Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
Concentrations of major importance must be notified to the Service prior to their implementation, following the conclusion of the relevant agreement or the publication of the relevant takeover or the acquisition of a controlling interest. Notification can also take place where the undertakings concerned prove to the Service their bona fide intention to conclude an agreement or, in the case of a takeover offer or of an offer for the acquisition of a controlling interest, following a public announcement of an intention or final decision to make such offer.
Upon becoming aware of a concentration of major importance that ought to be notified but the undertakings concerned have failed to do so, the Service immediately notifies the undertakings concerned of their obligation to proceed with notifying such a concentration in accordance with the provisions of the Law. The time limit for the assessment of the concentration would then commence at the time of the Service receiving such notification.
Although failure to notify a concentration does not by itself give rise to sanctions, where the concentration has been partially or entirely implemented in the absence of clearance by the CPC, administrative fines may be imposed. These fines are discussed in detail under question 12.
The CPC has the power to order the partial or total dissolution of a concentration of major importance to secure the restoration of the functioning of competition in the market, provided that the requirements of the Law are met.
Which parties are responsible for filing and are filing fees required?
Concentrations of major importance must be notified to the Service in writing, either jointly or separately by the undertakings participating in a merger or in the joint acquisition of control of another undertaking. In all other cases, the party responsible for notification is the undertaking acquiring control.
Filing fees are fixed by the Law at €1,000. Where a concentration becomes subject to a full investigation (Phase II), the undertakings concerned are bound to pay a fee of €6,000 to the CPC.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
The Service shall, within one month of the date of receipt of the notification and the filing fees or the date on which the Service receives additional information necessary towards achieving conformity of the notification to the requirements of the Law, inform the notifying undertakings regarding the decision of the CPC of whether the concentration is cleared or whether it will proceed to a full investigation of the concentration.
If, owing to the volume of work or the complexity of the information contained in the notification, the Service is unable to comply with the aforementioned time frame, it shall, within seven days prior to the lapse of the one-month period, inform the notifying undertaking of an extension to the said period by a further period of 14 days.
The Law expressly prohibits the partial or entire implementation of the concentration prior to clearance, infringement of which prohibition entails administrative fines, as discussed under question 12.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?
Where a concentration is either partially or entirely implemented prior to the clearance of the CPC or prior to the lapse of the time frame within which the Service ought to inform the notifying undertaking of whether the concentration is cleared or shall be fully investigated but the Service has not so informed, administrative sanctions may be imposed by the CPC.
An administrative fine of up to 10 per cent of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed on the notifying undertaking for the discussed infringement, which may be followed by additional administrative fines of €8,000 for each day the infringement persists.
There have been no cases where the undertakings concerned implemented a concentration prior to clearance by the CPC under the new regime. Nevertheless, taking into account the approach followed under the previous framework, it can be certain that the CPC will exercise its powers in relation to the implementation of concentrations in violation of the statutory provisions in a rigorous manner.
Moreover, the CPC has the power to order the partial or total dissolution of a concentration that has been implemented prior to obtaining clearance by the CPC.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
Closing before clearance could lead to administrative fines being imposed, as discussed under question 12, irrespective of whether such concentration is a foreign-to-foreign merger or not.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
Closing prior to clearance is not possible unless the Service fails to inform the notifying undertaking of whether the concentration is cleared or a Phase II investigation will be carried out within the one-month period discussed in question 11, in which case the concentration is deemed as cleared. Nevertheless, a temporary approval of a concentration is possible pursuant to the provisions of section 31 of the Law, in the case where a full (Phase II) investigation is decided by the CPC, where the undertakings concerned can establish, upon a relevant application to the CPC, that they shall suffer substantial damage as a result of any additional delay to the concentration. Such temporary approval may be accompanied by conditions decided at the CPC’s discretion and it does not affect the final decision of the CPC.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
In the case of public takeover bids, concentrations of major importance arising from the publication of a public takeover or the acquisition of a controlling interest must be notified to the CPC prior to their implementation and following such publication. Notification can also take place where the undertakings concerned prove to the Service of the CPC their bona fide intention of a takeover offer or of an offer for the acquisition of a controlling interest, following a public announcement of an intention or final decision to make such an offer.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
The notification of a concentration of major importance should include the information prescribed in Appendix III to the Law. The notification must be made in Greek and must be accompanied by various supporting documents and other information, which may be in Greek or English, including but not limited to the following:
- a copy of all final or most recent documents that brought about the concentration either by agreement or following a public bid;
- in the case of a public bid, a copy of the public bid document;
- copies of the most recent annual reports and audited financial statements of all the undertakings participating in the concentration;
- copies of reports or analyses prepared for the purposes of the concentration;
- a list and short description of the contents of all analyses, reports, studies and surveys that were prepared by or for any of persons responsible for notification for the purpose of evaluating or analysing the proposed concentration in relation to the market and competition conditions;
- details of the concentration (including the nature and scope of the concentration, the financial and structural details of the concentration, and details regarding the turnover in Cyprus and worldwide of each undertaking);
- details of relationships of ownership and control as between each participant in the concentration and the undertakings connected with it;
- personal and economic ties as between each group of undertakings and any other undertaking operating within the affected market in which such group holds, inter alia, at least 10 per cent of the voting rights or shares;
- a description and analysis of the relevant markets; and
- a description and analysis of the affected relevant markets.
A fine of up to €50,000 may be imposed for a failure to provide requested information or clarifications, or for providing misleading or inaccurate information.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Phase I entails the preparation of a written report by the Service to the CPC and an assessment of the concentration by the CPC upon receiving the said report by the Service. The CPC’s assessment shall lead to a decision that the concentration is not one of major importance and therefore does not fall within the scope of the Law, that the concentration is of major importance but does not raise any doubts as to its compatibility with competition in the market and is therefore declared compatible and cleared, or that doubts as to such compatibility are raised and a full investigation must be initiated.
Phase II entails the preparation of a report of findings by the Service, which is submitted to the CPC within three months of the date of receipt of the notification, provided that the fees applicable in the case of a full investigation are paid. The CPC is then bound to assess the concentration under the light of the findings of the Service and accordingly declare the concentration as compatible, subject to conditions that it may decide to impose upon the undertakings concerned, or incompatible with competition in the market and thus not cleared.
What is the statutory timetable for clearance? Can it be speeded up?
Within one month of the date of receipt of the notification and the filing fees or the date of receipt of additional information necessary towards achieving conformity of the notification to the requirements of the Law, the Service is required to inform the notifying undertakings of whether the concentration is cleared or whether the notification will proceed to a full investigation of the concentration.
If, owing to the volume of work or the complexity of the information contained in the notification, the Service is unable to comply with this time frame, it shall, within seven days prior to the lapse of the one-month notice period, inform the notifying undertaking of an extension of 14 days. On the basis of the CPC’s practice during Phase I investigations, only rarely will the CPC extend the aforesaid deadline for issuance of its decision. Provided a notification is complete and the Service has no requests for clarifications, decisions are issued in a timely manner, within the statutory timetable.
Where a Phase II investigation is initiated by virtue of section 25 of the Law, the Service is bound to prepare a report of findings to the CPC within three months as of the date of receipt the notification, provided that the fees payable towards a full investigation are settled. In the case of full investigation, the notifying party or parties must be informed of the CPC’s decision no later than four months from the date of receipt by the Service of the original notification application. Where additional information is requested by the Service, the period is extended to four months from receipt of the additional information.
The Law does not provide for a fast-track procedure of clearance of concentrations.