Long-expected by the professional public and the business sector, the amendment to Act on the protection of competition amends certain provisions of the Competition Protection Act that have long been regarded as causing problems in the merger control process with effect as of 1 January 2012.
Under the legal regulation valid until the end of 2011, basically all transactions of multinational corporations with a presence also on the Slovak market were subject to merger control if their Slovak turnover exceeded EUR 19 mil and simultaneously their global turnover exceeded EUR 46 mil. In practical terms, the notification criteria meant any acquisition that such multinational corporation realised anywhere in the world, triggered a notification of the concentration to the Antimonopoly Office. Thus such acquisition could only be implemented after receiving the valid and enforceable clearance from the Office. The above also applied to transactions aimed at acquiring control over a company with minimal or no business activities in Slovakia.
The most significant change is thus the system change in the setup of notification criteria, under which notification is triggered in the case of acquisitions with a Slovak turnover of the target company of at least EUR 14 mil, and also the global turnover of another party to the concentration (e.g. the entity acquiring control) must be at least EUR 46 mil. In our opinion, this change will exempt all foreign-to-foreign mergers from the notification obligation, in the case that the acquired entity is not a real player on the Slovak market.
Apart from the above change which directly affects acquisition transactions, changes were made to the entire concept of turnover notification criteria for all transactions. Since 1 January 2012, the following transactions and turnovers are subject to merger control in Slovakia:
Test a) applies to any type of transaction provided that the total turnover of all parties to the transaction in the Slovak Republic reached EUR 46 mil, and the individual Slovak turnovers of at least two parties to the concentration were at least EUR 14 mil.
As per the Amendment, Test b) is subdivided into three subtests, each laying down specific conditions for a certain type of transaction:
- transactions concerning merger (classic merger) are subject to control provided at least one of the parties posted turnover in the Slovak Republic in the amount of at least EUR 14 mil, and at the same time another party posted global turnover of at least EUR 46 mil,
- the above acquisition transactions (acquisition of control) are subject to control if the acquired entity posted turnover in Slovakia in the amount of at least EUR 14 mil, and at the same time another party (usually acquiring entity) posted global turnover of at least EUR 46 mil,
- transactions creating a full function joint venture are subject to control if at least one of the entities creating the joint venture posted turnover in Slovakia in the amount of at least EUR 14 mil, and at the same time another entity creating the joint venture posted global turnover of at least EUR 46 mil.
In all the above cases, the reference time for assessing turnover is the last closed accounting period preceding the concentration establishment.
Another significant change introduced by the Amendment as per merger control proceedings, is the subdivision of the merger control procedure into two phases, and the reduction of the time limit for issuing a decision in the first phases, i.e. in simple merger cases where no deep market analysis is required. The time limit for issuing a clearance decision in the first phase is 25 business days. For mergers assessed in the second phase, the time limit for issuing a decision is 90 business days. Thus starting 1 January 2012, the total time limit for issuing a clearance decision in two phases should not exceed 115 business days from full notification submission.
The above time limits may be exceeded only upon application or subject to the approval of the concentration party, by additional 30 business days. Another avenue by which the total time limit may (and will) be extended for the issuance of decision on a concentration assessed in second phase, is employed when the Office requires that the party submits further documents or information and data at a later stage of the administrative proceedings, as from the Office’s request until the submission of the documents and information the period is stayed (clock stop regime).
The last but not least change is related to substantial merger test where 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 legislation 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.”