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Schoenherr’s geographic footprint covers the entire CEE region. We have assisted an array of corporations in their business expansion in and into Central and Eastern Europe. This booklet draws upon our know-how in this region and provides an overview of the merger notification requirements under EU law and each of the 17 jurisdictions covered by the expertise of Schoenherr’s EU & Competition Practice Group.

To find the individual experts for your jurisdiction, please head to schoenherr.eu.

Introduction

What constitutes a merger?

Under EU law, a “merger” is generally defined as a lasting change of control by one undertaking over another undertaking. Such change of control could occur through:

  • a merger between undertakings
  • an acquisition of shares or assets
  • granting certain contractual rights (e.g. voting rights)
  • forming a full-function joint venture

National merger control regimes might deviate from the control concept. Such and other noteworthy national particularities are dealt with in the chapters below.

 

Jurisdictional thresholds

In all jurisdictions covered, the obligation to notify a merger is primarily linked to the combined and/or individual consolidated turnover of the undertakings concerned in their preceding financial year. Some jurisdictions apply additional tests that are linked to market share or transaction value.

Merger Control

(i) the combined worldwide turnover of all undertakings concerned exceeds EUR 5 billion; AND

(ii) the EU-wide turnover of each of at least two of the undertakings concerned exceeds EUR 250 million,

UNLESS

(iii) each of the undertakings concerned achieves more than two-thirds of its EU-wide turnover within one and the same Member State.

OR

(i) the combined worldwide turnover of all undertakings concerned exceeds EUR 2.5 billion; AND

(ii) in each of at least three EU Member States, the combined aggregate turnover of all undertakings concerned exceeds EUR 100 million; AND

(iii) in each of at least three Member States included for the purpose of point (ii), the turnover of each of at least two undertakings concerned exceeds EUR 25 million;

AND

(iv) the EU-wide turnover of each of at least two undertakings concerned exceeds EUR 100 million,

UNLESS

(v) each of the undertakings concerned achieves more than two-thirds of its EU-wide turnover within one and the same Member State.

(i) the combined worldwide turnover of all undertakings concerned exceeds ALL 7 billion (approx. EUR 50 million); AND

(ii) the domestic turnover of at least one undertaking exceeds ALL 200 million (approx. EUR 1.42 million);

OR

(i) the combined domestic turnover of all undertakings concerned exceeds ALL 400 million (approx. EUR 2.8 million), AND

(ii) the domestic turnover of at least one undertaking exceeds ALL 200 million (approx. EUR 1.42 million).

(i) the combined worldwide turnover of all undertakings concerned exceeds EUR 300 million; AND

(ii) the combined domestic turnover of all undertakings concerned exceeds EUR 30 million; AND

(iii) the individual worldwide turnover of each of at least two of the undertakings concerned exceeds EUR 5 million.

UNLESS

(iv) the domestic turnover of only one of the undertakings concerned exceeds EUR 5 million; AND

(v) the combined worldwide turnover of all other undertakings concerned does not exceed EUR 30 million.

ALTERNATIVE “VALUE OF CONSIDERATION” TEST:

(i) the combined worldwide turnover of all undertakings concerned exceeds EUR 300 million; AND

(ii) the combined domestic turnover exceeds EUR 15 million; AND

(iii) the “value of consideration” for the transaction exceeds EUR 200 million; AND

(v) the target has significant activities in Austria (local nexus).

(i) the combined worldwide turnover of all undertakings concerned is at least BAM 100 million (approx. EUR 50 million); AND

(ii)

a) the total domestic turnover of each of at least two undertakings concerned is at least BAM 8 million (approx. EUR 4 million); OR

b) their joint market share on the relevant market(s) exceeds 40 %.

(i) the combined domestic turnover of the undertakings concerned exceeds BGN 25 million (approx. EUR 12.8 million); AND

(ii) at least two of the undertakings concerned or the target undertaking alone has domestic turnover exceeding BGN 3 million (approx. EUR 1.5 million).

(i) the combined worldwide turnover of all undertakings concerned is at least HRK 1 billion (approx. EUR 133 million) whereas at least one of the undertakings concerned or its group undertaking has a registered business seat in Croatia; AND

(ii) the combined domestic turnover of each of at least two undertakings concerned is at least HRK 100 million (approx. EUR 13 million).

(i) the combined domestic turnover of all undertakings concerned exceeds CZK 1.5 billion (approx. EUR 58.5 million); AND

(ii) the combined domestic turnover of each of at least two of the undertakings concerned exceeds CZK 250 million (approx. EUR 9.9 million);

OR

(i) the individual domestic turnover of (i) at least one of the merging undertakings; OR (ii) an undertaking (or part thereof) over which control is acquired; OR (iii) at least one of the undertakings creating a full-function joint venture exceeds CZK 1.5 billion (approx. EUR 58.5 million); AND

(ii) the individual worldwide turnover of at least one other undertaking concerned exceeds CZK 1.5 billion (approx. EUR 58.5 million).

(i) the combined domestic turnover of the undertakings concerned exceeds HUF 15 billion (approx. EUR 48 million); AND

(ii) the individual domestic turnover of at least two undertakings concerned exceeds HUF 1 billion (approx. EUR 3.2 million).

OR (VOLUNTARY or SOFT THRESHOLDS):

(i) the combined domestic turnover of the undertakings concerned exceeds HUF 5 billion (approx. EUR 16 million); AND

(ii) it is not evident that the merger will significantly restrict competition, in particular due to the creation or significant strengthening of a dominant position on the relevant market.

(i) the combined worldwide turnover of all undertakings concerned exceeds EUR 20 million and at least one of the undertakings concerned is domiciled in the Republic of Kosovo; AND

(ii) the domestic turnover of at least two undertakings concerned exceeds EUR 3 million.

(i) the combined worldwide turnover of the undertakings concerned is at least EUR 10 million, whereby at least one of the undertakings is domiciled in the Republic of North Macedonia; OR

(ii) the combined domestic turnover of all undertakings concerned is at least EUR 2.5 million; OR

(iii) the market share of one of the undertakings concerned is at least 40 % or the combined market share of all the undertakings concerned is at least 60 %.

(i) the combined turnover of all undertakings concerned exceeds MDL 25 million (approx. EUR 1.2 million); AND

(ii) the individual domestic turnover of at least two of the undertakings concerned exceeds MDL 10 million (approx. EUR 488,000).

(i) the combined domestic turnover of at least two undertakings concerned exceeds EUR 5 million; OR

(ii) (i) the combined worldwide turnover of all undertakings concerned exceeds EUR 20 million; AND (ii) the individual domestic turnover of at least one undertaking concerned exceeds EUR 1 million.

(i) the combined worldwide turnover of the undertakings concerned exceeds EUR 1 billion; OR

(ii) the combined domestic turnover of the undertakings concerned exceeds EUR 50 million.

UNLESS

(iii) the domestic turnover of each of the merging parties / joint venture parents or of the target did not exceed EUR 10 million in each of the two financial years preceding the concentration.

(i) the combined turnover of the undertakings concerned exceeds EUR 10 million; AND

(ii) the individual domestic turnover of at least two undertakings concerned exceeds EUR 4 million.

(i) the combined worldwide turnover of the undertakings concerned exceeds EUR 100 million; AND

(ii) the individual domestic turnover of at least one undertaking concerned exceeds EUR 10 million.

OR

(i) the combined domestic turnover of at least two undertakings concerned exceeds EUR 20 million; AND

(ii) the individual domestic turnover of at least two undertakings concerned exceeds EUR 1 million.

(i) the combined domestic turnover of all undertakings concerned exceeds EUR 46 million; AND

(ii) the individual domestic turnover of at least two undertakings concerned exceeds EUR 14 million;

OR

(i) the individual domestic turnover of (i) at least one merging undertaking, OR (ii) the undertaking over which control is acquired, OR (iii) at least one of the undertakings establishing a full-function joint venture exceeds EUR 14 million; AND

(ii) the individual worldwide turnover of at least one other undertaking concerned exceeds EUR 46 million.

(i) the combined domestic turnover of all undertakings concerned exceeds EUR 35 million; AND

(ii) the individual domestic turnover of the target undertaking exceeds EUR 1 million; or in case of full-function joint ventures, the individual domestic turnover of at least two undertakings concerned exceeds EUR 1 million;

OR

(i) if the combined market share of all undertakings concerned exceeds 60 % in the Republic of Slovenia.

(i) the combined domestic turnover of the undertakings concerned exceeds TRY 100 million (approx. EUR 14.6 million); AND

(ii) the individual domestic turnover of at least two undertakings concerned exceeds TRY 30 million (approx. EUR 4.4 million);

OR

(i) in acquisitions the individual domestic turnover of the target; in mergers the individual domestic turnover of least one of the undertakings concerned exceeds TRY 30 million (approx. EUR 4.4 million); AND

(ii) the individual worldwide turnover of at least one other undertaking concerned exceeds TRY 500 million (approx. EUR 73.2 million).

  • No fees
  • Phase I: filing fee of up to ALL 15,000 (approx. EUR 120) and clearance fee of ALL 500,000 (approx. EUR 4,050).
  • Phase II: filing fee of up to ALL 15,000 (approx. EUR 120) and clearance fee of ALL 2 million (approx. EUR 16,200).
  • Phase I: EUR 3,500
  • Phase II: (up to) EUR 34,000
  • Phase I: filing fee of BAM 2,000 (approx. 1,000) and clearance fee of BAM 5,000 (approx. EUR 2,500);
  • Phase II: filing fee of BAM 2,000 (approx. EUR 1,000) and clearance fee of up to BAM 50,000 (approx. EUR 25,000).
  • Filing fee of BGN 2,000 (approx. EUR 1,000)
  • Clearance fee of 0.1 % of the aggregate turnover of the undertakings concerned. The fee is capped at BGN 60,000 (approx. EUR 30,000).
  • Phase I: HRK 7,000 (approx. EUR 930) or, where the thresholds are not met but a filing is required under sector-specific law, HRK 3,500 (approx. EUR 460);
  • Phase II: HRK 105,000 (approx. EUR 14,000) or, where the thresholds are not met but a filing is required under sector-specific law, HRK 10,500 (approx. EUR 1,400).
  • CZK 100,000 (approx. EUR 3,900)
  • Upon notification: HUF 1 million (approx. EUR 3,200)
  • Phase I: additional HUF 3 million (approx. EUR 9,600)
  • Phase II: additional HUF 12 million (approx. EUR 38,000)
  • Filing fee of up to EUR 100
  • Clearance fee of up to EUR 3,000
  • Filing fee of approx. EUR 100
  • Clearance fee of approx. EUR 500
  • Filing fee of 0.1 % of the total domestic turnover achieved by the undertakings concerned in the year prior to the filing. The fee is capped at MDL 75,000 (approx. EUR 3,660).
  • Phase I: 0.03 % of the combined annual turnover of the undertakings concerned. The fee is capped at EUR 15,000.
  • Phase II: 0.07 % of the combined annual turnover of the undertakings concerned. The fee is capped at EUR 20,000.
  • PLN 15,000 (approx. EUR 3,480)
  • Filing fee of RON 4,775 (approx. EUR 1,100)
  • Clearance fee from EUR 10,000 to EUR 25,000 (for Phase I cases) and from EUR 25,001 to EUR 50,000 (for Phase II cases)
  • Phase I: 0.03 % of the combined annual turnover of the undertakings concerned. The fee is capped at EUR 25,000.
  • Phase II: 0.07 % of the combined annual turnover of the undertakings concerned. The fee is capped at EUR 50,000.
  • EUR 5,000
  • EUR 2,000
  • No fees
  • pre-notification period: varying
  • Phase I: 25 working days (extendable by 10 working days)
  • Phase II: 90 working days (extendable by 15 working days)
  • Phase I: 2 months (extendable by 2 weeks)
  • Phase II: 3 months (extendable by up to 2 months)
  • Phase I: 4 weeks (extendable by 2 weeks)
  • Phase II: 5 months (extendable by 1 month)
  • Phase I: 30 calendar days
  • Phase II: 3 months (extendable by 3 months)
  • Formal pre-review: 3 working days
  • Phase I: 25 working days (extendable by up to 20 working days)
  • Phase II: 4 months (extendable by up to 40 working days)

All terms are interpreted by the competition authority as instructive (i.e. delays are possible).

  • Phase I: 30 calendar days
  • Phase II: 3 months (extendable by 3 months)
  • Phase I: 30 calendar days (extendable by 15 calendar days)
  • Phase II: 5 months (extendable by 15 calendar days)
  • “certificate proceeding”: 8 calendar days
  • Phase I: 30 calendar days (extendable by 20 calendar days)
  • Phase II: 4 months (extendable by 2 months)
  • Phase I: 30 days
  • Phase II: 90 days (extendable by 90 days)
  • Phase I: 25 working days
  • Phase II: 90 working days
  • Initial review: 10 working days
  • Phase I: 30 working days
  • Phase II: 90 working days

+ maximum extension of 20 working days

  • Unconditional clearance: 105 working days
  • Conditional clearance: 125 working days
  • Prohibition clearance: 130 working days
  • Phase I: 1 month
  • Phase II: 4 months
  • Initial review: 7 calendar days
  • Phase I: 45 calendar days
  • Phase II: 5 months
  • Phase I: 1 month
  • Phase II: 4 months
  • Phase I: 25 working days (can be extended by up to 60 working days)
  • Phase II: 90 working days (can be extended by up to 60 working days)
  • Phase I: 25 working days (starting anew with an RFI)
  • Phase II: 60 working days (starting anew with an RFI)
  • Phase I: 30 calendar days (recounted upon request for information)
  • Phase II: 6 months (extendable by up to 6 months)
  • One-stop-shop: If the EU thresholds are met, the national merger control regimes of EU Member States step back and the sole competence to review the merger lies with the European Commission. There are, however, exemptions to this rule.
  • Pre-notification: The duration of the pre-notification period, where discussions with the authority are held, depends on the complexity of the transaction and whether it raises competition concerns. In complex cases pre-notification can take several months.
  • Simplified procedure: There is the possibility of a simplified procedure if the undertakings concerned have limited activities in the EEA or if there is no horizontal or vertical overlap between their activities or if their market shares remain below a certain threshold. About 60 % of all EU cases are handled under the simplified procedure.
  • Fast-track procedure: For mergers that raise no competition concerns, a “fast-track” Phase I procedure is available which takes 25 days following the issuance of a confirmation on the complete filing.
  • Filing deadline: A filing must be made within 30 calendar days from any of the following acts taking place: (i) conclusion of an agreement, (ii) acquisition of a controlling interest, (iii) announcement of a public bid or (iv) creation of a full-function joint venture. It is not possible to file a notification prior to the occurrence of these events (i.e. based on a letter of intent, memorandum of understanding, etc.).
  • Foreign-to-foreign: Foreign-to-foreign transactions are subject to merger control in Albania if the turnover thresholds are met.
  • Non-controlling shares of at least 25 %: In addition to changes of control, a merger is also realised under Austrian law if an undertaking acquires a non-controlling share of at least 25 % (capital participation or voting rights) in another undertaking.
  • Same persons in management or advisory board: A merger is also realised under Austrian law if at least half of the parties’ management or advisory board consists of the same persons.
  • Turnover calculation: The turnover of companies in which an undertaking concerned directly or indirectly holds at least a 25 % share needs to be fully attributed (i.e. 100 % of the undertaking’s turnover) when calculating the relevant turnover thresholds.
  • Multiplier for media mergers: If two or more undertakings to a merger qualify as “media undertakings”, their relevant turnover must be multiplied by 200 (for media undertakings) or by 20 (for media support undertakings) when assessing whether the thresholds are met.
  • No one-stop-shop for media mergers: A media merger that meets the relevant thresholds must be notified even if the transaction falls within the competence of the EU merger regulation.
  • Market share test: The 40 % market share test refers to a joint market share. However, the authority has held in certain cases that a filing obligation can be triggered only by a single undertaking having a market share above 40 %, with the other undertaking(s) having no presence in the same relevant market. Due to the authority’s unclear practice, this threshold should be assessed on a case-by-case basis.
  • Lower threshold for domestic companies: If the undertakings concerned are registered in Bosnia and Herzegovina, a filing obligation exists even if the undertakings concerned do not achieve a combined worldwide turnover of BAM 100 million. It suffices if one of the local thresholds is met.
  • Filing deadline: The filing must be made within 15 calendar days after any of the following acts, whichever occurs first: (i) execution of an agreement, (ii) publication of a public bid or (iii) acquisition of control.
  • Foreign-to-foreign: To a certain extent, foreign-to-foreign transactions are subject to merger control in Bosnia and Herzegovina if the turnover thresholds are met.

  • Media mergers: Mergers in the media sector must be notified to the Competition Agency irrespective of whether the merger control thresholds are triggered. Electronic media companies must also obtain clearance from the Agency for Electronic Media.
  • Electronic communication companies: Undertakings active in the electronic communications sector that do not reach the thresholds but have significant market power or a licence for the use of the radio frequency spectrum must notify the transaction to the Croatian Regulatory Authority for Network Industries.
  • Simplified procedure: A simplified procedure with a shortened review period of 20 calendar days is available if (i) the combined market share of the undertakings concerned on any horizontally overlapping market is 15 % or less and no undertaking concerned has a market share equal to or exceeding 25 % in a market upstream or downstream of another undertaking or if (ii) an undertaking is to acquire sole control of an undertaking it already jointly controls.
  • Quick clearance:If no competition issues arise and all facts and annexes the authorities require are available, a clearance certificate is issued within 8 days and no Phase I proceedings are initiated.
  • Special calculation rules:Special rules apply for the calculation of turnover for financial institutions and insurance companies.
  • Voluntary filings:If only the voluntary thresholds are met, closing also may take place prior to the clearance decision. There are no fines for implementing the transaction; however, the authority may initiate a proceeding at its own motion within six months following the closing of the transaction. Such proceedings involve the risk that the authority orders – in the worst case – restitutio in integrum.
  • Calendar days/working days: The Competition Act does not specify whether the deadlines refer to calendar or working days. It is usually assumed that deadlines refer to calendar days; however, the authority provides no relevant practice to confirm this assumption.
  • Alternative rather than cumulative thresholds: Several recent publicly available decisions of the authority indicate that a transaction will be subject to merger control if it meets either of the two cited thresholds.
  • Combined domestic turnover: The second threshold refers to the combined domestic turnover. It is not required that each undertaking generated turnover of EUR 3 million individually.
  • Foreign-to-foreign: To a certain extent, foreign-to-foreign transactions are subject to merger control in Kosovo if the turnover thresholds are met.
  • Public offers: Generally, there is no specific filing deadline, but the filing must be made prior to the implementation of the transaction. In addition, undertakings that make a public offer must inform the authority of the public offer irrespective of the turnover thresholds.
  • Foreign-to-foreign: Foreign-to-foreign transactions are subject to merger control in North Macedonia if the turnover thresholds are met.
  • Pre-notification discussions: The undertakings concerned may engage in preliminary discussions with the authority. To this end, they must provide the authority with specific information about the transaction at least 3 working days prior to the discussions.
  • Filing deadline:  Filing is compulsory prior to the implementation of the transaction. Under the authority’s strict approach, any agreement between the undertakings concerned, announcements of a public offer, a takeover of controlling rights or shareholding may already amount to an implementation.
  • Market share test: Even if the relevant thresholds are not met, the authority can order the undertakings concerned to notify the concentration if their joint market share in the relevant market in Montenegro is at least 60 %.
  • Public offers: Undertakings that make a public offer in accordance with the law regulating the takeover of joint stock companies and consequently acquire control must inform the authority of the public offer.
  • Filing deadline: A concentration must be notified within 15 calendar days after any of the following acts, whichever occurs first: (i) conclusion of an agreement, (ii) announcement of a public bid, offer or closing of the public offer or (iii) acquisition of control.
  • Foreign-to-foreign: Foreign-to-foreign transactions are subject to merger control in Montenegro if the turnover thresholds are met.
  • All joint ventures are caught: The establishment of a joint venture is always subject to approval if the turnover thresholds are met. In contrast to EU law, the joint venture does not have to be “full functional” to be caught.
  • Pre-notification discussions: Pre-notification discussions are a voluntary step aimed to streamline the review and clearance process. From a practical point of view, pre-notification is recommended particularly in more complex cases.
  • Filing deadline: A concentration must be notified within 15 calendar days after any of the following acts, whichever occurs first: (i) conclusion of an agreement, (ii) publication of a public bid, offer or closing of the bid or (iii) acquisition of control.
  • Public offers: Undertakings making a public offer in accordance with the law regulating the takeover of joint-stock companies must notify the authority of the acquisition and public offer irrespective of whether the turnover thresholds are met.
  • Foreign-to-foreign: Foreign-to-foreign transactions are subject to merger control in Serbia if the turnover thresholds are met.
  • Competition Act to be revised: The drafting of a new Competition Act is pending. It is expected that the filing thresholds will be increased and that the filing deadline will be extended, while the maximum duration of the proceedings will likely stay the same. The new law is expected to enter into force at the beginning of 2020.
  • Simplified procedure: A simplified procedure, which has no impact on the formal review period but rather requires less information in the notification, is available if: (i) the combined market share of the undertakings concerned on any horizontally overlapping market is 15 % or less and no undertaking concerned has a market share equal to or exceeding 30 % in a market upstream or downstream of another undertaking, orif (ii) an undertaking is to acquire sole control of an undertaking it already jointly controls.
  • Media mergers: Acquisitions of shareholdings (or voting rights) exceeding 20 % in publishers of printed daily newspapers, radio or TV programmes, require the consent of the Ministry of Culture.
  • Banks, insurance and finance undertakings: Acquisitions of so-called “qualified shareholdings” (i.e. 10 %, 20 %, 33 % and 50 %) in banks, insurance companies, stock brokerage companies and fund management companies require approval of the respective regulatory body.
  • Energy and electronic communications sector: In case of mergers in the energy or electronic communications sectors, the Slovenian Competition Agency may carry out its assessment in cooperation with the respective regulatory bodies.
  • No pre-notification discussions: There is no consultation mechanism to be engaged with the authority before the merger notification.
  • Foreign-to-foreign: Foreign-to-foreign mergers are subject to merger control to the extent they have any impact within Turkey.
Begüm Koçak

Begüm Koçak

Turkey

Eva Škufca

Eva Škufca

Slovenia

Pawel Kulak

Pawel Kulak

Poland

Georgiana Bădescu

Georgiana Bădescu

Romania

Anna Turi

Anna Turi

Hungary

Claudia Bock

Claudia Bock

Czech Republic

Franz Urlesberger

Franz Urlesberger

Austria

Srđana Petronijević

Srđana Petronijević

Bosnia & Herzegovina, Macedonia, Montenegro, Serbia

s.petronijevic@schoenherr.rs

Galina Petkova

Galina Petkova

Bulgaria

g.petkova@schoenherr.eu