Merger Control 2023 Comparisons

The regulatory framework of the Czech merger control regime has its basis in Act No 143/2001 Coll., on the Protection of Competition and Amending Certain Acts (Act on the Protection of Competition) (CCA). The CCA is complemented by the following notices issued by the Office for the Protection of Competition (OPC – the Czech competition authority):

• Notice on the Requirements for Concentration Notifications;
• Notice on the Pre-notification Contacts with Merging Parties;
• Notice on Calculation of Turnover for the Purpose of the Control of Concentrations between Undertakings;
• Notice on the Concept of Concentration;
• Notice on the Notion of “Undertakings Concerned”;
• Notice on the Prohibition of Implementation of Concentrations prior to the Approval and Exemptions Thereof;
• Notice on the Application of the Failing Firm Defence Concept in the Assessment of Concentrations of Undertakings;
• Notice on Simplified Procedure;
• Notice on the Pre-notification Contacts with Merging Parties;
• Notice on the Calculation of Turnover for the Purpose of the Control of Concentrations between Undertakings;
• Notice on the Application of the Failing Firm Defence Concept in the Assessment of Concentrations of Undertakings; and
• Notice on Prohibition of Implementation of Concentrations prior to the Approval and Exemptions Thereof.

The Czech Republic implemented its Foreign Direct Investment screening regime in May 2021. Under the Act on Foreign Investment Screening (the “FDI Act”), certain foreign investments in assets in the Czech Republic are subject to prior approval by the Ministry of Industry and Trade. As is the case with notifications of concentrations to the OPC, investors are prohibited from implementing the investment before the Ministry’s approval is obtained (the so-called standstill obligation), in case the investment falls under the mandatory notification regime. The ministry is also entitled to review any foreign investment up to five years after its completion.

Besides the FDI screening and general merger control regime, a special regime applies to banks and is governed by Act No 21/1992 Coll., on banks, under which mergers, divisions of banks and transfers of assets to a bank as a shareholder are subject to prior consent from the Czech National Bank. The approval of the Czech National Bank does not exempt a transaction from the merger control regime; such transaction still needs to be notified to the OPC, provided the notification conditions are met.

Merger regulation enforcement in the Czech Republic falls solely within the competence of the OPC. The process is administered by the OPC’s department for control of concentrations.

First instance decisions of the OPC may be appealed to the Chair of the OPC. Decisions of the Chair may be subject to review by the Administrative Court in Brno following an administrative action and the Supreme Administrative Court respectively.

Transactions constituting a concentration within the meaning of the CCA must be notified to the OPC. There are no exemptions from the obligation to notify, but a concentration has to fulfil the following two general conditions to be notifiable.

• The concentration must be long-lasting. Accordingly, a temporary change of control that cannot result in permanent or long-lasting changes in the structure of the market is exempt from the merger control scrutiny. A period of five years is usually considered as long-lasting, but a case-by-case assessment is necessary to provide a clear answer.
• While the acquisition of control is generally subject to a notification obligation, the CCA provides two exemptions in regard to special industries and types of transactions:
1. control over an undertaking acquired by a bank as a result of the payment of the issue price of the shares by way of a set-off of the bank’s receivables from such legal entity, provided this ownership interest is possessed during a rescue operation or financial restructuring of the controlled undertaking; or
2. a provider of investment services acquires control by way of an acquisition of shares of an undertaking, provided the shares are acquired for the purpose of their subsequent sale and the related voting rights are not exercised for the purpose of determining or influencing the market behaviour of the controlled undertaking.

There is no possibility to file voluntarily if thresholds are not exceeded: the scope of merger control is limited solely to the compulsory filings.

The OPC may impose a fine of up to 10% of net turnover achieved by the undertakings in the preceding accounting period for the failure to notify a concentration meeting the notification criteria set by the CCA. The fine calculation follows the OPC’s fining guidelines. 

There has only been a handful of decisions on fines for failing to notify a transaction under the Czech merger control regime. Most recently, the OPC imposed a fine of CZK4.5 million (EUR190,000) on CSG Industry for failing to notify the acquisition of several companies active as car dealerships. The OPC publishes its decisions on its website, including the information on the amount of the fine.

Generally, the following types of transactions are subject to merger control in the Czech Republic:

• mergers – two or more previously independent undertakings merging into one undertaking;
• acquisitions of control – one or more persons who already control at least one undertaking, or one or more undertakings, acquire direct or indirect control of the entirety or parts of one or more other undertakings (assets and/or shares deals); and
• joint ventures – a joint venture that will perform all the functions of an independent business entity on a lasting basis is established.

Regardless of its form, there must be a change in the nature of control of an undertaking in order for a transaction to be considered a concentration within the meaning of the CCA. It is irrelevant whether the change in control is brought about by a purchase of shares or assets or by any other means.

Internal restructurings or reorganisations, as well as transactions not involving the transfer of shares, may be caught if they lead to a change in control of the undertaking (eg, granting veto rights to a minority shareholder leading to the acquisition of control). Certain transactions do not fall within the scope of merger control due to their temporary or specific nature.

Under the CCA, the notion of control is a possibility to have a decisive influence on the activity of another undertaking or a part thereof on the basis of a matter of law or fact, in particular on the basis of:

• the ownership of a business establishment of the controlled undertaking, or a part thereof; or
• a right that provides decisive influence on the composition, voting and decision-making of the bodies of the controlled undertaking.

“Control” and “Change of control” are interpreted in line with EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

Control in an undertaking may be sole (only one undertaking having control over the target) or joint (the target being controlled by two or more undertakings). The establishment of joint control constitutes a change of control, as do changes in the group of shareholders with a controlling interest. As a result, there is a change of control when the target goes from 50/50 ownership to being solely controlled by only one of the existing shareholders, and also when one of the existing shareholders sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A concentration occurs both when the joint control is established and again when it is dissolved – in case a minority shareholder gives up certain essential veto rights as a result of which the majority shareholder gains sole control.

Acquisitions of minority shareholdings where such acquisition does not result in the acquirer gaining sole or joint control over the target are not subject to notification to the OPC. 

Under the CCA, a concentration must be notified to the OPC where the following turnover thresholds are exceeded:

• the total net turnover of all the undertakings concerned in the Czech Republic for the last financial year is more than CZK1.5 billion (approximately EUR60 million) and at least two of the undertakings concerned each had a net turnover of more than CZK250 million (approximately EUR10 million) in the Czech Republic for the last financial year; or
• the total net turnover in the Czech Republic of one of the merging parties (in the case of a merger), the undertaking over which control is being acquired (in the case of an acquisition) or one of the parties establishing a new joint venture exceeds CZK1.5 billion (approximately EUR60 million) and, at the same time, the worldwide net turnover achieved in the last financial year by the other undertaking concerned exceeds CZK1.5 billion.

The abovementioned thresholds apply to all transactions; there are no sector-specific thresholds applicable to particular sectors.

Turnover constitutes the net turnover derived from the sale of products and services generated by an undertaking within its ordinary activities after the deduction of:

• value added tax and other directly related taxes; and
• any turnover between associated undertakings.

There are special rules on turnover calculation for particular businesses.

• State-controlled businesses: the turnover does not include all companies that are directly or indirectly controlled by the state, but only those that form part of the same business entity.
• Insurance companies: the value of the gross premiums of all insurance contracts concluded applies – not only those insurance contracts concluded in the particular accounting period, but all ongoing contracts concluded in the past.
• Banks: the turnover is calculated as the sum of revenues, including:
1. income from securities and participating interests;
2. net profit on financial operations;
3. interest income; and
4. fees and commissions.
• Sales of services through other providers: in cases where the services are sold through an intermediary (eg, advertising or tourism), even if the intermediary charges the final customer for the full price for the service, the turnover is made up of commissions received from the primary provider for the mediation of the service.

As for the geographical allocation of turnover, turnover from products and services sold to customers located in the Czech Republic at the time of entering into the respective agreement is regarded as Czech turnover.

As for foreign currencies, all financial data must be converted into Czech crowns using the average exchange rate quoted by the Czech National Bank for the period to which such financial data relates.

As stated in 2.6 Calculations of Jurisdictional Thresholds, the turnover is calculated on the basis of the most recent audited accounts of not only the participating undertaking but also undertakings associated with each participating undertaking.

The turnover of the undertaking on the sell side (in cases of acquisitions) is not taken into account for the purpose of turnover calculation. Accordingly, where an undertaking transfers only some of its subsidiary companies to another, the turnover achieved by the companies whose control is transferred is included, but the selling undertaking’s turnover is not.

The basis for turnover calculation is the most recent audited accounts of a financial year of the following entities (in line with EU merger control rules):

• the participating undertakings (undertakings concerned); and
• any undertakings associated with each participating undertaking, including directly and indirectly controlling entities (parent companies), subsidiaries, joint ventures and subsidiaries of the parent companies.

The turnover needs to be adjusted to take subsequent transactions into account, such as divestments, acquisitions and other business closures, after the end of the respective financial year.

All transactions that meet the thresholds are subject to merger control, regardless of where the undertakings are registered. Accordingly, there is no exemption for foreign-to-foreign transactions.

There is no local effects test per se, but the Czech merger control regime requires a local presence since the target must generate a certain level of turnover in the Czech Republic. Nonetheless, with regard to international joint ventures, it is sufficient for the turnover to be achieved by the parent company/whole group, while the target in itself does not have to be present in the Czech Republic. Therefore, a filing may be required even though a target has no local sales or assets.

There are no market share thresholds for notification. Under the previous merger control regime, only transactions leading to a 30% share on a relevant market(s) were notifiable, but since 2001 the current legislation has applied thresholds based solely on turnovers.

Joint ventures are subject to merger control only if the joint venture is a “full function” joint venture – ie, it operates on a lasting basis and performs all the functions of an autonomous economic entity. The joint venture must be economically autonomous from the operational point of view to be full function. Conditions for full function joint ventures are in line with the practice of the European Commission. Full function criteria are met when the joint venture: 

• has sufficient resources to operate independently in a market;
• engages in activities beyond specific functions for the parent companies;
• is not dependent on commercial relationships with the parents; and
• operates on a lasting basis.

The following transactions concerning full function joint ventures are subject to merger scrutiny:

• the establishment of a joint venture;
• a change from joint to sole control;
• dissolution – if (part of) the business of the joint venture is transferred to one or more undertakings controlling the joint venture or to a third party;
• a change/extension of the activities of a joint venture – if further assets, contracts, know-how, rights, etc, are transferred from parent companies to the joint venture. These activities must be transferred to extend the business activities of the joint venture into other product or geographic markets; and
• a change in participants/owners – for instance, if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business.

Concerning the turnover thresholds, the turnover a joint venture has with third parties must be divided equally between the controlling owners notwithstanding their actual shares and the distribution of profit.

The OPC may not request a merger notification nor investigate or oppose a transaction where the jurisdictional thresholds are not met. Accordingly, undertakings may not file voluntarily if the required thresholds are not met.

So far, the OPC has not used any of the new tools confirmed by recent CJEU case law (eg, the Dutch clause or the procedure applied in the Towercast case) to investigate under-threshold transactions. The OPC is not expected to change its practice in this regard in the near future.

The standstill obligation applies in the Czech merger control regime: undertakings may not implement a transaction meeting notification criteria before clearance from the OPC is received. The merging undertakings are required to run their businesses separately and independently until the approval decision is issued and enters into force.

So-called “gun-jumping” – when the parties to a concentration implement a transaction before receiving approval from the OPC – is subject to a fine of up to 10% of the undertakings’ global turnover. The amount of such fine is calculated according to the guidelines of the OPC and depends on the nature, gravity and duration of the conduct. The OPC has recently published a notice on its website on imposing fines for gun-jumping.

The last decisions of the OPC in a gun-jumping case were issued in 2022, when the authority imposed a sanction of CZK1.58 million (approximately EUR65,000) in two decisions concerning Natland group, for exercising control over two companies (Energo Příbram and ZOOT) before filing. There are no known cases where the OPC has imposed fines on foreign-to-foreign transactions.   

The prohibition of implementation before clearance does not apply where:

• the concentration occurs on the basis of a public bid to assume equity shares; or
• the concentration occurs on the basis of a sequence of operations, due to which control will be acquired by various entities, provided that the application for the initiation of proceedings was filed immediately and that the voting rights attached to such shares and securities are not exercised.

Furthermore, the Czech merger control regime only allows for individual exemption from the standstill obligation; there are no general exceptions to the suspensive effect.

Under the Competition Act, a transaction may be individually exempted by the OPC from the prohibition on implementation before clearance. Such exemption needs to be applied for by the notifying party, which is obliged to substantiate the request, in particular by providing sufficient and concrete reasoning with evidence that a delay in the implementation would result in major damage or other significant detriment to the parties to the transaction. The applicant must specify to which extent the exemption is sought. In practice, these exemptions are rare as the OPC is reluctant to grant them.

The Competition Act does not provide for the possibility of carve-out.

There are no specific deadlines for the notification of a transaction. In general, a notification should be filed after a binding agreement has been concluded, a takeover bid has been published or a controlling interest has been acquired.

Formally, a binding agreement should be concluded prior to notification to the OPC. However, in practice, the OPC may accept less formal agreements, like a letter of intent, memorandum of understanding or a pre-final draft of the SPA as sufficient evidence demonstrating a good faith intention to conclude an agreement.

Filing to the OPC is subject to an administrative fee of CZK100,000 (EUR4,180), regardless of the type of procedure (simplified or full). The fee must be paid on the day of filing at the latest. 

Responsibility for the filing is vested in:

• all merging undertakings in cases of concentration by a way of merger;
• all undertakings acquiring direct or indirect control in the case of acquisitions of control; and
• all undertakings establishing a joint venture.

The list of requirements for a merger filing is governed primarily by Decree No 294/2016 Coll., stipulating details of the justification of a concentration notification and documents certifying facts decisive for a concentration, and Decree No 252/2009 Coll., stipulating details of a concentration notification. The requirements include:

• official extracts from the Commercial Register (or any other similar register) for all undertakings concerned (apostille is necessary in the case of non-Czech companies, with some exceptions based on international treaties);
• the notification questionnaire together with its non-confidential version;
• the documents on the basis of which the concentration should be established or documents certifying the transaction;
• annual reports, including audited annual financial statements for the last completed accounting period of all undertakings concerned;
• consolidated financial statements for the last finished accounting period, provided that the parties are under an obligation to compile consolidated financial statements pursuant to special legal regulations;
• analyses, reports, studies, surveys and any comparable documents prepared for any member(s) of the board of directors, or the supervisory board, or any other person(s) for the purpose of assessing or analysing the transaction with respect to competitive conditions, undertakings (both existing and potential), the rationale of the transaction, potential for sales growth or expansion into other product or geographic markets, and/or general market conditions; and
• a turnover calculation scheme stating the turnover of the parties in the relevant accounting period, proving the notification thresholds are met.

The filing must be submitted in the Czech language. If the documents were not prepared in Czech originally, it is necessary to provide certified translations of the documents to the OPC, along with the original documents. Furthermore, a power of attorney by the notifying party has to be provided if it is represented in the proceedings.

The OPC may also request additional documents.

The OPC may reject an incomplete notification. In practice, the OPC first requests the missing information/documents from the notifying parties, allowing them to complete the submission by providing the required information.

If the notifying party provides the OPC with inaccurate, misleading or incomplete information, the OPC may re-open the proceedings and, in the worst-case scenario, revoke its approval decision. In addition, the OPC may impose a fine of up to 1% for the provision of inaccurate, misleading or incomplete information. There have not been any cases of these sanctions being applied in practice. 

The proceedings consist of three phases:

• pre-notification phase (see 3.9 Pre-notification Discussions With Authorities);
• phase I; and
• phase II.

Phase I

The first phase starts with the submission of the filing by the notifying party. It takes up to 30 calendar days (20 if the concentration is notified in the simplified procedure) and may be extended by up to 15 working days if commitments are offered by either of the parties during phase I. The OPC may request additional information or/and documents from the notifying party, which “stops the clock” – the period from the date of delivery of such request to the date of response is not included in the time limit for issuing the decision.

After filing, the OPC assesses the formal prerequisites of the filing (its completeness) and proceeds to send a notice of initiation of the proceedings to the notifying party. The initiation of proceedings is also published on the OPC’s website and in the Commercial Bulletin. The first phase may result in either:

• the concentration being approved (eventually with commitments);
• a decision that the concentration needs to be investigated further in phase II; or
• a decision that the concentration is not subject to the OPC’s approval or that it is not a concentration within the meaning of Section 12 of the Competition Act.

Phase II

The second phase takes up to five months from the initiation of the proceedings and may be extended by up to 15 working days under the same conditions as phase I.

Phase II consists of deeper investigation, including detailed market surveys, an economic analysis and eventually the negotiation of commitments in order to eliminate the OPC’s concerns about any potential anti-competitive effects of the concentration.

The OPC may decide to approve (eventually with commitments) or prohibit the concentration in the second phase.

Prior to the concentration proceedings, the parties may voluntarily engage in pre-notification contacts with the OPC. The OPC has issued a Notice on pre-notification contacts providing guidance on this initial phase of the process.

It is advisable and encouraged by the OPC to inform the OPC of the intended transaction at an early stage and to engage in pre-notification contacts. The pre-notification involves informal consultations where the OPC commits itself to lead the discussions. The pre-notification phase is of a strictly confidential nature: the information submitted by the undertakings is available solely to the OPC. The OPC usually indicates whether the submission is complete and provides comments on an informal basis.

In the case of “simplified procedure” cases (see 3.11 Accelerated Procedure), the pre-notification discussions may be relatively brief, usually taking about one or two weeks. In more complex cases, the pre-notification discussions can take several months.

It is not uncommon for the OPC to send requests for information (RFI) to the parties to the concentration, especially in complex cases. RFIs from the OPC often include dozens of questions and request considerable amounts of data, presenting a non-negligible burden for the parties to the transaction. RFIs may be avoided, at least partially, by engaging in pre-notification discussions with the OPC.

If the OPC sends an RFI to the parties, the “clock stops” – ie, the period from the date of delivery of such request to the date of response is not included in the statutory time limits for issuing a decision in either phase of the proceedings.

The Czech merger control regime provides for an accelerated procedure in the form of a simplified procedure that is applicable to cases that are deemed to have a lower risk of negative impact on competition and thus do not require full scrutiny. The simplified procedure is available in the following two cases:

• if the transaction concerns a change in the quality of control – the undertaking acquires sole control over an undertaking, in which it had joint control before the transaction; or
• if the undertakings concerned have low market shares – none of the undertakings concerned operates in the same relevant market, or their combined share in that market does not exceed 15% in the case of horizontal mergers, and at the same time none of the undertakings concerned operates in a market vertically connected to the relevant market in which another undertaking concerned operates, or their share in every such market does not exceed 25% (vertical merger).

The OPC has full discretion in requesting a full notification despite the undertakings fulfilling the criteria for this simplified notification.

The OPC employs the SIEC (significant impediment to effective competition) test, similar to the one employed by the European Commission under the EU Merger Regulation. As a result, a concentration will be considered incompatible with the Czech market where it would significantly impede effective competition in the market, in particular (but not exclusively) as a result of the creation or strengthening of a dominant position.

The OPC takes a range of factors into consideration, including efficiencies that may be gained from the merger (efficiency defence) and/or whether one of the parties is likely to fail as an independent business (failing firm defence).

The OPC reviews the market definitions provided by the notifying parties when determining which markets may be affected by the transaction. It also considers alternative markets based on the OPC’s decisional practice, as well as the practice of the European Commission, the EU Courts’ decisional practice and the decisional practice of competition authorities in other EU member states. It takes market reports and the parties’ own internal documents into account. In cases where the market definition is complex, the OPC may ask competitors and customers their views on the relevant market definition.

Special attention is paid to markets where both parties perform economic activity (horizontal overlaps), but vertically connected markets are also closely examined by the OPC.

There is no de minimis rule. In general, competitive concerns are unlikely to arise where the use of the simplified procedure is possible. An affected market exists if the combined horizontal market share reaches 15% or more, or if one of the parties concerned has a market share of at least 25% in a vertically overlapping market.

Besides its own decisions, the OPC generally relies on the European Commission's decisional practice when defining relevant markets. In cases where there are no decisions of the OPC or the Commission, the OPC takes into account decisions of other member states’ competition authorities, without clear preference for any jurisdiction.

In its assessment of concentrations, the OPC focuses primarily on the following aspects:

• the necessity of the preservation and further development of effective competition in the affected market(s);
• the structure of all markets affected by the concentration;
• the market shares of the parties to the concentration in such markets, and their economic and financial power;
• legal and other barriers to entering relevant markets;
• alternatives available to suppliers and customers of the parties;
• the development of supply and demand in the affected markets;
• the needs and interests of consumers; and
• research and development.

Although the notification questionnaire contains a dedicated section in which evidence of efficiencies may be presented, the OPC considers economic efficiencies that may be gained from the merger only in a limited extent.

In any case, the claimed efficiencies must be directly created by the concentration and not achievable through any other, less anti-competitive means. In addition, they must be quantifiable and verifiable to a reasonable degree of certainty and benefit consumers.

When assessing a concentration under the Czech merger control regime, the OPC only considers competition-related issues. The decision of whether a merger should be cleared or prohibited is thus based solely on competition-related questions – primarily the SIEC test. The CCA does not allow the OPC to take any non-competition issues into account.

The Czech FDI regime, effective from May 2021, is separate from the merger control rules (see 9. Foreign Direct Investment/Subsidies Review).

Joint ventures are primarily assessed in the same way as other types of concentrations captured by the merger control regime, primarily by the SIEC test (see 4.1 Substantive Test).

In addition, the OPC may also analyse whether the joint venture gives rise to spillover effects, by enhancing the risk of co-ordination between the parent companies. This applies in cases where both parent companies are active in markets outside the joint venture or operate in the upstream or downstream markets of another parent. The OPC assesses the risk of co-ordination between the parent companies under the provision on anti-competitive agreements between undertakings.

The OPC is able to prohibit a transaction that would result in a substantial distortion of competition in the relevant market by creating or strengthening a dominant position of the undertakings concerned. The OPC does not need an approval from the court or any other body/authority to issue a prohibition decision.

The OPC may also revoke an approval of a transaction if the parties do not comply with the remedies set by the approval decision, and may prohibit a concentration and order a divestment where the concentration has been implemented without prior approval from the OPC.

Parties to a concentration may offer remedies in order to maintain effective competition in cases where the OPC voices its concerns that the transaction may lead to substantial distortion of competition. Remedies may take essentially any form, which means that the remedy may be structural or behavioural in nature, with or without time limitations. 

Remedies must be proposed by the parties to the transaction. The OPC may approve a concentration if parties provide evidence to prove that implementation remedies are sufficient to restore or maintain effective competition. In the absence of such evidence, the OPC is not obliged to inquire about the impact of the remedies on the market. 

It follows from the decisional practice that remedies accepted by the OPC are structural. Therefore, structural remedies (mostly divestments of assets) present the most common type of remedy. The OPC does not require commitments to address non-competition issues.

There is no requirement set by law for the parties to the transaction to begin negotiating remedies with the OPC as soon as the first phase of the merger proceeding commences. The distinction between phase I and phase II is diminished in this regard; the parties may negotiate remedies in both phases.

The parties to the transaction under review may offer remedies by submitting commitments to the OPC. The OPC, on the other hand, may lay down the conditions and obligations necessary to fulfil the remedies. Accordingly, the OPC cannot impose remedies that are not agreed by the parties.

The parties may submit commitments at any time during the review process, but no later than 15 days after receiving the OPC’s statement of objections. A proposal submitted later may only be taken into account in special cases. If parties offer remedies either in the first 30 days of the proceedings or in the second phase, the OPC will extend the deadline by 15 working days.

The parties may complete a transaction when remedies are approved by the OPC and made binding in its final decision. The condition and timing for both structural and behavioural remedies are highly individual and vary case-by-case – the regulatory framework does not set any deadlines.

The implementation of remedies is then subject to ex post review. If the remedies are implemented after a deadline set by the decision or not implemented at all, the OPC may impose a fine of up to 1% of the undertaking's turnover or withdraw the merger approval decision.

Parties receive a formal decision permitting or prohibiting a transaction, while the OPC publishes a press release informing about the result of the merger proceedings on its website. Additionally, with some delay caused by confidentiality claims of the parties, the OPC publishes a non-confidential version of the decision on its website. This takes usually around one month.

The OPC prohibits transactions only very rarely. Decisions requiring remedies occur but not frequently. No significant disparity can be observed between commitments required in local as opposed to foreign-to-foreign transactions.

In line with EU competition law, ancillary restraints are considered to be an inherent part of concentrations and, therefore, are not subject to separate scrutiny. However, restrictions that go beyond what may be considered ancillary may fall under the general prohibition on anti-competitive agreements. Ancillary restraints are notified to the OPC within the filing of the transaction. Accordingly, separate notifications are not possible.

Third parties may get involved in the merger control process in various ways. In particular, competitors may file objections against a concentration, which the OPC is obliged to address in its final decision. Historically, competitors who adopted an active approach in the proceeding through substantiated objections were given grounds to appeal against the OPC's first-instance decision. This practice was later abandoned.

Customers may be involved by the OPC through an RFI or a market survey. The OPC takes these documents into account, particularly when defining relevant markets and assessing demand substitution.

The OPC usually contacts third parties in more complex merger proceedings, especially those assessed in second-phase investigations. It is rather uncommon for the OPC to reach out to third parties in simplified proceedings. The OPC does so by a way of written questionnaires – it sends RFIs to the competitors, but it may also contact suppliers, customers or consumer organisations.

The OPC only publishes a notice upon receiving a proposal of a merger and information whether a simplified procedure would be used or not. The notice includes the names of the parties and basic information about the area in which they operate, the form of control acquired and an invitation for third parties to submit their comments. More detailed information is available to the public as part of a non-confidential version of the decision, which is made available on the OPC's website after the decision is issued and the parties redact their business secrets.

The OPC is a member of the European Competition Network (ECN). The competition authorities co-operate through the ECN and the associated EU Merger Working Group, especially in merger reviews of multi-jurisdictional mergers.

The OPC does not have to seek parties’ permission to share information with other jurisdictions after the filing is made. Within the pre-notification procedure, on the other hand, the OPC seeks parties’ permission to share information with other jurisdictions in transactions concerning multiple member states. 

If a decision prohibiting a concentration is issued, parties can appeal to the Chair of the OPC. In second instance, the appeal is reviewed and decided upon by the Chair of the OPC. If the first instance decision is confirmed by the Chair, the parties may bring an administrative action against the Chair’s decision before the Regional Court in Brno.

Once a decision is issued and delivered, the parties (usually the acquirer) may lodge an appeal against the decision within 15 days. The appeal has a suspensory effect. Following the Chair’s decision, the parties have two months to file an action with the Regional Court in Brno.

Historically, the case law of Czech courts allowed third parties to appeal a first-instance decision if the appellant was active in the proceeding before the OPC through well-founded objections. However, this case law was overturned by a judgment of the Supreme Administrative Court on the grounds of endangering legal certainty of the parties to the concentration.

It follows that, under Czech case law, only parties to the proceedings may appeal a clearance decision.

Czech FDI Screening Regime

The Czech Foreign Investment Screening regime was established in 2021 with the adoption of the FDI Act. Foreign investments meeting the criteria set out by the FDI Act must be notified and approved by the Ministry for Industry and Trade (MIT). Similar to merger control, the standstill obligation applies until the investment is approved by the MIT.

Under the FDI Act, a foreign investor is a person who:

• is not a national/does not have a registered seat in the Czech Republic or any other EU member state; or
• is under the indirect control of such a person.

The entry of a foreign investor into a targeted business that enables the investor to exercise effective control over the target's economic activity (eg, 10% of voting rights, influence on appointing decision-making bodies or even appointment of the investor into such body) falls within the scope of the FDI regime.

Notification is mandatory if the target is active in the areas of military material, critical infrastructure, information and communication systems of critical infrastructure and/or dual use items and areas of importance for maintaining the security of the Czech Republic. A consultation is mandatory if the target holds a licence for nationwide radio or television broadcasting, or publishes periodicals with an aggregate minimum average print run of 100,000 copies per day.

Moreover, the FDI Act grants the MIT the power to open an investigation into any foreign investment (regardless of the sector/activities of the target) within five years after its completion if the MIT has concerns that the investment may pose a risk to national security. The risk of the MIT opening the investigation ex officio may be avoided by approaching the MIT voluntarily via formal consultation. Within the consultation, the investment is notified on a simplified form. If no concerns about the security and/or public order are raised after the review, the MIT issues a comfort letter stating that it will not open an ex officio investigation into the investment in the future.   

Foreign Subsidies

As the Czech Republic is an EU member state, the newly adopted Foreign Subsidy Regulation applies.

A rather broad amendment to the CCA comes into force on 27 July 2023.

However, the amendment does not introduce any significant changes to the merger control regime.

The prohibition of mergers is a tool of last resort. It is used very rarely by the OPC, which has prohibited only a few mergers in its 30 years of existence. Its recent prohibition of a transaction between Česká pošta and PNS was the first prohibition decision after nearly 20 years. However, slightly more often, the OPC issues decisions imposing fines for gun-jumping and failure to notify.

The OPC focuses mainly on cartel agreements (especially bid-rigging cartels) and resale price maintenance. Merger control does not generally present a major area of interest for the OPC, either by declaration or by action, with the exception of the prohibition decision in the Česká pošta/PNS case. However, this may change in the future, as the OPC has announced that it will review the efficiency of the merger control toolbox.