1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern merger control in your jurisdiction?
The Control of Concentrations Between Undertakings Law (83(I)/2014) is the statute that regulates the control of concentrations between undertakings in Cyprus.
1.2 Do any special regimes apply in specific sectors (eg, national security, essential public services)?
The minister of energy, commerce and industry may declare a concentration as being of major public interest with regard to the effects it might have on public security, media pluralism or the principles of sound administration.
1.3 Which body is responsible for enforcing the merger control regime? What powers does it have?
Enforcement of the Control of Concentrations Between Undertakings Law rests with the Commission for the Protection of Competition (CPC). The CPC has overall responsibility for implementing the law and is the competent authority for the control of concentrations.
The CPC is empowered under the law to declare a concentration as compatible or incompatible with the functioning of competition in the market. The investigation and procedural aspects relating to notifications of concentrations are performed by the CPC's civil service.
2 Definitions and scope of application
2.1 What types of transactions are subject to the merger control regime?
The Control of Concentrations Between Undertakings 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, and acquisitions by one or more persons already controlling at least one undertaking, or by one or more undertakings, directly or indirectly, whether by purchase of securities or assets, by agreement or otherwise, of control of one or more other undertakings.
Joint ventures performing all functions of an autonomous economic entity on a lasting basis are also caught under the law.
2.2 How is ‘control' defined in the applicable laws and regulations?
‘Control' is defined as control stemming from any rights, agreements or other means which, either severally or jointly, confer the possibility of exercising decisive influence over an undertaking, particularly through:
- ownership or enjoyment rights over the whole or part of the assets of the undertaking; or
- rights or contracts that confer the possibility of decisive influence on the composition, meetings or decisions of the bodies of an undertaking.
2.3 Is the acquisition of minority interests covered by the merger control regime, and if so, in what circumstances?
Minority interests are caught by Cyprus merger control where they confer, either severally or jointly with other rights, the possibility of exercising decisive influence over an undertaking. The contractual arrangements arising from the transaction documents and constitutional documents of the target undertaking or joint venture are of tantamount importance in determining whether any rights resulting in a change of control are in place.
De facto control could satisfy the control test, while the ability to veto certain types of decisions could also be deemed as falling under such rights conferring the possibility of exercising decisive influence over an undertaking.
2.4 Are joint ventures covered by the merger control regime, and if so, in what circumstances?
Fully functional joint ventures are subject to notification to the competent authority under the Control of Concentrations Between Undertakings Law. The decisional practice of the Commission for the Protection of Competition (CPC) has adhered to the judgment of the Court of Justice of the European Union in Austria Asphalt (Case C-248/16, Austria Asphalt GmbH & Co OG v Bundeskartellanwalt, judgment of 7 September 2017, ECLI:EU:C:2017:643). As such, when there is a change from sole to joint control over an existing undertaking, the criterion of a concentration is fulfilled only where the resulting 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 a 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.
2.5 Are foreign-to-foreign transactions covered by the merger control regime, and if so, in what circumstances?
Foreign-to-foreign mergers are caught under the Control of Concentrations Between Undertakings Law. The test as to whether a foreign-to-foreign merger constitutes a concentration of major importance is satisfied where the jurisdictional thresholds are met, without any additional local effects requirement.
2.6 What are the jurisdictional thresholds that trigger the obligation to notify? How are these thresholds calculated?
For the purposes of the Control of Concentrations Between Undertakings 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.
Turnovers are calculated for groups of undertakings and are derived from the last audited financial statements of each of the undertakings concerned (or consolidated financial statements at a group level).
By derogation from the above calculation of turnover, in calculating turnover relating to credit institutions and insurance companies, the following calculation methodologies shall respectively apply:
- for a bank or other credit institution, one-tenth of the balance sheet of the last financial year; and
- for an insurance company, the total value of gross premiums during the last financial year, which shall comprise all amounts received or receivable in respect of insurance contracts concluded by it or on its behalf, including outgoing reinsurance premiums and after deduction of taxes and para-fiscal contributions or levies charged by reference to the amounts of individual premiums or the total volume of premiums.
The value of assets also derives from the last audited financial statements of each undertaking concerned (or consolidated financial statements at a group level).
The market share percentage of each undertaking concerned is calculated after defining the relevant product and geographic market against the total of such market. One party could satisfy the thresholds by itself, provided that at least two of the undertakings concerned achieve a turnover in Cyprus.
Other than the special turnover calculation rules for credit institutions and insurance undertakings, there are no sector-specific rules.
2.7 Are any types of transactions exempt from the merger control regime?
Notification is not required where:
- a credit or financial institution or an insurance company whose normal activities include transactions and dealing in securities, on its own account or for the account of third parties, holds on a temporary basis securities that it has acquired in an undertaking with a view to reselling them, provided that:
- the institution or insurance company does not exercise voting rights in respect of those securities with a view to determining the competitive behaviour of that undertaking, or exercises such voting rights only with a view to facilitating the disposal of all or part of that undertaking or of its assets or the disposal of those securities; and
- any such disposal takes place within one year of the date of acquisition – a period which can be extended by the CPC on request, where it can be shown that the disposal was not reasonably possible within the specified period;
- control is exercised by a person authorised under the legislation relating to liquidation, bankruptcy or any other similar procedure;
- the concentration of undertakings between one or more persons already controlling at least one or more undertakings is carried out by investment companies;
- property is transferred due to death by a will or by intestate devolution; or
- there is a concentration between two or more undertakings, each of which is a subsidiary of the same entity.
The exemption relating to investment companies refers to those companies whose sole objective is to acquire holdings in other undertakings, and to manage such holdings and turn them to profit, without involving themselves directly or indirectly in the management of those undertakings.
3.1 Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?
The notification of concentrations of major importance to the Commission for the Protection of Competition (CPC) is mandatory.
The transactions listed under question 2.7 above need not be notified, as they are not considered concentrations for the purposes of the Control of Concentrations Between Undertakings Law.
3.2 Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?
The Control of Concentrations Between Undertakings Law does not provide for any pre-notification discussions; nor are any such discussions binding on the CPC. It is generally not typical to engage in such discussions with the CPC.
3.3 Who is responsible for filing the notification?
Concentrations of major importance must be notified to the CPC 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.
In all other cases, the party responsible for notification is the undertaking acquiring control.
3.4 Are there any filing fees, and if so, what are they?
Filing fees are fixed by the Control of Concentrations Between Undertakings Law at €1,000. Where a concentration becomes subject to a full investigation (Phase II), the undertakings concerned are bound to pay a fee of €6,000 to the CPC.
3.5 What information must be provided in the notification? What supporting documents must be provided?
The notification of a concentration should include all information prescribed in Appendix III to the Control of Concentrations Between Undertakings 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 undertakings concerned;
- copies of reports or analyses prepared for the purposes of the concentration;
- a list and short 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, among other things, at least 10% of the voting rights or shares;
- a description and analysis of the relevant markets; and
- a description and analysis of the affected relevant markets.
3.6 Is there a deadline for filing the notification?
Although there is no express deadline for filing the notification, the transaction giving rise to the concentration must be notified and cleared by the CPC prior to its implementation.
3.7 Can a transaction be notified prior to signing a definitive agreement?
While the Control of Concentrations Between Undertakings Law provides that a concentration occurs following the conclusion of the relevant agreement(s), publication of public offer or acquisition of control (as the case may be), notification may still take place when the undertakings concerned can demonstrate to the CPC their bona fide intention to conclude an agreement.
3.8 Are the parties required to delay closing of the transaction until clearance is granted?
The Control of Concentrations Between Undertakings Law expressly prohibits the partial or full implementation of the concentration prior to clearance by the CPC. As such, the parties are required to withhold closing until clearance is granted.
3.9 Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?
A notice that the CPC has received a notification is published soon after filing, which sets out the date of the filing, the names of the undertakings concerned, the nature of the act of concentration and the relevant economic sectors.
The CPC publishes non-confidential versions of its decisions in the Official Gazette of the Republic of Cyprus and on its website. The undertakings concerned may request that any part of the decision which contains confidential information or trade secrets remain confidential and be redacted from the final version published by the CPC.
The CPC and the CPC civil service are under a statutory duty of confidentiality, infringement of which is a criminal offence punishable with imprisonment of up to six months or a fine of up to €1,500 or both.
4 Review process
4.1 What is the review process and what is the timetable for that process?
The Control of Concentrations Between Undertakings Law provides for a one-month deadline by which the CPC 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 CPC requests clarifications on the filing, the clock resets back to the statutory deadline of one month; while a request for additional information will cause the clock to stop until a response is received by the CPC on the requested information.
A further extension of 14 days may also be applied by the CPC, if, owing to the volume of work or the complexity of the information contained in the notification, the CPC is unable to comply with the one-month timeframe.
In a full investigation (Phase II), the CPC's civil service is required to prepare a report of findings to the CPC within three months of the date of submission of the notification or such additional information as is 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 as is necessary for the notification to be considered complete.
4.2 Are there any formal or informal ways of accelerating the timetable for review? Can the authority suspend the timetable for review?
There is no mechanism for expedition of the assessment timetable.
4.3 Is there a simplified review process? If so, in what circumstances will it apply?
There is no simplified review or ‘short form' filing prescribed under the Control of Concentrations Between Undertakings Law.
4.4 To what extent will the authority cooperate with its counterparts in other jurisdictions during the review process?
The CPC cooperates with the European Commission and national competition authorities in other EU member states on the basis of the system of parallel competences and the exchange of views and information between them via the European Competition Network.
4.5 What information-gathering powers does the authority have during the review process?
The CPC may collect information necessary for the exercise of its powers under the Control of Concentrations Between Undertakings Law by addressing a written request to the undertakings concerned, any other natural or legal persons or public or private entities.
The CPC may also gather information following inspections of the undertakings or associations of undertakings. The CPC has the power to:
- enter any office, premises, land and means of transport of undertakings and associations of undertakings, as well as any other business premises, with the exception of residences;
- examine any kind of records, books, accounts and other records of business activity, irrespective of the medium on which they are stored;
- receive or acquire irrespective of their form, copies or extracts from records, books, accounts and other records of business activity, irrespective of the medium on which they are stored and wherever they are stored;
- seal any office, premises, land, means of transport and any other business premises for the period of the inspection and to the extent necessary for the inspection;
- ask questions and request clarifications from, and record the answers of, any member of the board, administrative counsel, administration committee, general director, director, managing director, person who is authorised to represent companies or associations having no legal personality or staff member of the undertakings or association of undertakings, on the facts or data relating to the subject matter and purpose of the inspection.
Police assistance may be requested in order to enable the CPC to exercise its powers.
4.6 Is there an opportunity for third parties to participate in the review process?
Third parties with a legitimate interest may be invited to comment, but only in the event of a full investigation (Phase II). Parties with a legitimate interest may on a voluntary basis submit views at any phase of the assessment of a concentration or may be asked by the civil service of the CPC to provide information.
The undertakings concerned, or any third parties that may be affected directly by the decision of the CPC, may request to present their arguments before the CPC in the context of a hearing.
4.7 In cross-border transactions, is a local carve-out possible to avoid delaying closing while the review is ongoing?
No local carve-out mechanism is available. Clearance by the CPC is mandatory for all concentrations caught by the Control of Concentrations Between Undertakings Law.
4.8 What substantive test will the authority apply in reviewing the transaction? Does this test vary depending on sector?
The substantive test for compatibility of a concentration with competition in the market is whether such concentration significantly impedes effective competition in Cyprus or in a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position.
In assessing the compatibility of a concentration, the CPC takes into consideration the following criteria:
- the need to maintain and develop conditions of effective competition in the relevant markets, taking into account, among other things, the structure of the affected markets, other markets upon which the concentration may have significant effects and the potential competition on behalf of undertakings within or outside Cyprus;
- the position in the market of the undertakings concerned and undertakings connected to them;
- the financial power of such undertakings;
- alternative sources of supply of products or services in the affected markets and/or other markets upon which the concentration may have significant effects;
- any barriers of entry to the affected markets and/or other markets upon which the concentration may have significant effects;
- the interests of intermediate and end consumers of the relevant products and services;
- the contribution to technical and economic progress and the possibility of such contribution being in the interests of consumers and not obstructing competition; and
- supply and demand trends in the relevant markets.
While the Control of Concentrations Between Undertakings Law is silent in this regard, the CPC's analysis of harm is substantially aligned with the respective approach of the European Commission. Besides high market shares, the assessment usually takes into account the anti-competitive effects that could potentially arise from a concentration, such as coordinated effects and unilateral effects.
The test and factors considered by the competent authority in the course of assessing whether a concentration should be cleared are consistent for all sectors.
4.9 Does a different substantive test apply to joint ventures?
To the extent that a joint venture which constitutes a concentration has as its object or effect the coordination of competitive conduct of undertakings that remain independent, the CPC shall particularly take into account:
- 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 coordination that directly emanates from the creation of the joint venture provides the undertakings concerned with the ability to eliminate competition for a substantial part of the relevant products or services.
4.10 What theories of harm will the authority consider when reviewing the transaction? Will the authority consider any non-competition related issues (eg, labour or social issues)?
Although the Control of Concentrations Between Undertakings Law does not expressly identify any theories of harm that shall be taken into account in reviewing the notification, the CPC may develop its theories of harm based on the following considerations:
- the harmful effects of monopoly;
- potential effects on allocative and productive efficiency;
- the end effect on consumers/users;
- the exclusion of competitors; and
- the risk of input and customer foreclosure.
There is no exhaustive list of factors which the CPC may take into account in assessing a concentration in the context of a theory of harm, including labour and social factors.
5.1 Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?
The Commission for the Protection of Competition (CPC) may negotiate remedies with the parties. The CPC can accept both structural and behavioural remedies aimed at addressing competition concerns upon assessing their adequacy on a case-by-case basis.
5.2 What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?
Before reaching its final decision and subject to the time limits provided by the Control of Concentrations Between Undertakings Law, the CPC may, if it considers it expedient to do so, enter into negotiations, hearings or discussions with any of the interested parties or other persons.
Where the CPC proceeds with a full investigation (Phase II), the undertakings concerned they may propose commitments in order to allay the CPC's concerns as to the compatibility of the concentration with the requirements of the market. Any amendments and commitments proposed by the undertakings concerned shall be submitted to the CPC's civil service within the deadline prescribed by the service and in accordance with statutory requirements.
Remedies must be reasonably necessary for the protection of the competitive market. If, following its review of the additional information, the CPC's concerns as to compatibility have not been allayed, the service will commence negotiations with the undertakings concerned in respect of any modifications which may result in the elimination of such concerns.
5.3 To what extent have remedies been imposed in foreign-to-foreign transactions?
No remedies have been imposed to date in foreign-to-foreign transactions.
6.1 Can the parties appeal the authority's decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?
The decisions of the Commission for the Protection of Competition (CPC) are administrative executive acts. An aggrieved party with a legitimate interest that seeks to annul a CPC decision has the right to pursue an administrative recourse. In exercising its powers, the court will assess, among other things:
- the actions or failure of the CPC;
- whether sufficient reasons have been provided for the decision; and
- whether any equality and impartiality principles have been breached.
6.2 Can third parties appeal the authority's decision, and if so, in what circumstances?
The decisions of the CPC may be appealed by third parties, provided that such third parties have a legitimate interest.
7 Penalties and sanctions
7.1 If notification is mandatory, what sanctions may be imposed for failure to notify? In practice, does the relevant authority frequently impose sanctions for failure to notify?
No sanctions apply in relation to a failure to notify per se. However, implementation of the transaction without clearance by the Commission for the Protection of Competition (CPC), to which a notification is a prerequisite, can lead to substantial sanctions (see next question).
7.2 If there is a suspensory obligation, what sanctions may be imposed if the transaction closes while the review is ongoing?
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 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.
7.3 How is compliance with conditions of approval and sanctions monitored? What sanctions may be imposed for failure to comply?
An administrative fine of up to 10% of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed on the notifying undertaking failure to comply with conditions of approval. This may be followed by additional administrative fines of €8,000 for each day the infringement persists.
In the event of failure to comply with any administrative sanctions under the Control of Concentrations Between Undertakings Law, the CPC shall commence judicial proceedings for the collection of the sum due as a civil debt and take any other measures as it may determine by issuing a relevant directive.
8 Trends and predictions
8.1 How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
A number of important issues have been considered by the Commission for the Protection of Competition (CPC) recently, which have shed more light on its decisional practice. Information exchange has been a recent focus of the CPC, which has demonstrated an increased rigorousness with regard to the ability of undertakings controlling a joint venture to acquire business secrets in a manner which could distort competition in the markets in which the controlling undertakings operate.
9 Tips and traps
9.1 What are your top tips for smooth merger clearance and what potential sticking points would you highlight?
The completeness of the notification is one of the most crucial aspects of navigating a seamless merger control process in Cyprus. Timing is another important aspect, which must be taken into account in drafting and agreeing clearance clauses in the transaction documents.
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.