EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

c) Gaining control over another competitor; or d) Establishment of a jointly controlled company (joint-venture) – this also falls under authorization regime in case the new subject is capable of long term activity as a separate economic unit and if it is jointly controlled by multiple competitors (i.e., “full-function” joint-venture). The list above contains potential variations, but it is also necessary to account for the “negative” definition, meaning, that even some transactions which do fulfil one of these four types listed above, may not in the end under certain circumstances “qualify” as a merger (Raus, Oršulová, 2014, p. 285). These are listed in the last two paragraphs of Section 12 of the Czech Antitrust Act – mostly concerning banks/ investment service providers temporarily controlling corporations or activities performed by a liquidator or insolvency administrator. This is, in practice, added as such control does not in fact distort the market, as it is usually quite short-term and does not have a stable and continuous business as its main goal. Moreover, the definitions as listed above are less relevant for the actual decision making practice, as more often used is dividing mergers to vertical (trying to get control over the whole market on its various levels), horizontal (i.e., between competitors on the same level), conglomerate (i.e., those lacking any of abovementioned characteristics) and mixed (having multiple characteristics). 3. Notification As already mentioned above, not every merger has to be notified, and basically the only two main criteria are turnover and existence of an EU dimension. If there is no EU dimension, the merger is to be resolved by the Czech Authority for Protection of Competition (UOHS). In case of an EU dimension, the EU Commission shall be competent instead. The Czech Antimonopoly Act stipulates an exact turnover limit for notification, however a full methodics has to be applied (in order to extract and obtain the “clean” turnover), depending also on the: (i) timeframe (i.e., the last accounting period – this could be both calendar year or economic year (Neruda, 2008, p. 261) – in other words – 12 subsequent months; (ii) geography (i.e., turnover generated at certain territory – by goods/services provided to consumers in the country where such consumer is located in the time of sale); and (iii) currency exchange (using the average currency exchange rate issued by the Czech National Bank for the relevant period).

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