Pre-Merger Notification Guide. HUNGARY Nagy és Trócsányi

Transcription

1 Pre-Merger Notification Guide HUNGARY Nagy és Trócsányi CONTACT INFORMATION Dr. Péter Berethalmi and Dr. Orsolya Kovács Nagy és Trócsányi Ugocsa utca 4/B Budapest, 1126 Hungary /8717 and 1. Is there a regulatory regime applicable to mergers and similar transactions? Act LVII of 1996 on the Prohibition of Unfair Trading Practices and Unfair Competition. ( Competition Act ): contains provisions relating to the merger control regime. Act IV of 2006 on Business Associations ( Companies Act ): provides a number of general principles and relevant provisions including those relating to the merger and demerger of companies, the increase and decrease of the subscribed capital of companies etc. 2. Identify Applicable National Regulatory Agency/Agencies. The national regulatory agency is the Gazdasági Versenyhivatal (Hungarian Competition Authority). 3. Is there a supranational regulatory agency (e. g., the European Commission) that has, or may have exclusive competence? If so, indicate. Yes, it is the European Commission.

2 4. Are there pre-merger filing requirements; if so, where are they published? According to Section 79 (5) of the Companies Act, companies must publish the decision on their transformation at the Company Gazette within 8 days after the decision. Such announcement must be published in two consecutive issues. The announcement must contain : i) the name, registered office and company registration number of the business association undergoing trasformation, ii) the form, name and registered office of the business association being established, iii) the date of concluding the articles of assiciation (approving the deed of foundation) of the merged entity, the key data of the draft balance sheet of the business association undergoing transformation, iv) the draft balance sheet of the business association being established, v) the activity of the business association being established vi) the name and domicile of the executive officers of the business association being established, vii) the notice to the creditors (Art. 65(2) of the Act on Business Associations). 5. What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions) The concentration of formerly independent undertakings may take place i) by way of merger, meaning that two or more previously independent companies merge, or one merges into another, ii) by way of acquisition of direct or indirect control over a formerly independent undertaking or part of an undertaking, meaning that one or more companies acquire direct or indirect control of the whole or parts of one or more other, previously independent companies or iii) by way of creation of a joint venture, meaning that several independent companies jointly set up a company to be controlled by them that is capable to function in all respects as an independent company. The acquisition of control may take place by the following ways: i) Acquiring the majority of shares or acquiring the majority of voting rights in another undertaking. ii) Obtaining right to appoint the majority of the directors of another undertaking. iii) Obtaining right by contract to exercise a decisive influence over the decisions of another undertaking. iv) Obtaining de facto right to exercise decisive influence on the decisions of another undertaking. Exemptions: Temporary acquisition of control or ownership for a one-year period at the longest by an insurance company, credit institution, financial holding company, holding company with mixed activity, investment company, trustee organisation. 6. Is there a "size of transaction" threshold? See question 7.

3 7. Is there a "size or turnover of the parties" test; if so, what is it and how are size and turnover to be calculated? A transaction is subjected to a mandatory control if the aggregate net sales revenues of all groups of companies involved and the net sales revenues of the companies controlled jointly by members of the groups of companies involved with other companies in the previous financial year exceed HUF 15 billion, and among the groups of companies involved there are at least two groups with net sales revenues of HUF 500 million or more in the previous year together with the net sales revenues of companies controlled by members of the same group jointly with other companies. The sales revenues realized between the undertakings which qualify as direct or indirect concerned undertakings are excluded from the calculation. In the calculation the net turnover of foreign domiciled undertakings, only the sales revenues realized within or from the Hungarian market are relevant. In the calculating the net turnover, economic units with autonomous decision-making power in determining their market conduct have to be taken into account. 8. Is geographic scope/national market effect of transaction an issue with respect to filing or approval requirements? If so, specify. The competition act applies i) to the market practices carried out on the territory of Hungary by natural persons and legal persons and companies with no legal personality, ii) to the market practices of undertakings carried out abroad if they may have effects on the territory of Hungary. National market effect means that it does not matter where the merging undertakings are geographically located, provided that they generate income from Hungary or subsidiaries in Hungary and the control thresholds are met. This is an application of the effects doctrine, also applied at EU level. 9. Is the filing voluntary or mandatory? What are the penalties for noncompliance? The filing is mandatory if the turnover thresholds are met. In case of merger or fusion, the direct participant or, in all other cases, the party acquiring the business unit or direct control must apply for authorization that shall be submitted within 30 days from the publication of the public invitation to tender, the conclusion of the contract, or the acquisition of the right of control, whichever occurs earlier. The penalty for non-compliance is a fine up to 1% of last year s net revenues of the company calculated for one day, and HUF 50,000 in case of natural persons. Fines shall be imposed on a daily basis. The Hungarian Competition Authority ensures the possibility for companies for informal preliminary conciliation in order to ease compliance with competition rules. Best practices of the authority regarding preliminary conciliation are disclosed on the website of the authority.

4 10. Time in which a filing must be made. See question Form and Content of Initial Filing. No specific provisions on formal requirement concerning the application. Applications must be accompanied by a properly completed copy of the notification form issued by the Hungarian Competition Authority. Three copies of the application form must be submitted, with the authorized signature of the applicants or their proxies on each of them. Also, three copies of the enclosure of the application must be provided. Content of Initial Filing: Information on the applicants and other parties Information on other interested undertakings and related organisations Subject of the application International aspects of the concentration Direct and indirect participants and turnover thresholds Participants of the concentration, control relations and major business connections of the undertakings Information on the relevant market(s) affected by the concentration Assessment of the concentration 12. Are filing fees required? The normal fee is HUF 4 million. If the examination lasts 120 days, an additional HUF 12 million must be paid within the 15 days after the decision is delivered. 13. Is There An Automatic Waiting Period? If so, specify. No. 14. Are There Time Limits Within Which The Regulatory Agency Must Act? Can they be shortened by the parties or be extended by the regulatory agency? The final decision in conclusion of the proceedings shall be adopted from the day on which the application was submitted or the missing information was supplied: within 45 days if i) There is no merger or ii) The merger remains below the value specified or iii) The authorization cannot be denied, Within 3 months in case of mergers realized during the liquidation of strategically significant companies within 4 months in all other cases. Time limit may be extended if justified by a period of 20 days to 3 months, depending on the type of procedure as specified below. The time limit may not be shortened by the parties.

5 15. What is the substantive test for clearance? The Authority takes into account the advantages and disadvantages resulting from the merger, such as: The structure of the relevant markets, the existing or potential competition, the purchase and sales opportunities on the relevant markets, the costs and risks, the foreseeable impact of a concentration upon competition in the relevant markets. The Competition Authority may not refuse to grant an authorization if the merger does not create or intensify a dominant position. 16. What are the common Post-Filing Procedures: Requests for further information, etc? The investigator prepares a report, which is submitted to the competition council together with the files. Based on the investigator s report, the competition council may: terminate the proceeding; return the documents to the investigator if it establishes that further investigation is required; may prohibit the further continuation of the illegal conduct; may order the termination of the infringement or schedule a trial if the above measures are unnecessary. When so requested the client is required to supply further necessary information. 17. Describe the sanctions for not filing or filing and incorrect/incomplete notification. Fine for failure to submit an application for the authorization is 1% of last year s net revenues of the company calculated for one day, and HUF 50,000 in case of natural persons. Fines shall be imposed on a daily basis. Filing an incomplete notification: the investigator may return the application once, within 15 days from the date when received, requesting the provision of missing information within the deadline specified. If the applicant fails to provide the missing information or does not provide the missing information adequately after having been so requested, the investigator shall terminate the proceedings. 18. Describe the procedures if the agency wants to challenge the transaction? The competition council may: by interim measure, prohibit the continuation of the illegal conduct or order the elimination of the unlawful situation or schedule a trial. 19. Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger? The max. fine is 10 % of the company s net sale revenue or the net sales revenue of the group - of which the company penalized is identified in the resolution as a member - for the financial year preceding the year when the decision on the illegal conduct was adopted.

6 20. Describe, briefly, your assessment of the regulatory agency's current attitudes/activities. The Competition Authority is the most modern administrative agency in Hungary. In general it is cooperative and ready to discuss the controversial questions in the frame of a meeting. 21. Other Important Information: The Competition Authority is entitled to set pre- or post-conditions. In order to reduce the detrimental effects of a concentration, the Competition Authority may attach to its decision pre- or post-conditions and obligations. It may, in particular, demand by its decision the divestiture of certain parts of the undertakings or certain assets or the relinquishment of control over an indirect participant, setting an appropriate time limit for the carrying out of these requirements. The preconditioned authorization takes effect from the date of the fulfillment of the conditions. The post-conditioned authorization takes effect from the date of it being granted. Should any of the conditions not be satisfied, the authorization ceases to have effect.