Merger Control 2016 - Getting the Deal Through

Merger ControlThe international regulation of mergers and joint ventures

in 74 jurisdictions worldwide

Consulting editorJohn Davies

2016

Merger Control 2016Consulting editor

John DaviesFreshfields Bruckhaus Deringer

PublisherGideon [email protected]

SubscriptionsSophie [email protected]

Business development managers Alan [email protected]

Adam [email protected]

Dan [email protected]

Published by Law Business Research Ltd87 Lancaster Road London, W11 1QQ, UKTel: +44 20 3708 4199Fax: +44 20 7229 6910

© Law Business Research Ltd 2015No photocopying without a CLA licence. First published 1996Twentieth editionISSN 1365-7976

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of August 2015, be advised that this is a developing area.

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CONTENTS

2 Getting the Deal Through – Merger Control 2016

At the intersection of the global economy and national interests: foreign investment review and merger control meet 7Robert Schlossberg and Christine LaciakFreshfields Bruckhaus Deringer

Timelines 11Michael Bo Jaspers and Joanna GoyderFreshfields Bruckhaus Deringer

Acknowledgements for verifying contents 27

Albania 29Günter Bauer, Denis Selimi and Paul HesseWolf Theiss

Argentina 33Alfredo M O’Farrell, Miguel del Pino and Santiago del RioMarval, O’Farrell & Mairal

Australia 39Fiona Crosbie and Kon StelliosAllens

Austria 47Axel Reidlinger and Maria DreherFreshfields Bruckhaus Deringer

Belgium 54Laurent Garzaniti, Thomas Janssens, Tone Oeyen and Amaryllis MüllerFreshfields Bruckhaus Deringer

Bolivia 59Jorge Luis Inchauste ComboniGuevara & Gutierrez SC – Servicios Legales

Bosnia and Herzegovina 63Günter Bauer, Paul Hesse and Amela SelmanagićWolf Theiss

Brazil 68Marcelo Calliari, Daniel Andreoli and Joana CianfaraniTozziniFreire Advogados

Bulgaria 73Peter PetrovBoyanov & Co

Canada 78Neil Campbell, James Musgrove, Mark Opashinov and Joshua ChadMcMillan LLP

Channel Islands 85Rob van der LaanOmniCLES

Chile 92Claudio Lizana and María José VillalónCarey

China 97Nicholas French, Ninette Dodoo, Vivian Cao and Janet (Jingyuan) WangFreshfields Bruckhaus Deringer

Colombia 104Carlos EsguerraPosse Herrera Ruiz

COMESA 110Janine Simpson and Nkonzo HlatshwayoWebber Wentzel

Croatia 113Günter Bauer, Luka Čolić and Paul HesseWolf Theiss

Cyprus 119Anastasios A Antoniou and Aquilina DemetriadiAnastasios Antoniou LLC

Czech Republic 124Martin Nedelka and Radovan KubáčNedelka Kubáč advokáti

Denmark 129Morten Kofmann, Jens Munk Plum, Erik Bertelsen and Bart CreveKromann Reumert

Egypt 134Firas El SamadZulficar & Partners

Estonia 138Raino Paron and Martin MäesaluEllex

European Union 143John Davies, Rafique Bachour and Angeline WoodsFreshfields Bruckhaus Deringer

Faroe Islands 151Morten Kofmann, Jens Munk Plum, Erik Bertelsen and Bart CreveKromann Reumert

Finland 154Christian Wik, Niko Hukkinen and Sari RasinkangasRoschier, Attorneys Ltd

France 159Jérôme Philippe and François GordonFreshfields Bruckhaus Deringer

Germany 166Helmut Bergmann, Frank Röhling and Bertrand GuerinFreshfields Bruckhaus Deringer

Greece 175Aida EconomouVainanidis Economou & Associates

www.gettingthedealthrough.com 3

CONTENTS

Greenland 180Morten Kofmann, Jens Munk Plum, Erik Bertelsen and Bart CreveKromann Reumert

Hong Kong 183Nicholas French, Ninette Dodoo and Ruth ChenFreshfields Bruckhaus Deringer

Hungary 192Gábor Fejes and Zoltán MarosiOppenheim

Iceland 198Hulda Árnadóttir and Heiðrún Lind MarteinsdóttirLEX

India 203Shweta Shroff Chopra, Harman Singh Sandhu and Rohan AroraShardul Amarchand Mangaldas & Co

Indonesia 209HMBC Rikrik Rizkiyana, Anastasia PR Daniyati and Ingrid Gratsya ZegaAssegaf Hamzah & Partners

Ireland 215Helen Kelly and Eoin KealyMatheson

Israel 221Eytan Epstein, Tamar Dolev-Green and Eti PortookEpstein, Knoller, Chomsky, Osnat, Gilat, Tenenboim & Co

Italy 227Gian Luca ZampaFreshfields Bruckhaus Deringer

Japan 236Akinori Uesugi and Kaori YamadaFreshfields Bruckhaus Deringer

Korea 242Seong-Un Yun and Sanghoon ShinBae, Kim & Lee LLC

Latvia 247Julija Jerneva and Janis SaransVILGERTS

Liechtenstein 252Heinz FrommeltSele Frommelt & Partners Attorneys at Law Ltd

Luxembourg 257Alexandrine Armstrong-Cerfontaine and Bertrand GeradinKing & Wood Mallesons

Macedonia 260Vesna Gavriloska, Maja Jakimovska and Margareta TasevaČakmakova Advocates

Malta 266Ian Gauci and Karl SammutGTG Advocates

Mexico 272Gabriel CastañedaCastañeda y Asociados

Morocco 277Corinne Khayat and Maïja BrossardUGGC Avocats

Namibia 282Peter Frank Koep and Hugo Meyer van den BergKoep & Partners

Netherlands 286Winfred Knibbeler and Paul van den BergFreshfields Bruckhaus Deringer

New Zealand 292Sarah Keene and Troy PilkingtonRussell McVeagh

Nigeria 302Babatunde Irukera and Ikem IsiekwenaSimmonsCooper Partners

Norway 307Jonn Ola Sørensen, Simen Klevstrand and Øyvind AndersenWikborg Rein

Pakistan 312Waqqas MirMohsin Tayebaly & Co

Poland 317Aleksander Stawicki and Bartosz TurnoWKB Wierciński Kwieciński Baehr

Portugal 322Mário Marques Mendes and Pedro Vilarinho PiresGómez-Acebo & Pombo

Russia 329Alexander ViktorovFreshfields Bruckhaus Deringer

Saudi Arabia 334Fares Al-Hejailan, Rafique Bachour, Anna Biganzoli and Hani NassefFreshfields Bruckhaus Deringer

Serbia 339Günter Bauer and Maja StankovićWolf Theiss

Singapore 345Lim Chong Kin and Corinne ChewDrew & Napier LLC

CONTENTS


Slovakia 354Günter Bauer, Ľuboš Frolkovič and Paul HesseWolf Theiss

Slovenia 359Günter Bauer, Klemen Radosavljević and Paul HesseWolf Theiss

South Africa 364Robert Legh and Tamara DiniBowman Gilfillan

Spain 374Francisco Cantos, Álvaro Iza and Enrique CarreraFreshfields Bruckhaus Deringer

Swaziland 380Kenneth J Motsa and Gabsile A MasekoRobinson Bertram

Sweden 383Tommy Pettersson, Johan Carle and Stefan Perván LindeborgMannheimer Swartling

Switzerland 388Marcel Meinhardt, Benoît Merkt and Astrid WaserLenz & Staehelin

Taiwan 393Mark Ohlson, Charles Hwang and Fran WangYangMing Partners

Thailand 401Pakdee Paknara and Pattraporn PoovasathienWeerawong, Chinnavat & Peangpanor Ltd

Turkey 405Gönenç GürkaynakELIG, Attorneys-at-Law

Ukraine 411Igor Svechkar and Alexey PustovitAsters

United Arab Emirates 416Rafique Bachour and Anna BiganzoliFreshfields Bruckhaus Deringer

United Kingdom 421Martin McElwee, Alison Jones and Olivia HaggerFreshfields Bruckhaus Deringer

United States 428Ronan P Harty and Stephen M PepperDavis Polk & Wardwell LLP

Uruguay 437Alberto FoderéFoderé Abogados

Uzbekistan 441Bakhodir Jabborov and Jamol RyskiyevGRATA Law Firm

Zambia 445Sydney ChisengaCorpus Legal Practitioners

The ICN in 2015 449Andreas MundtChair of the International Competition Network’s Steering GroupPresident of the Bundeskartellamt (Germany)

Quick reference tables 450

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CyprusAnastasios A Antoniou and Aquilina DemetriadiAnastasios Antoniou LLC

Legislation and jurisdiction

1 What is the relevant legislation and who enforces it?The Control of Concentrations Between Undertakings, Law 83(I) of 2014 (the Law), is the legislative instrument governing the control of concentra-tions in Cyprus. The Law has repealed and replaced the previous statute in place since 1999.

Enforcement of the legislation rests with 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) of 2008, as amended by Law No. 4(I) of 2014. The CPC has overall responsibility for implementing the Law and is the competent independent authority for the control of concentrations. The assessment, investigation and procedural aspects of the notification of concentrations are carried out by civil servants constituting the CPC Service (the Service).

2 What kinds of mergers are caught?The Law is applicable to transactions resulting in a permanent change of control. Such transactions 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 undertak-ings, directly or indirectly, whether by purchase of securities or assets, by agreement or otherwise, of control of one or more other undertakings. The definition of ‘control’ is discussed under question 4.

3 What types of joint ventures are caught?Joint ventures performing all functions of an autonomous economic entity in a permanent manner are caught under the Law.

4 Is there a definition of ‘control’ and are minority and other interests less than control caught?

Pursuant to section 6(2) of the Law, ‘control’ is defined as control stem-ming from any rights, agreements or other means which, either severally or jointly, confer the possibility of exercising decisive influence over an undertaking through:• ownership or enjoyment rights over the whole or part of the assets of

the undertaking; or• rights or contracts that confer the possibility of decisive influ-

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

5 What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?

Transactions falling under those specified in questions 2 and 3 constitute concentrations for the purposes of the Law. Nevertheless, only concentra-tions of major importance 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 meet the jurisdictional thresholds if:• the aggregate turnover achieved by at least two of the undertakings

concerned exceeds, in relation to each one of them, €3.5 million; • at least two of the undertakings concerned achieve a turnover in

Cyprus; and

• at least €3.5 million of the aggregate turnover of all undertakings con-cerned is achieved in Cyprus.

The Law vests the Minister of Energy, Commerce, Industry and Tourism with the power to declare a concentration as being of major importance even where the thresholds are not met.

6 Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?

Filing of concentrations of major importance is mandatory.However, notification is not required in the following cases, where,

pursuant to section 6(4)(a) of the Law a concentration between undertak-ings is not deemed to arise:• 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 exer-cises 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;

• control is exercised by a person authorised under the legislation relat-ing to liquidation, bankruptcy or any other similar procedure;

• the concentration of undertakings between one or more persons already controlling at least one or more undertakings is carried out by investment companies;

• property is transferred due to death by a will or by intestate devolution; or

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

7 Do foreign-to-foreign mergers have to be notified and is there a local effects test?

Foreign-to-foreign mergers are caught under the Law where the juris-dictional thresholds are met. 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 of at least two undertak-ings concerned in Cyprus and the Cyprus-achieved turnover of all under-takings concerned is at least €3.5 million.

8 Are there also rules on foreign investment, special sectors or other relevant approvals?

Notwithstanding the exceptions discussed under question 6 in relation to credit and financial institutions or insurance companies, there are no specific competition rules on foreign investments, special sectors or other approvals.

© Law Business Research Ltd 2015

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Notification and clearance timetable

9 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 agree-ment or the publication of the relevant takeover or the acquisition of a con-trolling 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 acquisi-tion of a controlling interest, following a public announcement of an inten-tion 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 notifies the undertakings concerned of their obligation to pro-ceed with notifying such concentration in accordance with the provisions of the Law. 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 imple-mented 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 whole dissolution of a concentration of major importance that has been implemented by the undertakings concerned in violation of their obligation not to implement the concentration prior to clearance by the CPC.

10 Who is 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 con-cerned are bound to pay a fee of €6,000 to the CPC.

11 What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?

The Service shall, within one month from the date of receipt of the noti-fication 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 under-takings 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 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.

12 What are the possible sanctions involved in closing 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 dis-cussed 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 imple-mented 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 shall exercise its pow-ers 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 complete dis-solution of a concentration that has been implemented prior to obtaining clearance by the CPC.

13 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.

14 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 dis-cussed under question 11, in which case the concentration is deemed as cleared.

Nevertheless, a temporary approval of a concentration is possible pur-suant 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 condi-tions decided at the CPC’s discretion and it does not affect the final deci-sion of the CPC.

15 Are there any special merger control rules applicable to public takeover bids?

It is of relevance to public takeover bids that concentrations of major importance arising from the publication of a public takeover or the acqui-sition 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 offer.

16 What is the level of detail required in the preparation of a filing?

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 docu-ments 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 state-

ments 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, stud-

ies 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 concentra-tion, and details regarding the turnover in Cyprus and worldwide of each undertaking);

• details of relationships of ownership and control as between each par-ticipant 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.




17 What is the statutory timetable for clearance? Can it be speeded up?

The Service shall, within one month from the date of receipt of the noti-fication 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 under-takings 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 by a further period 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 and decisions can be expected in a timely manner in most cases.

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 or, in the event that additional infor-mation is requested by the Service, within four months of receipt by it of the additional information requested, as the case may be.

While no Phase II investigation has taken place under the new regime established by the Law, it should be expected that negotiations carried out between the Service or the CPC and the undertakings concerned towards reaching an agreement over any remedies to be applied in the context of a Phase II assessment could result in the issuing of a decision requir-ing the entire four-month period from the date of receipt of the original notification.

The Law does not provide for a fast-track procedure of clearance of concentrations.

18 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 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 com-petition 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 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 that it may decide to impose upon the undertakings concerned, or incompatible with competi-tion in the market and thus not cleared.

Substantive assessment

19 What is the substantive test for clearance?The substantive test for compatibility of a concentration with competition in the market is for such concentration not to substantially obstruct compe-tition in Cyprus or in a part thereof, particularly as a result of the creation or strengthening of a dominant position.

In assessing the compatibility 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 under-takings 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 possi-bility of such contribution being in the interest of consumers and not obstructing competition; and

• the supply and demand trends for the relevant markets.

20 Is there a special substantive test for joint ventures?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 the provisions of sections 3 and 4 of the Protection of Competition Law No. 13(I) of 2008, as amended by Law No. 4(I) of 2014. In assessing a joint venture the Service shall particularly take into account:• whether two or more parent companies substantially carry out activi-

ties 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.

21 What are the ‘theories of harm’ that the authorities will investigate?

While the Law is silent in this regard, the CPC’s approach and analysis of harm is substantially aligned with the respective approach of the European Commission. Besides high market shares, the assessment usually takes into account the anti-competitive effects that could potentially arise out of a concentration, such as coordinated effects as well as unilateral effects.

22 To what extent are non-competition issues relevant in the review process?

The CPC only takes 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 regard to the effects it might have on public security, pluralism of the mass media and prudential rules in Cyprus.

23 To what extent does the authority take into account economic efficiencies in the review process?

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 consumers 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; and• the supply and demand trends for the relevant markets.

Remedies and ancillary restraints

24 What powers do the authorities have to prohibit or otherwise interfere with a transaction?

Before reaching its final decision and subject to the time limits provided by the Law, the CPC may, if it considers it expedient to do so, carry out negotiations, hearings or discussions with any of the interested parties or other persons.

Furthermore, the CPC has wide investigative powers when assessing a concentration, including access to any premises, property, means of trans-port, books or records in the possession of the undertakings concerned or third parties.


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In declaring a concentration as being compatible with the operation of competition in the market, the CPC may impose conditions or remedies in relation to the implementation of the transaction, thus having the ability to interfere with the essence of the transaction.

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:• its initial decision was based on false or misleading information or that

necessary information relating to the concentration at hand was with-held by the notifying party or by any other undertaking concerned or by any interested person; or

• any condition attached to the decision and imposed on the partici-pants 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 con-centration to secure the restoration of the competitive market.

The CPC may order the partial or complete dissolution of the concen-tration in order to ensure the restoration of the operation of competition in the market, either in the course of exercising its powers of revocation of a previous decision of clearing a concentration or upon establishing that a concentration has been implemented in violation of an obligation to notify such concentration to the CPC or is duly notified but implemented prior to clearance by the CPC. The CPC also has the power to prohibit a concentra-tion by declaring it incompatible with the operation of competition in the market.

25 Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?

Competition issues can be remedied through the CPC exercising its discre-tionary power towards such direction. In the course of remedying competi-tion issues, the CPC may order the dissolution or partial dissolution of the concentration concerned to secure the restoration of the competitive mar-ket, through the deprivation of any participation, shares, assets or rights acquired by any person participating in the concentration, or by the cancel-lation 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.

If the CPC ascertains that the notified concentration falls within the scope of the Law and raises doubts as to its compatibility with the competi-tive market, it will inform the Service of the need to conduct a full investi-gation. In such an event, the Service will request further information from the participants as well as other entities involved in the specific sector for the purpose of completing its investigation. Also the Service notifies the participants that they may make suggestions to undertake remedies that will remove the CPC doubts as to the compatibility of the transaction. Appendix IV of the Law is a form that the participants will be asked to fill in when they are wiling to undertake any remedies. The CPC accepts both divestiture and behaviour remedies. If, following its review of the addi-tional information provided to it, the CPC’s doubts as to compatibility have not been removed, the Service will consider which of the circumstances giving rise to its concerns may be removed and will make suggestions and subsequently undertake negotiations with the parties to resolve the issues.

26 What are the basic conditions and timing issues applicable to a divestment or other remedy?

The CPC is required to provide written notification to the undertakings concerned of any remedies as part of its decision, which it is bound to issue within four months as of the date of receiving the notification of the concentration and payment of the filing fees. Should the merger be cross-border the CPC may liaise with the relevant foreign authority in relation to applicable remedies. Furthermore, any remedies have to be limited to those that are reasonably necessary for the protection of the competitive market.

27 What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?

Although there is an increasing number of local transactions in which rem-edies have been required, there is no case at present where the CPC has requested remedies of a material nature to foreign-to-foreign mergers.

28 In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?

The clearance decision issued by the CPC covers related agreements if such agreements are related to, and are necessary for, the implementation of the merger.

Involvement of other parties or authorities

29 Are customers and competitors involved in the review process and what rights do complainants have?

Yes, such 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 or they may be asked to supply infor-mation by the Service of the CPC.

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 the investigation.

30 What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?

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 so doing, the Service shall take into account, as far as possible, the legitimate interest of the affected undertakings in the protection of their business secrets. The CPC also publishes in the Official Gazette of the Republic and on its website a non-confidential version of the decision. The undertakings concerned may request that any part of the decision remains confidential and the CPC will decide whether such information should be treated as confidential.

The CPC and the Service are under a statutory duty of confidential-ity. Pursuant to section 48 of the Law, any person contravening the duty of confidentiality shall commit an offence punishable with imprisonment up to six months or a fine of up to €1,500, or both. In addition, the participants should indicate the confidential information in their notification.

Update and trends

Inevitably, the pivotal development in the merger control domain over the past year has been the introduction of the new legislative framework. The enactment of the Law has been a significant step in the modernisation of merger control in the Cypriot legal order. The previous merger control regime had been in place since 1999. The previous regime’s jurisdictional thresholds were considered by many, including the authors, to be problematic by catching foreign-to-foreign transactions that were entirely unrelated to Cyprus, an aspect addressed by the new statute, which requires that at least two undertakings concerned achieve a turnover in Cyprus, in addition to the aggregate and Cyprus turnover thresholds in place.

The most significant policy development has been the conclusion of the Protocol of Cooperation between the Commission for the Protection

of Competition of the Republic of Cyprus and the Competition Commission of Greece (the Protocol) in October 2014. The Protocol aims in particular at enhancing cooperation between Cyprus and Greece in relation to the application of both the respective national legislation and EU competition law.

The main provisions of the Protocol involve the exchange of information and expertise in relation to the application of national laws, procedure and legislative developments as well as the mutual organisation of seminars and other educational events in the context of the European Competition Network (ECN), to which both authorities participate.




31 Do the authorities cooperate with antitrust authorities in other jurisdictions?

Pursuant to section 54 of the Law and the relevant provisions of the EU Merger Control Regulation No. 139/2004 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.

Judicial review

32 What are the opportunities for appeal or judicial review?The decisions of the CPC are administrative executive acts issued by a public authority. As such, an aggrieved party having legitimate interest and seeking to annul a CPC decision has the right to file an administrative recourse to the Supreme Court under article 146 of the Constitution of the Republic of Cyprus.

33 What is the usual time frame for appeal or judicial review?The time limit 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.

Enforcement practice and future developments

34 What is the recent enforcement record and what are the current enforcement concerns of the authorities?

Concentrations notified to the CPC are assessed under the legislative and policy rules in place and described above. The CPC is particularly keen to ensure, in the course of exercising its powers under the Law, that dominant positions in markets that are sensitive for end consumers and economic and technical progress are not created or strengthened.

Since the enactment of the Law, 11 concentrations, out of which only four as of April 2015 had been notified to the CPC, were declared by the CPC as compatible with the operation of competition in the relevant markets during Phase I investigation. There have been no Phase II inves-tigations under the new regime thus far. As had been the case under the previous merger control framework, a considerable number of the notified concentrations concern foreign-to-foreign transactions.

35 Are there current proposals to change the legislation?The Law came into effect in June 2014 and replaced the previous merger control regime in place since 1999.

Anastasios A Antoniou [email protected] Aquilina Demetriadi [email protected]

3 Gregory Afxentiou 1024003 LimassolCyprus

Tel: +357 25 750003Fax: +357 25 [email protected]


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