Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
There is no explicit filing deadline. However, in any event the concentration has to be notified to the AMO prior to its implementation (ie, before any rights or obligations resulting from a concentration are executed) and after:
- an agreement on which the concentration is based has been concluded;
- the acceptance of a bid in a public tender has been announced;
- a state authority’s decision has been delivered to an undertaking (eg, certain sector-specific approvals);
- announcement of a takeover bid;
- the day on which the European Commission informed an undertaking that the transaction falls within the jurisdiction of the AMO; or
- the day on which a particular event that led to the concentration occurred.
The notification can also be filed with the AMO prior to the conclusion of an agreement or other event causing the concentration to arise, provided that it results in a concentration that requires a filing with the AMO. Such notification must also contain reasoning and documents certifying the facts essential for the concentration.
In the event of a failure to notify the concentration, the AMO shall impose a fine of:
- up to 10 per cent of the undertaking’s worldwide turnover generated in the preceding business year; or
- up to €330,000 on an undertaking that generated turnover not exceeding €330 or has not achieved any turnover, or when its turnover cannot be calculated.
Which parties are responsible for filing and are filing fees required?
The responsibility for the submission of the filing depends on the type of the concentration. Against this background, the filing has to be submitted:
- jointly by the parties to the concentration in the case of a merger or amalgamation of two or more independent undertakings;
- in the case of a public tender, by the selected bidder;
- in the case of a decision issued by a state authority on a merger or amalgamation of undertakings pursuant to special legislation, by the parties to the concentration jointly;
- in the case of a takeover bid, by the proposer of the takeover bid; and
- in any other cases the notification has to be submitted by the undertaking or undertakings that acquire control over another undertaking or its part or other undertakings or their parts.
The filing fee is determined by the Act on Administrative Fees. It currently amounts to €5,000. As of 1 March 2016, the filing fee is paid based on the payment order issued by the AMO. If the parties wish to evidence the payment together with the merger notification (and thus avoid losing time with additional formal letters), the AMO should be contacted at least one day before the actual notification and application for the payment order.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
For details on the waiting period, see question 18.
The intended concentration must not be implemented prior to clearance (ie, the undertakings concerned may not exercise rights or obligations arising from the intended concentration until the AMO issues a clearance decision (suspension obligation)).
However, the Act recognises the following exemptions:
- In the case of a public tender, the selected bidder may make its bid provided that it does not exercise the voting rights arising in relation to the implementation of the bid.
- The implementation of a public takeover bid or of transactions with securities at the securities market through which control is acquired from various subjects, provided that:
- such concentration is immediately notified to the AMO (ie, in practice, as soon as the acquirer learns that it has acquired control); and
- the acquirer of the control does not exercise its voting rights related to these securities or only does so to maintain the full value of its investments based on an individual exemption granted by the AMO.
- Under exceptional circumstances, the AMO may (upon request of the parties) grant an exemption from the standstill obligation if there are ‘serious reasons’; for example, serious financial problems or insolvency threats. The AMO has to decide on the exemption request within 20 working days of its submission (however, if the AMO asks for the further information, the clock may be stopped). The exemption should generally concern only the performance of certain urgent actions if no threat to competition is identified. The AMO may bind the grant of the exemption to conditions and commitments to ensure effective competition.
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
If the suspension obligation is breached (closing before clearance), the AMO shall impose fines (see question 9).
In addition, the AMO may oblige the parties to restore the level of competition that existed prior to the implementation of the concentration, especially by ordering the division of a company or the transfer of rights, or imposing of other obligations.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The sanctions for closing before clearance (see question 12) are applicable also in case of foreign-to-foreign mergers. However, we are not aware of any recent cases in this regard.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
In general, foreign-to-foreign concentrations are assessed and treated in the same way as domestic concentrations. The Act does not provide for hold-separate (carveout) solutions. For the means of requesting an exemption from the standstill obligation, see question 18.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
As mentioned in question 11, certain actions related to public takeover bids are - by law - exempted from the standstill obligation.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
Details concerning the content of the notification and the respective documents required are set forth in Decree No. 170/2014, which entered into force on 1 July 2014. The Decree sets out the following situations where a short-form notification may be submitted:
- an undertaking intends to acquire sole control over another undertaking in which it already exercises joint control;
- there is no horizontal or vertical overlap between the undertakings concerned under any alternative definition of the relevant market; or
- the combined market share of the parties concerned (including their affiliated companies) is less than 15 per cent at the horizontal level and individually or combined less than 30 per cent at the vertical level also under any alternative definition of the relevant markets.
A short-form notification must contain only a limited level of information, in particular:
- information on the parties to the concentration (ie, their business activities);
- description of the concentration;
- information on the capital, financial and personnel structure;
- general market information (eg, list of all categories of goods produced or imported including the respective territories, possible product or geographical market definition based on such product categories, statement on the (non-)existence of affected markets and the possibility to use the short-form notification, total market size, individual market shares held by the parties, most important competitors);
- information on cooperative effects of a joint venture;
- reasons for and effects of the concentration and the impact on competition;
- information on other applicable competition authorities; and
- underlying documentation.
If the criteria for the submission of a short-form notification are not met, the usual long-form notification must be submitted that requires the parties to submit, in addition to the limited information contained in a short-form notification, rather extensive data on the affected markets and their functioning.
Together with the notification, a power of attorney must be submitted, which is not, however, required to be notarised and apostilled. If some of the required information is not available or known, the parties may ask (in the filing) for a waiver from providing such data and provide their best estimates or at least an indication of from where the AMO could get the information. Also, if some information is not deemed as relevant for the assessment of the concentration, the parties may ask the AMO to agree with the waiver.
The filing and all documents must be submitted in the Slovak language with the certified translation or the affidavit that the uncertified translations are correct and complete. Also, if only copies are submitted, the affidavit declaring the identity of the copy with the original is required. In practice, the AMO tends to agree with the submission of certain documents (such as annual reports) in English or the translation of only certain parts thereof into Slovak.
The submission of false or incomplete information in a merger filling is subject to fines, which may amount up to 1 per cent of the total turnover for the preceding accounting period.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
For the statutory timetable for clearance, see question 18. In practice, it is our experience that the AMO adheres to mandatory deadlines and usually strives to clear cases within Phase I proceedings. The Act does not provide for the possibility to request expedited proceedings.
What is the statutory timetable for clearance? Can it be speeded up?
The AMO recommends that pre-notification contacts are initiated before the notification is being formally submitted with the AMO, even if the case does not raise substantial merger control concerns. Although the provision of a draft merger notification is not mandatory, practice shows that this is usually welcomed by the AMO. Pre-notification contacts should be initiated at least two weeks prior to the intended formal submission of the notification to the AMO.
Following the formal submission of the notification, the AMO issues an official letter informing the parties about the initiation of proceedings. Then the AMO assesses the completeness of the filing. It is recommendable to be in contact with the authority during this stage to ensure that this period is short. If the AMO finds that the submitted notification does not contain all the required information, it will issue a request for additional information (which will stop the clock). Once the filing is accepted as ‘complete’, the AMO issues an official confirmation letter to this effect.
The subsequent handling of the case depends on whether Phase I or Phase II proceedings are applied.
If the concentration does not require an in-depth analysis owing to the identification of competition concerns as to its compatibility with the Slovak competition law rules, the AMO issues a decision within 25 working days of the receipt of the notification (Phase I proceedings). This decision usually contains only a ‘simplified reasoning’, essentially some general information about the parties to the concentration, the business sectors or relevant markets where they are active.
In cases that require in-depth analysis because of the identification of competition law concerns (Phase II proceedings), within the deadline for the Phase I proceedings the parties must be informed about the initiation of Phase II proceedings in writing. Once the AMO has initiated Phase II, it must issue a decision within 90 working days following the date of delivery of the written notification about the initiation of Phase II to the parties.
In the event that the AMO requests from the parties additional information or documents that it considers relevant for the assessment of the case, this effectively stops the clock. If the notification contains false (misleading) information, the clock is reset and newly starts running only as of the day following the delivery of the true information. At the request of the parties or with their consent, the AMO may prolong the Phase I and II periods, even repeatedly, by a total of up to 30 working days at most.
If the concentration raises competition law concerns, the AMO may request the parties in writing (including reasoning) to propose conditions (commitments) within 30 working days upon delivery of such request. Such request effectively stops the clock, namely, the above-described Phase I and II review or decision-making periods are not in effect until the parties submit their proposed conditions or commitments or the expiry of the 30-working-day period (whichever occurs first). At justified request, the 30-working-day deadline may be prolonged or the AMO may accept the proposal even after its expiry in exceptional cases. Moreover, inspired by the European Commission’s practice, the AMO may test the proposed conditions or commitments by addressing them to natural persons or legal entities, publishing or in another manner or may appoint an independent trustee to supervise the fulfilment of such conditions or commitments.
Before issuing its final decision in Phase II, the AMO is required to inform the parties about its assessment of the matter and conclusions and asks them to provide their comments (if any) in writing. Subsequently, the final decision is issued and delivered to the parties. The decision becomes valid and effective if it is not appealed within 15 days of the delivery or the parties waive the right of appeal.