1. Relevant legislation

Enterprise Act 2002 (as amended pursuant to the Enterprise and Regulatory Reform Act 2013) and related subordinate statutory instruments (“EA”).

The Digital Markets, Competition and Consumers Act 2024 (DMCCA), which became law on 24 May 2024, has made certain amendments to the EA. The CMA’s enforcement powers came into force on 6 April 2025 (excluding the regime for subscription contracts, expected to come into force in Spring 2026).

2. Authority

Competition and Markets Authority (“CMA”), The Cabot, 25 Cabot Square, London, E14 4QZ, United Kingdom (https://www.gov.uk/government/organisations/competition-andmarkets-authority)

The Digital Markets Unit (the DMU) was launched on 7 April 2021, to boost competition in online markets. The DMU is an administrative unit within the CMA that makes day-to-day decisions on the digital markets regime introduced by the DMCCA.

3. Types of transactions caught

Any transaction resulting in “two enterprises ceasing to be distinct”, whereby they come under common ownership or “control” – the latter concept entails (i) a controlling interest (de jure or legal control); (ii) de facto control (control of commercial policy); and (iii) material influence (ability materially to influence commercial policy, irrespective of shareholding).

Control can be acquired in stages (with each stage being caught) and joint ventures can be caught where more than one shareholder acquires “control” within the meaning of the regime.

The CMA already had jurisdiction to review foreign-to-foreign mergers with UK effects under the Enterprise Act 2002. The DMCCA did not expand this jurisdiction but introduced new mandatory reporting requirements and thresholds for certain large digital firms with Strategic Market Status. As a result of these changes, we can expect even more foreign to foreign mergers requiring notification with the CMA.

4. Thresholds

There are three alternative thresholds:

• Turnover test: The target’s UK turnover exceeds GBP 100 million;
• Share of supply test: The transaction results in the creation of, or increase in, a 25% or more combined share of sales or purchases in (or in a substantial part of) the UK of goods or services of a particular description;
• Acquirer-centric threshold (introduced by the DMCCA): captures transactions involving firms with a 33% UK market share and £350mn UK turnover where the target has a UK nexus (has some sales or activities in the UK).

As indicated below, following the introduction of the DMCCA, there will be an exception from jurisdiction where none of the parties to the transaction has UK turnover of £10 million or more.

The DMCCA has introduced new thresholds for mandatory merger reporting for ‘Strategic Market Status’ (SMS) firms. SMS undertakings possess similar characteristics to “gatekeepers” under the Digital Markets Act. SMS firms are those that are large digital platforms with entrenched market power in the UK. SMS firms must notify the DMU in the event of a merger where:

• the event results in the purchaser having qualifying status in respect of shares or voting rights in relation to the UK-connected body corporate, and
• the value of all consideration provided by the purchaser, whether before or as part of the events, for shares or voting rights in the UK connected body is at least GBP 25 million.

SMS firms must notify the DMU in the event of a joint venture agreement where:

• the expectation or intention is that the joint venture vehicle will be a UK-connected body corporate,
• one of the parties to the agreement has qualifying status in respect of shares or voting rights in relation to the joint venture vehicle, and
• the total value of:
  • all capital and assets contributed by the relevant party to the joint venture vehicle when it is formed, and
  • all other consideration provided by the relevant party, whether directly or indirectly, in relation to the joint venture vehicle,
    is at least £25 million.

An event results in ‘qualifying status’ where the event results in the percentage of shares or the voting rights increasing:

• from less than 15% to 15% or more,
• from 25% or less to more than 25%, or
• from 50% or less to more than 50%.

5. Exceptions

Note that the regime in the UK is voluntary, so there is never a formal requirement to notify. The risk of not notifying is that the CMA may investigate on its own initiative. However, the CMA will have jurisdiction to investigate mergers (and order that merging companies be held separate pending completion of the investigation) where the thresholds set out at above (Q4) are met.

A new small-mergers exemption applies to transactions where none of the parties concerned in the merger have UK turnover under GBP 10 million. Previously, even small mergers could be notifiable where the “share of supply” test was met.

6. Notifying party(-ies)

Either party can notify, although it is normally the acquirer that does so.

7. Submission deadline

Notification can be made at any time. It is not mandatory but in order to achieve certainty that a transaction will not be held up or unwound after completion, an acquirer may wish to make a notification in advance of completion and make completion conditional upon clearance.

Under the DMCCA, parties cannot complete a transaction until 5 working days after the DMU has officially accepted the merger report as sufficient (s 62 DMCCA).

8. Filing fee

The fee depends on the size of the target’s UK turnover:

• GBP 40,000 where turnover is below GBP 20 million;
• GBP 80,000 where turnover is GBP 20 to GBP 70 million;
• GBP 120,000 where turnover is GBP 70 to GBP 120 million;
• GBP 160,000 where turnover exceeds GBP 120 million.

There are limited exemptions from the filing fee, notably for small and medium-sized enterprises. The fees are payable in all cases when the CMA publishes either a reference decision or any decision not to refer.

9. Proceedings timetable

UK merger control procedure comprises of two main Phases, commenced by either notification or by the CMA deciding to investigate on its own initiative:

1) Phase I: Initial investigation – 40 business days, as follows:

Day 1: Process begins on the first business day after the CMA confirms it has received a complete Merger Notice or that it has sufficient information (for an own-initiative investigation).

The CMA then commences its information gathering activities and invites views from interested third parties (it may also contact third parties directly).

Days 15 to 20: The CMA holds “state of play” discussions with the parties (usually over the phone).

Days 25 to 35: An issues meeting is held in more complex cases or ones more likely to present issues. The CMA sends an issues letter in advance of the meeting.

At the end of Phase I the CMA will either clear the merger or refer it for an in-depth Phase II investigation. Alternatively, it may agree to clear the transaction subject to commitments from the parties in the form of ‘undertakings in lieu of reference’ approved by the CMA.

Undertakings in Lieu: Upon receiving proposed undertakings in lieu of a reference, a subsidiary timetable commences (suspending the Phase I ‘clock’), outlined in the CMA’s table at the Annex to this form.

2) Phase II: full investigation by the CMA – 24 weeks

The CMA has a statutory period of 24 weeks to conduct its full Phase II investigation and publish a report. This period can be extended by up to eight weeks at the CMA’s discretion.

The investigation includes both:

• Written submissions from the parties to the transaction and interested third parties;
• Oral hearings with the parties to the transaction and very significant third parties.

At the conclusion of Phase II, the CMA will decide whether to (i) clear the transaction unconditionally, (ii) clear with conditions or (iii) prohibit the transaction outright.

3) Remedies Implementation

If the CMA decides clearance can only be granted upon conditions (e.g. divestment of part of the merged business, or behavioural commitments such as price controls) it will have a further period of up to 12 weeks to finalise and implement these (i.e. to identify and conclude a sale to an ‘up front’ divestment buyer and/or appoint a “monitoring trustee” to oversee compliance with behavioural conditions).

4) Appeal

The merging parties may appeal the decision of the CMA to the Competition Appeal Tribunal (CAT). Appeal must be lodged within four weeks of the appellant being notified of the decision or of its publication (whichever is earlier). In determining an appeal of a merger decision by the CMA, the CAT must apply the same principles a court applies for judicial review (public law) applications. Third parties with an interest in the merger may also file an appeal against the decision.

10. Availability of pre-notification/informal consultation

Pre-notification discussions are possible and would typically take place around two weeks before notification. Should the parties wish to voluntarily notify their transaction, they can seek pre-notification discussions with the CMA (who will allocate suitable staff and/or even go on to appoint a case team, if initial contact leads to submission of a case team allocation form). Discussions will focus on the information that will need to be provided in a notification. Case teams may also be open to initial discussions around the likelihood of a reference to Phase II and the need for (and likely nature and extent of) remedial undertakings that might be proposed to address the CMA’s potential concerns.

11. Test for clearance/prohibition

The CMA must refer a transaction for a Phase II investigation if it considers that it may result in a substantial lessening of competition (“SLC”) on the market or markets concerned. The CMA must refer the transaction when it believes the transaction will more likely than not give rise to an SLC. If the CMA believes the likelihood of an SLC is significant, but below 50%, it has a wide margin of appreciation in exercising its judgment. In such cases, it has a duty to refer when it believes there is a realistic prospect that the merger will result in an SLC. If a reference is made, the CMA must decide whether the transaction has resulted, or may be expected to result, in an SLC.

12. Conditional clearance – remedies

See above – the parties can agree undertakings in lieu of reference at the conclusion of Phase I or, alternatively, the CMA can impose divestment or behavioural conditions on clearance at the conclusion of Phase II.

13. Stand-still obligation

There is no obligation on the parties to suspend a transaction and no outright prohibition on completing a transaction without clearance from the CMA. However, the CMA may:

• make an interim order to prevent or unwind pre-emptive integration by the merging parties and to ‘hold the parties separate’ unless and until the merger is cleared or cleared with conditions;
• issue a notice requiring a person to provide information or documents, or to give evidence as a witness (section 109 of the EA) and extend its statutory timetable to investigate for as long as the information remains outstanding (including, where relevant, the four month statutory deadline for completed mergers).

In addition, at Phase II, the buyer must not acquire any more shares in the target without first obtaining the CMA’s consent (section 78 of the EA). With completed mergers, the merged entity must obtain consent from the CMA before further integrating the constituent businesses (section 77, Enterprise Act).

For mergers between companies quoted on the London Stock Exchange, which are thus subject to the City Code on Takeovers and Mergers, a Phase II investigation by the CMA automatically causes the offer to lapse if it starts before the first closing date, or the date when the offer is declared or becomes unconditional (whichever is the later).

14. Failure to notify/obtain clearance

Notification is voluntary and there is no penalty for completing a transaction without clearance prior to a Phase II investigation. However, the CMA can impose fines for:

• failing to comply with interim measures (up to 5% of worldwide group turnover);
• either intentionally or without reasonable excuse, failing to comply with investigatory requirements, including to attend interviews or meetings with the CMA or to produce documents and other evidence (in the form of a fixed amount of up to GBP 30,000, by reference to a daily rate of up to GBP 15,000, or a combination of the two).

The CMA can also enforce any non-observance of clearance conditions or interim measures before the UK Courts (e.g. by way of injunction proceedings).

In addition, parties and their officers should be aware that it is a criminal offence to:

• Intentionally alter, suppress or destroy any information that the CMA has required to be produced under an information request notice; or
• Knowingly or recklessly supply false or misleading information to the CMA, the Office of Communications (Ofcom), Monitor or the Secretary of State in connection with their merger control functions.

15. Other key changes effected by the DMCCA

The DMCCA has introduced the further key changes to the competition law regime:

• the CMA can now launch a market investigation even if it has previously decided not to, provided that 2 years have passed or there has been a material change in circumstances (s 135 DMCCA)
• the CMA can accept binding commitments at any stage of the process (s 137 DMCCA).

1. Relevant legislation

Swedish Competition Act (2008:579), in particular Chapter 1 Section 9 and Chapter 4.
Swedish Competition Ordinance (2021:87), in particular Sections 12-14
The Swedish Competition Authority’s Regulations on the Notification of Concentrations between Undertakings under the Swedish Competition Act (2008:579)
Guidance from the Swedish Competition Authority for the notification and examination of concentrations between undertakings

2. Authority

Swedish Competition Authority www.konkurrensverket.se/en (in English)

3. Types of transactions caught

Chapter 1, Section 9

According to this Act, a concentration shall be deemed to arise if there is a change to the control of an undertaking of lasting basis as a consequence

of:

• 1. two or more previously independent undertakings merge, or
• 2. either one or more persons, already controlling at least one undertaking, or one or more undertakings acquire whether by purchase of securities or assets, by contract or by any other means direct or indirect control of the whole or parts of one or more other undertakings.
  The creation of a joint venture which on a lasting basis fulfils all the functions of an autonomous economic entity constitutes a concentration within the meaning of the first paragraph, point 2.

4. Thresholds

Chapter 4, Section 6

A concentration shall be notified to the Swedish Competition Authority if

• 1. the combined aggregate turnover in Sweden of all the undertakings concerned in the preceding financial year exceeds SEK 1 billion, and
• 2. at least two of the undertakings concerned had a turnover in Sweden the preceding financial year which exceeds SEK 200 million for each of the undertakings.

5. Exceptions

Chapter 4, Section 7

If the turnover requirement according to Chapter 4, Section 6, point 1 is fulfilled, but the turnover does not exceed what is laid down in Section 6, point 2,

1. the Swedish Competition Authority may require a party to a concentration to notify the concentration, where particular grounds exist for so doing, or

2. a party and other participants in a concentration may voluntarily notify a concentration.

Chapter 4, Section 8

If a concentration consists of several transactions between the same persons or undertakings, whereby parts of one or more undertakings are acquired, for the purpose of calculating the turnover the transactions which have taken place within a period of two years shall be treated as only one concentration.

6. Notifying party(-ies)

The party or parties acquiring control over an undertaking or a part thereof. If the concentration means that two or more undertakings consolidate, the notification shall be made by both of these undertakings.

7. Submission deadline

A notification of a concentration between undertakings shall be made before the concentration is implemented. Chapter 4, Section 10, second paragraph.

8. Filing fee

No.

9. Proceedings timetable

• The Swedish Competition Authority shall within 25 business days from a complete notification of a concentration decide to (i) carry out a special investigation of the concentration; or (ii) take no further action, Chapter 4, Section 11, first paragraph.
• If the Authority within the period in the first paragraph has received a commitment from a party to the concentration aiming to a decision where the Authority shall take no further action regarding the concentration, the period will be prolonged to 35 business days, Chapter 4, Section 11, second paragraph.
• If the Swedish Competition Authority has decided to conduct a special investigation, the Authority shall within three months of the decision being announced decide on (i) a prohibition or (ii) an obligation to take pro-competitive measures, or (iii) to take no further action regarding the concentration, Chapter 4, Section 13, first paragraph.
• Appeal proceedings; Parties with a legitimate interest have the right to appeal a decision to prohibit a merger to the Patent and Market Court. An appeal must be filed within three weeks after the Swedish Competition Authority’s final decision. The Patent and Market Court shall, as a general rule, decide the matter within six months of receipt of the appeal. The court’s decision can in turn, be appealed to the Patent and Market Court of Appeal.
• The Swedish Competition Authority may in certain situations suspend the time limits, e.g. if a party to the concentration has not complied with an order from the Swedish Competition Authority to, for example, provide certain information.

10. Availability of pre-notification/informal consultation

Yes. A notification of a concentration between undertakings may be made as soon as a party or some other participant can demonstrate that they intend to implement a concentration.

11. Test for clearance/prohibition

A concentration shall be prohibited if it significantly impede the occurrence or the development of effective competition within the country as a whole, or a substantial part thereof. During the examination of whether the concentration shall be prohibited, account shall particularly be taken of whether it creates or strengthens a dominant position.

12. Conditional clearance – remedies

If it is sufficient to eliminate the adverse effects of a concentration, a party to a concentration, instead of being subject to a prohibition, may instead be required

1. to divest an undertaking or a part of an undertaking, or

2. to take some other measure having a favourable effect on competition. An obligation under the first paragraph may not be more extensive than is required to eliminate the harmful effects of a restriction on competition.

13. Stand-still obligation

A party or other participant in a concentration may not take any action to implement the concentration before the Competition Authority’s investigation period has expired or the authority has made a decision.

14. Failure to notify/obtain clearance

Contrary to the provisions of the Merger Regulation, there are no sanctions in the form of fees or invalidity if a notification is not made. If a notification is not made the Competition Authority may require a notification, under penalty of a fine.

1. Relevant legislation

Ley 15/2007, de 3 de julio, de Defensa de la Competencia (Spanish Defence of Competition Act). Real Decreto 261/2008, de 22 de febrero, por el que se aprueba el Reglamento de Defensa de la Competencia (Spanish Regulation developing the Spanish Defence of Competition Act).

2. Authority

Comisión Nacional de los Mercados y la Competencia (National Commission of Markets and Competition or CNMC) www.cnmc.es

3. Types of transactions caught

Under Spanish Law, an economic concentration shall be deemed to arise when a stable change of control takes place regarding the whole or part of one or more undertakings resulting from:

a) The merger of two or more previously independent undertakings, or

b) The acquisition by an undertaking of control of the whole or part of one or more undertakings.

c) The creation of a joint venture and, in general, the acquisition of the joint control of one or more undertakings, when they perform on a lasting basis the functions of an autonomous economic entity.

For the above purposes, control shall be constituted by contracts, rights or any other means which, having regard to the considerations of fact or law involved, that confer the possibility of exercising decisive influence on an undertaking and, in particular by:

a) ownership or the right to use all or part of the assets of an undertaking,

b) contracts, rights or any other means which confer decisive influence on the composition, voting or decisions of the organs of the undertaking.

In any event, this control shall be considered to exist when the conditions set out in Article 4 of the Securities Market Act 24/1988, of 28 July, occur.

4. Thresholds

The control procedure shall apply to economic concentrations when at least one of the following two circumstances arise:

• a) When, as a consequence of the concentration, a share equal to or over 30% of the relevant market of product or service is acquired or increased within in Spain or in a geographic market defined within Spain.
• b) When the overall turnover in Spain of all the participants in the concentration exceeds, in the last financial year, the amount of EUR 240 million, provided that at least two of the participants individually generated in Spain a turnover exceeding EUR 60 million.

5. Exceptions

• For circumstance a) indicated above in 4.:
  • Exception: When the overall turnover in Spain of the acquired company or of the assets acquired in the last financial year do not exceed the amount of EUR 10 million, provided the participating undertakings do not reach, individually or jointly, a share equal to or over than 50% in any of the affected markets within Spain or in a geographic market defined within Spain.
• Concentrations under the EU scope according the European Council (EC) Merger Regulation are excluded from the scope of Spanish Competition rules, unless the concentration has been referred by the European Commission to the CNMC.

6. Notifying party(-ies)

• They are required to notify:
  • Together, the parties involved in a merger, in the creation of a joint venture or in the acquisition of joint control over all or part of one or more companies.
  • Individually, the party that acquires exclusive control over all or part of one or more companies

7. Submission deadline

Party (-ies) are obliged to notify any time in advance of the implementation of a concentration falling under the scope of Spanish Competition rules. A prohibition to implement the operation shall be in force until a decision (tacitly or expressly) of the CNMC is final (stand still obligation).

Exceptionally, it is possible for the CNMC to lift (fully or in part) the stand still obligation subject to motivated request made by the interested party(-ies) grounded, for instance, in the possible failure of the operation and the economic advantages to be lost if the concentration is not implemented before the authorisation is obtained.

8. Filing fee

The following filing fees apply:

• When the notification is made under the abbreviated filling form, a fixed fee of EUR 1530.15, subject to specific conditions provided by the Spanish Competition rules.
• When the notification is made under the ordinary filling form, according Spanish Competition rules:
  • A fee of EUR 5,502.15 when the overall turnover in Spain of all the participants in the concentration is equal or inferior to EUR 240 million.
  • A fee of EUR 11,004.31 when the overall turnover in Spain of all the participants in the concentration is equal or inferior to EUR 480 million.
  • A fee of EUR 22,008.62 when the overall turnover in Spain of all the participants in the concentration is equal or inferior to EUR 3,000 million.
  • A fee of EUR 43,944 when the overall turnover in Spain of all the participants in the concentration is over EUR 3,000 million and an additional amount of EUR 11,004.31 for every additional EUR 3,000 million in which said turnover exceeds the previous amount, up to a maximum limit of EUR 109,806. 

9. Proceedings timetable

After notification, the procedure could be finished on a first stage (Phase I) or, in determinate conditions, it could be subject to a second stage (Phase II):

• First Stage: The Council of the CNMC shall issue and notify its resolution within one month. The CNMC might decide to:
  • Authorise the concentration.
  • Subject the authorisation to commitments (proposed by the applicants).
  • Refer the file to the European Commission.
  • Deny the authorisation
  • File the procedure.
  • Initiate a Second Stage.
• Second Stage: The Council of the CNMC shall issue and notify its resolution within two months from the moment Second Stage started. The CNMC might decide to:
  • Authorise the concentration.
  • Subject the authorisation to commitments (proposed by the applicants).
  • Deny the authorisation
  • File the procedure.

All resolutions on Second Stage have to be referred to the Ministry of Economy and Treasury. If it is the case that the CNMC decided to commitments, The Ministry of Economy and Treasury will have 15 business days to issue a report on such issue. In such report, the Ministry of Economy and Treasury may decide to refer its decision to the Council of Ministers. Should it be the case, the Council of Ministers will have one month to issue its decision.

Any of the above mentioned terms can be suspended and extended in practice when the CNMC requests additional information during the procedure.

Appeal procedure:

• Administrative appeal against resolutions and acts issued by the Directorate of Investigation: 

The resolutions and acts of the Directorate of Investigation that produce defenselessness or irreparable damage to rights or legitimate interests can be appealed before the Council of the CNMC within 10 business days. The Council will reveal the file so that the parties can make allegations within a period of 15 business days.

• Appeals against resolutions and acts issued by the President and by the Council of the CNMC: 

Against the resolutions and acts of the President and the Council of the CNMC, a contentious-administrative appeal can only be filed before the National Court (“Audiencia Nacional”).

In the case of resolutions in the second phase in which the CNMC Council prohibits a concentration or subordinates compliance with commitments or conditions, they will not be effective or enforceable and will not end the administrative process. In these cases, a contentious-administrative appeal may be filed before the National Court.

10. Availability of pre-notification/informal consultation

Previously to the notification, the party (-ies) might r consult to the CNMC if:

• A determinate operation is a concentration according the Spanish Defence of Competition Act.
• A determinate concentration is over the threshold set by the Spanish Defence of Competition Act. 

It has to be considered that when, by the means of a consultation made by the party (-ies) or any other mean, the CNMC might investigate whether or not there is a concentration that has to be mandatorily notified under Spanish Competition rules.

11. Test for clearance/prohibition

• The CNMC may decide that the concentration may proceed because it does not give rise to serious doubts about its compatibility with Spanish Competition rules. Particularly, the CNMC shall base its decision in:
• Relevant market(s) structure.
• Relative position in the relevant market of the affected undertaking(s).
• Actual or potential competitive situation of the relevant market(s).
• The possibilities for the consumers and suppliers to access to the market or supply sources.
• The actual and/or potential situation of offer and demand and the ability of economic operators to compensate the market position of the affected companies.
• Economic efficiencies of the proposed concentration.

12. Conditional clearance – remedies

When a concentration can lead to obstacles to the maintenance of effective competition, the notifying parties, on their own initiative or at the request of the CNMC, may propose commitments to resolve those obstacles.

The commitments proposed by the notifying parties may be communicated to the interested parties or to third-party operators in order to assess their suitability to resolve the competition problems arising from the concentration as well as their effects on the markets.

13. Stand-still obligation

See above point 7.

14. Failure to notify/obtain clearance

In the case a concentration falling under the scope of the merger control procedure is not notified but implemented, such a concentration can be declared null and void, and its effects can be brought back to the moment before the merger took place.

Additionally, there are three types of penalties linked to the seriousness of the infringement:

• Minor infringements: fine up to 1 % of the overall turnover of the previous financial year of the company (-ies).
• Serious infringements: fined up to 5 % of the overall turnover of the previous financial year of the company.
• Very serious infringements: fine up to 10 % of the overall turnover of the previous financial year of the company.

1. Relevant legislation

• Competition and Consumer Protection Act of 16 February 2007 (unified text, OJ of 2021, item 275), articles 13-23 and 94-99 (English text: https://www.uokik.gov.pl/download.php?plik=7618; please note that although this is an official translation, it was not updated to the current text of the Act); NOTE: The act to be updated (ECN+ implementation pending)
• Council of Ministers Regulation of 23 December 2014 on notification of concentration of undertakings (unified text, OJ of 2018, item 367) (English text: https://www.uokik.gov.pl/download.php?plik=19887; please note that this official translation was not updated to the current text of the Regulation);
• Council of Ministers Regulation of 23 December 2014 on calculation of turnover of undertakings participating in a concentration (OJ of 2015, item 79) (no English text available)

2. Authority

Prezes Urzędu Ochrony Konkurencji i Konsumentów (the Chairman of the Office of Competition and Consumer Protection); https://www.uokik.gov.pl/; service in English: https://www.uokik.gov.pl/home.php

3. Types of transactions caught

• The acquisition by one or more undertakings, whether by purchase or subscription for shares or other securities, or through any other means, of direct or indirect control of one or more undertakings;
• the creation by undertakings of a joint undertaking;
• the merger of two or more undertakings;
• the acquisition by an undertaking of part of the assets of another undertaking (the whole or part of an enterprise) where the turnover generated by the acquired assets in Poland – in any of the last two financial years preceding the notification – exceeds the equivalent of EUR 10 million.

A transaction comes within the obligation if either of the turnover thresholds are reached (and in a foreign-to-foreign transaction, when the transaction applies to Poland)

4. Thresholds

The aggregate turnover of all participating undertakings in the financial year prior to notification in excess of EUR 1 billion world-wide or EUR 50 million in Poland; turnover calculation:

• for a merger of two or more undertakings and creation by the undertakings of a joint undertaking – the turnover of the entire capital group of the undertakings;
• for acquisition-of-control – the turnover of the entire capital group of the purchaser and only the turnover of the target and its subsidiaries (not the entire capital group of the seller);
• for acquisition-of-assets – the turnover of the entire capital group of the purchaser and the turnover from acquired assets.

In addition, aggregated turnovers as stated above will have to be increased by:

• turnovers of the companies controlled jointly (with other entities) by undertakings directly participating in the concentration, or by companies belonging to the capital group of the undertaking directly participating in the concentration, proportionately to the number of companies holding joint control;
• turnovers of the entities jointly controlling the capital group of the undertaking directly participating in the concentration, proportionately to the number of companies holding joint control.

The turnover is deemed to be the amount that is obtained in a preceding year from the sale of goods (excluding intra-group sales, rebates and discounts, VAT and other taxes related to turnover).

5. Exceptions

De minimis exemption thresholds:

• acquisition of control: the turnover in Poland of the target undertaking not exceeding the equivalent of EUR 10 million in each of the two years preceding the planned transaction; note: if the concentration based on acquisition-of-control over an undertaking or undertakings which belong to one capital group and simultaneously on acquisition of assets of an undertaking (or undertakings) belonging to the same capital group, such concentration would be exempted from the notification obligation if the turnover of the undertaking(s) subject to control and the turnover generated by the acquired parts of assets did not exceed in total the equivalent of EUR 10 million in each of the two years preceding the planned transaction;
• merger or creation of joint-undertakings: the turnover in Poland of either of the undertakings participating in the concentration (including their capital groups) did not exceed the equivalent of EUR 10 million in each of the two years preceding the planned transaction.

The de minimis exemption applies to concentrations irrespective of whether a dominant market position is created, or strengthened.

Other exceptions:

• intra-group transactions (transactions within one capital group);
• temporary acquisitions of shares intended for resale within one year by financial institutions and without exercising voting rights during that time (excluding voting on rights to dividends and rights enabling the preparation of the resale of shares);
• temporary acquisitions of shares for the purpose of securing debt (provided that the purchasers do not exercise voting rights – excluding rights enabling the sale of shares);
• acquisitions of shares in the course of insolvency proceedings (except if the undertaking intending to take over control or the one acquiring part of the assets is a competitor, or a member of a capital group to which competitors of the target company belong).

6. Notifying party(-ies)

• Acquisition of control or acquisition of assets: the undertaking acquiring control or the assets;
• Creation of a joint venture or a merger: all the parties to the joint venture or all undertakings that are merged.

7. Submission deadline

Before closing (see -> stand-still obligation), at any time after an intention to engage in a concentration is documented (by signing a letter of intent, etc.).

8. Filing fee

PLN 15,000/approx. EUR 3,210

9. Proceedings timetable

• Stage 1: 1 month
• Stage 2: if there is a complicated concentration that raises competition concerns and there is a need to survey the market, or either of the two: additional 4 months
• The statutory periods can be further extended if the authority requests additional information (a notifying party is often requested to do so)
• If a planned concentration would mean a serious restriction of competition, the authority must issue reservations to the intended concentration before the decision is issued during the second stage. An undertaking has 14 calendar days to object to any reservations
• Appeal: any decision issued by the authority (clearance, conditional clearance, prohibition) is subject to an appeal to the Competition and Consumer Protection Court within a month after its delivery; the CCPC judgment can be further appealed to the Court of Appeal and to the Supreme Court; the appeal proceedings in all instances can last 1-8 years

10. Availability of pre-notification/informal consultation

Pre-notification consultation available; there are no specific provisions for consultation; consultation possible both in writing and at the meeting.

11. Test for clearance/prohibition

• The authority can prohibit a transaction only if the concentration would significantly restrict competition, specifically, as a result of the creation, or strengthening of a dominant market position
• Presumption of dominance: 40% market share
• The authority may clear a transaction resulting in significant restriction of competition where there are justified grounds not to prohibit such a concentration, in particular:
• the concentration will contribute to economic development or technical progress;
• it may have a positive effect on the national economy

12. Conditional clearance – remedies

The ACM has provided guidance on remedies in its Remedies Guidelines 2007.

• Applicable when a concentration raises significant concerns about restricting competition

Remedies:

• disposal of the entirety or a portion of the assets of one or more undertakings,
• divestiture of control over a specified undertaking or undertakings, in particular by disposing of a specified block of stocks or shares, or to dismiss one or more entrepreneurs from a position on the management or supervisory board,
• granting a competitor an exclusive license;

the authority specifies the time limit for meeting the requirements.

13. Stand-still obligation

• Parties must suspend the implementation of the transaction until the authority issues a decision or until the statutory review period passes (one month or five months plus the time during which the office waits for requested information or documents).
• Implementation of a public bid that has been notified to the authority need not be suspended provided that the acquirer does not exercise any voting rights attached to the relevant securities, or does so only to maintain the full value of the investment or to prevent serious harm to undertakings participating in a concentration.

14. Failure to notify/obtain clearance

• Fine up to 10% of turnover of a party obliged to notify for a year preceding fine imposition for breaching the stand still obligation
• Fine up to fifty-fold average remuneration (currently approx. EUR 57,550) imposed on a manager of a governing body member
• If a concentration significantly restricting competition has been implemented and restoration of competition is otherwise impossible, the authority may order, in a way of a decision, to:
  • divide the merged undertaking under conditions defined in the decision;
  • dispose of the entirety or a part of the undertaking’s assets;
  • dispose of stocks or shares ensuring control over the undertaking or undertakings, or dissolve the company over which the undertakings have joint control

1. Relevant legislation

The Dutch Competition Law Act (DCA) includes a specific chapter (Chapter 5) on merger control. The legislation is based on the EU rules on merger control (Merger Regulation 139/2004) and the Dutch Competition Authority generally follows the EC’s guidance provided in the consolidated jurisdictional notice.

2. Authority

The Dutch Competition Authority, the Authority for Consumers and Markets (ACM), is the competent authority to assess contemplated transactions that need to be notified. Its English website is www.acm.nl/en

Transactions in the healthcare sector may require prior approval of the Dutch Healthcare Authority (NZa) before they can be notified to the ACM.

 

3. Types of transactions caught

A transaction falls within the scope of Chapter 5 DCA in case it qualifies as a ‘concentration’. Article 27 DCA stipulates that a concentration arises in case of: 

• a merger between two or more undertakings (that were previously independent);
• the direct or indirect acquisition of control of one or more (parts of) undertakings by one or more individuals or legal persons or undertakings; and
• the establishment of a full-function joint venture.

Control is defined as the possibility to exercise decisive influence, based on factual or legal circumstances, on the activities of an undertaking (article 26 DCA).

4. Thresholds

Article 29 DCA stipulates a threshold based on turnover figures. A contemplated transaction has to be notified to the ACM if:

• The merging undertakings together have an aggregate worldwide (group) turnover of at least EUR 150 million;
• AND At least two of the undertakings involved each have a turnover in the Netherlands of at least EUR 30 million.

For financial institutions, pension funds and insurance companies specific calculation methods apply (article 31 DCA).

Note that for concentrations in the healthcare sector a lower turnover threshold applies (based on a decree which is in force until at least until 1 January 2023). Healthcare transactions have to be notified to ACM in case:

• At least two of the undertakings involved each have a turnover exceeding EUR 5.5 million achieved with the provision of healthcare services; AND
• The merging undertakings together have an aggregate worldwide (group) turnover of at least EUR 550 million; AND
• At least two of the undertakings involved each have a turnover in the Netherlands of at least EUR 10 million.

5. Exceptions

Notification of the contemplated transaction to the ACM is mandatory if the thresholds are met. There are no exceptions to the notification obligation. There are however two scenarios in which a notification may be submitted at a later stage:

• Based on article 39 DCA, in case of a public bid no prior approval is required provided that ACM is directly notified after the acquisition and no voting rights are exercised.
• Article 40 DCA stipulates that in case of compelling reasons and at the parties’ request, the ACM may grant dispensation from the duty to obtain prior approval. This is generally considered to apply in case of a risk that prior notification and waiting for approval would lead to irreparable damage such as bankruptcy.

In both cases, the parties are still required to notify the transaction afterwards and obtain approval and ACM can still decide to not to grant a permit.

6. Notifying party(-ies)

The parties ‘involved’ in the transaction have the obligation to notify. From Dutch case law it follows that the party/parties acquiring control are ‘involved’ in the transaction.

7. Submission deadline

No specific deadlines apply for the submission. The notification in any case has to be submitted prior to consummation of the transaction. A contemplated transaction may be notified to the ACM when it can be presented with a reasonable degree of certainty how the transaction will be structured. A letter of intent normally suffices.

8. Filing fee

The following filing fees apply:

• EUR 17,450 for a ‘Phase I’ notification.
• In case the ACM does not clear the transaction in Phase I, parties may submit a separate request to obtain a permit (vergunning) to implement the transaction (‘Phase II’). For Phase II a filing fee of EUR 34,900 applies.

9. Proceedings timetable

• The notification procedure starts once parties have submitted the template notification form (available on ACM’s website). In Phase I, ACM has four weeks to decide whether to approve the transaction (i.e. decide that no permit is required) or require parties to submit a request to obtain a permit (and go to Phase II). In straightforward cases, the ACM can issue a short-form decision within this timeframe. The four week waiting period can nevertheless be suspended in case the notification form is incomplete or if the ACM requires additional information from the parties, as well as upon the notifying parties’ request (article 38 DCA). Parties are free to propose remedies in this phase (usually by amending the initial notification).
• Phase II commences after the parties have submitted a separate request for a permit via the template Phase II-form. The ACM has 13 weeks to decide whether to grant such permit. Also, this period may be suspended and in complex cases Phase II commonly takes longer than 13 weeks. In case the ACM’s investigation leads to competition concerns, parties will be given the opportunity to propose remedies to take away such concerns. 

Both in Phase I and II state-of-play meetings can be organised, especially in complex cases that may lead to competition concerns.

• Appeal proceedings are possible at the Court of Rotterdam and must be lodged within six weeks from the ACM’s decision. Such appeal may be a formal appeal (pro forma) after which the court will provide a deadline to submit the substantive grounds. Further appeal proceedings against the court’s judgment are possible at the Trade and Industry Appeals Court (CBb).

 

10. Availability of pre-notification/informal consultation

The ACM is generally open to pre-notification discussions in case of a contemplated transaction that potentially leads to competition concerns and/or where the market definition may pose difficulties. This is an informal process and the idea is that pre-notification talks increase the efficiency of the clearance procedure after the formal notification is submitted.

11. Test for clearance/prohibition

• In Phase I, the ACM will require parties to request a permit if it has reasons to assume that a transaction may lead to a significant impediment of competition on (part of) the Dutch market, especially as a result of the establishment or strengthening of a dominant position (article 37, paragraph 2 DCA).
• If parties submit such a request for a permit, the ACM will conduct a more in-depth investigation into the transaction. A permit is refused in case ACM’s investigation leads to the conclusion that the transaction will lead to a signification impediment of competition in the Netherlands (article 41 DCA).

12. Conditional clearance – remedies

The ACM has provided guidance on remedies in its Remedies Guidelines 2007.

• In Phase I, the ACM may decide that no permit is required for the contemplated transaction and attach conditions and obligations to such decision. Parties are free to submit remedies in Phase I, in order to prevent a Phase II.
• In Phase II, if the ACM grants a permit for the transaction, it may also attach conditions and obligations to such decision. Parties may offer remedies in Phase II.
• Once parties have offered remedies, the ACM usually conducts a market test in order to verify the effectiveness of the remedies.
• From the Remedies Guidelines it follows that ACM prefers structural remedies over behavioral remedies.
• If parties do not comply with the conditions and obligations attached to the ACM’s clearance decision, article 75 DCA stipulates that they may face fines up to 10% of the annual worldwide (group) turnover of EUR 900,000 (whichever is higher).

13. Stand-still obligation

A standstill obligation applies. Parties are not allowed to consummate the transaction prior to obtaining formal approval (please see the specific exceptions described above at pt. 5).

• In Phase I a waiting period of 4 weeks applies (article 34 DCA).
• In Phase II a 13 weeks waiting period applies (article 42 DCA). In both phases, the waiting period may be suspended in case the ACM requires additional information.

14. Failure to notify/obtain clearance

• A failure to notify the transaction may lead to a fine up to 10% of the annual worldwide (group) turnover or EUR 900,000, whichever is higher (article 74 DCA);
• Violation of the waiting period by implementing the transaction before obtaining clearance may lead to a fine up to 10% of the annual worldwide (group) turnover or EUR 900,000, whichever is higher (article 74 DCA).

For both violations, ACM may also impose an order subject to a penalty for non-compliance. In addition, fines may be doubled in case of recidivism (same or similar violation within five years).