing transaction despite prohibition decision
the same as above in a case of failure to notify
Stages
There are two stages of approving the concentration by the Antimonopoly Office.

The notifications that do not raise the competition concerns shall be approved by the Antimonopoly Office 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 shall inform the notifying party on this fact within, about mentioned, 25 working days period. In such case the Antimonopoly Office shall issue a decision on concentration within 90 working days following the date of delivery of such written notification.

The Office may extend this time limits based on the reasoned request of the notifying party or with its consent by a total of 30 working days at a maximum.

The time limit shall begin on the day following the date of delivery of a complete notification.

The draft of the new Amendment is changing the commencement of periods for issuing the decision. Under this proposal the period for issuing the decision will start immediately after the notification is delivered to the Antimonopoly office. However in case the notification will not be complete, the Antimonopoly Office can request the participant to submit the missing information and the period is suspended till the notification is not completed.
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.
Substantial merger test
As of 1st January 2012 the previous “dominance test” was substituted by the SIEC test (significant impediment of effective competition) comparably to as introduced in Community law by the Council Regulation (EC) 139/2004. The SIEC test was incorporated into Slovak law as an evaluation of whether “the concentration does not significantly distort effective competition on the relevant market, mainly due to the creation or strengthening of dominant position.”
Up to date as of 15 February 2013


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, 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 million 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 million 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 million 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 shall be fined from EUR 5,000–10,000;

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 shall be fined from EUR 5,000–10,000;
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 in the amount 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 shall be fined from EUR 5,000–10,000;
dissolution of the concentration, so as to restore the situation prevailing prior to implementation of the concentration.
Stages
First Stage:
Decision on whether an examination is required must be issued within 25 working days after receiving full notification.
Second Stage:
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.
Treatment of JVs
Caught if the JV acts as an autonomous economic entity on a lasting basis.
Up to date as of 12 February 2013


Spain
Authority/Source
The National Competition Commission (Directorate of Investigation/Council)
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 exempted to compulsory notification provided that two conditions are met: (i) the turnover of the target does not exceed EUR 10 million, 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 under takings involved exceeds EUR 240 million 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 million.
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
CNC 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 CNC 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
Fines may be imposed on each of the companies of up to 10% of their respective domestic turnover (in Spain) for the preceding financial year;
the concentration is not void, although coercive fines may be imposed until the infringing undertakings unwind the concentration.
Stages
First Stage – one month
CNC has 1 month to decide whether to open a second-stage investigation.
Second Stage – two months
CNC must report to the Minister of Economy and Finance within two months following a decision to open a Stage 2.
Government control – one month and 15 days
The Minister of Economy and Finance shall refer the case to the Council of Ministers within 15 days upon receipt of the resolution issued in the second phase.The Council of Ministers then has one month to decide on the case.
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 12 February 2013


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 billion (approx. EUR 115 million)

and
each of at least two of the parties has a turnover in Sweden exceeding SEK 200 million (approx. EUR 23 million) in the preceding financial year.
If only the first threshold is met, the Competition Authority can require a notification to be submitted. 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 1 and can be ordered in Phase 2-4 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 1:
The Competition Authority must decide within 25 working days whether to clear the concentration or to start a phase 2 investigation. If the parties offer commitments, this period may be extended to 35 working days.
Phase 2:
The Competition Authority must within three months from the day the decision was taken to initiate a phase 2 investigation, clear the concentration or submit an application to the 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.
Phase 3:
The Stockholm City Court must take a decision within six months from the day an application was 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 4:
The decision by the Stockholm City Court 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
ull-function joint ventures are subject to the merger control rules.
Up to date as of 15 February 2013
Euro exchange rate is ECB average for 2012: EUR 1 = SEK 8.7041


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 April 2004), 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 billion (approx. EUR 1.62 billion), or (ii) a combined aggregate domestic turnover of at least CHF 500 million (approx. EUR 405 million);

and
at least two of the undertakings concerned each have an aggregate domestic turnover of at least CHF 100 million (approx. EUR 81 million).


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 million (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 million (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 million (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
Stage 1: 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.
Stage 2: 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 12 February 2013
Exchange rate as of 12 February 2013 (CHF 1 = EUR 0.81)


Turkey
Authority/Source
Competition Board
Mandatory/Voluntary
Mandatory if the notification criteria is met (i.e. change of control and turnover thresholds).
When to notify?
The approval has to be obtained prior to the closing of the transaction. 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 exceed one hundred million Turkish Lira (approximately EUR 45 million), and turnovers of at least two of the transaction parties in Turkey each exceed thirty million Turkish Lira (approximately 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 thirty million Turkish Lira (approximately EUR 14 million) and the global turnover of at least one of the remaining transaction parties exceed five hundred million Turkish Lira (approximately EUR 225 million)

Obligation on whom
In case of an acquisition, the responsibility to notify resides on the acquirer. Otherwise, (in cases of mergers and joint ventures) either party is responsible of notifying. A notification done by either party relieves the other one from its notification duty. 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 be made subject to 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 onto each party (in case of acquisition transaction, onto the acquirer only ) up to 10% of the turnover of the corresponding party that was generated in the financial year preceding the decision to impose such fine;
  • impose an administrative fine of up to 5% of the penalty imposed on the undertaking also on the managers or employees that are determined to have decisive effect in the relevant competition law infringement;
  • impose an administrative fine onto each party (in case of acquisition transaction, onto the acquirer only ) that equals to 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 realization 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 transactions that are required to be notified 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 concummating the transaction without the 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 had been determined by decision of the Competition Board to qualify as an illegal and prohibited transaction under the Competition Law, the Board, in addition to the above listed measures to be imposed upon failure to notify, may impose a daily administrative fine onto each party (in case of acquisition transaction, onto the acquirer only ) that equals to 0.05% of the turnover of the corresponding party that was generated in the financial year preceding the decision to impose such fine.
Stages
Stage 1: Thirty calendar days
If the Board does not respond to or take any action regarding a notification within 30 days as 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.
Stage 2: six to twelve months
If the Board decides to conduct a final examination, the transaction is 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.


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 million; 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 million;
and
at least one party to the transaction (including related entities), has assets or sales in Ukraine with value exceeding EUR 1 million.
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
Stage 1:
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);
Stage 2:
30 calendar days (starting after expiry of the initial 15-day period of review) for the AMC to consider a substance of the transaction (permission is granted or an in-depth investigation is opened);
Stage 3:
three months for an in-depth investigation of the transaction (so-called ‘concentration case’) that starts running after the AMC has received from the notifying parties all additional information it needs to decide on the case (in practice, it may take more than three months).
Stage 4:
within 30 days after the AMC decision prohibiting the transaction, the notifying parties may apply for a clearance to the CMU if they can prove that the positive social effect of the transaction will overweight its anti-competitive impact.
Foreign-to-foreign mergers caught?
Foreign-to-foreign transactions will be subject to clearance provided the filing thresholds are met (even in case of absence of subsidiaries in Ukraine and in case of relatively small revenues generated in Ukraine by one party only (e.g. where volume of import to Ukraine exceeds EUR 1 million).
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 14 February 2013


United Kingdom
Authority/Source
Office of Fair Trading (OFT) (first stage investigation)
Competition Commission (CC) (second stage investigation)
The Enterprise Act 2002
Note that it is anticipated that the OFT and CC will be merged into a new Competition and Markets Authority (CMA) under an Enterprise and Regulatory Reform Act expected to be made in 2013 and taking effect in April 2014. The CMA will have responsibility for merger control under an amended Enterprise Act.
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;

or
the annual UK turnover of the target group exceeds GBP 70 million (approx. EUR 81.1 million);
Obligation on whom
Either the purchaser or the vendor may notify to the OFT.
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 OFT may begin an 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 its being made public or the OFT being informed about it).
Consequences of implementing a transaction despite obligation to suspend until clearance
An obligation to suspend arises only upon a reference to the Competition Commission for second stage investigation (subject to the parties being required to give undertakings not to implement/orders being imposed requiring the parties not to implement).

It is unlawful to breach this obligation, any undertakings or orders. Civil proceedings may be brought and injunctive relief sought by the OFT, CC, Secretary of State or third parties.
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
Voluntary pre-notification by statutory Merger Notice:
20 working days (extendable up to 30).
“Fast track” procedure gives the OFT 20 working days for its initial consideration (may be increased by a further 10 working days).

Voluntary pre-notification by informal submission (usual route):
no statutory time limit; the OFT aims to make a decision within 40 working days.
Second Stage – 24 weeks (extendable by a further 8 weeks).
Where a merger is referred to the CC for further 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 at 18 February 2013
Euro exchange rate at 18 February 2013 of EUR 1 = GBP 0.86332


Acknowledgements
This guide is a common product of the competition lawyers of the member firms of CMS. 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 of 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 2013:
Belarus
Tatiana Emelianova and Andrej Ermolenko, Vlasova Mikhel & Partners
Cyprus
Ramona Livera and Evyenia Epaminondou, Andreas Neocleous & Co LLC
Denmark
Simon Evers Kalsmose-Hjelmborg and Mark Gall, Bech-Bruun
Estonia
Mariana Hagström and Risto Ruutel, Glikman & Partnerid
Finland
Sari Hiltunen, Castrén & Snellman Attorneys
Greece
Dimitris Emvalomenos, Bahas Gramatidis & Partners
Iceland
Steinar Gudgeirsson, 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
Luxembourg
Philippe-Emmanuel Partsch, Arendt & Medernach
Malta
[…]
Moldova
Alexander Turcan, Turcan Cazac Law Firm
Norway
Jan Magne Juuhl Langseth, Christian Bendiksen, Erling Christiansen, 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
1040 Brussels
Belgium
T +32 2 65 00-420
F +32 2 65 00-422
Michael Bauer
E michael.bauer@cms-hs.com
Robert Bosman
E robert.bosman@cms-dsb.com
Kai Neuhaus
E kai.neuhaus@cms-hs.com
Edmon Oude Elferink
E edmon.oudeelferink@cms-dsb.com
Albania
CMS Adonnino Ascoli & Cacasola Scamoni Sh.p.k.
Rr. Sami Frasheri
Red Buiding
1st floor
Tirana
Albania
Austria
CMS Reich Rohrwig Hainz
Rechtsanwälte GmbH
Ebendorferstrasse 3
1010 Vienna
Austria
T +43 1 404 43-0
F +43 1 404 43-9000
Daniela Karollus-Bruner
E daniela.karollus-bruner@cms-rrh.com
Belgium
CMS DeBacker
Ch. 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
CMS Reich-Rohrwig Hainz
ul. Fra Andela Zvizdovića 1
71000 Sarajevo
Bosnia and Herzegovina
T +387 33 296 408
F +387 33 296 410
Nedzida Salihovic-Whalen
E nedzida.salihovic-whalen@cms-rrh.com
Bulgaria
CMS Reich-Rohrwig Hainz EOOD
14 Tsar Osvoboditel blvd.
1000 Sofia
Bulgaria
T +359 2 921 99-21
F +359 2 921 99-29
Gentscho Pavlov
E gentscho.pavlov@cms-rrh.com
Dessislava Fessenko
E dessislava.fessenko@cms-rrh.com
Croatia
CMS Zagreb
Ilica 1
10000 Zagreb
Croatia
T +385 1 48 25-600
F +385 1 48 25-601
Czech Republic
CMS Cameron McKenna Praha
Palladium
Na Pořiči 1079/3a
110 00 Prague 1
Czech Republic
T +420 2 967 98-111
F +420 2 210 98-000
Tomás Matejovský
E tomas.matejovsky@cms-cmck.com
France
CMS Bureau Francis Lefebvre
1–3 Villa Emile Bergerat
92522 Neuilly-sur-Seine Cedex
France
T +33 1 47 38-5500
F +33 1 47 38-5555
Bernard Geneste
E bernard.geneste@cms-bfl.com
Nathalie Petrignet
E nathalie.petrignet@cms-bfl.com
Brussels
Avenue des Nerviens 85
1040 Brussels
Belgium
T +32 2 65 00-420
F +32 2 65 00-422
Michael Bauer
E michael.bauer@cms-hs.com
Germany
CMS Hasche Sigle
Duesseldorf
Breite Strasse 3
40213 Duesseldorf
Germany
T +49 211 49 34-0
F +49 211 49 34-120
Dietmar Rahlmeyer
E dietmar.rahlmeyer@cms-hs.com
Frankfurt am Main
Barckhausstrasse 12–16
60325 Frankfurt am Main
Germany
T +49 69 717 01-0
F +49 69 717 01-40410
Heinz-Joachim Freund
E joachim.freund@cms-hs.com
Stefan Lehr
E stefan.lehr@cms-hs.com
Hamburg
Stadthausbruecke 1–3
20355 Hamburg
Germany
T +49 40 376 30-0
F +49 40 376 30-40600
Hans-Dieter Lübbert
E hans-dieter.luebbert@cms-hs.com
Heidi Wrage-Molkenthin
E heidi.wrage-m@cms-hs.com
Markus Schöner
E markus.schoener@cms-hs.com
Munich
Brienner Strasse 11/V
80333 Munich
Germany
T +49 89 238 07-301
F +49 89 238 07-309
Jens Neitzel
E jens.neitzel@cms-hs.com
Stuttgart
Schöttlestrasse 8
70597 Stuttgart
Germany
T +49 711 97 64-0
F +49 711 97 64-900
Harald Kahlenberg
E harald.kahlenberg@cms-hs.com
Christian Haellmigk
E christian.haellmigk@cms-hs.com
Hungary
CMS Cameron McKenna LLP
YBL Palace, 3rd Floor
Károlyi Mihály utca, 12
1053 Budapest
Hungary
T +36 1 483 48-00
F +36 1 483 48-01
Dóra Petrányi
E dora.petranyi@cms-cmck.com
Italy
CMS Adonnino Ascoli & Cavasola Scamoni
Milan
Via Michelangelo Buonarroti, 39
20145 Milan
Italy
T +39 02 48 01 11 71
F +39 02 48 01 29 14
Rome
Via Agostino Depretis, 86
00184 Rome
Italy
T +39 06 47 81 51
F +39 06 48 37 55
Liechtenstein
CMS von Erlach Henrici Ltd.
Dreikönigstrasse 7
8022 Zurich
Switzerland
T +41 44 285 11-11
F +41 44 285 11-22
Stefan Brunnschweiler
E stefan.brunnschweiler@cms-veh.com
Macedonia
CMS Reich-Rohrwig Hasche Sigle d.o.o.
Cincar Jankova 3
11000 Belgrade
Serbia
T +381 11 320 89-00
F +381 11 303 89-30
Radivoje Petrikic
E Radivoje.petrikic@cms-rrh.com
[Rasko Radovanovic?]
Montenegro
CMS Reich-Rohrwig Hasche Sigle d.o.o.
Cincar Jankova 3
11000 Belgrade
Serbia
T +381 11 320 89-00
F +381 11 303 89-30
Radivoje Petrikic
E Radivoje.petrikic@cms-rrh.com
The Netherlands
CMS Derks Star Busmann
Mondriaantoren
Amstelplein 8A
1096 BC Amsterdam
The Netherlands
T +31 20 301 63-01
F +31 20 301 63-33
Edmon Oude Elferink
E edmon.oudeelferink@cms-dsb.com
Poland
CMS Cameron McKenna
Warsaw Financial Centre
XVIII Floor
ul. Emilii Plater 53
00-113 Warsaw
Poland
T +48 22 520 55-55
F +48 22 520 55-56
Malgorzata Urbanska
E malgorzata.Urbanska@cms-cmck.com
Romania
CMS Cameron McKenna SCA
S-PARK
11–15 Tipografilor Str.
B3–B4, 4th Floor
013714 Bucharest
Romania
T +40 21 52 80-800 / +40 750 095-000
F +40 21 52 80-900 / +40 750 095-100
Portugal
CMS Rui Pena & Arnault
Rua Sousa Marins, 10
1050-218 Lisboa
Portugal
T +351 21 095 81 40
F +351 21 095 81 55
António Payan Martins
E antonio.payanmartins@cms-rpa.com
Russia
CMS Russia
Gogolevsky boulevard, 11
119019 Moscow
Russia
T +7 495 78 64-000
F +7 495 78 64-100
Serbia
CMS Reich-Rohrwig Hasche Sigle d.o.o.
Cincar Jankova 3
11000 Belgrade
Serbia
T +381 11 32 08-900
F +381 11 30 38-930
Radivoje Petrikic
E radivoje.petrikic@cms-rrh.com
Slovakia
Advokátska kancelária ­ JUDr. Jaroslav Ružička in ­association with CMS Cameron McKenna v.o.s. and CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH
Kapitulská 15
811 01 Bratislava 1
Slovakia
T +421 2 54 43-3490
F +421 2 54 43-5906
Nada Spustová
E spustova@ccsconsulting.sk
Slovenia
CMS Reich-Rohrwig Hainz
Tomšičeva 1
1000 Ljubljana
Slovenia
T +386 1 620 52-10
F +386 1 620 52-11
Spain
CMS Albinana & Suarez de Lezo, S.L.P.
Calle Génova, 27
28004 Madrid
Spain
T +34 91 451 93 00
F +34 91 442 60 35
Diego Crespo
E dcrespo@cms-asl.com
Patricia Linán
E patricia.linan@cms-asl.com
Switzerland
CMS von Erlach Henrici Ltd.
Dreikönigstrasse 7
8022 Zurich
Switzerland
T +41 44 285 11-11
F +41 44 285 11-22
Stefan Brunnschweiler
E stefan.brunnschweiler@cms-veh.com
United Kingdom
CMS Cameron McKenna
Mitre House
160 Aldersgate Street
London EC1A 4DD
United Kingdom
T +44 20 73 67-2189
F +44 20 73 67-2000
Ukraine
CMS Cameron McKenna LLC
38 Volodymyrska Street, 6th Floor
01034 Kyiv
Ukraine
T +380 44 391 33-77
F +380 44 391 33-88
CMS Reich-Rohrwig Hainz TOV
19-B Instytutska Street, 5th floor
041021 Kyiv
Ukraine
T +380 44 503 35-46
F +380 44 503 35-49
Johannes Trenkwalder
E Johannes.trenkwalder@cms-rrh.com

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