The framework and the national competition authority
The Control of Concentrations Between Undertakings, Law 83(I) of 2014 (the "Law"), is the statute regulating the control of concentrations between undertakings in Cyprus.
Enforcement of the Law rests with the Commission for the Protection of Competition (the "CPC"). The CPC has overall responsibility for implementing the Law and is the competent authority for the control of concentrations.
Transactions caught by the framework
The Law applies to concentrations between undertakings resulting in a change of control on a lasting basis.
Such concentrations include:
- mergers of two or more previously independent undertakings or parts thereof
- acquisitions by one or more persons already controlling at least one undertaking, or by one or more undertakings, directly or indirectly, whether by the purchase of securities or assets, by agreement or otherwise, of control of one or more other undertakings.
Fully functional joint ventures are subject to notification to the competent authority under the Law. The decisional practice of the CPC has adhered to the judgment of the Court of Justice of the European Union in Austria Asphalt.1 As such, when there is a change from sole to joint control over an existing undertaking, the criterion of a concentration is only fulfilled when the arising joint venture performs all functions of an autonomous economic entity on a lasting basis.
A joint venture that is genuinely fully functional must be able to operate independently of its parents on an identifiable market. In order to do so, the joint venture must have management dedicated to its day-to-day operations and access to sufficient resources including finance, staff, and assets (tangible and intangible) in order to conduct its business activities on a lasting basis.
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 concerned is achieved in Cyprus.
Turnovers comprise the amounts derived from the sale of products and the provision of services by the undertakings concerned during the preceding financial year and corresponding to the ordinary activities of the undertakings, after deduction of sales rebates, value added tax and other taxes directly related to turnover.
Notification of concentrations
The notification of concentrations of major importance to the CPC is mandatory. Concentrations of major importance must be notified to the Service in writing, either jointly or separately by the undertakings concerned in a merger, the joint acquisition of control of another undertaking or the establishment of a joint venture.
The notification of a concentration should include the information prescribed in Appendix III to the Law and must be made in Greek.
The notification must be accompanied by various supporting documents and other information which may be in Greek or English, including but not limited to the following:
- a copy of all final or most recent documents that brought about the concentration either by agreement or following a public bid;
- in the case of a public bid, a copy of the public bid document;
- copies of the most recent annual reports and audited financial statements of all the undertakings concerned;
- copies of reports or analyses prepared for the purposes of the concentration;
- a list and description of the contents of all analyses, reports, studies and surveys that were prepared by or for any of persons responsible for notification for the purpose of evaluating or analysing the proposed concentration in relation to the market and competition conditions;
- details of the concentration (including the nature and scope of the concentration, the financial and structural details of the concentration, and details regarding the turnover in Cyprus and worldwide of each undertaking);
- details of relationships of ownership and control as between each participant in the concentration and the undertakings connected with it;
- personal and economic ties as between each group of undertakings and any other undertaking operating within the affected market in which such group holds, inter alia, at least 10 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.
The Law provides for a one-month deadline by which the Service is required to inform the notifying undertaking of whether the concentration is cleared or whether it will proceed to a full investigation (phase II). The one-month period commences from the date of submission of the notification or the submission of such additional information necessary for the notification to be considered complete and payment of the filing fee.
In the event where the Service requests clarifications on the filing, the clock resets back to the statutory deadline of one month while a request for additional information would cause the clock to stop until a response is received by the CPC on the requested information.
A further extension of fourteen days may also be applied by the Service, 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 one-month timeframe.
In a full investigation (phase II), the Service is required to prepare a report of findings to the CPC within three months as of the date of submission of the notification or such additional information necessary for the notification to be considered complete, provided that the relevant filing fee is settled.
In the case of a full investigation (phase II), the notifying party or parties must be informed of the CPC's decision no later than four months from the date of submission of the notification or such additional information necessary for the notification to be considered complete.
There is a suspensory obligation, as concentrations caught by the Cypriot merger control regime cannot be implemented unless cleared by the CPC. Where a concentration is either partially or fully implemented prior to clearance by the CPC, administrative sanctions may be imposed.
An administrative fine of up to ten per cent (10%) of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed on the notifying undertaking for the aforementioned infringement, which may be followed by additional administrative fines of €8,000 for each day the infringement persists.
The CPC also has the power to order the partial or complete dissolution of a concentration that has been implemented prior to obtaining clearance by the CPC.
1 Case C-248/16, Austria Asphalt GmbH & Co OG v. Bundeskartellanwalt, Judgment of 7 September 2017, ECLI:EU:C:2017:643.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.