Fifth Edition
Editor
Ilene Knable Gotts
fte Merger Control Review
Reproduced with permission from Law Business Research Ltd.
ftis article was first published in fte Merger Control Review – Edition 5 (published in July 2014 – editor Ilene Knable Gotts).
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Ilene Knable GottsFifth Edition Editor
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Editor’s Preface……………………………………………………………………………… ix
Chapter 1 AUSTRALIA………………………………………………………… 1
Peter Armitage and Ross Zaurrini
Chapter 2 AUSTRIA…………………………………………………………… 17
Heinrich Kühnert and Gerhard Fussenegger
Chapter 3 BELGIUM…………………………………………………………… 28
Carmen Verdonck and Jenna Auwerx
Chapter 4 BOSNIA AND HERZEGOVINA…………………………….. 40
Rastko Petaković
Chapter 5 BRAZIL……………………………………………………………… 49
Lauro Celidonio Neto, Amadeu Ribeiro and Marcio Dias Soares
Chapter 6 CANADA…………………………………………………………… 62
Dany H Assaf and Arezou Farivar
Chapter 7 CHILE……………………………………………………………….. 76
Julio Pellegrini and Pedro Rencoret
Chapter 8 CHINA………………………………………………………………. 84
Susan Ning
Chapter 9 COLOMBIA………………………………………………………… 93
Dario Cadena Lleras and Eduardo A Wiesner
Chapter 10 COSTA RICA…………………………………………………….. 101
Edgar Odio
Chapter 11 CYPRUS…………………………………………………………… 112
Elias Neocleous and Ramona Livera
Chapter 12 ECUADOR……………………………………………………….. 124
Diego Pérez-Ordóñez and José Urízar
Chapter 13 EUROPEAN UNION………………………………………….. 133
Mario Todino, Piero Fattori and Alberto Pera
Chapter 14 FRANCE…………………………………………………………… 152
Hugues Calvet and Olivier Billard
Chapter 15 GERMANY……………………………………………………….. 171
Götz Drauz and Michael Rosenthal
Chapter 16 GHANA…………………………………………………………… 181
Rosa Kudoadzi and Nana Esi Beduwa Ghunney
Chapter 17 GREECE…………………………………………………………… 190
Alkiviades C A Psarras
Chapter 18 HONG KONG…………………………………………………… 201
Sharon Henrick and Joshua Cole
Chapter 19 INDIA……………………………………………………………… 214
Samir R Gandhi, Kamya Rajagopal and Rahul Satyan
Chapter 20 INDONESIA……………………………………………………… 225
Theodoor Bakker and Luky I Walalangi
Chapter 21 IRELAND…………………………………………………………. 237
Helen Kelly and Darach Connolly
Chapter 22 ITALY……………………………………………………………………………….. 246
Rino Caiazzo and Francesca Costantini
Chapter 23 JAPAN……………………………………………………………… 255
Yusuke Nakano, Vassili Moussis and Kiyoko Yagami
Chapter 24 KOREA…………………………………………………………….. 268
Sai Ree Yun, Seuk Joon Lee, Cecil Saehoon Chung, Kyoung Yeon Kim and Kyu Hyun Kim
Chapter 25 LITHUANIA……………………………………………………… 276
Giedrius Kolesnikovas and Michail Parchimovič
Chapter 26 MACEDONIA…………………………………………………… 285
Tatjana Popovski-Buloski
Chapter 27 MALAYSIA………………………………………………………. 293
Jeff Leong
Chapter 28 NETHERLANDS……………………………………………….. 304
Gerrit Oosterhuis and Weijer VerLoren van Themaat
Chapter 29 NIGERIA………………………………………………………….. 316
Bayo Onamade
Chapter 30 NORWAY…………………………………………………………………………. 328
Thea Susanne Skaug and Fredrik Alver
Chapter 31 PAKISTAN………………………………………………………… 338
Mujtaba Jamal
Chapter 32 ROMANIA……………………………………………………….. 348
Carmen Peli, Manuela Lupeanu and Mihaela Ciolan
Chapter 33 RUSSIA…………………………………………………………….. 361
Evgeny Khokhlov
Chapter 34 SERBIA…………………………………………………………….. 370
Rastko Petaković
Chapter 35 SINGAPORE……………………………………………………… 381
Ameera Ashraf
Chapter 36 SOUTH AFRICA………………………………………………… 390
Lee Mendelsohn and Lebogang Phaladi
Chapter 37 SPAIN……………………………………………………………… 402
Juan Jiménez-Laiglesia, Alfonso Ois, Joaquín Hervada and Laura Giménez
Chapter 38 SWITZERLAND………………………………………………… 413
Pascal G Favre
Chapter 39 TAIWAN…………………………………………………………… 422
Victor I Chang, Margaret Huang and Jamie C Yang
Chapter 40 THAILAND……………………………………………………… 432
Pakdee Paknara and Kallaya Laohaganniyom
Chapter 41 TURKEY…………………………………………………………… 437
Gönenç Gürkaynak and K Korhan Yıldırım
Chapter 42 UKRAINE…………………………………………………………. 448
Dmitry Taranyk and Valentyna Hvozd
Chapter 43 UNITED KINGDOM………………………………………….. 457
Jordan Ellison and Paul Walter
Chapter 44 UNITED STATES……………………………………………….. 469
Ilene Knable Gotts
Chapter 45 VENEZUELA……………………………………………………. 477
Pedro Ignacio Sosa, Ana Karina Gomes and Vanessa D’Amelio
Chapter 46 INTERNATIONAL MERGER REMEDIES………………….. 488
John Ratliff and Frédéric Louis
Appendix 1 ABOUT THE AUTHORS…………………………………….. 503
Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS. 535
EDITOR’S PREFACE
Pre-merger competition review has advanced significantly since its creation in 1976 in the United States. As this book evidences, today almost all competition authorities have a notification process in place – with most requiring pre-merger notification for transactions that meet certain prescribed minimum thresholds. Given the ability of most competition agencies with pre-merger notification laws to delay, and even block, a transaction, it is imperative to take each jurisdiction – small or large, new or mature – seriously. China, for instance, in 2009 blocked the Coca-Cola Company’s proposed acquisition of China Huiyuan Juice Group Limited and imposed conditions on four mergers involving non- Chinese domiciled firms. In Phonak/ReSound (a merger between a Swiss undertaking and a Danish undertaking, each with a German subsidiary), the German Federal Cartel Office blocked the entire merger even though less than 10 per cent of each of the undertakings was attributable to Germany. It is, therefore, imperative that counsel for a transaction develops a comprehensive plan prior to, or immediately upon, execution of the agreement concerning where and when to file notification with competition authorities regarding the transaction. In this regard, this book provides an overview of the process in 45 jurisdictions, as well as a discussion of recent decisions, strategic considerations and likely upcoming developments. fte intended readership of this book comprises both in-house and outside counsel who may be involved in the competition review of cross-border transactions.
Some common threads in institutional design underlie most of the merger review
mandates, although there are some outliers as well as nuances that necessitate careful consideration when advising clients on a particular transaction. Almost all jurisdictions either already vest exclusive authority to transactions in one agency or are moving in that direction (e.g., Brazil, France and the UK). fte US and China may end up being the exceptions in this regard. Most jurisdictions provide for objective monetary size thresholds (e.g., the turnover of the parties, the size of the transaction) to determine whether a filing is required. Germany, for instance, provides for a de minimis exception for transactions occurring in markets with sales of less than €15 million. ftere are some jurisdictions, however, that still use ‘market share’ indicia (e.g., Bosnia and Herzegovina, Colombia, Lithuania, Portugal, Spain, Ukraine and the UK). Most jurisdictions require that both parties have some turnover or nexus to their jurisdiction. However, there are some jurisdictions that take a more expansive view. For instance, Turkey recently issued a decision finding that a joint venture (JV) that produced no effect in Turkish markets was reportable because the JV’s products ‘could be’ imported into Turkey. Germany also takes an expansive view by adopting as one of its thresholds a transaction of ‘competitively significant influence’. Although a few merger notification jurisdictions remain ‘voluntary’ (e.g., Australia, Singapore, the UK and Venezuela), the vast majority impose mandatory notification requirements.
fte potential consequences for failing to file in jurisdictions with mandatory requirements varies. Almost all jurisdictions require that the notification process be concluded prior to completion (e.g., pre-merger, suspensory regimes), rather than permitting the transaction to close as long as notification is made prior to closing. Many of these jurisdictions can impose a significant fine for failure to notify before closing even where the transaction raises no competition concerns (e.g., Austria, Cyprus, India, the Netherlands, Romania, Spain and Turkey). Some jurisdictions impose strict time frames within which the parties must file their notification. For instance, Cyprus requires filing within one week of signing of the relevant documents and agreements; and Hungary, Ireland and Romania have a 30-calendar-day time limit from entering into the agreement for filing the notification. Some jurisdictions that mandate filings within specified periods after execution of the agreement also have the authority to impose fines for ‘late’ notifications (e.g., Bosnia and Herzegovina, India and Serbia). Most jurisdictions also have the ability to impose significant fines for failure to notify or for closing before the end of the waiting period, or both (e.g., United States, Ukraine, Greece, and Portugal). Brazil issued its first ‘gun jumping’ fine this year. In Macedonia, the failure to file can result in a misdemeanour and a monetary fine of up to 10 per cent of the worldwide turnover.
In almost all jurisdictions, very few transactions undergo a full investigation,
although some require that the notification provide detailed information regarding the markets, competitors, competition, suppliers, customers and entry conditions. Most jurisdictions that have filing fees specify a flat fee or state in advance a schedule of fees based upon the size of the transaction; some jurisdictions, however, determine the fee after filing or provide different fees based on the complexity of the transaction. For instance, Cyprus is now considering charging a higher fee for acquisitions that are subjected to a full Phase II investigation.
Most jurisdictions more closely resemble the European Union model than the US model. In these jurisdictions, pre-filing consultations are more common (and even encouraged); parties can offer undertakings during the initial stage to resolve competitive concerns; and there is a set period during the second phase for providing additional information and for the agency to reach a decision. In Japan, however, the Japanese Federal Trade Commission (JFTC) announced in June 2011 that it would abolish the prior consultation procedure option. When combined with the inability to ‘stop the clock’ on the review periods, counsel may find it more challenging in transactions involving multiple filings to avoid the potential for the entry of conflicting remedies or even a prohibition decision at the end of a JFTC review. Some jurisdictions, such as Croatia, are still aligning their threshold criteria and process with the EU model. ftere remain some jurisdictions even within the EU that differ procedurally from the EU model. For instance, in Austria the obligation to file can be triggered if only one of the involved undertakings has sales in Austria as long as both parties satisfy a minimum global turnover and have a sizeable combined turnover in Austria.
Editor’s Preface
fte role of third parties also varies across jurisdictions. In some jurisdictions (e.g., Japan) there is no explicit right of intervention by third parties, but the authorities can choose to allow it on a case-by-case basis. In contrast, in South Africa, registered trade unions or representatives of employees are even to be provided with a redacted copy of the merger notification and have the right to participate in merger hearings before the Competition Tribunal, and the Tribunal will typically permit other third parties to participate. Bulgaria has announced a process by which transaction parties even consent to disclosure of their confidential information to third parties. In some jurisdictions (e.g., Australia, the EU and Germany), third parties may file an objection to a clearance decision.
In almost all jurisdictions, once the authority approves the transaction, it cannot later challenge the transaction’s legality. fte US is one significant outlier with no bar for subsequent challenge, even decades following the closing, if the transaction is later believed to have substantially lessened competition. Canada, in contrast, provides a more limited time period of one year for challenging a notified transaction (see the recent CSC/Complete transaction). Norway is a bit unusual, in that the authority has the ability to mandate notification of a transaction for a period of up to three months following the transaction’s consummation.
It is becoming the norm in large cross-border transactions raising competition concerns for the US, Canadian, Mexican and EU authorities to work closely together during the investigative stages, and even in determining remedies, minimising the potential of arriving at diverging outcomes. Regional cooperation among some of the newer agencies has also become more common; for example, the Argentinian authority has worked with Brazil’s CADE, which in turn has worked with Chile. Competition authorities in Bosnia and Herzegovina, Bulgaria, Croatia, Macedonia, Montenegro, Serbia, Slovenia and Turkey similarly maintain close ties and cooperate on transactions. Taiwan is part of the Asia-Pacific Economic Cooperation Forum, which shares a database. In transactions not requiring filings in multiple EU jurisdictions, Member States often keep each other informed during the course of an investigation. In addition, transactions not meeting the EU threshold can nevertheless be referred to the Commission in appropriate circumstances. In 2009, the US signed a memorandum of understanding with the Russian Competition Authority to facilitate cooperation; China has ‘consulted’ with the US and EU on some mergers and entered into a cooperation agreement with the US authorities in 2011. fte US also has recently entered into a cooperation agreement with India.
Although some jurisdictions have recently raised the size threshold at which filings are mandated, others have broadened the scope of their legislation to include, for instance, partial ownership interests. Some jurisdictions continue to have as their threshold test for pre-merger notification whether there is an ‘acquisition of control’. Many of these jurisdictions, however, will include as a reportable situation the creation of ‘joint control’, ‘negative (e.g., veto) control’ rights to the extent that they may give rise to de jure or de facto control (e.g., Turkey), or a change from ‘joint control’ to ‘sole control’ (e.g., EU and Lithuania). Minority holdings and concerns over ‘creeping acquisitions’, in which an industry may consolidate before the agencies become fully aware, have become the focus of many jurisdictions. Some jurisdictions will consider as reviewable acquisitions in which only a 10 per cent or less interest is being acquired (e.g., Serbia for certain financial and insurance mergers), although most jurisdictions have somewhat higher thresholds (e.g., Korea sets the threshold at 15 per cent of a public company and otherwise 20 per cent of a target; and Japan and Russia at any amount exceeding 20 per cent of the target). Others use as the benchmark the impact that the partial shareholding has on competition; Norway, for instance, can challenge a minority shareholding that creates or strengthens a significant restriction on competition. Several agencies in the past few years have analysed partial ownership acquisitions on a standalone basis as well as in connection with joint ventures (e.g., Canada, China, Cyprus, Finland and Switzerland). Vertical mergers were also the subject of review (and even resulted in some enforcement actions) in a number of jurisdictions (e.g., Canada, China, Sweden and Taiwan). Portugal even viewed as an ‘acquisition’ subject to notification the non-binding transfer of a customer base.
For transactions that raise competition issues, the need to plan and to coordinate among counsel has become particularly acute. As discussed in the last chapter, International Merger Remedies, it is no longer prudent to focus merely on the larger mature authorities, with the expectation that other jurisdictions will follow their lead or defer to their review. In the current environment, obtaining the approval of jurisdictions such as Brazil and China can be as important as the approval of the EU or US. Moreover, the need to coordinate is particularly acute to the extent that multiple agencies decide to impose conditions on the transaction. Although most jurisdictions indicate that ‘structural’ remedies are preferable to ‘behavioural’ conditions, a number of jurisdictions in the past year have imposed a variety of such behavioural remedies (e.g., China, the EU, France, Netherlands, Norway, South Africa, Ukraine and the US). ftis book should provide a useful starting point in navigating cross-border transactions in the current enforcement environment.
Ilene Knable Gotts
Wachtell, Lipton, Rosen & Katz New York
July 2014
Chapter 32
Carmen Peli, Manuela Lupeanu and Mihaela Ciolan1ROMANIA
I INTRODUCTION
fte merger control regime was introduced in Romania by the Law on Competition No. 21/1996 (Competition Law) and the only authority that deals with merger control is the Romanian Competition Council (CC). Exceptionally, the Supreme Council for the Country’s Defence (SCCD) can oppose transactions that raise risks from a defence policy perspective. fte Competition Law was amended substantially in August 2010 by Government Emergency Ordinance No. 75/2010, which introduced a number of important changes in the area of merger control, including a new substantive test for assessing merger impact (the SIEC (significant impediment of effective competition) test), the ability of merging parties to notify their intention to merge, longer deadlines for the CC to take decisions and a revised authorisation fee. In February 2014, the Competition Law was further amended in the sense that the CC will now be required to obtain a judicial authorisation to inspect any premises belonging to undertakings being investigated or to their management or employees. fte Competition Law was republished in April 2014.
Under the domestic antitrust rules, an economic concentration is performed
through the merger of previously independent undertakings; the creation of a full- function joint venture; or the acquisition of control of an undertaking. fte threshold test for examining whether an economic concentration will fall under the scrutiny of the national merger system remains unchanged. Transactions above the following thresholds must be examined by the CC:
a the worldwide aggregate turnover of the parties (e.g., the purchaser and the target) and their groups exceeds €10 million; and
1 Carmen Peli is a founding partner, Manuela Lupeanu is a senior associate and Mihaela Ciolan is an associate at PeliFilip.
b at least two of the involved undertakings each have registered a turnover in Romania of €4 million.
ftese jurisdictional thresholds establish the CC’s competence to conduct a review, and the CC cannot review mergers that do not meet the thresholds.2 Economic concentrations occurring outside Romania are subject to notification if the above thresholds are exceeded,3 the clearance of the CC being actually required both for economic concentrations involving foreign undertakings with Romanian affiliates and for concentrations where the parties do not have a Romanian corporate presence but are reaching the turnover thresholds on the Romanian market through direct sales.
fte CC’s secondary legislation on the merger control system, first enacted in 2004, has also changed. As of August 2010, the old Regulation on merger authorisation (2004) was replaced by the Regulation regarding the economic concentrations approved by the Competition Council Order No. 385/2010 (New Merger Regulation). fte New Merger Regulation brings practical and procedural clarification with respect to some aspects of merger assessment. In addition, further harmonisation with the EU merger rules was achieved through Instructions on matters regarding the concepts of economic concentration, merging parties, full-function joint ventures and turnover, and Instructions on ancillary restraints; the Instructions generally mirror the European rules. fte former Instructions on remedies in the event of commitments decisions from March 2004 have also been replaced by new rules enacted by Order No. 688/2010 (Instructions on remedies). New Guidelines on the calculation of the authorisation fee for merger-clearance procedures have also been implemented. fte Rules on access to files in merger clearance procedures have also been reformed. fte CC currently envisages further changes to the New Merger Regulation.
As already noted, the clearance test is no longer the creation or strengthening of
a dominant position as a result of which competition might be significantly restricted or distorted, but a more complex analysis on the basis of which concentrations that do not reach ‘dominance’ might be deemed to substantially lessen competition. In its practice, the CC seems to have lately focused its analysis on whether the economic concentration would likely lead to price increases.4
On 5 July 2011, further changes were made to the merger control system, among which the most relevant are the enforcement of the presumption of dominance
- 2014 OECD Peer-Review on Competition law and policy in Romania, available at consiliulconcurentei.ro/uploads/docs/items/id9183/peer-review-romania-2014-en.pdf.
- An example is Decision 29 of 26 June 2013 regarding the takeover by MVM Zrt Ungaria of E.ON Földgáz Trade Zrt Ungaria, E.ON Földgáz Storage Zrt Ungaria and Powerforum Zrt Ungaria.
- In 2013, the CC started to use new methods of economic analysis prior and post clearance in its analysis of concentrations in the retail sector: the Gross Upward Pricing Pressure Index (GUPPI) for ex ante analysis, and the difference in differences (DID) method applied in ex post For more details regarding the methods, see Romanian Competition Journal No. 2-2013, www.consiliulconcurentei.ro/uploads/docs/items/id9047/rrc_nr_2-2013.pdf.
for a company or companies exceeding a 40 per cent market share, and the provisions prohibiting mergers contravening public policy (concentrations generating risks for national safety can be opposed by the SCCD).
fte clearance procedure still includes a Phase I analysis, and if the CC suspects that the clearance test will not be met, it will start a Phase II investigation. Most transactions are cleared under Phase I, with very few so far having undergone a Phase II investigation.
II YEAR IN REVIEW
i General considerations
Statistics
Romania’s GDP has grown, recording one of the highest rates in Europe, and its inflation rate has decreased; thus, the economic crisis in Romania seems to have ended.5 However, this recovery is not yet reflected in the number of economic concentrations that have been subject to merger control by the CC. In 2013, the number of economic concentrations cleared by the CC has slightly decreased, amounting to 37 mergers6 compared with 2012 (42 mergers), while to May 2014, only five economic concentrations gained final clearance.7 No merger prohibition decisions have been issued since 2001. No cases required a Phase II clearance procedure in 2013. fte last case requiring such in- depth analysis was the takeover of Hollywood Multiplex Operations by Cinema City International NV in 2012; the CC found that the combination between the two raised serious competition concerns that could not be eliminated through the commitments submitted by the acquiring party. However, the parties abandoned the transaction, and the investigation was closed without any decision being issued.
During 2013 and up to May 2014, the CC dealt with transactions in various sectors, particularly consumer goods manufacturing (six decisions), the energy market (five decisions), the real estate sector (five decisions), and the financial sector (nine decisions). Other sectors analysed by the CC were IT and electronic products, media and postal services, fast-moving consumer goods retail, heavy industry, consultancy services, waste management and maritime transportation.
Trends and predictions
Similar to previous years, in 2013 (and up to May 2014) there have been a number of transactions undertaken as necessary financial reorganisations or economic consolidations. However, there were also mergers in economic sectors that were not as adversely affected by the general financial downturn (e.g., the IT sector).
An important recent trend on the Romanian market is the consolidation of the financial sector, where major transactions have occurred in different segments: banking, insurance and leasing. Two transactions cleared by the CC – Citibank/Raiffeisen Bank and RBS Romania/Unicredit Tiriac Bank, which concerned the sale of retail products and
- 2013 Competition Council: Annual
- consiliulconcurentei.ro/ro/docs/50/decizii.html.
clients’ portfolios – show the banks’ need to concentrate on the retail sector. Certain major international banks instead decided to focus on corporate and commercial banking.
In 2013, the CC issued two decisions that reflect the authority’s approach to the application of the Instructions on remedies. In the Auchan/Real transaction,8 the CC gave its clearance based on behavioural commitments, i.e., a commitment not to increase prices and not to open new stores on the affected local market for a certain period of time. However, in the Burda/Sanoma transaction, the commitments accepted by the authority concerned the structure of the transaction, i.e., the partial assignment of the acquired activity on certain magazine markets (IP rights, internet domains, know-how, advertising agreements, printing services agreements).
ftese trends of reorganisation will likely continue in 2014.
Few privatisations are expected in 2014. fte privatisation of CFR Marfa (the national rail freight transport operator), which started in 2013, was not accomplished, and this process is expected to be re-launched, as it was an IMF requirement. Another privatisation of a significant state-owned company that should have started in 2013 involves Posta Romana (the national operator of postal services), which is expected to happen in the near future.
Lack of transparency
CC merger clearance decisions still do not generally indicate the merging parties’ market share or any other economic or market data that could serve as guidance for further practice. In 2013, however, the CC published several decisions where the ranges of the parties’ market shares are mentioned (thus giving an implicit indication of the authority’s reasoning), while in others it indicated certain market shares, but this does not yet constitute a general practice regarding transparency in decisions.
ii Merger in the courier delivery services market9
In 2013, the CC cleared the acquisition of Cargus by Abris Capital Partners, a leading mid-market private equity fund. Cargus is the first courier delivery company in Romania, founded in 1991 and acquired by Deutsche Post DHL in 2008. For DHL, the transaction represented the spinoff of its operations in Romania and followed the company’s strategy, which aims to focus on its international services.
To ensure a successful transition process, the parties have concluded six transitory agreements, creating a supply relationship under which Cargus continues to offer to DHL certain services. As an interesting feature, only four agreements have been considered as representing ancillary restrictions, while the agreements regarding authorised sales and cargo transportation services and handling at dispatching centres were not being considered to be directly related and necessary to the implementation of the transaction. ftese latter agreements remain to be evaluated under Article 5 of the Competition Law.
- For more details about the transaction, see Section IV, infra.
- Decision 8 of 18 February 2013 regarding the takeover of Cargus International SRL by Mardeto Investments SRL.
iii Fines for gun jumping10
fte CC has continued the sanctioning of undertakings (whether natural or legal persons) for the implementation of transactions before receiving merger control clearance.
DO-FI South-East Holding GmbH (DO-FI)/CCCF-Drumuri si poduri Timisoara SRL (CCCF DP TM)
ftis transaction took place in the market of construction works for roads and motorways in which DO-FI, an Austrian investment fund controlling several companies in Romania, acquired up to 99 per cent of the share capital of CCCF DP TM. fte acquisition was performed in August 2010, but no notification was submitted to the CC. In March 2012, the authority started an ex officio investigation regarding implementation actions undertaken by the acquirer consisting of:
- the assignment of shares of the acquired company;
- the nomination of managers of the acquired company;
- the acquisition of shares in other companies;
- an amendment to the secondary object of the activity of the company, and its entry on another/new market; and
- approval of the company’s financial statements for 2011 and the use of the company’s net
fte acquirer was fined an amount of 0.46 per cent of its turnover in 2011, receiving a 30 per cent reduction of fine for its recognition of the infringement. No defence argument has been accepted with respect to the company’s good faith in omitting to submit the notification, as the Competition Law sanctions all infringements in this regard irrespective the company’s fault.
George Becali/ARCOM SA Bucuresti
In 2008, Mr George Becali, a quite famous politician and football club owner in Romania, acquired 71.53 per cent of ARCOM SA, with respect to which the CC opened an ex officio investigation in 2012. It found that Mr Becali had exercised his voting rights without having notified the economic concentration, and sanctioned him with a fine of
0.9 per cent of his total turnover in 2012.
iv Merger in the retail daily consumer goods sector cleared with commitments11
In July 2013, Auchan Romania SA, a member of Auchan Group, obtained a clearance decision from the CC for the acquisition of 20 hypermarkets under the Real brand in Romania. fte transaction was part of a larger Auchan project to acquire the Real hypermarkets in central and eastern Europe from Metro Group. fte transaction was initially notified with the European Commission, but following the parties’ request for
- Decision 86/2012 sanctioning DO-FI South-East Holding GmbH; and Decision No. 51/2013 sanctioning George Becali for the violation of Article 15(6) of the Competition Law.
- Decision 32 of 29 July 2013 regarding the takeover of Real Hypermarket Romania SRL by Auchan Romania SA.
referral on the basis of Article 4(4) of the EU Merger Regulation,12 the CC was found to be the most appropriate authority to analyse the Romanian part of the transaction in depth.13 fte transaction was cleared after Auchan undertook commitments regarding local affected markets (see above).
Market definition and assessment
fte CC analysed the impact of the transaction in the relevant markets of the retail sale of consumer goods at the upstream level on the supply market where the retailers act as buyers; and at the downstream level on the retail market, where it considered that the traditional stores and discounters act on the same market with hypermarkets and supermarkets, while the cash and carry distribution channel is not part of this market as its target is mostly formed of other retailers and not final consumers.
In its analysis, the CC considered that the different store formats (hypermarkets, supermarkets, traditional retailers, discounters) compete with each other as such, irrespective of the selection of products they carry.
At the geographical level, the CC took into consideration two catchment areas: a 20-minute catchment area was used for stores in Bucharest, and a 30-minute catchment area in the other cities in Romania.
Behavioural remedies
As concerns were identified, the acquiring party proposed the following commitments:
- undertaking not to increase the prices of products sold in the stores located in Craiova and Targu Mures by more than 5 per cent over the average prices in all the other Auchan stores until end of 2015; and
- undertaking not to open any new stores in Craiova and Targu-Mures for a period of five years as of the moment the CC authorised the
v Particular market definition and market strength assessment
Kex Confectionery/Heidi Chocolat14
In March 2013, the CC cleared the acquisition of Heidi Chocolat by Kex Confectionery. fte acquirer had previously acquired Kandia Dulce in 2010 from Kraft Foods Inc in an economic concentration subject to commitments undertaken by Kraft with the European Commission in 2010.15
fte transaction arose in a market concentration context, as Kandia Dulce had acquired control over Supreme Chocolat,16 an independent player on the Romanian sweets market, in 2011.
- Council Regulation (EC) 139/2004.
- Case COMP/M.6822 – Group Auchan/Real/Real Hypermarket Romania of 7 March 2013.
- Decision 15 of 19 March 2013 regarding the takeover of Heidi Chocolat SA by Kex Confectionery SA.
- Case COMP/M.5644 – Kraft Foods/Cadbury of 6 January 2010.
- Decision 95 of 22 December 2011 regarding the takeover of Supreme Chocolat SRL by Kandia Dulce SA.
fte CC performed a detailed analysis of the chocolate confectionery market, and categories resulting from the segmentation into countlines, pralines and tablets. fte narrow market delineation was based on the fact that consumers choose between forms of chocolate as a result of a personal preference; different purchasing and consumption patterns can be identified, even though chocolate products tend to satisfy the same needs: tablets are consumed at home, countlines are mainly purchased for instant consumption, whereas pralines are mostly purchased for gifts; and the existence of significant differences in terms of prices. fte CC also noted that not all players are equally active throughout the different segments of the chocolate confectionery market.
Despite the quite concentrated level of the market, the CC did not find that there would be significant competition concerns, and the transaction was cleared. fte resulting Kex Confectionary group therefore acquired the second position on the Romanian chocolate confectionery market (after Kraft Foods group).
Expur/Cargill Oils17
ftis transaction involved the takeover by Expur SA of trademarks, equipment and stocks of products of Cargill Oils SA. fte two companies were active in the sunflower oil manufacturing sector. fte CC’s assessment is particularly relevant as far as it concerns the calculation of market shares for the production and trade of bottled sunflower oil.
Both parties were producing and selling bottled sunflower oil under their own brands, but also under private brands (brands belonging to distributors). fte CC considered that on the downstream retail market, the shares for sale of private label oil were attributable to the owners of the trademarks and not to the companies that have effectively produced it.
However, at the upstream level on the production market, the market shares for these products were attributed to the producers and not to the retailers owning the respective trademarks.
vi Ex post analysis of the merger Lidl/Plus18
In November 2010, the CC cleared the takeover by Lidl Romania GmbH of Plus stores.19 Lidl, a member of the Schwarz group operated in Romania through 53 Kaufland stores (hypermarkets), while the target was active through 103 stores (discounters). fte relevant markets identified were the upstream market of supply of consumer goods and the downstream retail market.
At the downstream level, the CC identified five local markets where the parties had combined market shares exceeding 30 per cent and even 45 per cent. fte CC cleared the transaction without requesting commitments despite these high shares. In 2012,
- Decision 22 of 29 May 2013 regarding the takeover of assets of Cargill Oils SA by Expur SA.
- Decision 46 of 1 November 2010 regarding the joint takeover of Pludi Market (Plus), Tengelmann Real Estate International Romania SCS and Tengelmann Real Estate International SRL by Lidl Romania GmbH.
- Case COMP/M.5790 – Lidl/Plus Romania/Plus Bulgaria of 28 June 2010.
however, it decided to perform an ex post analysis of the merger, and published a report in December 2013 in this respect.
Method used in the analysis
For the ex post assessment, the CC used mainly the DID method, but also considered the ‘before and after the implementation of the merger’ situation. fte DID method was based on a comparison of two groups: the treated group and the control group.
Ex post assessment
fte CC analysed other aspects as well, but in relation to the DID analysis, focused on Kaufland’s behaviour in relation to its prices on five relevant markets where the aggregated share of the parties exceeded 25 per cent. ftese prices were compared with other 11 Kaufland stores, while Lidl’s behaviour after the authorisation of the concentration was not taken into account. fte CC limited its analysis to 11 categories of products. fte five stores were considered the target group, and the 11 remaining stores, the control group. fte evolution of prices applied by Kaufland in the target group was compared with the prices used by the control group. In most of the cases (representing 67.3 per cent of the total), the prices evolved in a similar way. fterefore, the hypothesis according to which Kaufland could decide to raise prices in the local markets where its group market power increased after the Lidl/Plus transaction was not confirmed.
In relation to Lidl’s pricing policy, the CC reached the conclusion that the medium- level prices applied by Lidl followed, generally, the market trend. Lidl decreased its prices after the concentration compared with the prices used by Plus before the concentration.
Conclusions of the report
fte CC concluded that two years after the acquisition of Plus by Lidl, the Schwarz group had strengthened its position both on the upstream supply market and on the downstream retail market for consumer goods. However, this position did not allow the group to indulge in independent behaviour in relation to its competitors or its customers.
III THE MERGER CONTROL REGIME
fte current merger control regime, in force since 1997, was amended in August 2010, leading to greater harmonisation with the European regime. ftis was the first update of the rules on the merger-clearance procedure since Romania’s accession to the EU in 2007.
i Clearance procedure under the New Merger Regulation
As per the rules in force, economic concentrations exceeding the thresholds must be submitted for approval to the CC. fte New Merger Regulation no longer provides a 30- day deadline from the signing of the agreement to submit the transaction for the CC’s approval; however, failure to notify the transaction by the merging parties would still be sanctioned by the CC. ftis means that economic concentrations have to be notified ‘promptly’ following the conclusion of the relevant agreement, the announcement of the public bid or the takeover of the controlling shares prior to their implementation. Failure to notify a transaction and implementation of the concentration before its authorisation
(i.e., gun jumping) are subject to a fine of between 0.5 and 10 per cent of the parties’ turnover in the financial year prior to the fining.
fte New Merger Regulation also allows the involved firms to notify the CC of their intention to merge at any time prior to the conclusion of the transaction. fte parties would, however, need to provide sufficient evidence of such intention (e.g., a memorandum of understanding, a gentlemen’s agreement, pre-agreements, framework agreements). ftis provision is expected to be frequently used by firms involved in economic concentrations.
fte parties must submit a standard notification form accompanied by attached relevant documentation. fte revision of the merger legislation also brought the content of the notification form in line with that used in the procedure before the European Commission. However, in May 2014, the CC published a proposal to amend the merger legislation, aiming also to reflect the recent changes made by the European Commission. fte CC may ask questions, and it regularly uses this right. Once the parties provide all necessary information, the notification shall be declared effective (the CC will immediately communicate the date when the notification became effective to the parties). Upon receiving the notification form and the supporting documents, the CC has 20 days to review it and, if necessary, to request additional information from the parties. Such information must be submitted within 15 days of the date of the request, with a possible further five days’ extension upon reasonable justifications. If after the expiry of these terms the information provided is not sufficiently clear, the CC can impose fines. Under the New Merger Regulation, the CC has 45 days after the notification becomes effective to decide whether the concentration comes under the scope of the merger rules; does not raise serious antitrust concerns; or raises competition doubts.
Once the entire procedure is finalised, the CC shall issue:
- a non-approval decision if the merger raises serious competition concerns;
- a decision clearing the merger if it ascertains that the analysed transaction is not deemed to create or to consolidate a dominant position threatening competition on the relevant national markets; or
- a commitment decision, which will necessitate remedies being fulfilled by the parties; these will be chosen from a series of remedies provided within the Instructions on remedies (e.g., the divestment of a part of the business, the termination of exclusive arrangements or the transfer of an important technology).
fte Merger Regulation also provides a simplified clearance procedure that can be used in limited circumstances and, in any case, only if the aggregate market shares of the parties do not exceed 15 per cent (horizontal relations) or 25 per cent (vertical relations). In its past practice, the CC was reluctant to use this procedure even for relatively small transactions, and the assessment of how the transaction affects the ‘normal course of competition’ requires as much information and time as the regular procedure. In 2013, 32 per cent of economic concentrations were analysed by the CC under the simplified procedure.20 However, the CC is free to start the analysis under the simplified procedure and continue it under a full clearance structure, as it did in one case in 2014.
- See footnote
ii Enforcement of the SIEC test
In contrast to the dominance test established by the former rules, the New Merger Regulation establishes that the assessment test for an economic concentration is the SIEC test: assessing whether an economic concentration significantly impedes effective competition on the Romanian market or on a substantial part of it, particularly following the creation or strengthening of a dominant position. fte CC will thus take into account various criteria for assessing the merger, such as:
- the relevant market structure;
- actual or potential competition;
- the parties’ market position and their economic and financial strength;
- alternatives available to suppliers and users, their access to supply sources and markets;
- legal or factual barriers to entry;
- the trends of offer and demand for the goods in the relevant market;
- the interests of intermediary and end consumers; and
- any evolution of technical and economic progress, to the extent that it benefits consumers and it is not an obstacle to
iii Presumption of dominance above a 40 per cent market share
One major amendment to the Competition Law in 2011 related to the introduction of the presumption of dominance for companies holding a market share of over 40 per cent. ftis amendment reverses the former dominance presumption by stipulating that whenever a market share exceeds 40 per cent, the firm enjoying this market share is presumed to have a dominant position.
Although the CC does not sanction a dominant position per se (only an abuse of such market power on the relevant market), the burden of proof is on the company presumed to be dominant; once the presumption is made, the company has to rebut it.
iv Access to the file
During the review procedure, access to the file is allowed only to the merging parties (i.e., the buyer’s and seller’s shareholders and the merging company’s managers). fte Instructions on the access to the file preclude the access to the file for third parties unless the CC considers it is necessary for the third parties to submit their observations; such right does not, however, allow third parties access to confidential information. fte instructions on the access to the file have a narrow interpretation of what constitutes confidential information, but it generally covers business secrets and any sensitive information that would severely compromise the merging parties’ activity if disclosed. A redacted version of the confidential documents and information must be prepared by the party, pointing out their sensitiveness. In October 2013, the CC published guidelines on the confidentiality of documents that include practical information on this topic.
In practice, the CC routinely invites third parties (i.e., the parties’ competitors or commercial partners, regulatory authorities or any other interested entities) to submit observations or any other comments or information whenever a new submission for merger approval is addressed to the CC. Interested third parties may challenge the final decision under the regular procedure regarding the resolution of administrative disputes.
v Gun jumping
fte initiation of a merger clearance procedure stops a transaction and the parties cannot take any further measures to implement it. fte New Merger Regulation makes no further reference to ‘reversible’ or ‘irreversible’ steps that can be taken by the acquirer with respect to the target, but lists only the actions that might be considered ‘irreversible’ after implementing a concentration:
- directing the acquired undertaking to enter or exit a market or change its scope of activity;
- using the voting rights granted by the acquired shares to replace the directors, to approve the costs and expenses budget, the business plan or the investment plan of the target;
- changing the corporate name of the acquired entity;
- restructuring, shutting down or spinning off the acquired undertaking or its assets;
- laying off employees of the acquired undertaking;
- terminating material agreements of the acquired undertaking or causing the same to go public; and
- listing the acquired undertaking on a stock
Whenever the CC finds proof of gun jumping, a fine of up to 10 per cent of the turnover in Romania from the year preceding the infringement decision may be applied. fte parties may, however, ask the CC to grant derogation and allow implementation of the transaction before its clearance if sufficiently strong financial or economic arguments are made. In April 2013, the CC granted such derogation for the first time in three years for the takeover of Bank of Cyprus Romania by Marfin Bank Romania. fte CC based its decision on the economic situation of the bank, the emergency situation of its clients and the general economic interest of avoiding the possible contagion effect of distrust in banks.
vi Challenging CC decisions
A CC decision may be challenged by the parties before the Bucharest Court of Appeal within 30 days of its communication. fte Court of Appeal’s decision may in turn be reviewed by the High Court of Cassation and Justice. fte execution of a CC decision can be suspended by the Bucharest Court of Appeal only if a fee is paid in accordance with the Code of Fiscal Procedure (currently, the fee can amount up to 20 per cent of the fine established through the contested decision).
vii Authorisation fees
fte calculation of the authorisation fee level was changed in June 2011; its value varies from €10,000 to €25,000. fte levels depend on the target company’s turnover or the merging parties’ cumulative turnovers if a new full-function joint venture is created. For transactions where the target or the parties to the joint venture have a turnover exceeding €250 million, the authorisation fee is capped at €25,000, which will benefit large transactions.
viii Timing of the procedure
In theory, it should only take between two and three months for the CC to clear a merger raising no dominance concerns; in 2013, the CC generally cleared the economic concentrations in 2.4 months. Nevertheless, these time frames have been substantially exceeded in some cases. For example, it took more than nine months for the CC to clear a horizontal merger between two players in the Romanian market for wholesale IT products and services, when the merging parties in the aggregate were below 15 per cent of the market. However, the parties may often be able to accelerate the procedure by correctly preparing the notification form, promptly responding to the CC’s requests for information and being proactive in proposing solutions (reports, etc.) to alleviate the concerns of the case-handling team.
IV OTHER STRATEGIC CONSIDERATIONS
One of the amendments to the Competition Law that took place in August 2011 provided that the government can prohibit by decision – if proposed by the SCCD
– mergers with potential impact on national security. Defence, infrastructure, energy or electronic communications have in the past been areas of concern for SCCD and might – at least theoretically – need such approval. fte CC instructions provide that even transactions below the de minimis threshold should be notified to SCCD. ftis new provision raised some confusion for market players as it does not provide further details as to the areas or size of the transactions that would be subject to this scrutiny, nor does it exclude any risk of regulatory overlap between the CC and the government.
fte CC has increased its level of expertise in the merger control process by undertaking complex assessments even in cases of economic concentrations with a less significant impact on the market.
fte CC continues its restrictive approach when assessing ancillary restraints to economic concentrations. fte CC seems determined to scrutinise strictly and block the provision of any non-compete clauses imposed on vendors, restrictions in licence agreements, non-disclosure undertakings ancillary to mergers and agreements that may be indicative of a restriction of competition.
While encouraging firms to request preliminary (informal) consultation before merger notification, the CC shows no leniency to gun jumping without approval, with two substantial fines applied in 2011 to acquiring parties implementing mergers before due clearance. fte CC sanctioned one case of gun jumping in both 2012 and 2013. fte few cases of gun jumping in the past few years indicate that parties have become more cautious regarding the early implementation of mergers.
In 2014, the CC was subject to a peer review performed by the OECD. In the OECD’s report,21 it was suggested that notification thresholds could be reviewed.
See footnote
V OUTLOOK AND CONCLUSIONS
Signs of market dynamism are shown in a limited number of sectors, with the predominance of the banking industry, the information technology industry, the manufacturing industry and the energy industry. Economic concentrations are mainly meant either for restructuring or reorganising purposes or for rescuing firms struggling with financial difficulties. An increasing trend in the number of transactions is shown in the manufacturing sector and related markets, where the presence of foreign and local investments is also reflected in the transactions cleared by the CC during 2013 and up to May 2014.
Appendix 1
ABOUT THE AUTHORS
CARMEN PELI
PeliFilip
Carmen Peli is a founding member of PeliFilip. International league tables place Ms Peli as a top-tier competition lawyer in Romania. She has assisted clients in landmark cases in Romania, including the first investigations in the pharmaceutical and the telecommunications industries; the first investigation of an alleged collective dominance; Phase II merger control investigations; state aid issues in the context of privatisations; and vertical integration and unbundling in the energy sectors.
Recent work includes advising a leading international mobile communications operator in relation to two investigations; advising a leading pharmaceutical company in relation to investigations by the Competition Council; and advising various clients in relation to structuring of distribution and agency policies, sales, marketing and pricing policies, training, etc.
Ms Peli is a frequent speaker at seminars on Romanian and EU competition law matters as well as the author of numerous articles on Romanian and European antitrust and merger control law.
MANUELA LUPEANU
PeliFilip
Manuela Lupeanu is a senior associate with PeliFilip and specialises in competition law. Her main areas of expertise include general EU and national antitrust advice on matters including vertical and horizontal agreements, cooperation between competitors in trading associations, assistance before the national competition authority in connection with investigations, national merger control procedures and state aid issues. Industries of particular interest include telecommunications, FMCG, energy and pharmaceuticals. Highlights of her career include assisting in relation to competition authority
About the Authors
investigations for leading telecommunications operators, a local subsidiary of a European pharmaceutical producer and regional pharmaceutical distributors.
Ms Lupeanu is also involved in M&A transactions and public procurement
advice.
MIHAELA CIOLAN
PeliFilip
Mihaela Ciolan is an associate with PeliFilip, having graduated with merits the Faculty of Law at the University of Bucharest, and holds a master’s degree in EU and international law from the French-Romanian College of European Studies, University Paris 1 Pantheon-Sorbonne, and also a master’s degree in public business law from the University Paris 1 Pantheon-Sorbonne, France.
Since joining the PeliFilip team, she has been involved in offering EU and national advice on matters including vertical and horizontal arrangements, parallel trade, dominance, merger control and state aid. She has also been involved in M&A transactions and public procurement projects. She advises clients on various antitrust matters and health care compliance. Sectors of particular interest include life science, FMCG and energy.
PELI FILIP SCA
246C Calea Floreasca Skytower Building 15th Floor
Bucharest 014476 Romania
Tel: +40 21 527 2000
Fax: +40 21 527 2001
carmen.peli@pelifilip.com manuela.lupeanu@pelifilip.com mihaela.ciolan@pelifilip.com www.pelifilip.com
