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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
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  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?

 
SLOVAK REPUBLIC

Robert Neruda
Partner

robert.neruda@havelpartners.cz

Tel: +420 545 423 455

Mob: +420 724 929 134

Roman Svetnický
Associate

roman.svetnicky@havelpartners.cz

Tel: +420 545 423 464

Mob: +420 734 170 582

Marián Minárik
Associate

marian.minarik@havelpartners.cz

Tel: +420 545 423 474

Mob: +420 734 170 583

Tomáš Varšo
Junior Associate

tomas.varso@havelpartners.cz

Tel: +420 545 423 413

Mob: +420 731 621 079

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.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control is regulated by the Slovak Act on the Protection of Competition, in its Sections 9 to 13a.

2) Which authorities enforce the merger control regulation?

The Antimonopoly Office of the Slovak Republic (Protimonopolný úrad Slovenskej republiky in Slovak) is the only state authority which enforces the Slovak Act on the Protection of Competition including the merger regulation contained therein.

Generally, decisions of the Antimonopoly Office may be appealed to the Council of the Antimonopoly Office, which consists of the Chairman of the Antimonopoly Office and six other members. Decisions of the Council may be reviewed by the Regional Court in Bratislava and subsequently by the Supreme Court of the Slovak Republic. However, appeals are very unusual in merger cases as only the party to the administrative proceedings (usually the acquirer) has the right to appeal against the decision (see topic 50).

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Sections 9 to 13a of the Slovak Act on the Protection of Competition. More detailed rules may be found in various executive orders. Links to the relevant legislation, guidelines and forms are listed here:

Original Slovak version

Unofficial English translation

Zákon č. 136/2001 Sb., o ochrane hospodárskej súťaže a o zmene a doplnení zákona Slovenskej národnej rady č. 347/1990 Zb. o organizácii ministerstiev a ostatných ústredných orgánov štátnej správy Slovenskej republiky v znení neskorších predpisov

Act No. 136/2001 Coll., on Protection of Competition and on Amendments and Supplements to Act of the Slovak National Council No. 347/1990 Coll. on Organisation of Ministries and Other Central Bodies of the State Administration of the Slovak Republic as amended, as amended (version effective until 17 April 2016)

Vyhláška Protimonopolného úradu Slovenskej republiky č. 170/2014 Z. z., ktorou sa ustanovujú náležitosti oznámenia koncentrácie

Decree No. 170/2014 of the Antimonopoly Office of the Slovak Republic laying down the particulars of a notification of concentration 

English version N/A

Usmernenie o podrobnostiach  pri zjednodušenom oznámení koncentrácie 

Guidelines on simplified notification of concentration

English version N/A

Usmernenie o obmedzeniach hospodárskej súťaže, ktoré s koncentráciou priamo súvisia a sú nevyhnutné na jej uskutočnenie 

Guidelines on restrictions directly related and necessary to concentrations

English version N/A

Usmernenie o podrobnostiach udelenia výnimky zo zákazu implementácie koncentrácie

Guidelines on details of granting an exemption from the prohibition of implementation of concentration

English version N/A

Usmernenie k výpočtu obratu

Guidelines on calculation of turnover

English version N/A

Usmernenie o prednotifikačných kontaktoch v procese posudzovania koncentrácií 

Guidelines on pre-notification contacts in the merger assessment procedure

Usmernenie k posudzovaniu ochrany obchodného tajomstva, dôverných informácií a osobných údajov

Guidelines on assessing the protection of business secrets, confidential information and personal data

English version N/A

Metodické usmernenie upravujúce administratívno-technické podmienky nazerania do spisov a vyhotovovanie výpisov, odpisov a kópií z nich pre účastníkov konania a ich zástupcov, prípadne iné oprávnené osoby

Guidelines on administrative and technical conditions of looking into files and making extracts, notes and copies of them for parties to proceedings and their representatives, or other authorized persons

English version N/A

 

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

Slovak competition law is interpreted in accordance with EU competition law in this respect.

Generally, restrictions of competition that are ancillary to the merger are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. The relevant soft law refers especially to non-competition clauses, licence agreements and purchase and supply obligations. Restrictions that go beyond what may be considered ancillary may fall under the general prohibition on anti-competitive agreements.

The general competition regulation may in special circumstances be used to oppose a transaction as such (i.e. not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applicable to full-function joint ventures that have coordination of the market behaviour of the parent companies as their object or effect.

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

No. The Antimonopoly Office may only order a split-up in case of implementation of a merger prior to clearance (see topic 42).

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.)

The Antimonopoly Office is generally the only authority that requires merger filing (subject to fulfilment of turnover thresholds – see below) or that may prohibit the transaction.

There is a special regime applicable to banks, insurance companies and securities traders. Under relevant regulations (Section 28(1) of Act No. 483/2001 Coll., on banks, as amended, Section 77(1) of Act No. 39/2015 Coll., on insurance, as amended, and Section 70(1) of Act No. 566/2001 Coll., on securities and investment services, as amended) the Slovak National Bank gives prior consent to the merger, division and the transfer of assets of a bank, insurance company or securities trader. A merger carried out without the required prior consent of the Slovak National Bank is invalid.

However, the merger of banks, insurance companies and securities traders must still be notified to and be approved by the Antimonopoly Office, if the turnover thresholds are met. 

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 if 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 Slovak Act on the Protection of Competition, a transaction subject to merger control is defined as:

  1. a merger or amalgamation of two or more previously independent undertakings;
  2. an acquisition of direct or indirect control by one or more undertakings over another undertaking or part of it or over more undertakings or parts of them, which also include the establishment of a joint venture jointly controlled by two or more undertakings if the respective joint venture performs all functions of an independent economic entity on a lasting basis.

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20). 

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

Yes, generally a merger will need to be notified only if the transaction results in a change of control over a business or establishment of a new business (a joint venture) controlled by two or more independent undertakings.

11) How is “control” defined?

The Slovak Act on the Protection of Competition defines “control” as the ability to exercise a decisive influence on the activities of an undertaking, especially by means of:

  1. the ownership of the business; or
  2. the rights, which provide decisive influence on the composition, voting or decisions of the bodies of the controlled undertaking.

The Slovak Act on the Protection of Competition does not specify any shareholding threshold establishing the existence of control. The Antimonopoly Office assesses whether an undertaking acquires a possibility to exercise “decisive influence” over another undertaking on the basis of a possibility to influence the adoption of a strategic decision. 

Control may be held either directly or indirectly. Control may be acquired even through an empty shelf company; however, in such a case a notifying party filing a merger approval request to the authority must be the parent company (that is, acquirer of indirect control, which is not an empty company).  

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding strategic decisions. 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. 

"Control" and "Change of control" are interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining sole or joint control over a business is not subject to merger control.

However, a merger may consist even in the acquisition of a minority shareholding. This is the case where the acquisition confers the possibility to exercise a decisive influence over the target undertaking either on a de iureor de factobasis. A de iuredecisive influence may be acquired by a minority shareholder by virtue of acquiring preferential shares which confer the majority of voting rights or the power to determine the strategic commercial behaviour of the target undertaking upon this shareholder. A de factodecisive influence may be acquired by the minority shareholder typically in a situation where the remaining voting rights are dispersed among a vast number of other shareholders not normally attending the general meeting.

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

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights, etc. are transferred from the parent companies to the joint venture to form the basis for the new activities that extend the business activities of the joint venture into other product markets or geographic markets that were not in the scope of the former business activities of the joint venture, provided these activities are performed by the joint venture as full function.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. 

A creation of a joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general rule on prohibition on agreements restricting competition. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture operates in a market and performs the functions normally carried out by other undertakings operating in the same market.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on anti-competitive agreements may also be applied if the joint venture has coordination of the market behaviour of the parent companies as an object or effect.

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 total annual turnover in Slovakia of the undertakings concerned is at least EUR 46 million and at least two of the undertakings concerned each attain an aggregate turnover of at least EUR 14 million in the Slovak Republic; or
  2. the worldwide aggregate turnover attained by one of the participating undertakings is at least EUR 46 million and simultaneously a) another undertaking being a party to the merger (consolidation); b) an undertaking or part thereof over whom the control is being acquired (target); or c) another undertaking creating a concentrative joint venture attained an aggregate turnover of at least EUR 14 million in the Slovak Republic.

 

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; there are no sector-specific thresholds.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation and geographical allocation of turnover are contained in Section 10 of the Slovak Act on the Protection of Competition as well as in the Guidelines on calculation of turnover. It is interpreted in accordance with the European Commission’s Consolidated Jurisdictional Notice.

Turnover is calculated on the basis of the most recent audited accounts of a financial year of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. The turnover a joint venture has with third parties must be divided equally between the controlling owners irrespective of their share in the capital and the actual distribution of profit; i.e., if the shares in a joint venture are divided 60/40 between two participants who exert joint control, half of the turnover of the joint venture must be attributed to each participant. 

Turnover is net turnover derived from sale of products and services generated by the individual undertakings within the undertaking’s ordinary activities after deduction of (i) value added tax and other taxes directly related to the sales and (ii) any turnover between associated undertakings. Also, any significant and long-lasting changes compared to audited accounts (e.g. if an undertaking acquired another company or assets, a fact which is not recognised in the most recent audited accounts) must be taken into account.

As for the geographical allocation of turnover, turnover allocated in the Slovak Republic is turnover from products and services sold to customers located in the Slovak Republic at the time of entering into the relevant agreement. The European Commission’s Consolidated Jurisdictional Notice contains special guidelines that also apply in this respect.

17) Special rules on calculation of turnover for particular businesses

Banks, securities traders 
Turnover is calculated as the sum of interest income, fees and commissions, income from securities and participating interests, net profit on financial operations, other operating profits and financial aid.

Health insurance companies and Social insurance company

Turnover is calculated as the sum of revenues from own performances, sales of services, sales of goods, other sales, revenues from contract insurance and reinsurance and financial aid. 

Other insurance companies
Turnover is calculated as the sum of the gross premiums written from all insurance contracts and financial aid.

For more details see Guidelines on calculation of turnoverof the Antimonopoly Office, which also refer to the Commission’s Consolidated Jurisdictional Notice.

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

In accordance with the Slovak Act on the Protection of Competition, two or more concentrations that take place within two years between the same undertakings shall be treated as one concentration that arose on the day of the last concentration.

See also topic 19 regarding temporary change of control.

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

19) Temporary change of control

Under the Slovak competition law, a transaction must be on a lasting basis in order to be regarded as a merger within the meaning of the Act on the Protection of Competition. Therefore, only transactions which result in permanent or long-lasting changes in the structure of a market are concentrations. 

A period of five years is usually regarded as long-lasting, but it needs to be assessed on a case-by-case basis. Additionally, a lease for a longer period of time can also be regarded as a long-lasting change of the market structure that needs to be approved by the Antimonopoly Office. 

In accordance with the European Commission’s Consolidated Jurisdictional Notice, change of control may be considered temporary – and therefore not require merger filing – in the case of a transaction divided into steps.

An example is where several undertakings jointly acquire control of another undertaking but, according to a pre-existing plan, split the assets of the undertaking between themselves immediately after completion. In that situation, the temporary joint control will not be subject to merger filing, but the split-up of the assets may require one or several merger filings.

Another example of temporary control is when joint control is established for a limited period before the acquirer obtains sole control, for instance because the seller has agreed on an earn-out payment and the seller retains important veto rights for a limited period. Generally, if the period does not exceed 1 year, only the acquisition of sole control may be subject to merger filing.

In general, the Antimonopoly Office in practice takes into account guidance provided in the European Commission’s Consolidated Jurisdictional Notice.

Control may also be considered temporary in the situations mentioned under 1) and 2) in topic 20.

20) Special industries, owners or types of transactions

A merger resulting from the acquisition of control must be of a permanent (structural) nature. An acquisition of control is not subject to the notification obligation under the Slovak Act on the Protection of Competition in the following cases: 

Banks, insurance companies and other financial institutions

Temporary acquisition of securities by a bank, insurance company or other institutions, which operate in securities trading on their own account or on the account of others. The bank, insurance company or other institutions must acquire the securities with a view to reselling them. Such a transaction does not need to be notified, if

  • the bank, insurance company or other institutions does not exercise voting and other rights with a view to determining the competitive behaviour of that undertaking or 
  • it exercises these voting rights only with a view to preparing for the sale of the undertaking or part thereof or the sale of securities, provided that this sale is effected within one year of the date of acquisition of the securities and through this sale it loses control over this undertaking or part of it or over several undertakings or parts of them.  

Based on an undertaking’s request, the Antimonopoly Office shall issue a decision through which the one-year period may be extended if it is proven that the sale of securities was not possible within this period. 

Liquidation, bankruptcy etc.

Temporary acquisition of control over the undertaking or part of it or over several undertakings or parts of them ensues from special legislation, such as liquidation of a company (Sections 70 to 75 of Act No. 513/1991 Coll., Commercial Code, as amended) or assignment of a trustee in bankruptcy (Sections 40 to 43 of Act No. 7/2005 Coll., on Bankruptcy and Restructuring, as amended by Act No. 348/2011 Coll.).

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

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, or where they operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but there is a simplified procedure available if there is no overlap (see topic 33).

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

As a consequence of the EU "one-stop shop" principle, the Slovak 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 Antimonopoly Office. There are no other exemptions.

Merger control even if thresholds are NOT met

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

No, the Antimonopoly Office 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?

No.

Referral to and from other authorities

26) Referral within the jurisdiction

No, the Antimonopoly Office is the only state authority which has the power to enforce the Slovak Act on the Protection of Competition including the merger regulation contained therein.

27) Referral from another jurisdiction

The Antimonopoly Office cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

The European Commission may refer a merger or a part of a merger to the Antimonopoly Office. In that case, the Antimonopoly Office may handle the merger even if the thresholds for merger notification in the Slovak Republic are not exceeded. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the Antimonopoly Office will handle the strictly Slovak aspects.

A referral of a merger from the European Commission may be requested either by the Antimonopoly Office or by the merging parties.

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 be made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29).

The Antimonopoly Office 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 (No. 139/2004) but affects trade between Member States and threatens to significantly affect competition within the territory of the Slovak Republic. Such a request shall be made within 15 working days of the date on which the merger was notified to the Antimonopoly Office. 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 Antimonopoly Office 
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger be referred to the Antimonopoly Office, provided that the merger may significantly affect competition in a distinct market in the Slovak Republic. If the Antimonopoly Office does not oppose such 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 Antimonopoly Office, decide to refer a merger that has already been notified to the European Commission to the Antimonopoly Office. 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 Antimonopoly Office 
If a merger is not subject to EU merger control but is subject to merger control in the Slovak Republic and at least two other EU member states, the parties may request that a single merger notification be 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 the Slovak Republic 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

There is no specific deadline for the notification of a transaction (the parties may ultimately decide not to implement the deal at all). As a general rule, a merger notification should be filed when a binding agreement has been concluded, a takeover bid has been published or a controlling interest has been acquired. 

Parties may notify a transaction before a binding agreement has been concluded. In practice, the Antimonopoly Office typically accepts a pre-final draft of the SPA. 

Either way, the transaction may not be implemented before the merger has been approved by the Antimonopoly Office.

31) Pre-notification consultations

The Antimonopoly Office encourages pre-notification consultations. The subject of the consultations is mainly procedural issues, particularly whether the transaction is subject to merger control. The consultations also often cover the completeness of the merger notification, especially of the notification questionnaire, and formal requirements such as the scope of certified translations that need to be provided. 

The pre-notification consultation is not an obligatory stage of merger-review proceedings and may even be unnecessary in straightforward cases. On the other hand, in a majority of cases pre-notification is recommended in order to ensure the smooth course of the proceedings. The deadlines for the Antimonopoly Office will only apply after the formal submission. 

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

The Slovak Act on the Protection of Competition explicitly provides for a specific exemption from the stand-still obligation in case of mergers which are to be implemented on the basis of a public takeover bid as a result of which control is acquired from different subjects, provided that the merger notification is immediately filed and the voting rights are not exercised, or they are exercised only to maintain the full value of the investment by way of individual exemption granted by the Office. 

33) Forms available for completing a notification

There are two forms available: one for simplified notification and one for full notification. The forms are only available in the Slovak language. 

Simplified notification is possible in the following cases:

  1. Change of quality of control: the undertaking acquires sole control over another undertaking or part thereof, in which it has held a joint control so far.
  2. No overlap of activities of the parties: undertakings concerned do not operate on the same relevant market or on any possible alternative definition of the relevant market and they do not operate on a vertically connected market (downstream or upstream) or any possible alternative definition of a vertically connected relevant market. 
  3. Market share thresholds: the combined market share of the undertakings concerned in the relevant market or in any possible alternative definition of the relevant market does not exceed 15% (horizontal merger), and at the same time market share in every vertically connected market (upstream and downstream) or any possible alternative definition of a vertically connected relevant market does not exceed 30% (vertical merger).

Note, however, that the Antimonopoly Office may always request a full notification, even if the conditions for simplified notification are present, and even after having accepted and declared a simplified notification complete. In particular, the Antimonopoly Office may conduct the full assessment in the following cases:

  1. the definition of the relevant markets and/or calculation of the market shares poses unusual difficulties;
  2. the specific circumstances set out in the Commission’s Guidelines for the assessment of horizontal mergers or in the Guidelines for the assessment of non-horizontal mergers are present;
  3. the merging undertakings operate in close/neighbouring markets (i.e. complementary products purchased by the same set of customers), especially when one or both undertakings concerned have an individual market share over 30%; 
  4. a company acquires sole control over a joint venture in which it has so far participated in joint control, provided that the strategic position of the company acquiring sole control is significantly strengthened;
  5. the Antimonopoly Office or the Commission did not assess a previous acquisition of control in a joint venture, which is party to a concentration;
  6. the merger consists of acquisition of joint control over a joint venture which may lead to the coordination of the commercial behaviour of the parties; 
  7. the notifying party requires an assessment of whether a potential restriction of competition may be considered an ancillary restraint; and
  8. a third party raises justified concerns and a preliminary assessment concludes that a concentration may lead to a weakening of effective competition. 

34) Languages that may be applied in notifications and communication

Notification and communications are in Slovak only. 

35) Documents that must be supplied with notification

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

  1. The notification questionnaire;
  2. Extract from the Commercial Register or other similar register (not older than three months) of the parties to the transaction.
  3. Documents which established or will establish the transaction or documents certifying the existence of the transaction;
  4. Articles of Association of all parties (translation not required);
  5. Annual reports including the audit of yearly financial statements for the last finished accounting period, provided that the notifying party is under an obligation to conduct the audit pursuant to special legal regulations;
  6. Consolidated financial statements for the last finished accounting period provided that the parties are under an obligation to compile consolidated financial statements pursuant to special legal regulations;
  7. Analyses, reports, studies, surveys, and any comparable documents (if any) prepared for any member(s) of the board of directors, or the supervisory board, or any other person(s) for the purpose of assessing or analysing the transaction with respect to competitive conditions, competitors (actual and potential), the rationale of the transaction, potential for sales growth or expansion into other product markets or geographic markets, and/or general market conditions;
  8. Confirmation of the payment of the administrative fee;
  9. Affidavit on veracity of information provided to the Antimonopoly Office; 
  10. Non-confidential version of the notification questionnaire; and
  11. Notification in electronic form.

The Antimonopoly Office may request additional documents, for the purposes of both simplified and full notifications. In particular, the organigrams of the ownership structure of the undertakings concerned or any documents relating to market analysis and market share calculations are welcome.

36) Filing fees

The filing fee for any notification (whether full or simplified) is EUR 5,000. The filing fee should be paid on the date of the filing at the latest. 

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

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited (see topic 39). Please also see topic 32 regarding public takeover bids.

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

Yes, under the Act on the Protection of Competition, the Antimonopoly Office may exempt the parties from the prohibition on implementation before approval.

The notifying party may apply for an individual exemption from the stand-still obligation. The application must include sufficient and concrete reasoning with evidence that a delay in the implementation would result in major damage or other significant detriment to the parties to the transaction. The notifying party also has to specify to which extent the exemption is sought. The Antimonopoly Office is obliged to decide on granting an exemption within 20 days from delivery of a request. 

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

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

It is crucial that due diligence and information exchange do not amount to an anticompetitive agreement by object or by effect before the Antimonopoly Office delivers its clearance decision.  

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 cause of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

The Antimonopoly Office does not provide any explicit guidance on this matter.

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

The Act on the Protection of Competition does not provide for the possibility of a carve-out.

42) Consequences of implementing without approval/permission

The parties may be fined for implementation without approval and for failure to notify the transaction. The amount of the fine may be granted for both infringements simultaneously and will be fixed based on the nature, gravity and duration of the infringements. The final amount of the fine cannot exceed 10% of the each party’s turnover.

Furthermore, the Antimonopoly Office may impose an order to restore the level of competition before implementation, especially to divest the assets acquired by the merger. However, the Antimonopoly Office has not used such a step in its practice yet. 

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

The Antimonopoly Office has issued Guidelines on pre-notification contacts in the procedure of merger assessment providing guidance on this initial phase of the merger control process. It is advisable to inform the Antimonopoly Office of the intended transaction at an early stage and to enter into pre-notification consultations that will include submitting one or more draft notifications. 

No set duration or deadline.

Phase I:

During the first days after the filing, the Antimonopoly Office assesses the completeness of the filing and sends a notice of initiation of the proceedings to the notifying party. The Antimonopoly Office also publishes information about notification on its website and in the commercial journal.

The merger is either approved or it is decided to initiate a phase II investigation of the merger, or it is decided that the merger is not subject to the Antimonopoly Office’s approval or that it is not a merger within the meaning of Section 9 of the Slovak Act on the Protection of Competition.

25 business days from the initiation of the proceedings for both simplified and full notification. 

The clock stops upon delivery of the request for further information and resumes upon provision of the required information.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

Normally, the Antimonopoly Office sends a letter expressing its concerns (the reasons why it is opening a phase II review). The Antimonopoly Office also invites the notifying party to offer conditions/commitments. The notifying party subsequently has to provide the Antimonopoly Office with a proposal of commitments within 30 business days from delivery of the Antimonopoly Office’s call.

The investigation is likely to involve detailed market surveys and economic analysis. 

90 business days from the delivery of a letter expressing concerns.

Extension:

30 business days from the call of the Antimonopoly Office to offer conditions/commitments 

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

Similarly to the EU Merger Regulation, the so-called SIEC test is used for this purpose, i.e. a concentration which would not significantly impede effective competitionin the market, in particular (but not exclusively) as a result of the creation or strengthening of a dominant position, shall be declared compatible with the market.

Various factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defence) and whether one of the parties is likely to fail as an independent business (failing firm defence).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

When assessing effects of a joint venture, the Antimonopoly Office also analyses whether the general prohibition on anti-competitive agreements apply. If a joint venture passes the SIEC test and does not amount to a prohibited anti-competitive agreement, the Antimonopoly Office shall declare the concentration compatible with the market.

47) Decisions and remedies/commitments available

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

If the Antimonopoly Office expresses serious concerns about the merger, it invites the notifying party to offer conditions/commitments. The notifying party subsequently has to provide the Antimonopoly Office with a proposal of commitments within 30 business days from delivery of the Antimonopoly Office’s call.

Commitments may take any form, and they can be either structural or behavioural and with or without time limitations. In practice, most commitments are structural as they are the highly preferred alternative. 

The Antimonopoly Office may order a divestment of the businesses or any other measure capable of restoring competition, if the parties do not comply with the conditions/commitments contained in the approval.

Publicity and access to the file

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

The Antimonopoly Office will generally make a public announcement when it has received a merger notification and again when a decision has been issued. The Antimonopoly Office also publishes a non-confidential version of the decision on its website within a few days from the publication that a decision has been issued. The level of detail of decisions varies considerably.

The time and content of announcements are not usually coordinated with the parties. To protect trade secrets, the parties are requested to provide a non-confidential description of the transaction with the notification and to identify any confidential information in the notification and the final decision.

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

The merging parties:

The merging parties have a right to access the file, which includes correspondence with third parties that the Antimonopoly Office may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority may redact third parties’ confidential information. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Third parties generally do not have access to the file. In theory, there is a possibility for a third party to ask the Antimonopoly Office to access the file. In such a case, it must provide a justification for its request (e.g. that a decision may influence rights or obligations of the given third party). This does not happen in practice, and the Antimonopoly Office itself is reluctant to provide access to the file for third parties.

Judicial review

50) Who can appeal and what may be appealed?

The basic rule is that it is only the party to the proceedings who can appeal the Antimonopoly Office’s decision issued in the first instance. The appeal will be decided by the Council of the Antimonopoly Office (i.e. the second instance decision).

Subsequently, an action against the Council’s decision may be brought before the Regional Court in Bratislava.


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