Cyprus: Merger Control 2019

Last Updated: 13 August 2019
Article by Ramona Livera and Polis Ieronymides

Most Read Contributor in Cyprus, July 2019

LAW AND PRACTICE

1. Legislation and Enforcing Authorities

1.1 Merger Control Legislation

The Control of Concentrations between Undertakings Law 83(1)2014 (the 'Merger Control Law') regulates mergers in the Republic of Cyprus. This law was recently replaced and is in line with Council Regulation EC 139/2004.

The Merger Control Law introduces a new definition of a concentration so that one of the criteria for establishing whether there is a concentration of 'major importance' is that at least two of the participating undertakings achieve a turnover within the Republic of Cyprus. No additional guidance from the authorities exists.

1.2 Legislation Relating to Particular Sectors

There is no other relevant legislation for foreign transactions or investment, or relating to particular sectors.

1.3 Enforcement Authorities

The body directly responsible for merger control and competition issues in Cyprus is the Cyprus Commission for the Protection of Competition (CPC). The CPC is supported by the Service of the CPC, which is responsible for receiving notifications of concentrations of 'major importance' and providing written assessments of such concentrations to the CPC. No other authorities are involved in the review process.

2. Jurisdiction

2.1 Notification

Notification is compulsory. There are no exceptions to compulsory notification, nor is there any voluntary notification.

2.2 Failure to Notify

There are no penalties for failing to notify the CPC of a transaction which meets the jurisdictional thresholds. The Merger Control Law replaces these penalties with administrative fines for implementation of a transaction (whether partial or complete) prior to receiving clearance.

There are no penalties for failure to notify the CPC of a transaction. There are no reported cases of the imposition of penalties for partial or complete implementation of a transaction prior to clearance.

2.3 Types of Transactions

The Merger Control Law applies to transactions which fall under the heading of a concentration of 'major importance'. Three types of transaction qualify as concentrations of 'major importance', these being where a change of control on a lasting basis results from:

  • the merger of two or more previously independent undertakings or parts of undertakings; or
  • the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by other means, of direct or indirect control of the whole or parts of one or more other undertakings.

The creation of a joint venture performing, on a lasting basis, all the functions of an autonomous economic entity.

Joint ventures fall under the heading of a concentration, and require notification to be made to the CPC if the participating undertakings in such a concentration meet the thresholds which would render the concentration one of 'major importance' under the Merger Control Law.

It should be noted that control is derived not only from the acquisition of the whole or part of the assets of an undertaking but also from any rights acquired that give rise to the possibility of a decisive influence on the composition, voting or decisions of the organs of an undertaking.

The Merger Control Law introduced new provisions regarding the factors which the Service of the CPC is required to consider in order to decide whether a concentration constitutes a joint venture, namely:

  • whether two or more parent companies retain, to a significant extent, activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market; and
  • whether the co-ordination which is the direct consequence of the creation of the joint venture affords the participating undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

Transactions concerning internal restructurings or reorganisations are not within the purview of the Merger Control Law.

The CPC ordinarily examines operations involving transfers of shares or assets; in any other case, the CPC is likely to examine if these operations cover cases described under the heading 'means of control' provided in the Jurisdictional Notice Council Regulation EC 139/2004.

2.4 Definition of 'Control'

'Control' shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by virtue of:

  • ownership or the usufruct of all or part of the assets of an undertaking; and/or
  • rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.

There is no specific provision under the Merger Control Law stipulating that acquisitions of minority or other interests are less than capturing of control. The CPC will, in practice, seek guidance from the decisions of the European Commission in relation to the criteria which determine the issues of 'control' and 'decisive influence' in relation to the acquisition of minority or other interests in an undertaking.

2.5 Jurisdictional Thresholds

The Merger Control Law provides that for an act of concentration of undertakings to be of 'major importance' it must meet all three of the following requirements:

  • the aggregate turnover achieved by each of at least two of the participating undertakings is more than EUR3.5 million;
  • at least two of the participating undertakings achieve a turnover within the Republic of Cyprus; and
  • at least EUR3.5 million of the aggregate turnover of all the participating undertakings is achieved within the Republic of Cyprus.

A proposed concentration may also be declared a concentration of 'major importance' by an Order of the Minister of Energy, Commerce and Industry regardless of whether the thresholds are met, for reasons of its potential effect on public security, the pluralism of the media and the principles of sound administration.

In determining the turnover to be considered with regard to the thresholds above, it should be borne in mind that the turnover of the participating undertaking includes the turnover of the parent companies and subsidiary companies (a subsidiary is defined as any company in which the undertaking has more than half of the capital or voting rights, or the power to appoint more than half of the members of the administrative board, or the right to manage the affairs of the undertaking). The aggregate turnover is the amount arising from the sale of products or provision of services by the undertakings concerned for the preceding financial year, net of discounts, value added tax and other taxes directly related to turnover.

The only sector-specific thresholds relate to banking and credit institutions and insurance companies. For the former, one tenth of the balance sheet total of the last preceding financial year is used in place of turnover. For insurance companies, the relevant figure is the value of the gross premiums during the last financial year minus any VAT or turnover-related taxes.

With regard to credit institutions, financial institutions or insurance companies there is also a further differentiation, in that a concentration is not considered to have taken place if these entities only hold securities on a temporary basis for resale, either on their own account or that of a third party, provided that:

  • the holder does not exercise a voting right in respect of the securities concerned with a view to determining the competitive behaviour of that undertaking; or
  • they exercise such voting rights only with a view to disposing of the securities or assets (as long as the securities are disposed of within one year of the date of acquisition).

The Merger Control Law gives the CPC power to extend the one-year deadline on request if the holder can show that disposal was not reasonably feasible within one year.

2.6 Calculations of Jurisdictional Thresholds

The aggregate turnover shall 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, of value added tax and other taxes directly related to turnover.

The aggregate turnover of a participating undertaking shall not include internal transactions carried out between any of the undertakings.

Where the concentration consists of the acquisition of parts of one or more undertakings, whether or not constituted as legal entities, only the turnover relating to the parts which are the subject of the transaction shall be taken into account with regard to the seller or sellers.

Sales or assets booked in foreign currency should be converted into euros at the exchange rate applicable on the date of preparation and issue of the financial statements of the participating undertaking in the concentration.

Where the thresholds are asset-based, the threshold must be based on the book value as reflected in the audited financial statements of the last financial year of the participating undertaking.

2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds

In determining the jurisdictional turnover to be considered with regard to the thresholds mentioned above, it should be borne in mind that the turnover of the participating undertaking includes the turnover of the parent companies and subsidiary companies (a subsidiary is defined as any company in which the undertaking has more than half of the capital or voting rights, or the power to appoint more than half of the members of the administrative board, or the right to manage the affairs of the undertaking). The aggregate turnover is the amount arising from the sale of products or provision of services by the undertakings concerned for the preceding financial year, net of discounts, value added tax and other taxes directly related to turnover.

Ordinarily, only the target's turnover needs to be calculated.

Thresholds are calculated on a group-wide basis (in the case of the acquirer, when calculating turnover the CPC will take into account the turnover of the parent company as well as its subsidiaries which are members of the group of companies) and as these turnovers are reflected in the audited financial statements of the group undertaking of the last financial year. In the case of other acquisitions, divestments or business closures and such changes are not incorporated in the financial statements of the last financial year or submitted in the supporting documents with the notification these may be referred to in the notification as at the date of the filing of the notification.

2.8 Foreign-to-foreign Transactions

Foreign-to-foreign transactions come under the purview of the Merger Control Law if the thresholds are met. Notification is obligatory despite the parties having no physical presence in Cyprus or any actual connection to Cyprus other than by generating a turnover in Cyprus that meets the thresholds.

There is no local effects test and there is no local presence required.

A filing is not required when a target does not achieve a turnover deriving from the sale of goods or the provision of services, or generates a turnover from assets within the Republic of Cyprus.

2.9 Market Share Jurisdictional Threshold

There is no notion of market share jurisdictional threshold. Under the Merger Control Law, the jurisdictional thresholds which are applicable are financial and are those which are reflected in the financial statements of the participating undertakings.

2.10 Joint Ventures

Joint ventures are subject to merger control if they permanently carry out, on a lasting basis, all the functions of an autonomous economic entity. In the event that this independent entity is intended to co-ordinate the competitive behaviour of the participating undertakings, which remain independent, such co-ordination is also examined under the scope of the Protection of Competition Laws 2008 and 2014 and their provisions on concerted practices, with a view to ascertaining whether or not the operation is compatible with the functioning of the competition in the market.

The Merger Control Law introduces provisions regarding the factors which are taken into account by the service of the CPC, particularly in its assessment of whether a concentration constitutes a joint venture, namely:

  • whether two or more parent companies retain to a significant extent activities in the same market as the joint venture, or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market; and
  • whether the co-ordination which is the direct consequence of the creation of the joint venture affords the participating undertakings concerned the possibility of eliminating competition in a substantial part of the products or services in question.

There are no special rules for determining whether joint ventures meet the jurisdictional thresholds. Where undertakings participating in the concentration jointly have the rights or powers in calculating the turnover of the participating undertakings, account shall be taken of the turnover from the sale of products or the provision of services between the joint undertaking and any third undertaking. The said turnover shall be apportioned equally amongst the undertakings concerned.

2.11 Power of Authorities to Investigate a Transaction

There is no specific provision under the Merger Control Law which gives power to the CPC to investigate a transaction that does not meet the jurisdictional thresholds. However, the Minister of Energy, Commerce and Industry has the power to issue an order declaring a notified concentration as one of 'major importance' even if the three thresholds have not been satisfied. The Minister may make such a declaration for reasons of the transaction's potential effect on public security, the pluralism of the media and the principles of sound administration.

There is no statute of limitation on the ability of the CPC to investigate a transaction where a concentration meets the jurisdictional thresholds and, therefore, notification of the CPC concerning the concentration of 'major importance' must be made.

2.12 Requirement for Clearance Before Implementation

A transaction must be cleared before it is partially or completely implemented. There is therefore a suspension requirement and the transaction cannot be implemented until the CPC has given its clearance.

2.13 Penalties for the Implementation of a Transaction Before Clearance

In the event of a transaction being implemented, whether partially or completely, prior to receiving clearance, the CPC may impose an administrative fine of up to 10% of the total turnover of the participating undertaking which has the obligation to notify in the financial year immediately preceding the concentration, and an administrative fine of up to EUR8,000 for each day during which the infringement continues.

There are no reported cases to date concerning the imposition of administrative fines. This is understandable, given that the Merger Control Law was introduced relatively recently and abolished the administrative fine for failure to notify the CPC of a concentration.

Reasoned decisions of the CPC concerning the imposition of administrative fines on participating undertakings are announced on the website of the CPC and in the annual reports of the CPC, as well as being published in the Official Gazette of the Republic of Cyprus.

There are no reported cases to date concerning the imposition of administrative fines in relation to foreign-to-foreign transactions given the fact that the Merger Control Law was introduced relatively recently.

2.14 Exceptions to Suspensive Effect

There are no exceptions to the suspensive effect for public bids and there is no possibility of a derogation to the suspension requirement in Phase I of the review process of the notification.

Derogation of the suspension effect is only possible with regard to a Phase II full investigation, where the participating undertakings can obtain temporary permission from the CPC to implement the concentration either partially or fully, with or without conditions set by the CPC, prior to final approval. In order to obtain a derogation, the participating undertakings must satisfy the CPC that further delay in the implementation of the concentration is likely to cause them serious harm. The CPC shall take into account the effects of the suspension on one or more undertakings concerned by the concentration or on a third party, and the threat to competition posed by the concentration.

2.15 Circumstances Where Implementation Before Clearance is Permitted

There are no other circumstances that allow parties to close or implement the transaction prior to clearance, other than those explained under 2.14 Exceptions to Suspensive Effect, above.

3. Procedure: Notification to Clearance

3.1 Deadlines for Notification

The Merger Control Law abolished the deadline for the filing of notifications within one week of the date of the signing of the agreement which brought about the concentration, and requires that the Service of the CPC must be notified of transactions creating concentrations of 'major importance' in writing to before being implemented and after the conclusion of the agreement, announcement of the public bid or the acquisition of a controlling interest.

3.2 Type of Agreement Required Prior to Notification

The Merger Control Law stipulates that a notification can be filed where the participating undertakings have concluded an agreement and, in the case of a public bid, have announced the public bid or demonstrate to the Service of the CPC a good-faith intention to conclude an agreement or, in the case of a public bid, once they have announced an intention or final decision to make such a bid, provided that the intended agreement or bid would result in a concentration of 'major importance'. In practice, if there is a good-faith intention to reach an agreement, the parties must provide the CPC with supporting documents.

3.3 Filing Fees

The Merger Control Law introduces a filing fee of EUR1,000 for Phase I, which concerns the one-month review period of the concentration. If a full Phase II investigation is undertaken then there is a further fee of EUR6,000.

There is no deadline to pay the filing fee of EUR1,000; however, where the notification fee has not been paid the time limit for the review period will commence to count from the date on which the notification fee is paid.

3.4 Parties Responsible for Filing

In the case of one undertaking acquiring another, the acquiring party is responsible for notifying the CPC. If the concentration arises due to two previously independent undertakings merging, or due to a joint venture, or acquisition of joint control by more than one persons, both parties must notify the CPC, either jointly or separately.

3.5 Information Included in a Filing

Data with regard to each participating undertaking should be provided, including the name, address and contact person of the participating undertaking, as well as details of the activities of the participating undertakings both in Cyprus and elsewhere. The structure of ownership and relationship of control of the participating undertakings must be analysed, and information on the parent companies and subsidiary companies of the undertakings should therefore also be provided. The number of employees of each participating enterprise, both in Cyprus and abroad, must also be provided. In addition, and most importantly, the turnover of the participating undertakings involved must be provided, both in Cyprus and worldwide, together with details of the activities which generate the turnover.

The notification must also include an estimate of the participating undertakings' market share in Cyprus in relation to product markets in which they operate, and details of each participating undertaking's pre-tax profit. The nature and scope of the concentration must be described, as well as the financial and structural details of the concentration.

In the case of an affected market, participating undertakings are required to provide details of any other undertakings which are active in the affected markets in which the group holds more than 10% of the shares or voting rights, or which have common directors.

A detailed description and analysis of the affected market must also be provided. An affected market consists of all the relevant product markets and geographical markets as well as the reasonably interchangeable relevant product markets and geographical markets in the territory of Cyprus:

  • where two or more of the participating undertakings to the concentration are engaged in business activities in the same product market (horizontal relationship) and where the concentration will lead to a combined market share of 15% or above; or
  • where any of the parties to the concentration are engaged in business activities in a product market which is upstream or downstream (vertical relationship), and any of the individual or combined market shares of these undertakings is 25% or more, irrespective of whether a supplier-customer relationship exists between the parties to the concentration.

In the event that there is an affected market in accordance with the definition provided above, an extensive amount of information must also be provided in the notification, including detailed sales data of the participating undertakings, market share estimates of the parties and their main competitors as well as the contact details of their main competitors, details (including contact details) of five of the parties' largest customers and suppliers, and contact details of main commercial contacts, a description of the structure of supply and demand and the distribution networks existing in the market, the way that the planned concentration might affect the interests of intermediate and end-consumers, details of any significant entry of any undertaking in the market in the last five years and whether and a description of factors affecting entry into the market, barriers to imports, importance of research and development (if relevant) and any other factors pertaining to the competitive structure of the market.

The Merger Control Law requires all notification documents to be submitted to the CPC in both written and electronic form. The copy of the agreement which brought about the concentration should be stamped unless the agreement was made in a country where the national legislation does not require stamping of agreements. The notification must include an explanation of the purpose of the concentration. It must state whether the concentration has been notified to other competition authorities of member states of the EEA; if so, the name of the member state, the date of notification and any decision must be given.

In the event of a joint venture, the notifying party must state whether two or more parent companies retain a significant involvement in the same market or in a downstream, upstream or neighbouring market closely related to this market, and explain the reasons why. If so, the notification must include the turnover of the parent company for the preceding year, the financial significance of the activities of the joint venture in relation to the turnover and the market share of every parent company.

The supporting documents that must be submitted with the notification are the following:

  • authorisation signed by the person who has the obligation to give notification of the concentration;
  • copies of the final or most recent documents bringing about the concentration, whether by an agreement or a public announcement of the intention or final decision of acquisition proposal (a copy of final decision of acquisition proposal);
  • copies of the most recent annual reports and audited financial statements of all the participating undertakings;
  • copies of reports or analyses prepared for the purposes of the concentration that provide information with regard to the affected market which pertains to that required to be included in the notification; and
  • a list and short description of the contents of all the other analyses, reports, studies or surveys prepared for the purpose of evaluation or analysis of the concentration with regard to the conditions of competition and the market.

These documents can be submitted in one of the official languages of the Republic of Cyprus (Greek and Turkish), or in English. If they are in a different language from these, they must be submitted in the original language with a translation into one of the official languages of the Republic of Cyprus. The supporting documents may be originals or copies of the originals. In the latter case, the notifying party must confirm that the copies are true and complete.

As noted above, the Merger Control Law requires all documents to be submitted both electronically and in written form, and requires the copy of the agreement to be stamped unless the agreement was made in a country where the national legislation does not require stamping of agreements.

The Merger Control Law allows for notifications to be filed in one of the official languages of the Republic of Cyprus. In practical terms, this means that notifications must be submitted in Greek. The CPC accepts attachments such as annual reports and other corporate documents in the English language. Documents in other languages must be translated into English or Greek.

There are no specific requirements under the Merger Control Law for the submission of documents such as certifications, notarisations or apostilles.

3.6 Penalties/Consequences of Incomplete Notification

Under the Merger Control Law, the CPC has the power to impose an administrative fine of up to EUR50,000 for omitting to provide information required pursuant to an obligation imposed by any provision of the Merger Control Law. There are no reported cases to date concerning the imposition of administrative fines to the omission to provide information required pursuant to an obligation imposed by any provision of the Merger Control Law.

3.7 Penalties/Consequences of Inaccurate or Misleading Information

Under the Merger Control Law, the CPC has the power to impose an administrative fine of up to EUR50,000 for supplying inaccurate or misleading information in the course of compliance with an obligation imposed by any provision of the Merger Control Law. There are no reported cases to date concerning the imposition of administrative fines for supplying inaccurate or misleading information in the course of compliance with an obligation imposed by any provision of the Merger Control Law.

3.8 Review Process

Phase I of the review process comprises a preliminary evaluation of the concentration and the preparation of a written report including the reasoned opinion of the Service of the CPC on the compatibility of the concentration with the competitive market of Cyprus. Upon receiving this report, the CPC then determines whether it will allow the concentration to be implemented, or whether the concentration does indeed raise serious doubts as to its compatibility with the competitive market and therefore warrants further investigation. Phase I is one month from the date of receipt of the notification filing or from the date of receipt of the additional information which is necessary for securing compliance of the notification with the conditions of Schedule III.

In this event the concentration then proceeds to a Phase II investigation. The results of such investigation must be provided by the Service of the CPC to the Commission no later than four months after the date of receipt of notification by the Service or from the date of receipt of any further information that may have been required. This time period may be extended if the undertakings participating in the concentration delay the process required for the full investigation to take place.

3.9 Pre-notification Discussions with Authorities

There is no specific provision under the Merger Control Law stipulating a requirement for pre-notification discussions or consultations, but in practice the CPC will respond to written requests for pre-notification guidance and give an informal preliminary view on the basis of the information and documents provided to it.

3.10 Requests for Information During Review Process

Requests for information during the review period are common and in accordance with the provisions of the Merger Control Law the CPC has the power to restart the clock of the review process, although in practice it rarely does so.

3.11 Accelerated Procedure

There is no short form or other type of accelerated procedure for review. The information and documents required to be included in the notification of a concentration are specified in Schedule III of the Merger Control Law, mentioned under 3.4 Parties Responsible for a Filing, above, and cannot be deviated from.

4. Substance of the Review

4.1 Substantive Test

The substantive test employed by the CPC regarding a notified transaction is judged on the basis of whether the concentration in question creates or strengthens a dominant position in the affected markets. The first stage in the decision-making process is deciding whether the concentration notified falls within the scope of application of the Merger Control Law or within the meaning of being a concentration of 'major importance'. If the answer is in the affirmative, the CPC must decide whether the concentration raises serious doubts as to its compatibility with the functioning of competition in the market. If so, it will initiate a full Phase II investigation; otherwise it will issue clearance for the concentration. In all cases the CPC is required to inform the participating undertakings and the Minister of Energy, Commerce and Industry of its decision without delay.

4.2 Markets Affected by a Transaction

In assessing a concentration, the CPC considers the structure of the affected markets, the market position and economic power of the participating undertakings (including their parent and subsidiary companies), the actual or potential competition from within Cyprus or overseas, alternative sources of supply and the supply and demand trends of products or services traded in the affected markets, the barriers to entry to the affected markets, the interests of the intermediate and final consumers of the products and services in question, the effect on the development of technical or economic progress and the extent to which it benefits consumers and does not impair competition.

Where parties' activities overlap (ie, there a horizontal relationship), there is de minimis level at which competitive concerns are deemed unlikely in cases where the concentration will lead to a combined market share of less than 15%.

4.3 Case Law from Other Jurisdictions

The CPC seeks guidance concerning market definitions primarily from the decisions of the European Commission as well as the decisions of competition authorities of member states.

4.4 Competition Concerns

In practice, when considering any competition concerns (ie, any horizontal, vertical or neighbouring concerns), the CPC shall take into account the relevant product markets and geographic markets as well as the plausible interchangeable relevant product markets and geographic markets:

  • where two or more parties are engaged in business activities in the same product market which may lead to horizontal relationship, or
  • where any of the parties to the concentration are engaged in business activities in a product market which is upstream or downstream of a product market, provided their combined market share is not more than 25%.

In doing so the CPC shall determine:

  • whether the act of concentration creates or strengthens a dominant position;
  • if there is an affected market; and
  • if the concentration raises serious doubts concerning its compatibility with the operation of competition in the market.

4.5 Economic Efficiencies

The CPC takes into account as mitigating factors in the substantive assessment:

  • potential competition from undertakings based in Cyprus or abroad; and
  • any contribution to technical and economic progress and the improvement of economic efficiency and the extent to which this will benefit consumers and not impede competition.

In addition, the CPC generally follows European Commission practice in such cases. Therefore, to the extent that economic efficiencies have been taken into account by the European Commission, the CPC will most likely also follow such practice.

4.6 Non-competition Issues

The CPC very rarely, if at all, takes into account the above-described non-competition issues in the assessment of a concentration, especially in a Phase I review process. Neither is it customary for these issues to be given consideration in a Phase II full review process and investigation.

Non-competition issues are not expressly provided under the Merger Control Law, and in practice the CPC rarely, if at all, considers such issues.

4.7 Special Consideration for Joint Ventures

In the case of a joint ventures, the issue of co-ordination of the competitive behaviour of undertakings will also be examined to determine the extent to which the establishment of a third independent undertaking shall remain independent, with a view to ascertaining whether or not the operation is compatible with the functioning of competition in the market.

5. Decision: Prohibitions and Remedies

5.1 Authorities' Ability to Prohibit or Interfere with Transactions

There is no specific provision under the Merger Control Law stipulating that the CPC may prohibit or interfere with a transaction. In practice, where the CPC determines that a transaction gives rise to an affected market, it shall consider all market factors, any negative impact on competition, other markets which the proposed transaction may have an impact, as well as any spill-over effects, and shall invite the participating undertakings to propose any commitments with a view to removing any competition doubts and rendering the notified concentration compatible with the operation of competition in the market.

5.2 Parties' Ability to Negotiate Remedies

It is generally permitted for parties to negotiate with the CPC with regard to any commitments (remedies) proposed to the CPC. The Merger Control Law provides that if a full Phase II investigation is undertaken, then the parties are given the opportunity to amend the proposal or to undertake commitments with a view to removing any doubts as to the compatibility of the notification with the requirements of the competitive market.

There are no specific remedies that are more likely than others to be accepted by the CPC. In a recently reported case the CPC imposed structural and behavioural remedies. Generally, the remedy must serve to fully eliminate the competition concerns raised by the concentration. Examples of remedies that have been utilised in the past are:

  • commitment not to increase the price of the relevant product for three years except in specified circumstances;
  • commitment not to import specified goods unless demand exceeds supply;
  • commitment to remove specified by-products from the market once the transaction is implemented;
  • commitment to amend a joint venture agreement and the memorandum and articles of association of a company to exclude a specified director from participating in certain decisions;
  • commitment by a director of a participating undertaking to refrain from acquiring confidential information or business secrets in relation to competitors of the other participating undertaking; and
  • agreement by the participating undertakings to allow an independent third party to verify compliance with their commitments and inform the CPC annually.

5.3 Legal Standard

There is no specific provision in the Merger Control Law which stipulates a legal standard that remedies must meet in order to be deemed acceptable.

5.4 Typical Remedies

There are no particular kinds of remedies that are typically used in practice. As mentioned in 5.2 Parties' Ability to Negotiate Remedies,above, in a recently reported case the CPC imposed structural and behavioural remedies.

There is no specific requirement under the Merger Control Law stipulating whether remedies are required to address non-competition issues. There are no reported cases indicating that remedies are required to address non-competition issues.

5.5 Negotiating Remedies with Authorities

The parties may begin to negotiate remedies with the CPC before the CPC proceeds to take any decision and within the time limit set by the Merger Control Law for a Phase II full investigation process. The CPC may, if it considers it expedient, carry out negotiations or discussions with any person who, at the discretion of the Commission, may assist with the appraisal of the concentration.

There is no specific provision in the Merger Control Law stipulating that the CPC may propose remedies of their own motion. However, the representatives of the participating undertakings in person and by proxy, and/or any interested party or other persons who may be directly affected by the decision of the CPC, may appear before the CPC, upon written request, to develop their arguments in the context of an oral hearing with a view to reaching acceptable terms and conditions (remedies).

5.6 Conditions and Timing for Divestitures

Before taking any decision the CPC may, if it considers it expedient, carry out negotiations, hearings or discussions with any person who, at the discretion of the CPC, may assist with the appraisal of the concentration.

The parties may proceed to complete the transaction provided that the remedies shall be complied with.

The CPC may impose an administrative fine not exceeding 10% of the total turnover of the undertaking which has the obligation to give notification in the financial year immediately preceding the concentration, if the concentration is implemented without the fulfilment of a condition imposed by the CPC and an administrative fine not exceeding EUR8,000 for every day during which the infringement continues.

5.7 Issuance of Decisions

The CPC shall issue a formal decision permitting or prohibiting a transaction of the parties. The confidential version is made available to the parties and the non-confidential version is made publicly available in the Official Gazette of the Republic of Cyprus and on the website of the CPC.

5.8 Prohibitions and Remedies for Foreign-to-foreign Transactions

There are no reported cases to date requiring remedies or prohibited transactions in relation to foreign-to-foreign transactions.

6. Ancillary Restraints and Related Transactions

6.1 Clearance Decisions and Separate Notifications

It is not common practice for a clearance decision to cover related arrangements (ancillary restraints).

There is no specific provision under our Merger Control Law stipulating that separate notifications are required or possible for ancillary restraints.

7. Third-party Rights, Confidentiality and Cross-border Co-operation

7.1 Third-party Rights

Third parties have the ability to be actively involved in the review process. With regard to a Phase I investigation, a summarised notice of the concentration is published as soon as the notification is received by the Service of the CPC, for the purposes of allowing any third parties with a legitimate interest to submit their views. In addition, the Merger Control Law stipulates that where a full Phase II investigation is to be carried out, the Service must provide the opportunity for parties with a legitimate interest who do not participate in the concentration in question to submit their views regarding the concentration.

7.2 Contacting Third Parties

There are no reported cases of third parties contacting the CPC as part of the review process. Pursuant to the provisions of the Merger Control Law, the Service of the CPC may, in the case of a concentration for which a full investigation is carried out, following an application by persons who may be affected directly by the decision of the Commission but who do not participate in the concentration, afford them suitable opportunity to express their views regarding the concentration in such a manner and at such time as does not violate the time limit of the three-month review period of Phase II.

The Service of the CPC as a matter of practice contacts parties in writing. There are no reported cases of the CPC carrying out a 'market test' in relation to any remedies offered by the parties.

7.3 Confidentiality

When the act of concentration is notified to the Service of the CPC, the fact of the notification of the concentration is published on the website of the CPC and the Official Gazette. The publication shall indicate the names of the participating undertakings the nature of the concentration and the economic sectors. In doing so, the Service of the CPC shall take into account as far as possible the legitimate interest of the affected undertakings in the protection of their business secrets.

The reasoned decision of the CPC with regard to the compatibility of the concentration with the principle of a competitive market is also published in the same way. The CPC may issue two versions of the reasoned decision: one that is confidential in nature and provides more detail and which is only given to the participating undertakings, and one that is made publicly available and that does not contain confidential information. The published reasoned decision of the CPC typically contains an overview and a definition of the relevant product market and relevant geographic market of the concentration in question. General information is provided as to whether the concentration meets the thresholds of the Merger Control Law and falls within the definition of a concentration, and as to the activities that each party undertakes. A summary of the structure of ownership and control is also provided, as well as a summary of the main details of the concentration and of the agreement or public tender bringing about the concentration. The final decision to either proceed with a full investigation or declare the concentration compatible with the competitive market is then set out.

The CPC may redact confidential information before publishing the reasoned decision. This falls within the ambit of the discretionary powers of the CPC and is not regulated by any provision of the Merger Control Law or any Regulation. The CPC is generally prepared to agree to redaction of business secrets such as turnover amounts, competitors and market shares but very rarely extends this to other information such as internal group structure or details of the transaction. The CPC has a general policy not to amend any information included in its reasoned decisions.

7.4 Co-operation with Other Jurisdictions

The CPC co-operates with the competition authorities of other EU member states. It also co-operates with the European Commission and the Competition Authorities of member states on issues relating to the control of concentrations between undertakings.

There is a confidentiality right which prevents the CPC from disclosing confidential information to the European Commission or to any other Competition Authority concerning the suggested concentration. This confidentiality right may be waived by a participating undertaking in a concentration by submitting an Official Statement of Voluntary Waiver of the Right of Confidentiality. The participating undertaking may give its consent to the CPC to forward to the European Commission, or to a Competition Authority of a member state, any documents, statements, data and/or information and the written report prepared by the CPC, which may contain confidential information.

8. Appeals and Judicial Review

8.1 Access to Appeal and Judicial Review

The parties to a concentration are entitled to challenge a decision of the CPC by submitting an application for judicial review with the Administrative Court of the Republic of Cyprus. Such an application for Recourse (as it is referred to) must be submitted within 75 days of the publication of the contested decision by the CPC.

8.2 Typical Timeline for Appeals

An average appeal is likely to take between one and three years, depending on the circumstances of the case (including the workload of the Administrative Court) and on the timeliness of the lawyers of the parties involved in filing the necessary documents.

There have been several successful appeals against decisions of the CPC over the years but these usually concern the Protection of Competition Law and not the Merger Control Law. There are no reported cases of successful appeals regarding prohibitive decisions of the CPC.

8.3 Ability of Third Parties to Appeal Clearance Decisions

Third parties may appeal a clearance decision of the CPC assuming they have a legitimate interest and that their business interests have been affected by the decision of the CPC. There are no reported cases of third parties successfully appealing a merger clearance decision of the CPC.

9. Recent Developments

9.1 Recent Changes or Impending Legislation

There have been no recent changes to the legislation or implementing regulations, nor are there any significant proposals to change these.

9.2 Recent Enforcement Record

As mentioned above, to date there are no reported cases of the CPC imposing administrative fines on undertakings for partial or complete implementation of a transaction prior to clearance or requiring remedies for foreign-to-foreign transactions.

9.3 Current Competition Concerns

There are no reports of any competition concerns of the CPC, nor any notable trends in merger control review or enforcement.

Originally published by Chambers.

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.

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