Prior notification of a concentration must be submitted by the undertaking acquiring control.

Where joint control is acquired by several undertakings or a joint venture is created, the obligation to notify rests on each and every undertaking acquiring control; in case of a merger, all participating undertakings are required to notify separately. In such cases the notification may be submitted jointly by the parties to the merger or by those acquiring joint control, as the case may be.

In case of a public bid to acquire an undertaking pursuant to Section 16(5) of the Act, the notification must be submitted by the bidder.

Notification in all the above mentioned cases may be delegated to the party which, directly or indirectly, controls the undertaking acquiring control.

2.        WHEN TO NOTIFY

As a rule, a concentration is deemed to have taken place with the acquisition of the ability to substantially influence the target undertaking’s economic behaviour. The concentration must be notified before it is carried out, after the parties have reached an agreement on the essential aspects of the operation, so as to permit the Authority to fully appraise the proposed operation.

More specifically:

- in case of a merger, the operation must be notified before the merger deed is drafted;

- in case of acquisition of control of an undertaking pursuant to Section 5(b), whenever this is done by means of purchase of equities or shares in a company, the prior notification obligation is deemed to have been complied with where the full effectiveness of the deeds establishing acquisition of control is made conditional on the Authority’s approval;

- in case of creation of a new joint venture the operation must be notified before the memorandum of incorporation is filed with the Register of Companies.

3.        HOW TO NOTIFY

a) Full-form notification

The Authority requires full-form notification for concentrations between independent undertakings subject to the prior notification obligation under Section 16(1) of the Act where:

a) two or more parties to the concentration operate in the same affected market and the concentration will lead to a combined market share of 25 per cent or more;

and/or

b) one of the parties to the concentration will have, after the concentration, a market share of 40 per cent or more, provided that at least one other party operates in an upstream or downstream market.

In any event, full-form notification is not required where the market share of the undertaking being acquired or merged is less than 1 per cent.

Full-form notification must only be made in relation to the affected markets in respect of which at least one of the aforementioned conditions is met, as well as in relation to the relevant upstream and downstream market in the event that the condition under b) above is met.

The information to be provided under full-form notification is given in Part II of this publication (Form for the notification of a concentration).

b) Short-form notification

Short-form notification is permitted for all concentrations subject to a prior notification obligation pursuant to Section 16(1) of the Act, for which full-form notification is not required. The information to be provided under short-form notification is given in Part II of this publication (Forms for the notification of a concentration).

The Authority nevertheless reserves the right to request the information required under full-form notification whenever the Authority considers that the short-form notification does not permit an adequate assessment of the proposed operation. In this case the time-period provided for under Section 16(4) of the Act shall not begin to run until the full-form notification is received.

4.        THE NEED FOR A CORRECT AND COMPLETE NOTIFICATION, AND SUSPENSION OF TIME-LIMITS

a) Incomplete notification

Whenever the Authority considers that the information submitted with the notification (including documents and annexes) is incomplete, it shall notify the undertakings thereof under Article 12(3) of the Implementing Regulation Replaced by Article 5(3) of the Presidential Decree No. 217 of 30 April 1998. [editor’s note]. The time-periods shall begin to run on the date of the receipt of a complete notification.

A notification is deemed to be incomplete, inter alia, in case of unjustifiedfailure to provide the information required in the Forms, or when the undertakings provide incorrect or misleading information.

A short-form notification is deemed incomplete whenever the Authority considers that the proposed operation is subject to a full-form notification obligation. In case of doubt, the parties required to submit a prior notification are urged to contact the offices of the Authority before filing the notification.

b) Changes in circumstances

Any substantial changes in the facts set out in the notification, to the extent that they are known to the notifying parties must be brought promptly to the attention of the Authority. In such case, provided that these changes have a significant effect in terms of the completeness of the concentration, the time-periods provided for under Section 16(4) and (6) shall begin to run on the date of receipt of the information reporting these changes.

5.        CONFIDENTIALITY

All information submitted is treated as confidential pursuant to Section 14(3) of the Act and Article 8 of the Implementing Regulation Replaced by Articles 12 (confidentiality) and 13 (access to documents and confidentiality of the information acquired ) of the Presidential Decree No. 217 of 30 April 1998. [editor’s note]. The notifying parties may indicate which documents, or parts thereof, they consider to constitute business secrets, specifying the reasons why the information should not be disclosed or published.