A) THE REGULAR PROCEDURE
The concentration assessment procedure shall be initiated on the basis of:
a) the notification, or
b) ex-officio by issuing a decision to open proceedings where there is evidence that a concentration, which is subject to the provisions of the ZPOmK-2, has occurred and has not been notified by the undertaking.
The Agency shall review the notification received. If the notification does not contain all the required elements of the specific form, the Agency shall, in its request to supplement the notification of the concentration, invite the notifying party to remedy the deficiencies and set a time limit within which it must remedy them. If the notifying party fails to remedy the deficiency within the time limit, the concentration shall be deemed not to have been notified.
If the Agency finds that the notified concentration is not subject to the provisions of the ZPOmK-2, it shall issue a decision thereon.
If the Agency finds that a concentration is subject to the provisions of the ZPOmK-2, it shall assess the effects of the concentration on the relevant product or service and geographic market, taking into account the market position of the undertakings concerned, their financing potential, the structure of the market, the choice available to suppliers and users and their access to sources of supply or the market itself, the existence of any legal or actual entry barriers, the development of supply and demand on the relevant markets, the benefits of intermediate and end-users and in the light of technical and economic developments, provided that it is for the benefit of consumers and does not impede competition.
The Agency obtains data from different market participants by addressing companies, organisations, institutions and other participants to a request for information. The Agency may also request information from companies by means of a specific decision with a warning on the administrative sanction (see section “Administrative sanctions in concentrations”) or invite individual participants to provide oral explanations.
On the basis of the substantive assessment of the concentration, the Agency shall decide by decision on:
a) compliance of the concentration with the competition rules (consent); or
b) consent to the concentration, subject to compliance with the corrective measures (proposed by the notifying party) or.
c) the non-compliance of the concentration with the competition rules, i.e. (prohibition).
On the basis of the examination of the notification, the Agency shall issue a decision on compliance with competition rules within 25 working days of receipt of the complete notification. Within the same period, the Agency must also issue a decision that the concentration is not subordinate to the provisions of the ZPOmK-2 and the decision initiating the procedure for a more detailed assessment of the concentration referred to in Article 70(4) of the ZPOmK-2.
In the event that there is a serious suspicion that a concentration complies with the competition rules, the Agency shall, by means of a decision, introduce a procedure for a more detailed assessment of compliance with the competition rules (so-called “phase 2”). In that case, the Agency shall take a decision within 60 working days from the date of issue of this decision, whereby it may issue a decision on the conformity of the concentration with the competition rules or a decision on the non-compliance of the concentration with the competition rules.
The time limit for issuing a decision or decision initiating proceedings shall be extended by 15 working days if the notifying party proposes to the Agency corrective measures to remove serious suspicions of the concentration’s compliance with the competition rules.
B) THE SIMPLIFIED PROCEDURE
Article 78 of the ZPOmK-2 introduces the possibility of assessing concentration by a simplified or faster procedure if one of the following conditions is met:
- none of the undertakings involved in the concentration, together with other undertakings in the group, carries out an economic activity on the same relevant product or service and geographic market (horizontal overlap of activities) or on a relevant product or service market which is vertically linked or closely related to a neighbouring market with the product or service relevant market in which any other party to the concentration operates;
- the combined market share of all the undertakings involved in the concentration together with other undertakings in the group operating on the same relevant product or service market (horizontal ratios) does not exceed 15 per cent within all plausible market definitions;
- the individual or aggregate market share in the concentration of the undertakings concerned, together with other undertakings in the group, operating on a product or service market which is in a vertical relationship in which any other undertaking involved in the concentration is active (vertical relationships) does not exceed 25 per cent in any of the vertically integrated markets within any plausible market definition;
- in a concentration, the undertaking concerned acquires, together with the other undertakings in the group, sole control of the undertaking over which it already has joint control.
Notwithstanding the previous paragraph, the Agency shall not deal with the assessment of a concentration under a simplified procedure, in particular if:
- the relevant markets or market shares are difficult to identify;
- has one of the undertakings involved in the concentration together with other undertakings in the group significant;
- a minority interest (more than 10 per cent) in an undertaking active in a market in which another undertaking is active in the concentration together with other undertakings in the group;
- the undertaking concerned, together with other undertakings in the group, is a new or potential competitor having access to significant raw materials, intellectual property rights, infrastructure, market-relevant data records or other competing assets;
- at least two of the undertakings involved in the concentration, together with other undertakings in the group, are present in closely related neighbouring markets;
- the undertakings concerned, together with other undertakings in the group, operate in a market with high entry barriers, in a highly concentrated market or in a market with perceived competition problems;
- in the event of the establishment of a joint venture, there is a likelihood of coordination of the competitive behaviour of the undertakings remaining independent;
- the undertaking concerned, together with other undertakings in the group, acquires sole control over an undertaking over which it already has joint control, provided that that undertaking and the joint venture have significant market power in the market or in vertically integrated markets or in closely related neighbouring markets;
- the concentration includes an assessment of the restrictions directly related to the concentration and are strictly necessary for it;
- The Agency receives substantiated competition concerns due to the concentration by third parties.
If the conditions for the simplified procedure are not met, which may also be verified by the Agency on the basis of obtaining information through questionnaires and investigations, or if the Agency considers that circumstances requiring a more detailed assessment of the concentration’s compliance with the competition rules are present, the Agency shall carry out the assessment in accordance with the ordinary procedure.
The decision taken by the Agency under the simplified procedure shall contain:
- details of the notified concentration (names of the participants and relevant economic sectors where the undertakings concerned are active in the concentration),
- determining whether the concentration complies with the competition rules; and
- an indication of the conditions that are met for a decision under the simplified procedure.