Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
The EU Merger Regulation does not determine deadlines for filing. However, the notification of the concentration needs to be made before its implementation.
Pursuant to article 14(2) of the EU Merger Regulation, the ESA and the European Commission may impose fines, when a concentration is intentionally or negligently not notified prior to its implementation, unless expressly authorised by article 7(2) or by a decision taken pursuant to article 7(3) of the EU Merger Regulation.
The merger plan must be filed with the Liechtenstein Office of Justice at least one month prior to the shareholders’ general meeting, which is intended to resolve on the consent. If the merger plan is publicly accessible without cost on the website of each company, it is sufficient to place a notice on the website of the Liechtenstein Office of Justice referring to the companies’ websites providing the merger plan and its publication date (article 351d, sections 1 and 1a PGR).
Which parties are responsible for filing and are filing fees required?
The parties to the merger or those acquiring joint control need to notify the concentration. In all other cases, the notification needs to be effected by the person or undertaking acquiring control (article 4(2) of the EU Merger Regulation).
The company management of the transferring and of the absorbing company has to file the merger and its consequences to the Liechtenstein Office of Justice. However, the management of the absorbing company has the right to file the merger for the transferring company (article 351g, section 1 PGR) as well.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
A concentration may not be implemented either before its notification or until it has been declared compatible with the common market, unless a derogation has been granted (article 7 of the EU Merger Regulation).
For a cross-border merger of a Liechtenstein company limited by shares, the Liechtenstein Commercial Register, which is a department of the Office of Justice, will verify whether the conditions precedent for a merger have been fulfilled and will issue a pre-confirmation (article 352e PGR).
Within six months of the issuance of the pre-confirmation, all involved companies need to file the merger plan as well as a possible agreement with the Liechtenstein Office of Justice, which controls the legality of the cross-border merger with respect to its execution and the formation of a new company limited by shares under Liechtenstein law as a result of the merger. Furthermore, it verifies the compliance with the Law on the employee participation in a cross-border merger of limited liability companies (article 352f PGR).
The registration of a cross-border merger in the Commercial Registry is only admissible after a legality control according to article 352f PGR (article 352h, section 1 PGR).
The merger only takes effect after it has been entered in the Commercial Register of the absorbing company and it may only be entered in the Commercial Register of the absorbing company after it has been entered for the transferring companies (article 351h PGR). The transfer of the assets and liabilities and the dissolution of the transferring companies takes effect together with the entry of the merger in the Commercial Register.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?
The ESA and the European Commission may fine a person or an undertaking for closing before clearance (article 14 of the EU Merger Regulation). The validity of any transaction (in connection with a concentration with an EC/EEA dimension) carried out before its notification or until it has been declared compatible with the common market shall be dependent on a decision of the European Commission or on a respective presumption (article 7, paragraph 4 of the EU Merger Regulation). Moreover, the Commission may take the appropriate measures to ensure that the undertakings concerned dissolve the concentration, or may take interim measures (article 8, paragraphs 4 and 5 of the EU Merger Regulation).
There are no recent cases where sanctions have been imposed.
There are no specific sanctions for closing before clearance for mergers of companies limited by shares in the PGR. Article 351l PGR states the liability of the members of the company management of the transferring company in relation to their shareholders for their negligent or wilful behaviour in the course of the preparation and accomplishment of the merger.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
Sanctions could be applied in cases involving closing before clearance in foreign-to-foreign mergers if they have substantial operations in an EU member state or an EEA state and exceed the thresholds. However, no such case has been reported for Liechtenstein.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
No such solutions exist in which it would be acceptable to permit closing before clearance.
This question is not applicable for national or cross-border mergers of companies limited by shares under the PGR.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
Article 7(2) of the EU Merger Regulation determines that a public bid or a series of transactions in securities, by which control is acquired from various sellers, may be implemented on the following conditions:
- the concentration is notified to the European Commission or the ESA without delay; and
- the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of its investments based on a derogation granted by the European Commission or the ESA.
This question is not applicable for national or cross-border mergers of companies limited by shares under the PGR.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 special forms provided for in the Annexes of Commission Regulation (EC) No. 802/2004 of 7 April 2004 implementing the EU Merger Regulation must be used for a notification of a concentration pursuant to the EU Merger Regulation: Form CO (Annex I) or Short Form CO (Annex II).
Generally, the Short Form CO may be used when a notification is submitted that is unlikely to raise completion concerns. The exact conditions are stipulated in paragraph 1.1, subparagraph 3 of Annex II of EC Regulation No. 802/2004 of 7 April 2004. In all other cases Form CO must be used.
Section 1 et sq of Annex II of EC Regulation No. 802/2004 states in detail the information that must be provided in the form (eg, description of the concentration, information about the parties, details of the concentration, ownership and control). All required information must be correct and complete. If a notification in any material respect is incomplete, the Commission informs the notifying parties in writing. In such a case the notification shall become effective on the date on which the complete information is received by the Commission (article 5, paragraph 2 Regulation (EC) No. 802/2004). In order to carry out the duties assigned to it by the EU Merger Regulation, the Commission by simple request or by decision may require the concerned persons to provide all necessary information (article 11, paragraph 1 EU Merger Regulation). The Commission may by decision impose fines to relevant persons (eg, where they intentionally or negligently supply incorrect information in response to a request (article 14, paragraph 1 EU Merger Regulation)).
The Ordinance of 11 February 2003 on the Commercial Register, in its presently valid version (Legal Gazette 2003, No. 66, LR 216.012) determines in articles 69 and 70 the required level of detail for the filing.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Before the notification, the European Commission may be consulted to informally and confidentially confirm the jurisdiction of the European Commission, identify key issues and possible competition concerns and ascertain deadlines.
In Phase I the European Commission issues a formal clearance decision upon the notification of a concentration if the merger does not raise ‘serious doubts as to its compatibility’ with the common market.
If the concentration raises ‘serious doubts’, the European Commission issues a decision to initiate proceedings (ie, to proceed with an in-depth Phase II investigation).
The Phase II decision clears or blocks the merger.
This question is not applicable for national or cross-border mergers of companies limited by shares under the PGR.
What is the statutory timetable for clearance? Can it be speeded up?
Pursuant to article 10 of the EU Merger Regulation, the European Commission or the ESA must decide within 25 working days and provide clearance in cases that do not raise ‘serious doubts as to its compatibility’ with the common market. The period begins on the working day following the receipt of the notification. Under certain conditions the period may be extended by 20 days. In all other cases, an in-depth investigation will follow, which takes 90 days and may even be extended to 105 days.
The concentration is deemed compatible with the common market if the Commission or the ESA have not taken a decision within the given time limits. The time frame for clearance cannot be speeded up.
As Liechtenstein has had no mergers with an EU or EFTA dimension since the entry into force of the EU Merger Regulation, there is no pertinent practice.