LIECHTENSTEIN Law and Practice Contributed by: Hannes Arnold, Thomas Nigg, Christina Pointner, Sebastian Auer, Johannes Sander, René Saurer and Marta Baftiaj, Gasser Partner
control and the possibility of exercising decisive influ - ence over an undertaking. The notification thresholds are turnover-based and are set out in Article 1 (2) and Article 1 (3) of Council Regulation (EC) No 139/2004, as incorporated into the EEA Agreement and subject to the EEA adaptations. In broad terms, a concentration is notifiable at EEA level if it meets either the main threshold under Article 1 (2) (combined aggregate worldwide turnover above EUR5 billion and Community-wide turnover of each of at least two undertakings above EUR250 million) or the alternative lower threshold under Article 1 (3). The applicable two-thirds exception (for turnover in one and the same Member State) and the EEA allocation rules must be considered. Where the relevant thresholds are met, the transaction must be notified before implementation to the com - petent authority under the EEA system. Depending on the allocation of competence under Article 57 of the EEA Agreement, review is carried out by the Euro - pean Commission or, in EFTA-dimension cases, by the EFTA Surveillance Authority. Thus, transactions that fall below the EEA merger thresholds are not subject to a local Liechtenstein merger-control filing merely because the target is incorporated in Liechtenstein. However, sector-spe - cific regulatory approvals may still be required, for example for qualifying holdings in regulated financial institutions, insurance undertakings, investment firms, asset managers or funds, and corporate-law merger filings may be necessary for the legal implementation of the merger. 6.2 Merger Control Procedure In general, a notifiable concentration must be notified prior to implementation and following conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest; see Article 4 (1) Regulation (EC) No 139/2004. A concentration with an EU or EFTA dimension may not be implemented before notification or before it has been declared compatible according to Article 7 (1) Regulation (EC) No 139/2004, as adapted for the EEA. Exceptions exist for certain public bids and securi -
ties transactions. Those exceptions do not remove the notification requirement; they require notification without delay and restrict the exercise of voting rights unless a derogation is granted. Following formal notification, the competent authority examines the filing. The authority’s decision shall gen - erally be adopted within 25 working days, calculated from the working day following receipt of the notifica - tion or, if the notification is incomplete, from the work - ing day following receipt of the complete information. This time period is extended to 35 working days where commitments are offered or where a relevant referral request is made. If the authority finds that the notified concentration raises serious doubts as to its compatibility with the EEA Agreement, it initiates proceedings. The final decision must generally be adopted within 90 work - ing days from the initiation of proceedings. This peri - od may increase to 105 working days where com - mitments are offered in the circumstances specified. Likewise, the period may be extended by up to 20 working days at the request of, or with the agree - ment of, the notifying parties, and may be suspended in exceptional cases where information requests or inspections are required due to circumstances attrib - utable to one of the parties. The authority may clear the concentration, clear it subject to conditions and obligations, prohibit it, or order interim or restorative measures where an incom - patible concentration has already been implemented or where the obligations or conditions have been breached. Failure to notify before implementation or implemen - tation in breach of the standstill obligation may result in fines of up to 10% of the aggregate turnover of the undertakings concerned. Supplying incorrect or misleading information in a notification, submission, certification or supplement may result in fines of up to 1% of the aggregate turnover of the undertaking or association of undertakings concerned. 6.3 Cartels Anti-competitive agreements affecting Liechtenstein are governed by the competition rules of the EEA
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