Cyprus Merger Control in ICLG Merger Control 2016

The International Comparative Legal Guide to:

A practical cross-border insight into merger control issues

Published by Global Legal Group, with contributions from:

Accura AdvokatpartnerselskabAdvokatfirmaet Wiersholm ASAlixPartners UK LLPAnastasios Antoniou LLCAshurst LLPAstersBeiten BurkhardtBergstein AbogadosBlake, Cassels & Graydon LLPBoga & AssociatesDrew & Napier LLCELIG, Attorneys-at-LawErdinast, Ben Nathan & Co. AdvocatesGO AssociadosIvanyan & PartnersJesse & Kalaus AttorneysJSC Center for Development and Protection of Competition PolicyKarimov and Partners Ltd.Kastell Advokatbyrå ABKhan Corporate Law

King & Wood MallesonsKoep & PartnersLee and Li, Attorneys-at-LawLinklaters LLPMatthews LawMorais Leitão, Galvão Teles, Soares da Silva & AssociadosMoravčević Vojnović i Partneri in cooperation with SchoenherrNagashima Ohno & TsunematsuOLIVARESPeltonen LMR Attorneys Ltd.PUNUKA Attorneys & SolicitorsSchellenberg Wittmer LtdSchoenherrSchoenherr in cooperation with Advokatsko druzhestvo Stoyanov & TsekovaSchoenherr și Asociații SCASidley Austin LLPSkadden, Arps, Slate, Meagher & FlomUGGC AvocatsVaish Associates, Advocates

12th Edition

Merger Control 2016

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DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

Continued Overleaf

The International Comparative Legal Guide to: Merger Control 2016

General Chapters:

Country Question and Answer Chapters:

1 To Bid or Not to Bid, That is the Question – the Assessment of Bidding Markets in Merger Control – David Wirth, Ashurst LLP 1

2 Remedies Under the EUMR – Frederic Depoortere & Giorgio Motta, Skadden, Arps, Slate, Meagher & Flom 10

3 The Economics of Retailer Mergers – Ashley Burdett & Mat Hughes, AlixPartners UK LLP 15

4 Albania Boga & Associates: Sokol Elmazaj & Jonida Skendaj 235 Australia King & Wood Mallesons: Sharon Henrick & Wayne Leach 306 Austria Schoenherr: Stefanie Stegbauer & Franz Urlesberger 397 Belgium Linklaters LLP: Thomas Franchoo & Niels Baeten 468 Bosnia & Herzegovina Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Srđana Petronijević & Danijel Stevanović 53 9 Botswana Khan Corporate Law: Shakila Khan & Precious N. Hadebe 6110 Brazil GO Associados: Gesner Oliveira & Ricardo Pastore 6711 Bulgaria Schoenherr in cooperation with Advokatsko druzhestvo Stoyanov & Tsekova:

Ilko Stoyanov & Mariya Papazova 75 12 Canada Blake, Cassels & Graydon LLP: Debbie Salzberger & Emma Costante 8213 China King & Wood Mallesons: Susan Ning & Ting Gong 91 14 Cyprus Anastasios Antoniou LLC: Anastasios A. Antoniou & Aquilina Demetriadi 9815 Denmark Accura Advokatpartnerselskab: Jesper Fabricius & Christina Heiberg-Grevy 10516 Estonia Jesse & Kalaus Attorneys: Tanel Kalaus & Mari Matjus 11417 European Union Sidley Austin LLP: Steve Spinks 12218 Finland Peltonen LMR Attorneys Ltd.: Ilkka Leppihalme & Matti J. Huhtamäki 13319 France Ashurst LLP: Christophe Lemaire & Simon Naudin 14420 Germany Beiten Burkhardt: Philipp Cotta & Uwe Wellmann 15421 Hong Kong King & Wood Mallesons: Martyn Huckerby & Edmund Wan 16422 Hungary Schoenherr: Anna Turi & Christoph Haid 17023 India Vaish Associates, Advocates: Man Mohan Sharma 17824 Israel Erdinast, Ben Nathan & Co. Advocates: Michal Rothschild 18625 Italy King & Wood Mallesons: Riccardo Croce & Elisa Baretta 19226 Japan Nagashima Ohno & Tsunematsu: Eriko Watanabe & Yoshitoshi Imoto 20127 Kazakhstan JSC Center for Development and Protection of Competition Policy:

Aldash Aitzhanov & Anara Batyrbayeva 20828 Kosovo Boga & Associates: Sokol Elmazaj & Delvina Nallbani 21529 Macedonia Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Srđana Petronijević & Danijel Stevanović 222 30 Mexico OLIVARES: Gustavo A. Alcocer & Andrés de la Cruz Pérez 230 31 Montenegro Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Srđana Petronijević & Danijel Stevanović 23632 Morocco UGGC Avocats: Corinne Khayat & Catherine Chappellet-Rempp 24333 Namibia Koep & Partners: Hugo Meyer van den Berg & Peter Frank Koep 25334 New Zealand Matthews Law: Nicko Waymouth & Gus Stewart 26035 Nigeria PUNUKA Attorneys & Solicitors: Anthony I. Idigbe & Eberechi Ifeonu 26736 Norway Advokatfirmaet Wiersholm AS: Anders Ryssdal & Håkon Cosma Størdal 27737 Portugal Morais Leitão, Galvão Teles, Soares da Silva & Associados:

Carlos Botelho Moniz & Pedro de Gouveia e Melo 28538 Romania Schoenherr și Asociații SCA: Cătălin Suliman & Silviu Vasile 29639 Russia Ivanyan & Partners: Maria Miroshnikova & Sergei Kushnarenko 304

Contributing EditorsNigel Parr and Catherine Hammon, Ashurst LLP

Head of Business DevelopmentDror Levy

Sales DirectorFlorjan Osmani

Account DirectorsOliver Smith, Rory Smith

Senior Account ManagerMaria Lopez

Sales Support ManagerToni Hayward

Sub EditorHannah Yip

Senior EditorSuzie Levy

Group Consulting EditorAlan Falach

Group PublisherRichard Firth

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: [email protected]: www.glgroup.co.uk

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ISBN 978-1-910083-70-3ISSN 1745-347X

Strategic Partners

EDITORIAL

Welcome to the twelfth edition of The International Comparative Legal Guide to: Merger Control.This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of merger control.It is divided into two main sections:Three general chapters. These chapters are designed to provide readers with a comprehensive overview of key issues affecting merger control, particularly from the perspective of a multi-jurisdictional transaction.Country question and answer chapters. These provide a broad overview of common issues in merger control laws and regulations in 50 jurisdictions.All chapters are written by leading merger control lawyers and industry specialists and we are extremely grateful for their excellent contributions.Special thanks are reserved for the contributing editors Nigel Parr and Catherine Hammon of Ashurst LLP for their invaluable assistance.Global Legal Group hopes that you find this guide practical and interesting.The International Comparative Legal Guide series is also available online at www.iclg.co.uk.

Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected]

The International Comparative Legal Guide to: Merger Control 2016

Country Question and Answer Chapters: 40 Serbia Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Srđana Petronijević & Danijel Stevanović 31241 Singapore Drew & Napier LLC: Lim Chong Kin & Dr. Corinne Chew 32142 Slovakia Schoenherr: Jitka Linhartová & Claudia Bock 33143 Slovenia Schoenherr: Eva Škufca & Christoph Haid 33744 Spain King & Wood Mallesons: Ramón García-Gallardo &

Manuel Bermúdez Caballero 34745 Sweden Kastell Advokatbyrå AB: Pamela Hansson & Christina Mailund 35846 Switzerland Schellenberg Wittmer Ltd: David Mamane & Dr. Jürg Borer 36647 Taiwan Lee and Li, Attorneys-at-Law: Stephen Wu & Yvonne Hsieh 37448 Turkey ELIG, Attorneys-at-Law: Gönenç Gürkaynak & Ayşe Güner 38149 Ukraine Asters: Igor Svechkar & Tetiana Vovk 38850 United Kingdom Ashurst LLP: Nigel Parr & Duncan Liddell 39551 USA Sidley Austin LLP: William Blumenthal & Marc E. Raven 40952 Uruguay Bergstein Abogados: Leonardo Melos & Jonás Bergstein 41753 Uzbekistan Karimov and Partners Ltd.: Bobir Karimov 424

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Chapter 14

1 Relevant Authorities and Legislation

1.1 Who is/are the relevant merger authority(ies)?

The competent authority for the control of concentrations between undertakings is the Commission for the Protection of Competition (CPC), initially established in 1990 and re-established pursuant to the provisions of the Protection of Competition Law No. 13(I)/2008, as amended by Law No. 4(I) of 2014.

1.2 What is the merger legislation?

The legislative instrument governing the control of concentrations in Cyprus is the Control of Concentrations Between Undertakings Law 83(I)/2014 (the Law). The Law entered into force in June 2014 and has repealed and replaced the previous statute in place since 1999.

1.3 Is there any other relevant legislation for foreign mergers?

There is currently no other legislation regarding foreign mergers. The Law applies equally to all types of concentrations falling within its scope, including foreign-to-foreign mergers, provided the prescribed jurisdictional thresholds are met.

1.4 Is there any other relevant legislation for mergers in particular sectors?

There is currently no legislation governing merger control in particular sectors.

2 Transactions Caught by Merger Control Legislation

2.1 Which types of transaction are caught – in particular, what constitutes a “merger” and how is the concept of “control” defined?

The Law is applicable to transactions resulting in a permanent change of control. Such transactions are defined as ‘concentrations’ and include mergers of two previously independent undertakings or parts thereof, and acquisitions by one or more persons already controlling at least one undertaking, or by one or more undertakings,

directly or indirectly, whether by purchase of securities or assets, by agreement or otherwise, of control of one or more other undertakings. Control is defined under section 6(2) of the Law as control stemming from any rights, agreements or other means which, either severally or jointly, confer the possibility of exercising decisive influence over an undertaking through:(a) ownership or enjoyment rights over the whole or part of the

assets of the undertaking; or(b) rights or contracts that confer the possibility of decisive

influence on the composition, meetings or decisions of the bodies of an undertaking.

2.2 Can the acquisition of a minority shareholding amount to a “merger”?

It is irrelevant for the purposes of the Law whether an acquisition of minority shareholding has taken place as long as the relevant transaction falls within the definitions of “merger” and “control” as per question 2.1 above.

2.3 Are joint ventures subject to merger control?

Joint ventures performing all functions of an autonomous economic entity in a permanent manner are subject to merger control and fall within the scope of the Law.

2.4 What are the jurisdictional thresholds for application of merger control?

Transactions falling under those specified in questions 2.1 and 2.3 supra constitute concentrations for the purposes of the Law. Nevertheless, only concentrations of major importance are subject to investigation and hence must be notified to the CPC. For the purposes of the Law, a concentration of undertakings is deemed to be of major importance and therefore meets the jurisdictional thresholds if:(a) the aggregate turnover achieved by at least two of the

undertakings concerned exceeds, in relation to each one of them, the amount of €3.5 million;

(b) at least two of the undertakings concerned achieve a turnover in the Republic of Cyprus; and

(c) at least €3.5 million of the aggregate turnover of all undertakings concerned is achieved in the Republic of Cyprus.

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2.5 Does merger control apply in the absence of a substantive overlap?

Filing of concentrations of major importance is mandatory, regardless of whether overlap exists or not, except where the exceptions outlined in question 3.2 infra are met. If the CPC finds that there is no substantive overlap it shall declare the merger compatible and thus cleared and will not proceed into a full investigation of the concentration, i.e. into Phase II of the regulatory process.

2.6 In what circumstances is it likely that transactions between parties outside Cyprus (“foreign-to-foreign” transactions) would be caught by your merger control legislation?

Provided the jurisdictional thresholds are met, foreign-to-foreign transactions are caught under the Law. The test as to whether a foreign-to-foreign merger is caught as a concentration of major importance is essentially satisfied where the jurisdictional thresholds are met, with the local effects dimension being the achievement of a turnover in Cyprus by at least two undertakings concerned and the Cyprus-achieved turnover of all undertakings concerned being at least €3.5 million.

2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by other provisions.

The operation of the jurisdictional thresholds is absolute. However, the Law vests the Minister of Energy, Commerce, Industry and Tourism with the power to issue a justified order by virtue of which a concentration is declared as being of major public interest with respect to the effects it might have on economic and social progress, technological development, employment or the sale of goods or the provision of services essential for the public security of the Republic.

2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various stages constitute a single transaction or a series of transactions?

A concentration of undertakings taking place in stages during a period of no longer than four consecutive years and which results in the acquisition of control by one undertaking of another undertaking shall fall within the ambit of the Law and shall be considered as having occurred as soon as the final stage, which gave rise to acquisition of the said control, takes place.

3 Notification and its Impact on the Transaction Timetable

3.1 Where the jurisdictional thresholds are met, is notification compulsory and is there a deadline for notification?

Notification is compulsory in relation to all concentrations of major importance with the exceptions of the cases under question 3.2 infra. Concentrations meeting the jurisdictional thresholds 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.

3.2 Please describe any exceptions where, even though the jurisdictional thresholds are met, clearance is not required.

A notification and therefore clearance is not required in the following cases, as prescribed under section 6(4) of the Law, where a concentration of major importance is not deemed to arise:(a) a credit or financial institution or an insurance company, the

normal activities of which include transactions and dealing in securities on its own account or for the account of third parties, holds on a temporary basis securities that it has acquired in an undertaking with a view to reselling them, provided that the institution does not exercise voting rights in respect of those securities with a view to determining the competitive behaviour of that undertaking or provided that it exercises such voting rights only with a view to facilitating the disposal of all or part of that undertaking or of its assets or the disposal of those securities, and that any such disposal takes place within one year of the date of acquisition – a period which can be extended with the leave of the CPC;

(b) control is exercised by a person authorised under the legislation relating to liquidation, bankruptcy, or any other similar procedure;

(c) the concentration of undertakings between one or more persons already controlling at least one or more undertakings is carried out by investments companies;

(d) property is transferred due to death by a will or by intestate devolution; or

(e) it is a concentration between two or more undertakings, each of which is a subsidiary undertaking of the same entity.

3.3 Where a merger technically requires notification and clearance, what are the risks of not filing? Are there any formal sanctions?

The Law does not provide for formal sanctions in case of failure to file a notification in relation to a concentration of major importance. However, the Service, upon becoming aware of a concentration of major importance that ought to be notified but the undertakings concerned have failed to do so, notifies the undertakings concerned of their obligation to proceed with notifying such concentration in accordance with the provisions of the Law. 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. The CPC, additionally, has the power to order the partial or whole dissolution of a concentration of major importance that has been implemented by the undertakings concerned in violation of the obligation to notify the concentration.

3.4 Is it possible to carve out local completion of a merger to avoid delaying global completion?

There are no legislative mechanisms to support such a view.


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3.5 At what stage in the transaction timetable can the notification be filed?

The notification must be filed prior to the implementation of the transaction and (i) either following the conclusion of the relevant agreement or publication of the relevant takeover or the acquisition of a controlling interest, or (ii) 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.

3.6 What is the timeframe for scrutiny of the merger by the merger authority? What are the main stages in the regulatory process? Can the timeframe be suspended by the authority?

The regulatory process consists of the following two stages: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 either 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 yet 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 (i.e. Phase II infra).The Service shall within one month from the date of receipt of the notification and the filing fees or from 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 undertaking(s) regarding the decision of the CPC of whether the concentration is cleared or it shall 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 of 14 days. Phase II entails the preparation of a report of findings by the Service, which is submitted to the CPC within three months as 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 which it may decide to impose upon the undertakings concerned or incompatible with competition in the market and thus not cleared. The CPC shall notify the undertakings concerned of its decisions during a full investigation no later than four months following receipt of the notification by the Service or, where necessary, following the date on which the Service receives additional information necessary towards achieving conformity of the notification to the requirements of the Law.

3.7 Is there any prohibition on completing the transaction before clearance is received or any compulsory waiting period has ended? What are the risks in completing before clearance is received?

The Law expressly prohibits the partial or entire implementation of the concentration prior to clearance, 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 under question 3.6 supra, in which case the concentration is deemed as cleared. Where a concentration is either partially or entirely implemented prior to the clearance of the CPC or prior to the lapse of the aforementioned one-month period, administrative sanctions may be imposed by the CPC. An administrative fine of up to 10% of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed to the notifying undertaking for the discussed infringement; such a fine may be followed by additional administrative fines of €8,000 for each day the infringement persists.Moreover, the CPC has the power to order the partial or complete dissolution of a concentration that has been implemented prior to obtaining clearance by the CPC.

3.8 Where notification is required, is there a prescribed format?

Although there is no prescribed format for the notification to be filed, the Law requires that the notification includes 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 can also be in 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% of the voting rights or shares; and

■ a description and analysis of the affected relevant markets.

3.9 Is there a short form or accelerated procedure for any types of mergers? Are there any informal ways in which the clearance timetable can be speeded up?

The timeframe for scrutiny of the merger is conducted in accordance with the description provided in question 3.6 supra. There are no means by which the clearance timetable can be sped up, unless the CPC itself provides clearance sooner than as provided under the timeframe. However, in cases where the CPC decides to proceed to Phase II investigation of the concentration, the parties may request the



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temporary approval of the concentration, provided that such request is justified and proves that the undertakings submitting such request are likely to incur serious loss as a result of any further delay in the implementation of the concentration. The CPC is entitled to temporarily approve a concentration by imposing any such terms and obligations against the undertakings concerned so as to secure conditions of effective competition.

3.10 Who is responsible for making the notification and are there any filing fees?

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 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 full investigation (Phase II), a fee of €6,000 becomes payable to the CPC.

3.11 What impact, if any, do rules governing a public offer for a listed business have on the merger control clearance process in such cases?

The Public Takeover Bids Law 41(I) of 2007, as amended, which transposes the relevant Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, is applicable to public offers for listed undertakings. It is of relevance to public takeover bids that 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 whether 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 offer.

3.12 Will the notification be published?

The CPC publishes a description of the notification in the Official Gazette of the Republic and on its website, indicating the names of the participants, the nature of the concentration and the economic sectors involved. In doing so the CPC shall take into account, as far as possible, the legitimate interests of the affected undertakings in the protection of their business secrets.

4 Substantive Assessment of the Merger and Outcome of the Process

4.1 What is the substantive test against which a merger will be assessed?

The substantive test for compatibility of a concentration with competition in the market is for such concentration not to substantially obstruct competition in the Republic or in a part thereof, particularly as a result of the creation or strengthening of dominant position. In assessing such compatibility or not of a concentration, the CPC takes into consideration the following criteria:

■ the need to maintain and develop conditions of effective competition in the relevant markets, taking into account, inter alia, the structure of the affected markets, other markets upon which the concentration may have significant effects and the potential competition on behalf of undertakings within or outside Cyprus;

■ the position in the market of the undertakings concerned and undertakings connected to it in a manner prescribed under Annex II to the Law;

■ the financial power of such undertakings;■ the alternative sources of supply of products or services in

the affected markets and/or other markets upon which the concentration may have significant effects;

■ any barriers of entry to the affected markets and/or other markets upon which the concentration may have significant effects;

■ the interests of the intermediate and end consumers of the relevant products and services;

■ the contribution to technical and economic progress and the possibility of such contribution being in the interest of consumers and not obstructing competition; and

■ the supply and demand trends for the relevant markets.To the extent a joint venture that constitutes a concentration has as its object or effect the coordination of competitive conduct of undertakings that remain independent, this coordination is examined in accordance with provisions three and four of the Law. In assessing a joint venture the Service shall particularly take into account:■ whether two or more parent companies substantially carry

out activities in the same market or in a market of a previous or next level to that of the joint venture or a market closely linked to such market; and

■ whether the coordination that directly emanates from the creation of the joint venture provides the undertakings concerned the ability to eliminate competition for a large part of the relevant products or services.

4.2 To what extent are efficiency considerations taken into account?

In reviewing a concentration as to its compatibility with the competitive market, the CPC takes into account the following:■ The structure of the affected markets.■ The market position of the participants.■ The economic power of all the undertakings in the market.■ Any barriers of entry to the affected market.■ The interests of the intermediate and end consumer of the

products and services.■ The alternative sources of supply of the products and services

that are traded in the affected markets and of their substitutes.■ The supply and demand trends for the relevant markets.

4.3 Are non-competition issues taken into account in assessing the merger?

The CPC takes only competition issues into account when considering the Service’s report and issuing its decision.However, the Minister of energy, commerce, industry and tourism, can by issuing a justified order, declare a concentration as being of major public interest with respect to the effects it might have on economic and social progress, technological development, employment or the sale of goods or the provision of services essential for the public security of the Republic.


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The CPC has at any given time the power to revoke decisions related to the compatibility of any concentration and to amend any of the terms of its decision if it determines that either its initial decision was based on false or misleading information or that necessary information relating to the concentration at hand was withheld by the notifying party or by any other participant in the concentration or by any other interested person, or because any condition attached to the decision and imposed on the participants to the concentration has not been satisfied or has ceased to be satisfied. Where the CPC exercises its power of revocation, it may, following a study of the Service’s report, order either a full or a partial dissolution of the concentration to secure the restoration of the competitive market.

5.2 Where competition problems are identified, is it possible to negotiate “remedies” which are acceptable to the parties?

Negotiation of “remedies” which are acceptable to the parties is possible during the Phase II investigation, during which the Service gives the opportunity to the participating undertakings to propose any such amendments to the concentration or other conditions in relation to the concentration so as to declare the same compatible with the competition in the market. When assessing the report of the findings of the Service and before reaching its final decision, subject to the time limits provided by the Law, the CPC may, if it considers expedient to do so, carry out negotiations, a hearing or discussions with any of the interested parties or other persons.

5.3 To what extent have remedies been imposed in foreign-to-foreign mergers?

Despite the non-negligible number of foreign-to-foreign transactions notified to the CPC, there is no case at present where the CPC has requested remedies of a material nature to foreign-to-foreign mergers, as opposed to the increasing number of local transactions in relation to which remedies have been required.

5.4 At what stage in the process can the negotiation of remedies be commenced? Please describe any relevant procedural steps and deadlines.

Upon commencement of a full investigation by the Service, the Service notifies the participating undertakings that they may proceed to any amendments in the concentration or propose the undertaking of certain commitments so as to remove any doubts as to the compatibility of the concentration with the operation of competition in the market. Submission of the above proposals or amendments is subject to such deadline as the Service may determine when notifying the participating undertakings. If, following the above additional submissions by the participating undertakings, the doubts in relation to the compatibility of the concentration still persist and if the Service considers that the said submissions may form the basis upon which any doubts may be removed, the Service may commence any such negotiations with the relevant undertakings.Following the submission of a report of findings to the CPC by the Service and before the CPC reaches its final decision, the CPC may, if it considers expedient to do so, carry out negotiations, a hearing or discussions with any of the interested parties or other persons.

4.4 What is the scope for the involvement of third parties (or complainants) in the regulatory scrutiny process?

Parties having a legitimate interest may be requested to be involved only within the context of a full investigation. Parties having a legitimate interest may on a voluntary basis submit their views at any phase of the evaluation of a concentration. In the case of a full investigation, the Service is required to provide any person having a legitimate interest, but who is not a participant in the concentration, with an appropriate opportunity to submit their views at the second phase of an investigation.

4.5 What information gathering powers does the regulator enjoy in relation to the scrutiny of a merger?

The CPC is entitled to gather any required information in relation to the scrutiny of a merger by addressing a written request to any undertaking as well as any other natural or legal person and public or private body. The person to whom such request is addressed is under the obligation to provide the said information immediately, fully and accurately within the deadline specified by the CPC when addressing such request.

4.6 During the regulatory process, what provision is there for the protection of commercially sensitive information?

Section 48 of the Law provides that the Chairman, members and alternate members of the CPC, the Service officials and any other public servant or other person employed by the CPC, who becomes aware, by virtue of their position or during the exercise of their duties, of business privilege or confidential information, is under the obligation of confidentiality and is obliged not to publicise the same, except where needed (a) so as to prove any breach of the Law, and (b) for the application of the Law. The above obligation to confidentiality extends to any other natural or legal person to the knowledge of whom such information comes by application of the Law and the procedures prescribed thereunder. The notifying undertaking is required to specify which information is confidential both at the filing of the notification as well as at later stages of the procedure and in particular during the Phase II investigation.

5 The End of the Process: Remedies, Appeals and Enforcement

5.1 How does the regulatory process end?

Depending on whether the CPC proceeds to a full investigation of the concentration, the regulatory process shall either end:(a) In case of a Phase I investigation, by the publication of the

relevant decision of the CPC.(b) In case of a Phase II investigation, by publication of the

decision of the CPC along with any conditions or remedies, if any, which it may impose so as to declare the concentration as being compatible with the operation of the competition in the market.


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5.10 What is the time limit for any appeal?

The deadline for commencing an administrative appeal is 75 days from receipt of notification of the CPC’s final decision or its publication in the Official Gazette of the Republic of Cyprus.

5.11 Is there a time limit for enforcement of merger control legislation?

Unless a concentration is notified to the CPC in accordance with the timeframe described under question 3.1, merger control legislation may be enforced against a concentration at any time at which a concentration that ought to have been notified to the CPC but the parties concerned have failed to do so, comes to the knowledge of the Service. In that case, the Service shall immediately inform the persons under obligation to notify of their obligation as such.Pursuant to s.29, should the CPC fail to comply with the timeframe described in question 3.1 above, the concentration can be considered as having been cleared.

6 Miscellaneous

6.1 To what extent does the merger authority in Cyprus liaise with those in other jurisdictions?

Pursuant to section 54 of the Law and the relevant provisions of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, the CPC cooperates with other national competition authorities in the EU and the European Commission on the basis of the system of the parallel competences and the exchange of views and information between them via the European Competition Network.

6.2 Are there any proposals for reform of the merger control regime in Cyprus?

The Law has come into effect in June 2014 and has repealed and replaced the previous merger control regime in place since 1999.

6.3 Please identify the date as at which your answers are up to date.

The above answers are up to date as of 12 August 2015.

5.5 If a divestment remedy is required, does the merger authority have a standard approach to the terms and conditions to be applied to the divestment?

In the course of a divestment remedy, the CPC may order the dissolution or partial dissolution of the concentration concerned to secure the restoration of the competitive market, through the deprivation of any participation, shares, assets or rights acquired by any person participating in the concentration, or by the cancellation of any contracts that created the concentration, or that arose from it, or by a combination of the two, or any other way the CPC deems necessary.

5.6 Can the parties complete the merger before the remedies have been complied with?

Completion of the transaction before the remedies have been complied with shall result in the imposition of an administrative fine of 10% of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year against the notifying undertaking for the discussed infringement; such a fine may be followed by additional administrative fines of €8,000 for each day the infringement persists.

5.7 How are any negotiated remedies enforced?

Negotiated remedies are enforced upon issuance of the decision of the CPC imposing such remedies in relation to the implementation of the transaction.

5.8 Will a clearance decision cover ancillary restrictions?

There is no express provision as such in the Law. However, there is no provision in the Law to expressly exclude such restrictions from the CPC’s power to include in its decision on clearance any conditions necessary to secure the competitive market.

5.9 Can a decision on merger clearance be appealed?

Decisions of the CPC are administrative executive acts issued by a public authority and are therefore subject to judicial review by virtue of article 146 of the Constitution of the Republic of Cyprus, according to which an aggrieved party having a legitimate interest and seeking to annul a CPC decision has the right to file an administrative recourse to the Supreme Court in relation thereto.


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Anastasios Antoniou LLC, ranked as a top-tier Cyprus law firm by the Legal 500, peer-acclaimed in Best Lawyers International, included in the world’s best competition lawyers by Who’s Who Legal and recommended by the IFLR1000, is a boutique law practice specialising in Merger Control and Competition law.

Anastasios Antoniou LLC features as the top-ranked merger control practice in Cyprus. The firm has achieved full and prompt clearance of a plethora of concentrations carried out by our clients, which have included Unilever, Glencore, Gazprom, Sovcomflot, Western Union, CGG-Veritas, Henkel, the Czech Republic, Marathon Oil, Tiande, Travelex, Petroleum Geo-Services (PGS), Salvatore Ferragamo, International Lease Finance Corporation (ILFC) and other multinational corporations and governments.

Our firm is delighted to be the first stop for multinational companies concluding transactions that need to be notified to and cleared by the Cyprus Commission for the Protection of Competition.

An Advocate of the Supreme Court of Cyprus, Aquilina Demetriadi is a member of the Cyprus Bar Association, the Nicosia Bar Association and the International Trademark Association.

Prior to being called to the Bar, Aquilina read law in the United Kingdom (LL.B. (Hons) from the University of Manchester) and was subsequently awarded with an LL.M. in International Business, Corporate and Maritime Law from the Erasmus University of Rotterdam, in the Netherlands. She also holds a Postgraduate Diploma in International Arbitration from Queen Mary, University of London.

Aquilina is fluent in English, German, French and Greek.

Anastasios A. Antoniou is an Advocate of the Supreme Court of Cyprus and is ranked as a leading lawyer in competition law, shipping law, EU and international law by eminent ranking houses, including the Legal 500, Who’s Who Legal, IFLR1000 and Best Lawyers.

In recommending Anastasios as “very knowledgeable” and a leading lawyer, the Legal 500 have highlighted his “eye for detail” and “expertise” as being the reason behind Anastasios Antoniou LLC’s “solid reputation”, while he has been included in the best competition lawyers globally by Who’s Who Legal and was chosen by his peers for inclusion in Best Lawyers International.

As counsel he appears before national and international courts and arbitration tribunals in high-profile maritime, energy, competition and international law disputes.

He is a member of the European Competition Lawyers Forum, the Chartered Institute of Arbitrators, the Association of International Petroleum Negotiators (AIPN) and the British Institute of Comparative and International Law.

Anastasios A. AntoniouAnastasios Antoniou LLCGrigori Afxentiou 3Office 1024003 LimassolCyprus

Tel: +357 25 750 003Fax: +357 25 104 574Email: [email protected]: www.antoniou.com.cy

Aquilina DemetriadiAnastasios Antoniou LLCGrigori Afxentiou 3Office 1024003 LimassolCyprus

Tel: +357 25 750 003Fax: +357 25 104 574Email: [email protected] URL: www.antoniou.com.cy

59 Tanner Street, London SE1 3PL, United KingdomTel: +44 20 7367 0720 / Fax: +44 20 7407 5255

Email: [email protected]

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