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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
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  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
GREECE

Dimitris Avgitidis
Managing Partner
Professor of Commercial Law

davgitidis@avgitidislaw.gr

Tel: +30 210 3631879

Lefkothea Nteka
Partner
Head of EU & Competition

l.nteka@avgitidislaw.gr

Tel: +30 210 3631879

Konstantina Gkouti
Associate

k.gkouti@avgitidislaw.gr

Tel: +30 210 3631879

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

(Content available free of charge at Mergerfilers.com - sponsored by D.K. Avgitidis & Associates Law Firm)

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control provisions are set out in Law 3959/2011 on protection of free competition, as amended (“Greek Competition Act”) (Articles 5-10 Greek Competition Act). Specific provisions on mergers in the media sector are provided for in Law 3592/2007 as amended (Article 3).

2) Which authorities enforce the merger control regulation?

The Hellenic Competition Commission (“HCC”) enforces the Greek Competition Act, including the merger control provisions contained therein, in all sectors of the economy with the exception of the electronic communications sector and the postal services sector. The Telecommunications Regulator (Hellenic Telecommunications and Post Commission - “EETT”) is competent to apply competition law, including provisions of the Greek Competition Act on merger control, in the latter two sectors. 

The HCC (and the EETT for the electronic communications and postal services sectors respectively) is the national competition authority responsible for the receipt and examination of merger notifications, the gathering of all necessary information for the assessment of transactions, and the adoption of decisions approving, unconditionally or under conditions, or prohibiting notified transactions. 

The assessment of merger notifications is carried out by the HCC’s Directorate General for Competition (or the EETT’s Directorate respectively) (“DGC”).

Decisions of the HCC and the EETT may be appealed before the Athens Administrative Court of Appeals. The decisions of the Athens Administrative Court of Appeals may be appealed before the Council of State (Supreme Administrative Court). 

3) Relevant regulations and guidelines with links:

The merger control provisions are contained in the Greek Competition Act (Articles 5-10 Greek Competition Act). Specific provisions regarding mergers in the media sector are provided for in Law 3592/2007 as amended (Article 3).

The HCC has issued decisions specifying content of merger notifications and remedies. 

Moreover, in its decisional practice the HCC follows the Notices of the European Commission on jurisdictional issues as well as on the substantive assessment of concentrations. 

Links to the relevant legislation, guidelines and forms are listed here:

Original Greek version

Unofficial English translation

Νόμος 3959/2011 περί της Προστασίας του Ελεύθερου Ανταγωνισμού

The Greek Competition Act  

Νόμος 3592/2007 Συγκέντρωση και αδειοδότηση Επιχειρήσεων Μέσων Ενημέρωσης και άλλες διατάξεις.

Law 3592/2007 on the Concentration and Licensing of Mass Media Undertakings (English translation not available)

Απόφαση 558/VII/2013 και τα έντυπα γνωστοποίησης συγκεντρώσεων

Decision 558/VII/2013 on the specific content of merger notifications

(English translation not available)

Ανακοίνωση για τη γνωστοποίηση συγκεντρώσεων στην Επιτροπή Ανταγωνισμού σε περίπτωση εφαρμογής του Κανονισμού 139/2004 του Συμβουλίου

Notice dated 22.10.2009 regarding the notification deadlines under the Greek Competition Act in case of concentrations notified to the European Commission under Regulation 139/2004 

(English translation not available)

Απόφαση 524/VΙ/2011 για τον καθορισμό τουεντύπου ανάληψης δεσμεύσεων

Decision 524/VI/2011 on the specific content of the form relating to remedies submitted by the parties to a concentration 

(English translation not available)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Mergers per se do not fall under the scope of the general prohibitions on collusive practices and abuses of dominant position of Articles 1 and 2 of the Greek Competition Act, equivalent to Articles 101 and 102 TFEU.

Moreover, a decision approving a merger is deemed to cover restrictions of competition directly related and necessary to the implementation of the merger (“ancillary restrictions”), for instance a non-competition obligation on the seller. Thus, such restrictions are considered inherent parts of the transaction and are not subject to separate scrutiny under the general provisions of the Greek Competition Act. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements (Article 1 Greek Competition Act).

5) May an authority order a split-up of a business irrespective of a merger?

Yes. The Greek Competition Act provides for the imposition of behavioural or structural remedies by virtue of a reasoned decision of the HCC as a direct outcome of a sector inquiry (Article 11 Greek Competition Act).

The imposition of behavioural or structural remedies as a direct outcome of a sector inquiry is a regulatory competence attributed to the HCC. Under the relevant provision, the HCC may adopt any measure of conduct or structure, including a split-up, only if it considers that the application of articles 1, 2, and 5 ff. of the Greek Competition Act does not suffice for the creation of conditions of effective competition in the sector of economy under scrutiny. 

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Electronic communications networks and services

Mergers between two or more undertakings that provide electronic communications networks and services as well as postal services are subject to approval by the EETT.

Financial businesses

Mergers involving financial entities such as banks, insurance companies, credit institutions and investment service companies, require approval from the Bank of Greece, according to the Greek regulatory regime applicable to financial institutions. 

Foreign Investment Control

In general, no restrictions on foreign ownership and investment are in place with the exception of restrictions on land purchases in border regions and on certain islands due to national security and defense considerations. Such restrictions may be lifted. 

On October 2020 EU Regulation 2019/452 (the “FDI Screening Regulation”) takes effect. 

7) Are any parts of the territory exempted or covered by particular regulation?

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided that the turnover thresholds are met.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Greek Competition Act, any transaction which constitutes a “concentration” (in this guide generally referred to as “merger” in its broad sense) is subject to merger control, provided that the turnover thresholds are met. A concentration arises where a change of control on a lasting basis results from:

  1. the merger by any means of two or more previously independent undertakings or parts of undertakings; 
  2. the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings;
  3. the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (that is, a full-function joint venture).

Furthermore, certain transactions of a temporary nature are exempted from the merger filing obligation (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, as a rule a merger is considered to take place if the transaction results in a change of control over a business on a lasting basis. This covers also operations leading to changes in the quality of control, i.e. a change between sole and joint control (e.g. when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners) and an increase in the number or a change in the identity of shareholders controlling jointly an undertaking (e.g. when one of the existing owners sells its share to a third party).

Moreover, transactions that result in the establishment of a new undertaking controlled by two or more undertakings or persons already controlling one or more undertakings (a full-function joint venture) also constitute mergers.

11) How is “control” defined?

Under the Greek Competition Act, “control” of an undertaking is obtained through the acquisition of rights, contracts or any other means which, either separately or in combination, and having regard to the factual and legal context of the transaction, make it possible to exert decisive influence on the operations of an undertaking, in particular by:

  1. rights of ownership or rights to use all or part of the assets of an undertaking or
  2. rights or contracts which confer the possibility of exercising decisive influence on the composition, voting or decisions of the organs of an undertaking.

A merger therefore may occur on a legal or a de facto basis, may take the form of sole or joint control, and may extend to the whole or parts of one or more undertakings. In particular, according to the HCC’s decisional practice:

Sole control is acquired where a person or an undertaking can alone exercise decisive influence on the activity of an undertaking. This is normally the case where the majority of voting rights is acquired or a single minority shareholder is given specific rights and is able to veto decisions on strategic matters (negative sole control). A minority shareholder may also be deemed to have sole control on a de facto basis. This is in particular the case where the shareholder is highly likely to achieve a majority at the shareholders' meetings, in view of the level of its shareholding, the spread of the remaining shares over a large number of shareholders and the presence and voting patterns of shareholders in the shareholders' meetings in previous years. 

Joint control exists where two or more persons or undertakings have the possibility of exercising decisive influence over another undertaking. Decisive influence in this sense normally means the power to block actions which determine the strategic commercial behaviour of an undertaking. The clearest form of joint control exists where there are only two parent companies which share equally the voting rights in the joint venture. Joint control may also exist where there is no equality between the two parent companies in votes or in representation in decision-making bodies or where there are more than two parent companies. Thus joint control may exist between a majority and a minority shareholder on the basis of veto rights set out in the statute of the company or conferred by agreement between its shareholders regarding decisions that are essential for the strategic operation of the business. 

A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control (see topic 10 regarding change in the quality of control).

Joint control may also be the result of an agreement between minority shareholders to vote in the same way or it may exist upon a de facto basis, e.g. where there is a commonality of interests between minority shareholders to the effect that they would not act against each other in exercising their rights in relation to the undertaking concerned.

12) Acquisition of a minority interest

Acquisition of a minority interest is subject to merger control only if it results in a change of control over a business on a lasting basis either de jure or de facto, provided that the turnover thresholds are met. 

13) Joint ventures/joint control – which transactions constitute mergers?

Under the Greek Competition Act, the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity constitutes a concentration subject to merger control provided that the turnover thresholds are met. 

Thus, the following transactions require merger notification provided that the operation leads to the creation of a full-function joint venture and the turnover thresholds are met:

  1. creation of a joint venture from scratch; 
  2. creation of a new undertaking by one parent, followed by (an)other parent(s) taking up shares in that undertaking; and 
  3. creation of a joint venture on the basis of an already existing company within the capital group of one of the parents. 

Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parent companies and the extent to which the joint venture has an independent presence in the market. A joint venture that is not “full function”, because it does not perform, on a lasting basis, all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements (Article 1 Greek Competition Act). 

It should be noted though that, even if a joint venture is “full function” and therefore subject to merger control (provided that the thresholds are met), the coordination of the market behaviour of its parent companies, to the extent that it is the object or effect of the creation of the joint venture, is assessed under the general prohibition on anti-competitive agreements; yet, this assessment takes place in the context of the merger proceedings. 

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

A merger notification must be filed if:

  1. the combined aggregate worldwide turnover of the participating undertakings amounts to at least EUR 150 million; and 
  2. each of at least two of the participating undertakings have an aggregate turnover of at least EUR 15 million in Greece.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions, with the exception of mergers in the media sector (newspapers, magazines, TV and radio).

In particular, Law 3592/2007 provides that for mergers in the media sector the turnover thresholds in topic 14 a.(1) and (2) are EUR 50 million and EUR 5 million respectively.

16) Rules on calculation and geographical allocation of turnover

"Turnover" is the net turnover derived in the preceding financial year from the sale of products and the provision of services falling within the undertaking’s ordinary activities after deduction of (i) discounts on sales, (ii) value added tax (VAT) and other taxes directly related to turnover and (iii) any turnover generated between an undertaking jointly controlled and its parent companies or their subsidiaries. 

Where the merger consists in the acquisition of a part of an undertaking, irrespective of whether this part constitutes a legal entity (e.g. a subsidiary or a production facility), only the turnover generated by the part to be sold is taken into account with regard to the seller.  

Turnover is calculated separately for each undertaking participating in a merger, by adding together the respective turnovers of:

  1. the undertaking concerned;
  2. the undertakings in which the undertaking concerned, directly or indirectly:
    1. owns more than 50% of the share capital or company assets or
    2. has the majority of voting rights or
    3. has the power to appoint or dismiss the majority of the members of the administrative board of the undertakings or 
    4. has the right to manage the undertakings’ affairs;
  3. those undertakings which have in an undertaking concerned the rights or powers listed in (2), i.e. parent companies;
  4. those undertakings in which an undertaking as referred to in (3) has the rights or powers listed in (2), i.e. sister companies; 
  5. those undertakings in which two or more undertakings as referred to in (1) to (4) jointly have the rights or powers listed in (2).

The turnover generated between undertakings controlled jointly and third parties is allocated equally amongst the parent companies.

17) Special rules on calculation of turnover for particular businesses

Insurance companies
In place of turnover the value of the gross premiums is used. This includes all amounts received and receivable in respect of insurance contracts issued by insurance companies or on their behalf, including also outgoing reinsurance premiums, after deduction of taxes and levies charged by reference to the amounts of individual premiums or the total volume of premiums. Gross premiums received from persons resident or established in Greece shall be taken into account.

Credit institutions and other financial undertakings
Turnover is calculated as the sum of the following income items, as defined under the provisions of Presidential Decree 367/1994 (Government Gazette 200A), after deduction of value added tax and other taxes directly related to the goods and services supplied:

  1. Interest income and similar income
  2. Income from securities (shares and other variable yield securities, holdings, shares in affiliated undertakings)
  3. Fees and commissions receivable
  4. Net profit on financial operations
  5. Other operating income.

The turnover of a credit or financial institution in Greece shall comprise the above income items received by the branch or division of that institution established in Greece.

18) Series of transactions that must be treated as one transaction

A series of acquisitions between the same persons or undertakings which take place during a two-year period is considered as a single merger for the purpose of calculating turnover thresholds, irrespective of whether these acquisitions are interdependent. 

Moreover, according to the decisional practice of the HCC, transactions that are interdependent because they are linked by conditions either de jure or de facto are treated as one merger, provided that control in each transaction is acquired ultimately by the same undertaking(s).

See also topic 19 regarding temporary control.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis.

According to the decisional practice of the HCC and the European Commission’s Consolidated Jurisdictional Notice, a temporary change of control may arise in cases where a merger is divided into several transactions. In such multi-staged transactions (e.g. an acquisition of joint control preceding an acquisition of sole control, split-up of assets acquired jointly) the first transaction resulting only in a temporary change of control (acquisition of joint control or acquisition of assets jointly respectively) is not considered as a separate merger and does not have to be notified.

The duration of the transitory period between the first transactions and the final ones is crucial in this respect. A period not exceeding one year would usually by acceptable; yet such an assessment depends on the structure of the transaction and is carried out on a case-by-case basis.

20) Special industries, owners or types of transactions

There is no obligation to file a merger notification in the following situations:

  1. Where credit institutions, other financial undertakings or insurance companies whose normal activities include transactions and dealing in securities for their own account or for the account of third parties are temporarily in possession of holdings in an undertaking acquired with the intention to resell, provided that they a) do not exercise voting rights for the purpose of determining the competitive conduct of that undertaking or b) exercise voting rights exclusively with the aim of preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that the disposal takes place within one year of the date of acquisition;
  2. Where control is exercised by a person appointed pursuant to legislation governing clearance, bankruptcy, suspension of payments, compositions or analogous proceedings; or
  3. Where the transactions are carried out by investment portfolio companies, provided that the voting rights held by such a company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. 

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. If the turnover thresholds are met, the transaction needs to be notified. Such transactions though are notified under the simplified notification form and are examined under the simplified procedure. 

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop shop" principle, enshrined in the EU Merger Regulation, the Greek merger control rules do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the HCC.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

No, the HCC will only handle a merger notification if the thresholds are met or if a referral from the European Commission allows it to handle the notification.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Only in the case of a referral from the European Commission.

Referral to and from other authorities

26) Referral within the jurisdiction

Although two administrative authorities are competent in Greece for the application of merger control provisions contained in the Greek Competition Act, i.e. the EETT for the sectors of electronic communications networks and services and postal services and the HCC for all other sectors of the economy, the Greek Competition Act does not explicitly provide for the referral of merger notifications from either authority. 

27) Referral from another jurisdiction

The HCC may handle referrals from the European Commission under the provisions of the EU Merger Regulation.

The European Commission may refer a merger or a part of a merger to the HCC. In that case, the HCC may handle the merger even if the thresholds for merger notification in Greece are not exceeded. 

A referral of a merger from the European Commission may be requested either by the HCC (on its own initiative or upon the invitation of the European Commission) or by the merging parties. 

The Greek Competition Act does not provide for the referral of merger notifications from other jurisdictions. 

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29).

The HCC may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation but affects trade between EU member states and threatens to significantly affect competition in Greece.  Such a request shall be made within 15 working days of the date on which the merger was notified to the HCC. The European Commission shall immediately notify the other EU member states of the request and will decide whether to examine the merger within 25 days after this notification.

Besides referral to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the HCC:
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the HCC, provided that the merger may significantly affect competition in a distinct market in Greece. If the HCC does not oppose such a referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the HCC, decide to refer a merger that has already been notified to the European Commission to the HCC. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the HCC:
If a merger is not subject to EU merger control but is subject to merger control in Greece and at least two other EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Greece or any other EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

A merger notification must be filed when a binding agreement has been concluded, a takeover bid has been published or a controlling interest has been acquired. The notification must be filed within 30 days after the relevant triggering event. The transaction may not be implemented before the merger has been approved by the HCC.

The HCC will examine a notification before a binding agreement has been concluded, provided that the main elements of the transaction are set out in a document that establishes the parties’ genuine intention to conclude the transaction, such as a MOU or the announcement of a public takeover bid. 

31) Pre-notification consultations

The HCC has no official pre-notification consultations procedure, but in some cases, the parties may consider engaging with the HCC in informal pre-notification consultations. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that occur through the acquisition of securities on a stock exchange or a public takeover bid must be notified within 30 days after the acquisition of a controlling interest/publication of the takeover bid. 

Yet the acquisition/takeover bid may be implemented before approval from the HCC has been obtained, provided that the merger is notified to the HCC within the 30-day statutory time limit and that the acquirer does not exercise the voting rights attached to the securities in question or only does so on the basis of an exemption granted by the authority. 

33) Forms available for completing a notification

Notifications have a prescribed format. There are two forms available: a simplified form and a full notification form. Both are available in Greek only (as annexes to Decision 558/VII/2013).

Simplified notification is possible in each of the following cases:

  1. a business goes from having joint control to having sole control over another business;
  2. the merging parties are not active on the same markets or vertically connected markets;
  3. the merging parties are active on the same markets but do not have a combined market share exceeding 15% in Greece; or
  4. the merging parties are active on vertically connected markets (with no horizontal overlaps) and none of the parties have a market share exceeding 25% in Greece on those connected markets.

Note, however, that the HCC may always request the parties to revert to a full notification form, even if the conditions for simplified notification are met. This may occur even after the HCC has accepted and declared a simplified notification as complete.

34) Languages that may be applied in notifications and communication

Greek.

35) Documents that must be supplied with notification

The following documents should be supplied with a merger notification whether simplified or full:

  1. the most recent audited annual financial statements and annual reports for each of the parties to the merger;
  2. all documents concerning the transaction, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a tender document in case of a takeover bid;
  3. in the case of a public takeover bid, a copy of the bid;
  4. a list of all the group companies for each of the parties;
  5. confirmation of the payment of the filing fee;
  6. a copy of the notification announcement as published in the newspaper – this may be produced no later than 5 days following the notification (see topic 48); and 
  7. a power of attorney, if the notification form is signed by the attorneys-in-law of the parties.

For a full notification, a range of further documents may be relevant, including analyses, reports, market studies, minutes of board meetings and similar documents relating to the merger and providing information on the structure of the affected markets (such as market shares, competition conditions, existing and potential competitors).

36) Filing fees

The filing fee for pre-merger notifications is EUR 1,100, regardless of the degree of the filing’s complexity.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes. The implementation of the merger is prohibited until the HCC has cleared the merger or up until the time limit for adopting a decision has expired without the HCC having issued a blocking decision.

Please also see topic 32 regarding public takeover bids and acquisitions on stock exchanges.

38) May the parties get permission to implement before approval?

Yes, the HCC may, upon request, allow the implementation of a merger pending its assessment, in order to prevent serious damage to one or more undertakings affected by the merger or to a third party. A derogation may be applied for and granted at any time, even before the filing of the notification. 

The decision granting the derogation may set conditions in order to ensure that effective competition is maintained and to prevent situations that could hinder the execution of any final decision by the HCC.

39) Due diligence and other preparatory steps

Due diligence and preparatory steps must be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger and in general in compliance with the general competition rules, i.e. concerning gun-jumping, information sharing, etc. There are no specific rules or guidelines published by the HCC in this regard.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, there must be a case-by-case assessment of the extent to which the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on the “carve out” of the Greek part of a transaction to avoid delaying implementation in the rest of the jurisdictions while approval is still pending in Greece.

It must be assessed on a case-by-case basis whether it is possible to carve out the Greek part of a transaction. It is thus advisable to request a specific permission to implement the transaction outside of Greece from the HCC, because implementation abroad by the transfer of control to the acquirer inevitably confers upon the acquirer the possibility to control the activities of the target in Greece as well (see topic 38).

42) Consequences of implementing without approval/permission

The parties may be fined if the merger is implemented before the approval is obtained. The fine cannot exceed 10% of the parties’ aggregate group turnover.

Furthermore, the HCC may decide to dissolute the concentration in particular through the dissolution of the merger or the sale of the shares or assets acquired, with a view to restoring the conditions of competition existing prior to the implementation of the transaction, or take any other measures necessary to restore efficient competition. A fine of EUR 10,000 for every day that parties fail to comply with the decision may be imposed.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations. In some cases, it is advisable to consider informing the HCC of the intended transaction at an early stage and to engage into pre-notification consultations. 

No set duration or deadline

Notification:

Either via a Notification Form or a Short Notification Form, to be used in the context of a simplified procedure (see topic 33).

A special annex must be filed for concentrations in the media sector.

Within 30 days from the conclusion of a binding agreement, the publication of a takeover bid or the acquisition of a controlling interest 

Assessment of notification form:

When the merger notification has been formally submitted, the HCC assesses whether the notification form has been properly and fully completed. If the notification form is deemed incomplete, the HCC is obliged to request the notifying parties to correct the initial filing, usually by submitting additional data and evidence. 

Within 7 working days from the date of the notification

 

Phase I:

The merger is either approved in Phase I or the HCC decides to initiate a phase II investigation of the merger.

In particular, after the notification has been examined, one of the following decisions will be adopted:

  1. a decision by the President of the HCC finding that the transaction does not meet the thresholds for notification or it is not a concentration within the meaning of the Greek Competition Act and, therefore, is not subject to premerger control;
  2. a clearance decision by the HCC, relating to the merger and providing information on the structure of the affected markets (such as market shares, competition conditions, existing and potential competitors)
  3. a decision by the President of the HCC opening an in-depth investigation, if the transaction meets the statutory thresholds and raises serious doubts as to its compatibility with efficient competition in the relevant markets.

1 month from the date of the notification or from the date of complete notification

“Stop-the-clock”:

If the HCC asks for additional information in the course of the proceedings and the parties fail to comply with their obligation to provide such information, the above deadline is suspended, provided that the HCC advises the parties accordingly within 2 days following the expiry of the deadline set for the submission of the information. The deadline is paused until the date on which the parties provide full and accurate information. 

Phase II:

The merger is either unconditionally approved, approved with conditions/commitments or prohibited. The decision is taken by the Board of HCC (the decision-making arm of the Authority).

The investigation involves detailed market surveys, economic analysis, gathering of information from competitors, customers and suppliers of the parties to the merger and possibly negotiation of commitments that may eliminate the concerns that the HCC may have regarding the anti-competitive effects of the merger.

Following the decision to initiate a Phase II investigation, the HCC issues a ‘Report’ (Statement of Objections) within 45 days from the initiation of Phase II proceedings.

An oral hearing is scheduled no sooner than 15 days from the notification of the Report to the parties. The notifying parties may submit their response within a deadline set by the President of the HCC.

Furthermore, the notifying parties may propose commitments, in order to remove any serious doubts as to the compatibility of the transaction, within 20 days from the notification of the Report.

The HCC may accept commitments even if the above deadline has elapsed.

If the 90-day (or the 105-day) deadline expires and the HCC does not issue a decision prohibiting the merger, the transaction will be deemed to have been approved and the HCC will have to issue an act to that effect. 

90 days from the date when the phase II investigation was initiated.

“Stop-the-clock”:
If the HCC asks for additional information in the course of the proceedings and the parties fail to comply with their obligation to provide such information, the above deadline is suspended, provided that the HCC advises the parties accordingly within 2 days following the expiry of the deadline set for the submission of the information. The deadline is paused until the date on which the parties provide full and accurate information.

Extension:

If the parties propose commitments after the 20 days deadline for their submission has expired and the HCC at its discretion decides to accept such commitments, the deadline of 90 days may be extended to 105 days, by decision of the HCC notified to the parties concerned.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The HCC assesses in particular whether the merger will “significantly impede competition in the national market or in a substantial part of it, in terms of the specific characteristics of goods or services, especially by creating or strengthening a dominant position”.

According to the decisional practice of the HCC and in line with the Notices of the European Commission on the assessment of horizontal and non-horizontal mergers, a horizontal merger may lead to a significant impediment to effective competition, either by eliminating effective competitive constraints in the market and, consequently, increasing the market power of the undertakings concerned (unilateral or non-coordinated effects) or by altering the nature of competition and thus creating conditions that facilitate collusion among competing undertakings or increasing the sustainability of collusion among competing undertakings (coordinated effects). Vertical mergers impede effective competition, where the merged entity enjoys significant market power in the relevant market(s). Conglomerate mergers in most cases do not significantly impede competition.

In assessing whether a concentration may significantly impede competition, the HCC will take into account:

  1. The structure of the relevant market(s).
  2. The actual or potential competition from undertakings located within or outside Greece.
  3. The existence of legal or actual barriers to entry.
  4. The market position of the undertakings concerned and their financial and economic power.
  5. The alternatives available to suppliers and users, and their access to suppliers or markets.
  6. The supply and demand trends for the relevant goods or services.
  7. The interests of intermediate and ultimate consumers.
  8. The contribution to the development of technical and economic progress resulting from the merger, provided that such development is to the consumers’ advantage and does not form an obstacle to competition.

With regard to the mass media sector, special rules apply. In particular, mergers in the mass media sector are prohibited if any of the participating undertakings holds a dominant position or the merger leads to a dominant position being established. The dominance thresholds in the media sector range from 25% to 35%, depending on the number of mass media markets in which an undertaking is active.

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment process for joint ventures is the same as for other mergers. Moreover, if a joint venture leads to the coordination of the competitive behaviour of its parent companies, such coordination is assessed under the general prohibition against anti-competitive agreements in the context of the merger proceedings (see topic 13).

47) Decisions and remedies/commitments available

A merger may be approved unconditionally, approved with conditions/commitments or prohibited.

The HCC will only consider an approval with conditions if the parties have offered commitments. If the HCC expresses serious concerns about the merger either in state-of-play meetings or in the Report (Statement of Objections), it is advisable that the parties propose and enter into negotiations of possible commitments.

Commitments may take any form and can be either structural or behavioural, with or without time limitations as may be necessary to eliminate the competition concerns expressed by the HCC, taking account of the particular circumstances of each case. 

In the decision approving the merger with remedies, the HCC may threaten the parties with a fine if they fail to comply with the remedies. The fine cannot exceed 10% of the aggregate group turnover of the parties. In fixing the amount of the fine the HCC takes into consideration the impact on competition of the non-compliance.

Decision 524/VI/2011 of the HCC determines the content of the notification form on remedies. Parties wishing to propose commitments must complete and file the relevant form, which is available on the HCC’s website (see topic 3).

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments imposed. 

Publicity and access to the file

48) How and when will details about the merger be published?

Under the Greek Competition Act, the parties are obliged to publish a public announcement in a daily financial newspaper of national coverage at their own expense immediately after notification. The announcement is then posted at the website of the HCC. Decision 558/VII/2013 on the specific content of merger notifications determines the content of the public announcement (see topic 3). 

The HCC publishes press releases on its website after a ‘Report’ (Statement of Objections) has been notified to the parties in Phase II proceedings and when a final decision on a notification has been taken. 

Moreover, the HCC is obliged to post on its website the date of the oral hearing when the merger will be discussed so that third parties may submit their opinion before the HCC, no later than 5 days before the oral hearing. 

All decisions of the HCC, including those on mergers, are published at the Government Official Gazette as well as at the website of the HCC, in a non-confidential version prepared by the HCC. In this respect the HCC takes into consideration the applications of the parties for the confidential treatment of evidence and information submitted by them. 

49) Access to the file for the merging parties and third parties

The merging parties:

The notifying parties have a right to access to the file, which includes any correspondence with third parties that the HCC may have had, including market survey questionnaires as well as all other documents/correspondence in the file. However, the notifying party has access only to the non-confidential versions of the third parties’ submissions, often including the identity of such third parties. There is no right of access to the authority’s internal documents and correspondence. 

Access to the file is granted following the notification of the Report (Statement of Objections) to the parties along with the invitation to the hearing held by the HCC.

Parties to the transaction or the merger that are not notifying parties (e.g. the target company or the seller) do not have a right of access to the file. They may be granted access to the file as third parties. 

Third parties:

Third parties are not granted access to the file of pending cases. 

If a third party submits a memorandum with its opinion regarding the merger in view of the oral hearing and can establish a legitimate interest, the HCC may allow such a party to participate at the oral hearing and may grant to such a third party access to some of the documents in the file (such as the non-confidential version of the memoranda filed by the notifying parties or the minutes of the oral hearing). 

Judicial review

50) Who can appeal and what may be appealed?

The notifying parties and any third party with a legitimate interest can appeal the decisions of the HCC before the Athens Administrative Court of Appeal and, ultimately, the Council of State.

Decisions taken at intermediate stages of the proceedings aiming at preparing the final HCC decision can be appealed only together with the final decision. However, acts or decisions taken in the course of the preparatory proceedings, which are the result of a special procedure distinct from that intended to permit the HCC to take a decision on the substance of the case and which produce binding legal effects that affect the interests of a party, can be the subject of an appeal. There is very little case law on these matters.


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