Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
A pre-merger filing should be submitted within 30 calendar days of the conclusion of a binding agreement, the announcement of a public bid or the acquisition of a controlling interest. Filing before any of the above events, in principle, shall not trigger the timetable for clearance.
In the case of wilful failure to notify a concentration as above, the Commission imposes a fine of at least €30,000 up to 10 per cent of the aggregate turnover of the undertaking under obligation to notify. In the majority of cases, the fines for late notification do not exceed double the minimum fine amount, although there have been some exceptions.
Failure to notify constitutes a criminal offence for the undertaking’s lawful representative, punishable with a penalty from €15,000 to €150,000.
Which parties are responsible for filing and are filing fees required?
In the case of a merger agreement, the concentration must be notified by all parties involved, whereas in cases of acquisition of sole control by the party acquiring control and in cases of acquisition of joint control, notification must be made by all the undertakings participating in the agreement.
The filing fee for a pre-merger filing amounts to €1,100.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
In cases of concentrations subject to pre-merger control, the implementation of the transaction is prohibited until the Commission issues a decision:
- approving the transaction under article 8(3) (Phase I decision);
- approving the transaction after an in-depth investigation (with or without conditions) within 90 days from the initiation of Phase II proceedings, according to article 8(4), (5), (6) and (8) (Phase II decision);
- approving the transaction before a 90-day term following initiation of Phase II proceedings has expired without the issuance of a prohibitive decision (deemed clearance); and
- prohibiting the transaction according to article 8(6) (see question 18).
In a 2014 case, the Commission dealt with an acquisition of joint control, approved back in 2012, in the form of veto rights awarded to the 49 per cent shareholder by virtue of a shareholders’ agreement and examined whether the concentration had been implemented before the issuance of its approving decision while it should have been suspended. According to the facts, on the same day that the shareholders’ agreement was signed and even before the submission of the notification to the Commission, the shareholders’ meeting of the target company had in fact elected a new board of directors consisting of directors appointed by both parties in conformity with the shareholders’ agreement. From the evidence submitted to it, the Commission found that although the board had been elected by the shareholders’ meeting and had convened at a meeting to constitute itself into a corporate body before the issuance of the Commission’s approving decision, it had not thereafter exercised any of its powers. In fact, a month after its election, the shareholders’ meeting of the target company revoked its decision electing such board with retroactive effect since its election. The Commission thus concluded that the joint control had not been actually implemented and refrained from the imposition of fines for early implementation of the concentration to the shareholders of the target company.
The issue of suspension of the implementation of a transaction came up in a 2018 decision dealing with the acquisition of sole control. In that case, the parties had notified to the Commission their non-binding memorandum of understanding providing for the sale of 100 per cent of the shares of the target company by the seller to the acquiring undertaking. A few days later, they signed and submitted to the Commission the sale and purchase agreement according to which the seller sold and delivered the shares to the acquiring undertaking, the latter paid to the seller a big portion of the purchase price and the board members of the target company had handed their written resignations to the acquiring company. That agreement did not contain a provision that the sale would be conditional on the approval of the transaction by the Commission; however, a similar clause was contained in the notified memorandum of understanding. The Commission cleared the transaction with commitments. Until the issuance of that decision, the acquiring undertaking had not exercised its rights as the new shareholder of the target company and the resignation of the board members had not been become effective. So, until that day, the target was still being managed by the previous shareholder (ie, the seller). On the basis of these facts, the Commission found that there has not been an early implementation of the transaction, especially because there was no evidence that the parties had intended to conceal the change of control and avoid the substantive examination of the transaction. However, there was a dissenting minority, including the President of the Commission.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
Closing before clearance attracts a fine of at least €30,000 and up to 10 per cent of the aggregate turnover of the undertaking under obligation to notify. In the majority of cases, the fines for early closing do not exceed double the minimum fine amount, although there have been exceptions.
Closing before the Commission’s decision constitutes a criminal offence for the undertaking’s lawful representative, punishable with a fine from €15,000 to €150,000.
The Commission may adopt appropriate provisional measures to restore or maintain conditions of effective competition if the concentration has closed before a clearance decision or in breach of the remedies imposed by the Commission’s clearance decision.
Early implementation may only be allowed following a special derogation by the Commission. Derogations may be granted to prevent serious damage to one or more of the undertakings concerned or to a third party. A derogation may be requested or granted at any time (before notification or after the transaction) and revoked by the Commission in the circumstances provided in the law, for example if it was based on inaccurate or misleading information. The Commission may, in granting a derogation, impose conditions and obligations on the parties to ensure effective competition and prevent situations that could obstruct the enforcement of an eventual blocking decision. The Commission regards derogations as an exceptional measure and grants them with great caution, in particular where the participating undertakings face serious financial problems. The Commission has granted a derogation to a major Greek bank that intended to take over from a bank under liquidation all its current account contracts with its customers. The Commission held that the immediate implementation of the succession was crucial not only for the customers of the failed bank, so that they could have immediate access to their bank accounts, but also to safeguard the reputation of the Greek banking system.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The Commission would impose sanctions in cases involving closing before clearance in foreign-to-foreign mergers.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
‘Hold-separate’ arrangements have, to date, not been accepted by the Commission as it considers that a concentration at the level of the parent undertakings outside Greece gives the possibility to the acquiring undertaking to implement its business and pricing policy to the seller’s customers in Greece, thus acquiring control of the target’s local market share.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
In the case of public bids or acquisitions of controlling interest on the stock exchange, implementation is allowed provided the transaction has been duly notified to the Commission and the acquirer does not exercise the voting rights of the acquired securities, or does so only to secure the full value of the investment and on the basis of a derogation decision issued by the Commission. In a derogation issued in this context, the Commission allowed the exercise of the voting rights of the acquired shares to elect a new board of directors, provided this board would not proceed to management acts that would substantially modify the assets or liabilities of the company until the issuance of the clearance decision by the Commission.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
Pre-merger filing is onerous. A specific form exists similar to the Form CO, as well as a short form filed when the notifying party considers that the concentration does not raise serious doubts. As a general rule, the short form may be used for the purpose of notifying concentrations, where one of the following conditions is met:
- none of the parties to the concentration are engaged in business activities in the same relevant product and geographical market (no horizontal overlap), or in a market that is upstream or downstream of a market in which another party to the concentration is engaged (no vertical relationship);
- two or more of the parties to the concentration are engaged in business activities in the same relevant product and geographical market (horizontal relationships), provided that their combined market share is less than 15 per cent; or one or more of the parties to the concentration are engaged in business activities in a product market that is upstream or downstream of a product market in which any other party to the concentration is engaged (vertical relationships), and provided that none of their individual or combined market shares at either level is 25 per cent or more; or
- a party is to acquire sole control of an undertaking over which it already has joint control.
The Commission may require a full-form notification where it appears either that the conditions for using the short form are not met, or, exceptionally, where they are met, the Commission determines, nonetheless, that a full-form notification is necessary for an adequate investigation of possible competition concerns.
Notifications should be submitted in four copies in the Greek language, with supporting documents as well as by email. In practice, if these are in English, no Greek translation will be required, except for the concentration agreement itself. This document, or at least its principal provisions, should be translated into Greek. The submitting attorney should produce a power of attorney granting him or her all necessary powers to act before the Commission and also to act as attorney for service.
In a case where wrong or missing information is provided, the law provides for a fine of €15,000 with a maximum level of 1 per cent of the turnover.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Upon receipt of notification, a rapporteur is appointed from the members of the Commission who shall be assisted by a team of employees of the DG. An investigation shall commence involving contacting third parties, such as competitors or customers, with the purpose of defining the relevant and the affected markets and the competitive conditions therein. Letters may also be addressed to notifying parties with additional requests for information, which should be replied to within at least five days of receipt. The rapporteur should issue its recommendation to the Commission, also made available to the notifying parties, whether to clear the transaction or not. The parties, following the issuance of the recommendation, have access to the non-confidential information of the Commission’s file on the case. Third parties do not have access to the file.
A summons is addressed by the Secretariat to the parties for a hearing before the Commission. At the hearing, the parties may present their arguments and examine witnesses. Thereafter, they may also submit written pleadings.
What is the statutory timetable for clearance? Can it be speeded up?
There is a two-stage procedure for pre-merger filings.
If the concentration does not raise serious doubts concerning potential restrictive effects on competition, the Commission should issue a clearance decision within one month of notification.
If the concentration raises serious doubts, the president of the Commission must issue a decision within one month of notification initiating a full investigation of the notified transaction. The participating undertakings should be immediately informed about this decision. The case is introduced before the Commission within 45 days. From that date, the undertakings may within 20 days at the latest propose commitments. In exceptional cases, the Commission may accept commitments even after the expiry of the 20-day term, in which case the term for the issuance of a decision under article 8(6) is extended from 90 to 105 days. Where the Commission finds that the concentration substantially restricts competition in the relevant market, or that, in the case of a joint venture, the criteria laid down by article 1(3) are not fulfilled, it shall issue a decision prohibiting the concentration. Such decision must be issued within 90 days of the initiation of Phase II. If the Commission finds that the concentration does not substantially restrict competition or if it approves the same with conditions, it shall issue an approving decision. If the 90-day term expires without the issuance of a prohibitive decision, the concentration is deemed as approved, with the Commission thereafter issuing a merely confirmatory decision.
This timetable cannot be speeded up. They can be extended when the notifying undertakings consent.
If the participating undertakings do not furnish any required information within the set deadline, the term for the issuance of the decision is suspended and recommences as soon as such information is furnished. In its decisions, the Commission mentions the date of the notification, the date of its request for information and the date of submission thereof by the notifying party.
In general, the Commission issues its decisions within the above terms.