Pre-Merger Notification Guide. CZECH REPUBLIC PRK Partners s.r.o. advokátní kancelár

Transcription

1 Pre-Merger Notification Guide CZECH REPUBLIC PRK Partners s.r.o. advokátní kancelár CONTACT INFORMATION Radan Kubr and Kateřina Hájková PRK Partners s.r.o. advokátní kancelár Jáchymova Prague 1 Czech Republic radan.kubr@prkpartners.com and katerina.hajkova@prkpartners.com 1. Is there a regulatory regime applicable to mergers and similar transactions? Merger control is governed by Act No. 143/2001 Coll., on Protection of Competition and on Amendment to Certain Acts (Act on Protection of Competition), as amended (the "Czech Competition Act"). The Czech Competition Act became effective on 1 July 2001 replacing the previous Act on Protection of Competition, which came into force on 1 March More detailed regulation is contained in the Decree of the Czech Competition Office for the Protection of Competition (the "Czech Competition Office") No. 252/2009 Coll., as amended (the "Office Decree"), stipulating details relating to the notification of a concentration of undertakings. The Czech Competition Office has also issued guidelines on pre-notification contacts, on calculating turnover, on the concept of a concentration of undertakings, on the conception of undertakings concerned, on the prohibition of implementing concentrations before their approval and exemptions thereto, on the application of the failing firm defense concept in assessing concentrations of undertakings, and on simplified proceedings when assessing certain cases of concentration of undertakings. Since the Czech Republic's accession to the European Union on 1 May 2004, EU legislation related to mergers and similar transactions are also in effect in the Czech Republic. Therefore, a merger with a community dimension must be assessed under the EU Merger Regulation (provided, however, that the European Commission, in accordance with such regulation, does not refer the concentration to the Czech Competition Office).

2 2. Identify Applicable National Regulatory Agency/Agencies. The Czech Competition Office, with its registered office at tr. Kpt. Jaroše 7, Brno, Czech Republic, is the competent authority to assess concentrations under the Czech Competition Act. The powers of the Czech Competition Office are regulated by Act No. 273/1996 Coll., on the Scope of Activities of the Czech Competition Office, as amended. Further details are available at the website of the Czech Competition Office, Additional Comments: In addition, the Czech Telecommunication Office is the competent administrative authority for electronic communications and postal services, including market regulation and determining the business conditions that would i) substitute for the missing effects of economic competition, and ii) provide conditions for the appropriate functioning of economic competition and for the protection of users and other market actors until a fully competitive environment is achieved. Similarly, the Energy Regulatory Office is the administrative authority regulating the energy sector in the Czech Republic. The Energy Regulatory Office exercises the following activities (among others): i) support for competition, and ii) protection of consumer interests in the energy sector. However, merger notifications in the telecommunications and energy sectors must be submitted to and decided by the Czech Competition Office. 3. Is there a supranational regulatory agency (e. g., the European Commission) that has, or may have exclusive competence? If so, indicate. On 1 May 2004, the Czech Republic joined the European Union. If the merger has a community dimension, the EU rules on the control of mergers will apply and prevail over Czech legislation. Should the turnovers of the undertakings concerned meet the notification thresholds stipulated in Council Regulation (EC) No. 139/2004 of 20 January 2004, on the Control of Concentrations Between Undertakings (the EU Merger Regulation), the concentration will be treated as a concentration with a community dimension falling within the (as a matter of principle) exclusive jurisdiction of the European Commission. 4. Are there pre-merger filing requirements; if so, where are they published? Concentrations which are subject to Czech Competition Office approval require premerger notification. For more information on the requirements, please see below in the section on the "size or turnover of the parties" test (point 7). The notified proposed concentrations are published at (in Czech only).

3 5. What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions) The Czech Competition Act defines concentrations fairly broadly so as to include the following situations: merger of two (2) or more previously independent undertakings concerned; one (1) or more undertakings concerned acquires the possibility to control another, previously independent, undertaking concerned, directly or indirectly, especially (a) through an acquisition of shares, or (b) through an agreement or other means that enables them to determine or influence the competitive conduct of the controlled undertaking concerned. Changes of sole control into joint control and vice versa and changes in the quality of joint control may also be caught; acquisition of an enterprise of another undertaking concerned or a part thereof (purchase of asset); or establishment of an undertaking concerned that is jointly controlled by other undertakings concerned and which performs, on a lasting basis, all the functions of an autonomous economic entity ( full-function joint venture ). Under Czech law, only a permanent change (on a lasting basis) in the nature of the control over an undertaking concerned is deemed to constitute a concentration. A temporary acquisition of control is expressly excluded from the notification obligation Act if such temporary acquisition is by (i) a bank during a rescue operation or financial reconstruction and/or (ii) an investment services provider which acquires shares, if the shares in question are acquired for the purposes of their subsequent sale, and the related voting rights have not been exercised. A one (1) year test period is provided for in those cases. Please note that two (2) or more related concentrations which are connected by their nature, time and personnel are to be considered as a single concentration. The same applies in case of concentrations which take place within a two (2) year period between the same persons (undertakings). 6. Is there a "size of transaction" threshold? The thresholds are defined in terms of the "size of the turnover of the parties", rather than in terms of the "size of the transaction". 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? The Czech Competition Act in Section 13 includes a turnover test to determine whether a concentration falls under Czech Competition Office control. A concentration is subject to Czech Competition Office approval if:

4 EITHER (i) The combined net (aggregate) turnover achieved in the last accounting period in the Czech market exceeded CZK 1.5 billion (approx. EUR 60 million) for all the undertakings concerned AND at least two (2) of the undertakings concerned each achieved a net (aggregate) turnover of more than CZK 250 million (approx. EUR 10 million) in the last accounting period in the Czech market; OR (ii) The net (aggregate) turnover achieved in the last accounting period in the Czech market: a. (if the concentration takes the form of a merger by absorption or amalgamation), by at least one of the parties to the merger; b. (if the concentration takes the form of the purchase of an enterprise or a part thereof (the purchase of an asset)), by the acquired enterprise or its respective acquired part; c. (if the concentration takes the form of an acquisition of control), by the undertaking over which control is acquired; or d. (if the concentration takes the form of a "full-function joint venture"), by at least one undertaking creating the joint venture, exceeded CZK 1.5 billion AND the worldwide net (aggregate) turnover achieved in the last accounting period by at least one (1) other undertaking concerned exceeded CZK 1.5 billion. For purposes of determining whether the (aggregate) net turnover thresholds are exceeded, the net turnovers generated by the following persons must be aggregated: (i) the undertakings concerned; (ii) all persons controlled directly or indirectly by the undertakings concerned (subsidiaries); (iii) all persons that will directly or indirectly control the undertakings concerned after the completion of the concentration (parent companies after the completion); (iv) all persons controlled directly or indirectly by the same person who will control the undertakings concerned after the completion of the concentration (sister companies); and (v) all persons jointly controlled by two or more persons referred to under (i) through (iv). The term "net turnover" means the net (i.e., exclusive of any taxes and rebates) sales (i.e., amounts derived from the sale of products and provision of services) from the ordinary activities of all members of the respective group of undertakings concerned, irrespective of the sector in which the turnover is achieved (however, intra-group sales should be deducted from the overall figures). A specific list of items to be used for the purposes of turnover calculation of banks, credit and other financial institutions is provided. In general, the turnovers need to be attributed to the place where the customer is located.

5 The term last accounting period means the accounting period that immediately precedes the accounting period in which legal or other circumstances that create a concentration of undertakings concerned happened or will happen. An accounting period means twelve (12) uninterrupted consecutive months, and it can be the calendar or economic year which commenced on the first day of a month other than January. The audited figures need to be provided, if available. Additional Comment: The Czech Competition Act provides for special rules related to the calculation of turnover of banks and insurance companies. 8. Is geographic scope/national market effect of transaction an issue with respect to filing or approval requirements? If so, specify. Regardless of the geographic dimension of the affected markets, the Czech Competition Office must be notified of concentrations if the above-mentioned thresholds are exceeded. The Czech Competition Act also applies to activities and proceedings that occurred abroad, on the condition that they lead, or may lead, to a restriction of competition on the Czech market. 9. Is the filing voluntary or mandatory? What are the penalties for noncompliance? Filing is mandatory if the above-mentioned conditions under the Czech Competition Act are met. Concentration approval proceedings are initiated on the basis of a notification. Penalties for intentional or negligent breach of the prohibition to implement the concentration before the Czech Competition Office gives its clearance can be as much as CZK 10 million (approximately EUR 400,000), or 10% of the net turnover for the last accounting period. If the Czech Competition Office imposes a penalty on an association of undertakings, and the association is unable to pay the imposed penalties, each member of the association guarantees, by virtue of law, payment of the penalties imposed on the whole association up to 10% of its net aggregate turnover for the given accounting period. When setting a penalty, the Czech Competition Office considers, in particular, how the administrative offense was committed and the results as well as the circumstances under which the administrative offence was committed. Legal persons are not responsible for an administrative offence if they prove that they made the required effort to prevent a violation of the legal obligation. Responsibility for the administrative offence is discharged if the Czech Competition Office does not initiate proceedings within five (5) years following the day the Czech Competition Office learned about the breach of the stand-still obligation, but no later than ten (10) years after the infringement occurred.

6 10. Time in which a filing must be made. There are no time limits for filing. A notification may be made before the agreement on concentration is signed or before control is otherwise acquired. The best practice is, as soon as the transaction documentation is final, to file a notification which embraces the exact structure of the planned transaction. It has to be kept in mind though, that a merger cannot be implemented before the Czech Competition Office grants clearance and, accordingly, is usually in the interest of the parties to file a notification as soon as possible. 11. Form and Content of Initial Filing. Under the Czech Competition Act, a concentration notification must contain written evidence of the circumstances decisive for the concentration and satisfy the prerequisites set out by the implementing legal regulation. The notification must contain the information stipulated in the Czech Competition Act and details specified in the Office Decree. Under the Office Decree, the notification must include, inter alia, a duly completed questionnaire for approval of the concentration. Further, confirmation of payment of the administrative fee must be submitted as an obligatory item of any application for approval of a concentration. The application, including all its parts and annexes, must be submitted in Czech. In general, a translation into Czech must be submitted for any documents in foreign languages. The translation must be accompanied by a declaration of the applicant, declaring that truthful and complete translations of the original documents are being submitted. Original or copies of the documents are to be submitted. Copies must be accompanied by a declaration of the applicant that they are the duly made copies of the originals. All financial data must be in CZK. Financial data originating in foreign currencies must be converted into CZK at the average rate for the relevant accounting period, i.e. the average foreign exchange market rate announced by the Czech National Bank for the period to which the financial data is related. 12. Are filing fees required? There is a notification fee amounting to CZK 100,000 (approximately EUR 4,000) payable to the Czech Competition Office before the notification is filed. As already mentioned above, confirmation of payment of the administrative fee must be submitted as part of the application for approval of the concentration. Further, a request for a derogation from the standstill obligation (see point 13 below) is subject to a fee of CZK 10, Is There An Automatic Waiting Period? If so, specify. There is no particular waiting period. However, a concentration that is subject to notification may be implemented only after the Czech Competition Office grants

7 clearance (either implied or express). The validity of such concentration is dependent on the clearance. Additional Comments: The Czech Competition Office has the right to grant a derogation from the standstill obligation at the written request of a (the) party(ies); a derogation can be granted if there is a threat of serious damage or other serious detriment to the undertakings concerned or to third parties. The request can be filed together with the notification or anytime during the proceedings. The Czech Competition Office will decide on the derogation within thirty (30) days from the request s delivery. It may also decide on granting a partial derogation (i.e. in relation to certain actions covered by the request). Further, the Czech Competition Office may stipulate in its decision conditions and restrictions in favour of maintaining effective competition. If it issues no decision within the above-mentioned period the derogation is deemed to be granted. Exemptions also exist in cases of concentrations that are to occur on the basis of a public takeover bid, or on the basis of a sequence of operations with listed securities as a result of which control shall be acquired from different entities, provided the application for initiating proceedings was filed immediately and provided the voting rights attached to such listed securities are not exercised. 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? From 1 September 2009, two (2) types of notifications and proceedings exist: (i) (ii) simplified procedure applicable when particular conditions are met; and standard proceedings with an investigation including a first phase and (under certain conditions) a second phase. Both types of proceedings (i.e. simplified and standard) are initiated when an original(s) of the completed notification is delivered to the Czech Competition Office in writing. The time period for adopting a short-form clearance is twenty (20) days from receipt of the completed (short-form) notification. However, if the conditions for treatment under the simplified procedure are not met, or if the exclusions set forth by the Czech Competition Office apply (in particular, the Czech Competition Office needs more information to evaluate the merger), the notifying party(ies) must re-notify a (fullform) notification; the decision period (described below) starts to run after delivery of the (full-form) notification. The Czech Competition Office must, within thirty (30) days of receiving a completed (full-form) notification (first phase), (i) decide whether the concentration is subject to approval and, if not, issue a decision so stating, or (ii) issue a decision approving the concentration, if such concentration does not significantly affect competition. Within the same time limit the Czech Competition Office may open an in-depth investigation

8 (second phase) if the concentration raises serious concerns that competition will be significantly affected. If neither of the above decisions is issued within the first phase, the Czech Competition Office is deemed to have issued clearance. In the second phase, the Czech Competition Office issues its clearance or prohibits implementation of the concentration within five (5) months after receiving the completed notification. If it does not issue the decision within five (5) months, it is deemed to have approved the concentration. Further, during both first and second phases the Czech Competition Office may (repeatedly) exercise the right to formally request additional information or documents from the notifying party(ies) or third parties. The investigation time period is suspended between the delivery of the formal request to the notifying party(ies) and delivery of the requested information to the Czech Competition Office. Before issuing a decision, the Czech Competition Office informs the notifying party(ies), in writing, of its objections. Following this it must enable the party(ies) to become acquainted with the basis of the decision and it will stipulate a reasonable deadline (at least fourteen (14) days) for the party(ies) to propose additional evidence. Facts and evidence provided after this time period will not be taken into consideration unless such facts or evidence could not be supplied earlier. Further, the party(ies) can inspect the documents during the proceeding. The parts of the documentation which contain commercial, banking or similar secrets protected by law are excluded from such inspection. 15. What is the substantive test for clearance? The Czech Competition Office does not clear the concentration if it would result in a substantive distortion of competition on the relevant market, in particular if the concentration would give rise to the creation, or reinforcement of a dominant position of one or more of the undertakings concerned. The Czech Competition Office is required to assess the need to preserve and further develop competition, the structure of all markets affected by the concentration, the shares of the parties to the concentration in such markets, their economic and financial power, legal and other barriers to entry by other undertakings into the relevant markets, the alternatives available to suppliers and customers of the parties to the concentration, the development of supply and demand in the affected markets, the needs and interests of consumers and research and development provided that it is to the consumers' advantage and does not form an obstacle to effective competition. If the common share of the undertakings concerned on the relevant market does not exceed 25%, it is presumed that the concentration will not result in a significant distortion of competition, unless proven otherwise during the concentration assessment.

9 16. What are the common Post-Filing Procedures: Requests for further information, etc? Upon notification, the Czech Competition Office publishes a notice on the proposed concentration and requests interested parties (competitors, suppliers or customers) to submit objections within a specified period of time. The Czech Competition Office may request the applicant to submit further evidence or to supplement the notification. The party(ies) can offer remedies before the proceedings commence or during the proceedings. The undertaking concerned must offer such remedies no later than fifteen (15) days from the day of delivery of the statement of objections to the last undertakings concerned. In cases of special consideration, the Czech Competition Office will review the submitted remedies within fifteen (15) days after the end of the time limit above. If remedies are offered in the first phase (or in the second phase) the time limit of thirty (30) days (or five (5) months) is extended by fifteen (15) days. If the Czech Competition Office makes the concentration approval subject to fulfillment of remedies proposed by the undertakings concerned, it may, at the same time, lay down conditions and obligations necessary to secure the fulfillment of such remedies. 17. Describe the sanctions for not filing or filing and incorrect/incomplete notification. See point 9 above for the penalties for not filing or implementing the concentration before clearance is given. Further, the Czech Competition Office may impose a penalty of up to CZK 300,000 (approximately EUR 12,000) or up to 1% of the net turnover of the relevant undertaking for the last accounting period for intentionally not submitting or only partially submitting documents or information to the Czech Competition Office. This penalty may be imposed repeatedly, up to CZK 10,000,000 (EUR 400,000) or 10% of the net turnover achieved by the undertaking for the last accounting period. Finally, the Czech Competition Office is also entitled to decide, according to the subject matter of the case, to impose remedial measures and to set a reasonable deadline for compliance therewith. 18. Describe the procedures if the agency wants to challenge the transaction? The Czech Competition Office has been endowed with powers to challenge the transaction after clearance. It may revoke the decision on clearance if the decision was issued based on documents and information provided by the undertaking concerned which were completely or partially untrue or incomplete, or if clearance was issued as a result of the Czech Competition Office being misled by the

10 undertakings concerned, or if the undertakings concerned do not comply with the conditions, restrictions or obligations imposed by the Czech Competition Office. The Czech Competition Office may initiate proceedings to revoke its decision within one (1) year after it discovered the above facts, but not later than within five (5) years after such events occurred. 19. Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger? See point 9 above concerning penalties for non-compliance. 20. Describe, briefly, your assessment of the regulatory agency's current attitudes/activities. The Czech Competition Office closely follows the decision-making practice of the European Commission, the European Court and the Courts of First Instance in this area. The Czech Competition Office is fairly cooperative and open to discussing controversial issues (both via electronic communication and personally). 21. Other Important Information: Please note, that for conversions of CZK to EUR, we used an approximate rate of EUR 1 corresponding to CZK 25.