The Control of Concentrations Between Undertakings, Law 83(I) of 2014 (the Law), is the legislative instrument governing the control of concentrations between undertakings in Cyprus.
Enforcement of the legislation rests with the Commission for the Protection of Competition (CPC), initially established in 1990 and re-established pursuant to the provisions of the Protection of Competition Law No. 13(I) of 2008, as amended by Law No. 4(I) of 2014.
The CPC has overall responsibility for implementing the Law and is the competent independent authority for the control of concentrations. On assessing a report prepared by its civil service (the Service), the CPC declares that a concentration is compatible or incompatible with the functioning of competition in the market.
ii YEAR IN REVIEW
A number of important issues have been considered by the CPC over the past year, which have shed more light on its decision-making practice.
Specifically, the CPC dealt with the first non-performing loans servicing transaction in Cyprus, which essentially created the relevant market. In the APS/Hellenic Bank case,2 the CPC defined the relevant product market as being (1) the management of immovable property acquired by credit institutions through enforcement proceedings or payment of credit rights derived from mortgages and (2) the management of non-performing loans granted by credit institutions or other persons.
In the VLPG case,3 in which the CPC carried out a full investigation, clearance was granted subject to commitments by the undertakings concerned. The case concerned the creation of a joint venture by Hellenic Petroleum Cyprus Ltd, Petrolina (Holdings) Public Ltd, Intergaz Ltd and Synergkaz Ltd, in which the said undertakings shifted part of their activities relating to the storage and handling of liquefied petroleum gas to the joint venture. The joint venture was held to potentially have the ability and motivation to exploit its dominant position and to hinder the expansion of other companies and potential competitors. The CPC also highlighted the potential for significant obstruction of competition as a result of the creation of the joint venture's dominant position.
The transaction was cleared subject to a number of remedies, including the exclusion of members of the boards of the parent undertakings from sitting on the board of the joint venture, confidentiality undertakings by the joint venture in relation to the parent undertakings, the appointment of a trustee and the introduction of criteria for the assessment of storage capacity requests from third parties, together with providing any new entrant that constructs LPG storage facilities in the area, access to the anchor and unloading pipes, to the extent that it will be under the control of the joint venture.
iii THE MERGER CONTROL REGIME
Transactions that result in a permanent change of control and satisfy the jurisdictional thresholds fall under the ambit of the Law. Pursuant to Section 6(2) of the Law, '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 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.
As such, the Law applies to mergers of two 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 in a permanent manner are caught under the Law.
For the purposes of the Law, a concentration of undertakings is deemed to be of major importance and therefore meets 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.
Foreign-to-foreign mergers are caught under the Law. The test as to whether a foreign-to-foreign merger is caught as a concentration of major importance is satisfied where the jurisdictional thresholds are met, with the local effects dimension being the achievement of a turnover of at least two undertakings concerned in Cyprus and the Cyprus-achieved turnover of all undertakings concerned being at least €3.5 million.
The Law vests the Minister of Energy, Commerce, Industry and Tourism with the power to declare a concentration as being of major importance even where the thresholds are not met.
Filing of concentrations of major importance is mandatory. However, notification is not required in the following cases where, pursuant to Section 6(4)(a) of the Law, a concentration between undertakings is not deemed to arise:
- where a credit or financial institution or an insurance company, the normal activities of which 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 does not exercise voting rights in respect of those securities with a view to determining the competitive behaviour of that undertaking or provided that it 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 that any such disposal takes place within one year of the date of acquisition – a period that can be extended by the CPC on request, where it can be shown that the disposal was not reasonably possible within the period set;
- where control is exercised by a person authorised under legislation relating to liquidation, bankruptcy or any other similar procedure;
- where the concentration of undertakings between one or more persons already controlling at least one or more undertakings is carried out by investment companies;
- where property is transferred due to death by a will or by intestate devolution; or
- where it is a concentration between two or more undertakings, each of which is a subsidiary undertaking of the same entity.
Notification can also take place where the undertakings concerned prove to the Service their bona fide intention to conclude an agreement or, in the case of a takeover offer or of an offer for the acquisition of a controlling interest, following a public announcement of an intention or final decision to make such offer.
Concentrations of major importance must be notified to the Service in writing, either jointly or separately by the undertakings participating in a merger or in the joint acquisition of control of another undertaking. In all other cases, the party responsible for notification is the undertaking acquiring control.
Filing fees are fixed by the Law at €1,000. Where a concentration becomes subject to a full investigation (Phase II), the undertakings concerned are required to pay a fee of €6,000 to the CPC.
Concentrations of major importance must be notified to the Service prior to their implementation, following the conclusion of the relevant agreement or the publication of the relevant takeover or the acquisition of a controlling interest.
The Service shall, within one month from the date of receipt of the notification and the filing fees or from the date on which the Service receives additional information necessary towards achieving conformity of the notification to the requirements of the Law, inform the notifying undertakings regarding the decision of the CPC of whether the concentration is cleared or whether it will proceed to a full investigation of the concentration.
If, owing to the volume of work or the complexity of the information contained in the notification, the Service is unable to comply with the aforementioned time frame, it shall, within seven days prior to the lapse of the one-month period, inform the notifying undertaking of an extension to the said period by a further period of 14 days.
The Law does not provide for a fast-track procedure of clearance of concentrations.
The Law expressly prohibits the partial or entire implementation of the concentration prior to clearance, infringement of which prohibition entails administrative fines.
Upon becoming aware of a concentration of major importance that ought to be notified but the undertakings concerned have failed to do so, the Service immediately notifies the undertakings concerned of their obligation to proceed with notifying such concentration in accordance with the provisions of the Law. The time limit for the assessment of the concentration would then commence at the time of the Service receiving such notification.
Although failure to notify a concentration does not by itself give rise to sanctions, where the concentration has been partially or entirely implemented in the absence of clearance by the CPC, administrative fines may be imposed.
The CPC has the power to order the partial or total dissolution of a concentration of major importance in order to secure the restoration of the functioning of competition in the market, provided that the requirements of the Law are met.
Where a concentration is either partially or entirely implemented prior to the clearance by the CPC or prior to the lapse of the time frame within which the Service ought to inform the notifying undertaking of whether the concentration is cleared or is to be fully investigated but the Service has not so informed, administrative sanctions may be imposed by the CPC.
An administrative fine of up to 10 per cent 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.
There have been no cases where the undertakings concerned implemented a concentration prior to clearance by the CPC under the new regime. Nevertheless, taking into account the approach followed under the previous framework, the CPC is likely to exercise its powers in relation to the implementation of concentrations in violation of the statutory provisions in a rigorous manner.
Moreover, the CPC has the power to order the partial or total dissolution of a concentration that has been implemented prior to obtaining clearance by the CPC.
Implementation of a concentration prior to clearance is not possible unless the Service fails to inform the notifying undertaking of whether the concentration is cleared or whether a Phase II investigation will be carried out within one month, in which case the concentration is deemed as cleared.
Nevertheless, a temporary approval of a concentration is possible pursuant to the provisions of Section 31 of the Law, in the case where a full (Phase II) investigation is deemed to be required by the CPC, where the undertakings concerned can establish, upon a relevant application to the CPC, that they shall suffer substantial damage as a result of any additional delay to the concentration. Such temporary approval may be accompanied by conditions imposed on the undertakings decided at the CPC's discretion and it does not affect the final decision of the CPC.
A fine of up to €50,000 may be imposed for a failure to provide requested information or clarifications, or for providing misleading or inaccurate information.
vi Substantive assessment
The substantive test for compatibility of a concentration with competition in the market is that such concentration does not significantly impede effective competition in Cyprus or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position.
In assessing the compatibility of a concentration, there are no special circumstances that would be taken into account. 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, inter alia, 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 it in a manner prescribed under Annex II to the Law;
- the financial power of such undertakings;
- the alternative sources of supply of products or services in the affected markets or other markets upon which the concentration may have significant effects;
- any barriers to entry to the affected markets or other markets upon which the concentration may have significant effects;
- the interests of the 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 interest of consumers and not obstructing competition; and
- the supply and demand trends for the relevant markets.
To the extent a joint venture that constitutes a concentration has as its object or effect the coordination of competitive conduct of undertakings that remain independent, this coordination is examined in accordance with the provisions of Sections 3 and 4 of the Protection of Competition Law No. 13(I) of 2008, as amended by Law No. 4(I) of 2014.
In assessing a joint venture, the Service 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 that 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 the ability to eliminate competition for a substantial part of the relevant products or services.
The European Court of Justice (ECJ) ruled in Austria Asphalt4 that when there is a change in the type of control over an existing undertaking from sole to joint control, the criterion of a concentration within the meaning of the EU Merger Regulation (EUMR) is only fulfilled when the arising joint venture performs on a lasting basis all the functions of an autonomous economic entity. The said judgment of the ECJ has been adopted in the CPC's practice.
vii Remedies and ancillary restraints
Before reaching its final decision and subject to the time limits provided by the Law, the CPC may, if it considers it expedient to do so, carry out negotiations, hearings or discussions with any of the interested parties or other persons. Furthermore, the CPC has wide investigative powers when assessing a concentration, including access to any premises, property, means of transport, books or records in the possession of the undertakings concerned or third parties.
In declaring a concentration compatible with the operation of competition in the market, the CPC may impose conditions or remedies in relation to the implementation of the transaction, thus having the ability to interfere with the essence of the transaction.
The CPC has at any given time the power to revoke decisions related to the compatibility of any concentration and to amend any of the terms of its decision if it determines that:
- its initial decision was based on false or misleading information or that necessary information relating to the concentration at hand was withheld by the notifying party or by any other undertaking concerned or by any interested person; or
- any condition attached to the decision and imposed on the participants to the concentration has not been satisfied or has ceased to be satisfied.
Where the CPC exercises its power of revocation, it may, following a study of the Service's report, order either a partial or complete dissolution of the concentration to secure the restoration of the competitive market. It may do this either in the course of exercising its powers of revocation of a previous decision of clearing a concentration or upon establishing that a concentration has been implemented in violation of an obligation to notify such concentration to the CPC or is duly notified but implemented prior to clearance by the CPC. The CPC also has the power to prohibit a concentration by declaring it incompatible with the operation of competition in the market.
Competition issues can be remedied through the CPC exercising its discretionary power. In the course of remedying competition issues, the CPC may order the dissolution or partial dissolution of the concentration concerned in order to secure the restoration of the functioning of competition in the market, through the deprivation of any participation, shares, assets or rights acquired by any person participating in the concentration, or by the cancellation of any contracts that created the concentration or that arose from it, or by a combination of the two, or any other way the CPC deems necessary.
If the CPC ascertains that the notified concentration falls within the scope of the Law and raises doubts as to its compatibility with the competitive market, it will inform the Service of the need to conduct a full investigation. In such an event, the Service will request further information from the participants as well as other entities involved in the specific sector for the purpose of completing its investigation. The Service also notifies the participants that they may make suggestions to undertake remedies that will remove the CPC's concerns regarding the compatibility of the transaction within the time limit defined by the Service.
The CPC accepts both divestiture and behaviour remedies. If, following its review of the additional information provided to it, the CPC's doubts as to compatibility remain, the Service will commence negotiations with the participating undertakings if it finds any differentiations or modifications in the circumstances under which the concentration was established that could result in the removal of such doubts.
The CPC is required to provide written notification to the undertakings concerned of any remedies as part of its decision, which it is bound to issue within four months from the date of receiving the notification of the concentration and payment of the filing fees. Should the merger be cross-border, the CPC may liaise with the relevant foreign authority in relation to applicable remedies. Any remedies must be limited to those that are reasonably necessary for the protection of the competitive market.
viii Involvement of other parties or authorities
Parties having a legitimate interest may be invited to comment, but only in the event of a full investigation. Parties having a legitimate interest may on a voluntary basis submit views at any phase of the evaluation of a concentration or they may be asked to supply information by the Service of the CPC. In the case of a full investigation, the Service is required to provide any person having a legitimate interest, but who is not a participant in the concentration, with an appropriate opportunity to submit their views at the second phase of the investigation.
The undertakings concerned may request that any part of the decision remains confidential and the CPC will decide whether such information should be treated as confidential. The party to which the CPC addresses a written request for information should identify documents, statements and any material it considers to contain confidential information or business secrets, justifying its opinion, and provide a separate, non-confidential version within the time limit set by the CPC for the notification of its opinion.
The CPC and the 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.
ix Judicial review
The decisions of the CPC are administrative executive acts issued by a public authority. As such, an aggrieved party having legitimate interest and seeking to annul a CPC decision has the right to file for administrative recourse to the Administrative Courts under Article 146 of the Constitution of the Republic of Cyprus.
iv OTHER STRATEGIC CONSIDERATIONS
A regular misconception about the Cypriot merger control regime is that a strong local market nexus is required to trigger a filing. The only test determining whether a foreign-to-foreign merger is caught as a concentration of major importance is the jurisdictional threshold test. The local effects dimension is the achievement of a turnover of at least two undertakings concerned in Cyprus and the Cyprus-achieved turnover of all undertakings concerned being at least €3.5 million.
Cyprus is increasingly on the radar of transacting parties and their counsel, given the relatively low thresholds that are easily met across a range of different types of transactions even where the transaction is entirely unrelated to Cyprus.
Global transactions are increasingly assessed as to whether they require filing and clearance in Cyprus, particularly given the level of sanctions that the CPC is able to impose, as well as the CPC's power to order the partial or total dissolution of a concentration that has been implemented prior to obtaining clearance.
The CPC cooperates with other national competition authorities in the EU and the European Commission on the basis of the system of parallel competences and the exchange of views and information between them via the European Competition Network. It is, therefore, inevitable that transactions filed in other EU member states are visible to the CPC.
v OUTLOOK & CONCLUSIONS
An issue that has preoccupied the CPC on more than one occasion is the exchange of information in joint ventures in cases where directors are appointed on the joint venture's management body by the parent undertakings. This has proved to be an issue where the CPC is keen to explore commitments from the parties.
The CPC is demonstrating increased activity and filings are on the rise. Phase II investigations are also becoming more regular, particularly in respect of local transactions between dominant market players.
1 Anastasios A Antoniou and Christina McCollum are partners at Antoniou McCollum & Co. This chapter is based on the Cyprus chapter published in GTDT Merger Control 2017.
2 CPC Decision No. 19/2017, APS Holding AS/Hellenic Bank Public Company Ltd, 18 May 2017.
3 CPC Decision No. 35/2017, Hellenic Petroleum Cyprus Ltd, Petrolina (Holdings) Public Ltd, Intergaz Ltd and Synergkaz Ltd, 27 July 2017.
4 Case C-248/16, Austria Asphalt GmbH & Co OG v. Bundeskartellanwalt, Judgment of 7 September 2017, ECLI:EU:C:2017:643.