Merger control supervision is delegated by virtue of law to the Commission for Protection of Competition (the Commission). The Commission is an independent autonomous state authority with the capacity of a legal entity.2 It consists of a president, four members and an expert department.
- a determines rules and measures for the protection of competition and measures for the establishment of effective competition;
- b gives its opinion on draft laws and other acts that regulate issues related to economic activity, which may influence competition in the market;
- c either upon a request from Parliament, the government, other state authorities or undertakings, or ex officio, the Commission shall provide expert opinions regarding issues in the areas of competition policy, protection of competition in the market and the awarding of state aid; and
- d cooperates with other state authorities regarding issues related to the protection of competition, and exchanges any necessary data and information for such purpose.
The Commission is also in charge of international cooperation related to the implementation of Macedonia's international obligations, and participates in the implementation of projects in cooperation with both international authorities and the authorities of the European Union.
In cases of merger control, a system of pre-merger notification applies.
It should be noted that the Law on Protection of Competition (the Law) also applies to foreign-to-foreign transactions if any of the thresholds stated below are met.3
Under the Law, a pre-merger notification must be submitted if any of the following thresholds are met:4
- a the joint aggregate turnover of all participants in the concentration generated by selling goods or services, or both, on the world market exceeds €10 million in equivalent denar value according to the exchange rate valid on the day of preparing the annual accounts and gained in the business year preceding the concentration, and where at least one participant is registered in Macedonia (i.e., has a legal presence in Macedonia either directly or through a subsidiary);
- b the joint aggregate turnover of all participants in the concentration generated by selling goods or services, or both, in Macedonia exceeds €2.5 million in equivalent denar value according to the exchange rate valid on the day of preparing the annual accounts and gained in the business year preceding the concentration; or
- c the market share of one of the participants in the concentration is more than 40 per cent, or the aggregate market share of the participants in the concentration is more than 60 per cent in the year preceding the concentration.
The aggregate turnover consists of the revenues from the sale of goods produced during the regular operation of an undertaking, as well as the revenues from services that the undertaking provides within its regular operations, after deducting sales rebates, value added tax and other public taxes directly related to the turnover. If one of the participants is an associated undertaking, then the aggregate turnover on the level of a group of undertakings will be taken into consideration, but revenues generated from the sale of goods or the provision of services, or both, among such undertakings shall not be taken into consideration.5
In the case of an asset deal, regardless of whether the parts are established as separate legal entities, only the revenue from the assets subject to acquisition shall be taken into consideration when calculating the turnover generated by the undertaking selling such assets.
Two or more transactions carried out between the same entities or undertakings during a two-year period shall be deemed as one and the same concentration performed on the date of the last transaction.
The aggregate turnover of banks, saving houses and other financial institutions shall be determined according to the aggregate turnover generated from their day-to-day operations; in the case of insurance companies, the aggregate turnover shall be determined according to the value of the gross calculated premiums of the participants for the business year preceding the concentration.
The Law does not set a specific term for filing a notification, but provides that the participants in the concentration shall be obliged to submit a notification to the Commission prior to its implementation and following the conclusion of the merger agreement: that is, the announcement of a public bid for the purchase or acquisition of a majority participation in the basic capital of an undertaking.
The participants may notify the Commission regarding their serious intention to conclude an agreement (including, but not limited to, a letter of intent, term sheet or similar) or, in the case of a public bid, when they have publicly stated their intention to participate therein, provided that such agreement would result in the creation of a concentration in accordance with the law.
Creation of a joint venture that carries out the activities of an autonomous economic entity on a long-term basis shall also be deemed to be a concentration.
The Commission shall especially take into consideration the following with regard to a concentration:6
- a the need to maintain and develop effective competition on the market or a substantial part of the market, especially in terms of the structure of all markets concerned and the existence of competitors or potential future competitors having a head office both in and outside Macedonia; and
- b the market position of the undertakings concerned and their economic and financial power, the market supply and the alternatives available to suppliers and users for the purpose of market supply, as well as their access to the supply (i.e., the markets, legal and other barriers to enter into and exit from the market, supply and demand trends for the relevant goods or services, the interests of consumers and any technological and economic developments), provided that the concentration is of benefit to consumers and does not represent an obstacle for the development of competition.
The Law excludes certain transactions from the definition of a concentration. Namely, a concentration of undertakings shall not be deemed to arise where:
- a banks, saving houses and other financial institutions or insurance companies whose day-to-day activities include legal activities and trading with securities temporarily acquire securities with an intention to resell them within a period of one year as of the moment of their acquisition, and provided that the voting rights arising from those securities are not exercised with the intention of influencing the competitive behaviour of the undertaking on the market. On a special request, the Commission may extend this one-year period, provided that the acquirer proves that it could not sell the securities due to justified reasons. No appeal or lawsuit for the initiation of an administrative dispute shall be allowed against this conclusion;
- b control is conducted by a representative of the company under a bankruptcy procedure or liquidation procedure at undertakings established outside Macedonia by persons performing a corresponding function in accordance with the legislation under which the undertaking has been established; or
- c the investment funds acquire capital interest in undertakings, provided that they exercise the acquired rights only with the aim of maintaining the full value of their investment and provided that they do not influence the competitive behaviour of the undertaking on the market.
The Law provides for misdemeanour liability in cases of implementation of a concentration prior to a clearance decision being obtained or in cases of failure to notify. In such cases, the party that was required to submit the notification may be punished by the Commission with a monetary fine of up to 10 per cent of its worldwide turnover.
II YEAR IN REVIEW
In 2016, the Law was amended to include three novelties regarding the procedure for appraisal of concentration: one is a requirement for case handlers at the Commission to ex officio obtain commercial registry extracts and financial reports from competent authorities in Macedonia for participants in the concentration that are registered in Macedonia; the second is a simplification in the procedure for deciding upon a request for exemption from the suspension obligation, as explained further below; and the third is a clarification that the Commission's president and the four members of the Commission administer merger control cases and render decisions in such cases by majority vote from the total number of Commission members.
Furthermore, the Commission adopted Guidelines for determining the cases where, in appraising concentrations, the Commission will typically find compliance with the Law. The purpose of these Guidelines is to make the merger control procedure more focused and more efficient. The Commission also adopted Guidelines for the release from or reduction of fines for misdemeanours under the Law. Both sets of Guidelines are consistent with the European Commission counterparts.
At the time of writing this Chapter, the Commission's annual report on its activities for 2016 is not publicly available. However, the Commission receives a fair number of notifications that are due to foreign-to-foreign transactions given the relatively low thresholds for notifying.
III THE MERGER CONTROL REGIME
The merger control regime is established on the principle of pre-merger notification. Therefore, no concentration that meets any of the thresholds set by the Law may be implemented before it is approved by the Commission, or before the relevant deadlines for the Commission to issue a decision have passed.
The Commission should decide upon a notification within 25 business days from the date of receipt of a complete notification (Phase I). Phase I may be extended for an additional 10 working days if the notified concentration is to be cleared subject to conditions and if the parties are willing to undertake commitments.
In the case of a disputable concentration, the Commission will open an in-depth assessment of a concentration (Phase II). This applies in cases where a concentration may significantly prevent, restrict or distort competition. The term for a Phase II investigation is 90 working days from the day of initiation of an in-depth assessment. The Commission is obliged to either clear a concentration conditionally or unconditionally, or prohibit the concentration. This investigation term can be extended to 105 working days.
Each of the above deadlines can be extended for up to an additional 20 working days by the Commission with the agreement of the participants in the concentration.
However, the statutory deadlines are not binding on the Commission when, as a result of circumstances for which one of the participants is responsible, the Commission has to request additional information or conduct inspections.
If the Commission does not make any decision within the set deadlines in any of the phases, the concentration is considered to be compliant with the law.
A concentration cannot be conducted prior to the submission of a notification to the Commission or, following the submission of a notification, until a decision is adopted that the concentration is in accordance with the Law or the participants have undertaken relevant commitments accepted by the Commission, or if the Commission fails to meet the deadline for clearance of a transaction within the statutory deadlines.
However, there will be no suspension of a public bid for the purchase of securities or a series of transactions of securities, including ones that are convertible into other securities intended for trading on the market in accordance with the law, if a notification is submitted without any delay to the Commission; and the acquirer of the securities does not exercise the voting rights on the basis of these securities, or does so only to the extent necessary for maintaining the full value of its investment, and on the basis of a decision for exemption from the obligations.
Namely, on the request of a party that has submitted a notification, the Commission may decide to allow an exemption from the suspension obligation. The request must be elaborated. When deciding upon such request for exemption, the Commission shall, inter alia, take into consideration the effects of the suspension of a concentration over one or more undertakings, participants or over a third party, as well the threat to competition caused by the concentration.
The exemption may be conditioned by requirements and obligations imposed for the purpose of ensuring effective competition. Such exemption may be required and allowed at any time, either prior to a notification or following a transaction by public bid for the purchase of securities or a series of transactions of securities.
Regarding examination of the case files, Article 56 of the Law provides that only the parties to the procedure before the Commission shall have the right to examine the case files and to make, at their own expense, transcriptions or copies of the whole case or certain documents. Therefore, the Law does not grant third parties the right to examine the files.
A request for examination should be in made in written form. The President of the Commission should approve such request through a separate administrative act (conclusion). In the conclusion, the President shall determine the date and hour of the examination, which should be performed within a period of 15 calendar days as of the date of receipt of the request for the examination of the files.
In accordance with the Law, the participants in the procedure shall not be entitled to perform an examination, transcription or copy of the draft decisions of the Commission, the minutes, or audio and audio-visual recordings of Commission sessions, any internal instructions and comments about the case, any correspondence between the Commission and the European Commission or the other institutions of the European Union, or other documents that constitute a business or official secret.
‘Business secrets' shall in particular mean something that, by law or other regulations, is determined to be a business secret; and that constitutes a business secret when the Commission accepts such classification.
The Commission shall accept the classification of data as a business secret provided that the data have economic or market value, and their disclosure or use may lead to the economic advantage of the other undertakings.
The following criteria shall in particular apply to the evaluation of the data:
- a the extent to which the data is known outside the undertaking;
- b the extent to which measures for the protection of data secrecy have been taken in the undertaking; and
- c the value of the data for the undertaking and its competitors.
The following, as a rule, shall not be deemed a business secret in terms of the provisions of the Law:
- a publicly available data: that is, data that are publicly announced on the basis of another regulation or decision of the managing bodies of the undertaking;
- b data older than five years, regardless of whether they have been considered a business secret in the past;
- c the revenues contained in the undertaking's annual financial and statistical reports that do not constitute a business secret because they have been publicly announced; and
- d any data and documents being of decisive importance for the decisions of the Commission.
When submitting data classified as a business secret, the undertaking shall be obliged to justify such classification of the data as a business secret by giving objective reasons.
No legal remedy is allowed against a conclusion to reject the request for examination of the acts and files.
The Law allows for interested parties to provide their comments, opinions and remarks in relation to a concentration within the time period determined by the Commission, which is usually 10 calendar days from the day of announcement of the summary of a notification on the Commission's website. However, it does not provide third parties with a right to challenge a Commission's decision on a concentration; only the parties to the procedure may challenge the Commission's decision on a merger.
The Commission's decisions are final. Lawsuits to initiate an administrative dispute before an administrative court must be submitted within a period of 30 calendar days from the date of receipt of the decision, but such suit shall not postpone the enforcement of the decision.
Mergers are supervised only by the Commission; no other authority may conduct a concurrent review of a merger.
Decisions of the Commission may be subject to a review by the Administrative Court. However, such judicial review does not suspend the enforceability of the Commission's decision.
IV OTHER STRATEGIC CONSIDERATIONS
Based on current experience, in cases of multijurisdictional merger transactions and notifications that may involve the Macedonian market, it is important to note that prior research of the fulfilment of the relevant thresholds should be undertaken. This is especially important due to the formality of the thresholds, the absence of the possibility of a self-assessment of the competitive influence of a certain transaction if the formal thresholds are met, the relatively low values of the turnovers set as thresholds and the market size.
V OUTLOOK & CONCLUSIONS
The Macedonian merger control regime may be considered to be complete and detailed. The law and related by-laws and guidelines follow the relevant rules of the European Union and European Commission. With regard to mergers, notwithstanding that Macedonian practice is still developing, the Commission has established relevant practices in almost all important areas, including in the imposition and practical implementation of behavioural remedies. Therefore, in our view, the coming year will bring further practical experience and improvements in the overall practical development of our merger regime environment, not only with regard to the Commission's actions, but also with the expert contribution of notifying parties and their counsel.
Polenak Law Firm
Tatjana Popovski-Buloski is a founding partner at Polenak Law Firm. She specialises in competition law, corporate law, mergers and acquisitions and litigation. In relation to competition law, she advises and represents clients with regard to the implementation of merger control proceedings at the Macedonian Commission for Protection of Competition that involve domestic or multi-jurisdictional transactions, and proceedings related to abuse of dominant positions. Her experience also involves compliance systems, the contractual aspects of competition and antitrust law, licensing agreements, distribution agreements and cartels in different industries, including telecommunications, energy, construction, pharmaceuticals and aviation.
Polenak Law Firm
Orce Nikolov 98
Tel: +389 2 3114 737
Fax: +389 2 3120 420
1 Tatjana Popovski-Buloski is a partner at Polenak Law Firm.
2 Articles 26 to 29 of the Law on Protection of Competition. The Law on Protection of Competition was published in Official Gazette of the Republic of Macedonia No.145/2010, and subsequent changes and amendments in Nos.136/2011, 41/2014 and 53/2016.
3 Article 3 of the Law on Protection of Competition.
4 Article 14(1) of the Law on Protection of Competition.
5 Article 16 of the Law on Protection of Competition.
6 Article 17 of the Law on Protection of Competition.