Merger control (along with competition law in general) is rather new phenomena in east Europe. It traces back in early 90's, after deep and complex reforms of economies and societies[1]. Development of Competition law in Croatia started somewhat later than in other east European countries, in late 90's. First Competition Act was enacted in 1995[2], but it took two more years before its implementation started in practice.
On October the 1st 2010 new Competition Act (CA) in Croatia came into force[3]. This is third Croatian Competition Act dedicated to regulation of competition in the market. On this occasion, it seemed appropriate to give critical overview of most important developments of Competition law in Croatia but as well to discuss most current novelties in Competition law in Croatia introduced by new Competition Act. Since Competition law is broad area of law (it incorporates cartels, abuse of dominance, mergers and state aid) this paper is dedicated to one segment of competition law, to merger control only.
In my paper I will address the most important features of Croatian competition law in connection to the mergers. Appropriate comparison with the EU competition rules will be made as well as reflections on new solutions on merger control introduced by new Competition Act.
Merger control in Croatia has rather short history. Merger control officially started in 1995 when the first Competition Act was enacted. But, it actually started in 1997, after Croatian Competition Agency (CCA) was established and after it started to work[4]. First CA reflects the time in which it was enacted. At the time, EU Council Regulation 4064/89[5] was in force. So in connection to the mergers Croatia followed legislative model accepted by Regulation 4064/89. That was good, because at the very beginning of implementation of merger control, Croatia integrated in its legal regime all of the most important legal instruments for effective merger control such as mandatory notification requirements, annual turnover treshold as indicator of market strength, two phase assessment procedure etc. The first CA was in force until year 2003 when new CA was brought. This new Code resulted with modernization of competition law in line with changes that took place in EU. But also, it is in a way an obligation taken by Stabilization and Association Agreement (SAA)[6] which was signed between Republic of Croatian and EU in 2001, and by which Croatia took obligation to harmonize its legislation with acquis communautaire, among what also competition law rules[7].
In that sense, the 2003 CA presents first comprehensive modernization of Croatian Competition law and its adjustment to EU legal framework. In connection to the mergers, 2003 CA regulated following: 1/ notion of concentration explaining when concentration occurs (article 19), 2/obligatory notification requirement and form of notification (article 22), 3/ assessment procedure (article 25) 4/CA decisions in connection to notified concentrations 5/incompatible concentration 6/CA authorities in case when concentration was realized contrary to CA decision, and some other procedural issues. This CA marked significant period of Croatian merger control. In period between 2003 and 2006 Croatia faced intensive merger wave. Significant number of mergers were assessed according to the rules of that CA.
In period between 2003 and 2005, after the 2003 CA was enacted, a significant number of other accompanying documents were also enacted. First in 2004 Competition Agency enacted Regulation on notification and assessment of concentrations[8] and Regulation on the definition of relevant market[9]. Besides that, CCA also published three Guides dealing with mergers only, Guide on the procedure for the assessment of concentrations[10], Guide on the procedure for the assessment of concentrations in the electronic media market[11], and Guide on the procedure for the assessment of horizontal mergers[12]. All those documents were modeled after EU competition law rules.
Last Competition Act in Croatia, came into force only recently, on October the 1st 2010. One of the most important novelties in new CA are new CCA authorities in area of sanctions (fines). According to the new rules CCA is entitled to impose fines for the infringements of the provisions of Act, in particular in case of mergers/ concentrations as well as in case of abuse of dominance and cartels[13]. So far, rules regulating sanctions were the weakest
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point of Croatian competition policy[14]. This novelty should enable quicker and more efficient punishment procedure. But this new CA also brought some significant changes in area of merger control which will be elaborated further on in this paper.
Merger control as part of competition law and policy has specific task of preventing the creation of market structures which can result in dominant position on the market of one or more undertakings. In that sense, merger control applies only to certain undertakings, usually those with significant market power, whose business combinations can have negative impact on free and undisturbed market competition. Since concept of «undertaking» is central for establishing a merger control in particular case, there is a justified need to define precisely who is considered to be undertaking, particularly having in mind differences that exist in different European states in connection to business types and business formation. In attempting to define notion undertaking most European competition law jurisdictions rely on definition given in EU competition law. According to well established EU case law, the term undertaking refers to «any entity engaged in an economic activity regardless of its legal status and the way in which is financed»[15] From above it is obvious that in defining the concept of undertaking ECJ accepted functional approach meaning that for defining some legal or natural person as undertaking, legal form of undertaking or his legal status it is not of significant importance[16]. The crucial factor for defining some person as undertaking is nature of his/her activity. If his/her activity can be considered as economic activity, and that is the one done for remuneration, than this person is considered to be undertaking. The term undertaking, for the purpose of competition rules must be wide enough to cover different business forms in which business is done, and in that sense, to enable effective merger control on EU level.
In defining the notion undertaking, Croatia followed EU concept. In article 3 of CA it stands that. Undertakings within the meaning of this Act shall mean companies, sole traders, tradesmen and craftsmen and other legal and natural persons who are engaged in a production and/or trade in goods and/ or provision of services and thereby participate in economic activity.
The notion undertaking also applies to state authorities and local and regional self-government units where they directly or indirectly participate in the market and all other natural or legal persons, such as associations, sports associations, institutions, copyright and related rights holders and similar who are active in the market. The definition of an undertaking referred to under paragraph (1) of this Article also apples to any persons who are engaged in a direct or indirect, permanent, temporary or single participation in the market, irrespective of their legal form or ownership structure, form of financing and intent or effect to make profit, notwithstanding their place of establishment or residence within the territory of the Republic of Croatia or outside its territory. And finally, notion undertakings also covers entities which are entrusted pursuant to separate laws with the operation of services of general economic interest, those having the character of a revenue-producing monopoly, or, which are by special or exclusive rights granted to them allowed to undertake certain economic activities, insofar as the application of this Act does not obstruct, in law or in fact, the performance of the particular tasks assigned to them by separate rules or measures and for the performance of which they have been established.
Croatian competition agency (CCA), who is in charge for competition law and policy in Croatia, since its establishment in 1997, used quite broad interpretation of notion undertaking, enabling that way efficient competition policy in connection to all three areas of competition policy- mergers, cartels and abuse of dominant position. Through time it developed substantial case law towards this and other competition law issues[17].
As mentioned above, the body in charge for competition law and policy in Croatia is Croatian Competition Agency (CCA). CCA was founded in 1995 and started to work, two years later, in 1997. It is independent legal entity with public authority. It carries out its work in line with powers granted to the CCA under the Competition Act[18]. According to the Competition Act, CCA is entitled to intervene in any case where there is evident prevention, restriction or distortion of competition by businesses, whether thorough price-fixing, abusing of dominant position or merger. Concerning mergers, CCA has all necessary powers to control all business operations resulting with mergers, as well as to prevent those mergers resulting with significant impede of effective competition. In particular CCA has powers
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to block proposed merger, to initiate proceeding for assessment of compatibility of proposed merger, to assess impact of mergers on market competition, to propose and impose structural or behavioural remedies, to collect all data related to particular merger, to examine the books and other records related to the business to impose fines for infrigements of the provisions of CA, etc. Since 1997 until now CCA assessed some 248 mergers. Only one merger was forbidden (or declared incompatible). In some 14 cases (or 6%), structural or behavioural remedies were imposed[19].
This numbers show that Croatian competition policy towards merger was rather liberal. But if we compare those numbers with statistical data of surrounding countries or EU, we can see that mergers policy of those countries is not to restrictive as well[20]. In EU, less than 1% of all notified mergers are declared incompatible (forbidden). Structural or behavioural remedies were imposed in some 6-7% of mergers. Most mergers are cleared[21]. This (liberal) approach is often justified by necessity of mergers in global competitive environment, as well as increased competition on domestic market. Besides that, mergers are, contrary to cartels and abuse of dominance, usually connected with number of benefits for the consumers. Therefore, they are often viewed as beneficial for consumers and useful for enhancing competition. It is obviously that from figures above that CCA also excepts such explanation as rational.
For efficient merger control it is of utmost importance to define precisely which business operations fall under the notion/ concept of mergers. Quite different issue is which mergers we want to control. But to define which mergers we want to control, we must firstly define which business operations can be considered as merger of concentration. According to the legal theory, merger operations can be divided in two main categories: de iure mergers, such as acquisitions, takeovers[22], etc. and de facto mergers.
De iure mergers are business operations often regulated by Corporate law rules. These business operations are transparent, evident and they can easily be recognized by competition law rules.
De facto mergers are those business operation or business combination where there is no formal operation resulting with the de iure merger, but we have factual relationship of subordination of one business entity to another. Said in a different way, one undertaking is having control over the other or dominant influence based on the fact that it has majority of voting rights, controlling interest, or other contractual relationship which enables him to influence behaviour of subordinated undertakings. De facto mergers are sometimes real challenge for competition law since they are not as transparent as de iure mergers. Effective competition law should be able to identify and cover both types of mergers. Therefore in foreign jurisdictions as well in EU competition law, broad definitions are used to cover different business operations resulting with merger between previously independent undertakings[23].
What is the situation with Croatian competition rules? In article 15 of CA it says that: A concentration between undertakings shall be deemed to arise where a change of control on a lasting basis results from:
1) merger association of two or more independent undertakings or parts thereof;
2) acquiring control or decisive influence of one or more undertakings over one or more other undertakings, or of one or more undertakings or a part of an undertaking, or parts of other undertakings, in particular by: acquisition of the majority of shares or share capital, or obtaining the majority of voting rights, or in any other way in compliance with the provisions of the Company Law and other rules.
From above definition we can conclude that the concept of merger/ concentration relies on concept of control. This definition is in Croatian Competition law introduced by new Competition Act and is tailored after EU Competition rules[24]. The concept is wide enough to cover both types of mergers (de iure and de facto mergers). According to that definition, decisive factor for conclusion that merger occur is that there is lasting change in control between previously independent undertakings. As a result of merger, previously independent undertakings create single economic unity.
In that sense it is less important that change in control comes as a result, from example, merger or other contractual relationship. Croatian definition of merger further also covers joint venture operations[25]. The creation of a joint venture by two or more independent undertakings performing on a lasting basis all functions of an autonomous economic entity shall constitute a concentration[26]. On the other hand, regular business activities of credit institution or investment funds connected with their investments in companies securities are not considered as mergers[27].
The main aim of competition policy in connection to the mergers is to recognize and to prevent mergers
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which are potentially harmful for market competition. In that sense, contrary to competition law and policy in connection to abuse of dominant position and cartels, where competition rules are applied on undertakings ex post and after harmful act is committed, in merger cases competition rules, in the first place, provide ex ante merger control. Ex ante merger control, which is established through institute of mandatory notification, is one of the most important competition law institutes of merger control. It enables prevention of those mergers which are potentially harmful for free market competition. Once when merger is carried out, it is almost impossible to annul the effects of that merger. Therefore, mandatory notification rules provide relevant authorities, at appropriate time, with the information that certain merger is going to happen, enabling mentioned authority to assess particular merger in order to determine potential positive as well as negative impacts of proposed merger on free market competition.
But one should have in mind that merger operations are legitimate business strategies. Therefore it is not possible nor necessary to control all merger operations and between all undertakings. Competition law is aimed only at mergers between largest and most significant market players, whose business combinations can have negative impacts on market structure and market competition. Only those mergers are subject of mandatory notification requirements. Criterias for mandatory notification differ from country to country. But as a result of harmonization of competition law on EU level, most European countries use turnover threshold as indicator of market power and trigger for mandatory notification rules.
Which mergers/concentrations in Croatia fall under mandatory notification rules?
1) those where the total turnover (consolidated aggregate annual turnover) of all the undertakings - parties to the concentration, realized by the sale of goods and/or services in the global market, amounts to at least HRK 1 billion in the financial year preceding the concentration and in compliance with financial statements, where at least one of the parties to the concentration has its seat and/or subsidiary in the Republic of Croatia, and
2) the total turnover of each of at least two parties to the concentration realized in the national market of the Republic of Croatia, amounts to at least HRK 100,000,000 in the financial year preceding the concentration and in compliance with financial statements[28].
So as we can see, as in other European jurisdictions, CCA is entitled to control all mergers, domestic and foreign[29], between undertakings of certain size and market power, which can create certain impacts on Croatian market[30]. This old/new rule in new Croatian Competition Act is often criticized from the side of competition law experts. The issue is always about the level of threshold and should it be lower or higher. This issue is in my opinion, in sphere of economic analysis. Economic analysis should provide us with optimal threshold level as criteria for mandatory notification for particular economy. If the threshold is too low CCA will be overloaded with assessing too many mergers, without real justification for that. On the other hand, if the threshold is too high, number of problematic mergers can escape merger control. But this problem is not Croatian problem only. Other countries are facing the same challenge and trying to find the best possible solution.
While discussing the issue of mandatory notification we should also say a few words about rules regulating prenotification. Rules on prenotification enable undertakings to inform relevant competition authority about their plan to merge even before they took any formal action which will result with merger. This way, they save time and solve problem in problematic mergers easier and in early stage, escaping problems that might arise once when merger is already carried out.
Rules of prenotification are introduced in merger control in Croatia with this last Competition Act. This is considered to be an important novelty for undertakings because they can now inform CA about the planned merger before the implementation of concentration/ merger, and that is following the conclusion of the contract or following the publication of the invitation to tender[31]. This possibility already exists in EU Competition law. It is incorporated in article 4 of Regulation 139/04. In that sense, the new rules on prior notification of concentration/merger are just another step in achieving full harmonization of Croatian competition law with EU competition law requirements.
After the mandatory notification, follows assessment procedure. Assessment procedure is complex economic and legal procedure aimed at finding out whether proposed merger is going to result with significant impede of effective competition or dominant position of parties of merger. If the merger will as its effect have significant impede of effective competition, there is great chance that merger will be prohibited and/or that structural or behavioural remedies will be imposed. From above it is obvious that Croatia accepted SIEC test[32] in assessing merg-
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ers/ concentrations. SIEC test is another novelty introduced in Croatian Competition law with new Competition Act. SIEC test substituted, so called "dominance test", which is also abandoned in EU competition rules.
Concerning assessment procedure, in Croatian competition law assessment procedure doesn't differ much, if at all, from assessment procedure applied in EU or any other EU country. It is two-phase procedure, during which number of different issues will be examined. In the course of assessment of a concentration the Competition agency shall in particularly define following:
1) the structure of the relevant market, actual and potential future competitors in the relevant market within the territory of the Republic of Croatia or outside this territory, supply and demand structure in the relevant market and its trends, costs, risks, economic, legal and other barriers to entry to or withdrawal from the market;
2) the position in the market and the market share, economic and financial power of the undertakings in the relevant market, the level of competitiveness of the undertakings and possible changes in the business operations of the parties to the concentration and alternative sources of supply for the buyers resulting from the implementation of the concentration concerned;
3) the effects of the concentration on other undertakings, and especially relating to the consumer benefit, such as: decrease in prices of goods and/or services, shorter distribution courses, lowering of transportation, distribution and other costs, specializing in production, technological innovation and other benefits directly deriving from the implementation of the concentration[33].
In order to determine the above fact CA has broad powers, for example to ask for any data or document which it might find necessary for the establishment of the facts relevant for bringing a fact based decision. Assessment procedure ends, when, within deadlines prescribed by the Competition Act, Croatian Competition Agency brings formal decision about notified merger. Agency will also notify undertakings - parties of merger, about her decision.
Competition Act prescribes three types of decision that Competition Agency can bring following notification and assessment procedure[34]. Firstly, merger/ concentration can be declared compatible, meaning that merger is cleared and that undertakings are allowed to proceed with merger. This decision CA can bring after first or second phase procedure. Secondly, merger/concentration can be declared conditionally compatible (compatible with commitments). In this case structural or behavoioural remedies are imposed. Parties of the merger can continue with the merger operations only after they make necessary restructuring of their business or after they accept to behave in certain way (for example to allow access to key infrastructure to their competitors or not to acquire further control in competitors etc). Thirdly, CA can prohibit concentration or declare it incompatible[35]. These means that proposed merger will result in significant impede of competition or that parties of the merger will gain dominant position at the market after the merger, because of what, merger operation is prohibited.
Most of proposed mergers are non-problematic mergers. Only small number of mergers are prohibited. As mentioned before, so far Croatian CA prohibited just one merger[36]. But even that merger was later allowed, after parties of the merger agreed to accept some structural and behavioural remedies. But in some 6-7% of all assessed mergers in Croatia, structural or behavioural remedies were imposed. All those mergers were potentially problematic or prohibited mergers, but they could be allowed since there was appropriate remedy which helped in solving competition problem. Competition Agency was so far willing to accept or to propose remedy whenever possible, although Croatian legal theory (but legislation as well), lack substantial regulation on merger remedies. 2003 Competition Act modestly regulated merger remedies, with only few norms[37]. Situation is not much improved with new Competition Act.
New Competition Act regulates merger remedies with few norms only. Fundamental article regulating remedies is article 22 of CA. In article 22 (4) it says: «where in the course of the assessment proceedings the Agency finds that the concentration in question may be declared compatible only after necessary obligations and conditions are fulfilled, it shall without delay inform the notifying party thereof in line with Article 48 hereof. The notifying party shall than in the time period which may not exceed 30 days from the day of the receipt of this notice propose adequate commitments (whether behavioral and/or structural measures) and other conditions in order to remove the negative effects of the concentration concerned».
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Furthermore, in article 22 (5) it says: «The commitments referred to in paragraph (4) hereof may be proposed by the notifying party as early as in the prior notification of the concentration concerned». And finally, in Article 22 (5) it says that: «In the case referred to in paragraph (4) hereof the Agency may accept the measures - conditions, obligations and deadlines, proposed by the parties to the concentration, in their entirety or parts thereof, ifit establishes that the measures concerned are adequate to restore efficient competition. In the event that the Agency does not accept or just partly accepts the said remedies proposed by the parties to the concentration, it is authorized to define and impose other behavioural and/or structural measures, conditions, obligations and deadlines for the restoration of effective competition in the market».
Procedural issues and issues connected with implementation of measures are regulated in article 49 of CA. From above norms we can conclude that Croatian Competition law makes distinction between two basic types of remedies, structural and behavioural. Legal theory (comparative and Croatian as well) also mentions third type of remedy and that is quazi-structural remedy. Quazy-structural remedy is combination between the two previous types of remedies. Structural remedies are those remedies in which parties of the merger accept to restructure their business in order to remove competition concerns. EU Competition law mentions divestiture as the most known structural remedy[38]. Croatian Competition Agency Guide on the procedure for the assessment of concentrations also mentions divestiture as structural remedy, explaining that the term divestiture covers a group of measures used to remove competition concerns[39]. It also gives an example for those different kind of remedies which are structural in their nature[40]. Behavioral remedies are those remedies where parties of the merger accept to behave in a certain way or where they restrain from certain behaviour. According to comparative and Croatian legal theory and practice, behavioural remedies are less favourable remedies compared to structural remedies. The reason for that lays in fact that, when behavioural remedy is imposed, there is a need to establish long term supervision of implementation of that remedy. For competition authorities it is time consuming, expensive and as well as more complicated than to solve competition problem instantly and for good, and what is supposed to be final outcome of structural remedy.
Looking at CCA practice we can conclude that CCA so far used both types of remedies, as well as combination of them. In that sense I think that overall CA performance in connection with application for remedies is satisfactory. On the other side, I think more can be done in area of regulation of remedies. Cited norms are almost all we have in Croatian legislation concerning merger remedies. Since right choice of remedy and its implementation is quite complex issue I think that there is a need for further clarification and explanation of subject matter. In that sense, a separate document, dealing with merger remedies only, modeled after EU Commission Notice on Remedies or Merger Remedy Study should be enacted in Croatia as well. It would be of great help to undertakings dealing with merger involving remedies. Therefore, latest announcement of new Competition Agency regulation[41], which among the other issues, deals with the merger remedies, is welcomed. The purpose of new of Regulation is to make things more clear to undertakings, to simplify the procedure in connection to merger control in general. After all, the whole idea of new Competition Act was to improve, in general, implementation of competition law in Croatia.
This paper is dedicated to developments of Competition law in Croatia. In Croatia, as in other East European countries, which for decades had model of planned economy, it took time to transform economies, from non-market to market economies, but it also took time to raise awareness of public and undertakings of importance of vigorous implementation of competition law and policy. Years have passed before we realized that only vigorous and effective competition law and policy will help us to build strong and competitive market economy. But that era in now behind us. Competition law and policy in Croatia entered into phase of achieving full recognition. The proof for that is new Competition Act that came into force in October 2010.
New Competition Act brings number of novelties. It fully complies with EU competition law standards. It enables CCA to fight, in effective way, with hardcore cartels and abuse of dominance. New Competition Act also brings number of novelties in area of merger control (control of concentrations). Mergers are particularly sensitive area of competition law, since mergers, as business strategy, enable undertakings to restructure their business and to respond that way to challenges of global competition. Competition policy in area of merger suppress entrepreneurial freedoms. In that sense, merger control rules should take care and should be able to satisfy two aims. First one is to respect and understand the need of undertakings to merge in order to improve their market position, cut the expenses etc. The second is to establish a system of effective and optimal merger control, meaning to recognize and to prevent
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only those mergers which are potentially harmful for free and undisturbed market competition. In shaping its own competition law rules Croatia 14 years long experience in implementing competition law. Results of that experience is new Competition Act, whose successes or failures will be judged in time. ■
NOTES
[1] For example, Hungarian Competition Authority was established in 1990 by Act LXXXVI 1990, and it started to work on January the st 1991 First Competition Act is enacted in 1996 (Act LVII of 1996); In Poland, Act on counteracting monopolistic practices was passed on 24 February 1990 while the Office of Competition and Consumer Protection (UOKiK) was established in 1990 as the Antimonopoly Office.
[2] The Competition Act, Official Gazzete No. 48/95, 52/97.
[3] The Competition Act, Official Gazzete No. 79/2009
[4] Croatian Competition Agency was established by the decision of Croatian Parliament of 20 September 1995.
[5] COUNCIL REGULATION (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (available at: http://eur-ex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989R4064:EN:HTML)
[6] See on that: http://www.mvpei.hr/ei/default.asp?ru=226&sid=&akcija=&jezik=2
[7] Relevant SAA articles regulating harmonization of Competition law are articles 40., 69. and 70.
[8] Regulation on notification and assessment of concentrations (Official Gazzete 51/2004)
[9] Regulation on the definition of relevant market (OG 51/2004)
[10] Guide on the procedure for the assessment of concentrations, available at: http://www.aztn.hr/uploads/documents/tn/zakonodavni_okvir/Naputak_1.pdf
[11] Guide on the procedure for the assessment of concentrations in the electronic media market, available at: http:// www.aztn.hr/uploads/documents/tn/zakonodavni_okvir/Naputak_2.pdf
[12] Guide on the procedure for the assessment of of horizontal mergers, available at: http://www.aztn.hr/uploads/documents/tn/zakonodavni_okvir/Naputak_3.pdf
[13] This regulations are part of new, Chapter VIII of Competition Act. Those are mainly articles 60 to 65 of Competition Act. According to the CA there are two main types of fines, fines for severe infringements and fines for other infringements.
[14] See on that for example: Aktuell, Nr. 37, Herbst 2010, available at: http://kroatien.ahk.de/fileadmin/ahk_kroatien/Dokumente/Publikationen/AKTUELL/aktuell_37_1.dio.pdf, p. 8
[15] EJC: Case C-41/90, Höfner and Elser v. Macroton GmbH [1991] ECR-11979, para. 21
[16] See on that: V Louri, Undertaking as a Jurisdictional Element for the Application of EC Competition Rules, (2002) 29 Legal Issues of Economic Integration 2, 143-175
[17] CCA: Croatian Institute for Health Insurance v. Udruženje malog gospodarstva- grupacija ortopedske tehnike (1996). In this case a decision of Association of orthopaedist was declared as undertakings. Decision of Association was declared null and void when they agreed to offer same prices for all their products. In second case, Health center Dubrovnik (institution) was treated as undertaking (1997 UP/I-15). In more recent case, public undertaking (holding monopolistic position in the market) Ponikve d.o.o., which is in charge for water supply was also declared to be undertaking. (2005 ,UP/-030-02/2004-01/66)
[18] See more: http://www.aztn.hr/
[19] See on that: http://www.aztn.hr/uploads/documents/tn/godisnja_izvjesca/godisnje_izvjesce_AZTN_za_2009.pdf; (p.23-29); http://old.aztn.hr/pdf/izvjesca/Godisnje%20izvjesce%20AZTN%20za%202008.%20godinu.pdf ( p. 34)
[20] Statistical data for Hungary are available at: http://www.gvh.hu/gvh/alpha?do=2&st=2&pg=127&m170_act=5;
For merger control in Germany see: http://www.bundeskartellamt.de/wEnglisch/Fusionskontrolle_e/fusionskontrolle_eW3DnavidW2637.php
For merger control in Poland see: http://www.uokik.gov.pl/reports_on_activities.php
[21] See on that: http://ec.europa.eu/competition/mergers/statistics.pdf
[22] See more on that: Kecskés, Andras, European Rules on Hostile Takeovers. In: EUNICOP - Cross-border and EU Legal Issues: Hungary - Croatia (eds. Tímea Drinóczi & Tamara Takács), Pécs-Osijek, 2011. 261-278. Also see Kecskés, András - Halász, Vendel, A siker díja vagy a bukás ára? A vállalati vezetők javadalmazásának elmélete a pénzügyi válság tükrében. Jogtudományi Közlöny 2009. april 180-191.
[23] See for example: German Act Against Restraing of Competition (Gesetz gegen Wettberbsbeschränkungen), § 37; available at: http://www.bundeskartellamt.de/wEnglisch/download/pdf/GWB/110120_GWB_7_Novelle_E.pdf Council Regulation EC 139/04 on the control between undertakings (Article3); available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0139:EN:NOT
[24] See: Article 3, Council Regulation 139/04
[25] Article 15(3) and (6) of Competition Act
[26] Article 15 (3) Competition Act
[27] Article 15(5) CA
[28] Article 17 (1) CA
[29] As mentioned above, CCA is entitled to challenge domestic and foreign mergers. So, CCA will have competence to challenge merger even in case when all of undertakings, parties of the merger, are foreign companies under the conditions that the merger creates effect at Croatian market and that undertakings fall under the mandatory notification requirements.
[30] It should be noted that Competition Agency cannot challenge mergers which did not meet the turnover threshold criteria, even in a case when merger occurs between only competitors in the relevant market.
[31] Article 19(3) CA
[32] SIEC (Substantially impede effective competition)
[33] Article 21 (3) Competition Act
[34] Article 22(7) Competition Act
[35] Article 22(7) (3) Competition Act
[36] This was a concentration between UniCredito Italiano S.p.A, Zagrebačke banke d. d. and Alianz AG. See on that Competition Agency decision of 07. May 2002 (Klasa UP/I-030-02/2001-01/87). See on that also: http://www.hnb.hr/publikac/bilten-o-bankama/hbilten-o-bankama-10.pdf
[37] Article 26 (3), (4), (5)
[38] See: Commission Notice on remedies acceptable under the Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004; See also Merger Remedy Study, DG COMP European Commission, October 2005, available at: http://ec.europa.eu/competition/merg-ers/legislation/remedies_study.pdf
[39] Croatian Competition Agency Guide on the procedure for the assessment of concentrations, Croatian Competition Agency, 2003, p. 54.; available at: http://www.aztn.hr/uploads/documents/tn/zakonodavni_okvir/Naputak_1.pdf
[40] That would be sale of assets, sale of securities, sale of joint-venture etc.
[41] CCA just recently, in December 23 published Draft Proposal of Regulation on the procedure of assesment of concentrations in which Anex 4 is dedicated to merger remedies.
See: http://www.aztn.hr/uploads/documents/tn/uredbe/Uredba_o_nacinu_prijave_koncentracija_23-12-2010.pdf (text is currenty available only in Croatian language)
Lábjegyzetek:
[1] The Author is from Faculty of Law Osijek.
Visszaugrás
