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Under what circumstances is a transaction caught by the legislation?
According to the regulations, the term ‘concentration’ encompasses the following transactions:
- mergers between two or more previously independent undertakings;
- the acquisition by one or more undertakings of direct or indirect control of the whole or part of one or more other undertakings; and
- full-function joint ventures.
Such concentrations must lead to:
- a lasting change of control, with reference to the possibility of exercising a decisive influence on an undertaking through the ownership of or the right to use all or part of the assets of that undertaking; or
- rights or contracts that confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
Do thresholds apply to determine when a transaction is caught by the legislation?
Yes – in addition to the control criterion, the application of the regulations is determined based on the turnover of the parties concerned. A concentration is deemed to arise where, in the preceding financial year:
the aggregate turnover in Malta of the undertakings concerned exceeded €2,329,373.40; and
each of the undertakings concerned had a turnover in Malta equivalent to at least 10% of the combined aggregate turnover.
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