Slovak Financial Law News 2004

Regulation of merger control (concentrations)

In relation to the criteria whether the concentration is subject to the control of the Office, the market share jurisdiction threshold (as an alternative to the turnover thresholds) was abolished. The turnover thresholds will enable the undertaking to definitely assess whether it is obliged to submit its transaction to the Office for approval. Under the new criteria, the concentration is subject to the control of the Office if (i) the combined aggregate world-wide turnover of undertakings concerned was at least SKK 1.2 billion and, at the same time, at least two of the undertakings concerned generated each the aggregate turnover of at least SKK 360 million in the Slovak Republic; or (ii) at least one of the undertakings concerned generated the aggregate turnover of at least SKK 500 million in the Slovak Republic and at the same time at least one of the other undertakings concerned generated the world-wide turnover of at least SKK 1.2 billion. For the purpose of calculation of the turnover, the world-wide as well as Slovakian-wide aggregate turnover shall be the sum of turnovers of an undertaking concerned and all undertakings being controlled by or controlling, directly or indirectly, the undertaking concerned. The financial aid provided to the undertaking concerned shall be added to the aggregate turnover.

The concentration that is subject to control of the Office must be notified to the Office within 30 business days from the date of (i) conclusion of the agreement, (ii) notice of the acceptance of the bid in a public tender, (iii) delivery of the decision of governmental agency to the undertaking, (iv) when the Commission notified the undertaking that the Office shall act in the matter, or (v) when any other fact has occurred which gave rise to the concentration.

The Office may, upon the reasonable request of the notifying party, reduce the scope of information and documents mandatory required under law. If, in the course of the proceedings, the Office finds out that the reduced scope of information and/or documents is not sufficient for deciding on the matter, it can require the undertaking to submit the additional necessary information/documents. The period for the issuance of the clearance does not run during the period designated for supplementing these documents. The waiting periods valid before 1 May 2001 are calculated and determined after 1 May 2004 by business days, not by calendar days.

Under the amendment, the prohibition to perform rights and obligations arising from the concentration before the clearance was extended to all undertakings (including the seller in the notified concentration).

If the concentration gives the rise to competition concerns that will lead to the creation or strengthening of a dominant position, or that the coordination, which is (i) the aim or (ii) can be a result of the concentration, is an agreement restricting competition which is prohibited, the Office will invite the parties to submit a proposal of conditions and commitments to remove competition concerns and ensure that the concentration will not lead to any competition problem by their fulfilment. The conditions proposed by the undertaking must ensure that a dominant position will not be created or strengthened as a result of the concentration, or that the said coordination is not subject to the prohibition under the Act.

The notifying party is obliged to submit, in addition to a proposal of conditions, also a proposal of commitments related thereto. The Office is not bound by the proposal submitted by the undertakings concerned. As a part of its procedural rights, the notifying party has the right to present its comments and statements on altering proposals of commitments submitted by the Office.

The Office may extend the prohibition to exercise any rights and obligations arising from the concentration until the conditions and commitments have been fulfilled by the parties.

The amendment abolished simplified procedure for the treatment of certain types of concentrations.

The Office shall prohibit the concentration if it creates or strengthens a dominant position which significantly impedes the effective competition on the relevant market.

Provided that the undertaking does not meet conditions stipulated by the decision of the Office imposed in order to eliminate competition concerns, the clearance decision that was conditioned by fulfilment of commitments by the parties shall be repealed by the Office and the Office shall issue a new decision by which the concentration shall be prohibited. The Office may change or repeal its decision on the basis of the proposal of the notifying party, or in certain cases, on its own initiative only under the conditions that are explicitly stipulated in the amendment.

If the undertaking concerned implemented the concentration in breach of the statutory suspension obligation, the Office may impose on the undertaking concerned an obligation to restore the level of competition, which existed before the prohibited concentration, provided that the concentration in question was prohibited by the Office. The Office may impose the same obligation on the undertaking that implemented the concentration in breach of prohibition decision. The Office may impose also other obligations on the undertaking concerned, if it is necessary for the restoration of the original level of competition.

---

Next: Further changes concerning procedural rules
Up: Amendment to the Act on
Previous: Antitrust Law