CZECH REPUBLIC Law and Practice Contributed by: Robert Neruda, Roman Světnický, Martin Rott and Robert Nersesjan, HAVEL & PARTNERS
2.11 Power of Authorities to Investigate a Transaction The OPC may neither request a merger notifica - tion nor investigate or oppose a transaction if the jurisdictional thresholds are not met. Con - sequently, undertakings may not file voluntarily if the required thresholds are not met. To date, the OPC has not used any of the new tools affirmed by recent CJEU case law (eg, the “Dutch clause” or the procedure applied in the Towercast case) to investigate transactions that fall below the thresholds. The OPC recently proposed an amendment to the CCA, introducing a “call-in” model in merg - er control. The call-in model gives the OPC the power to require merging entities to notify a transaction that does not meet the turnover criteria, provided that each of the undertak - ings concerned achieved a turnover of at least CZK100 million (EUR4 million). This power would be limited to six months after the closing of the transaction. The amendment was passed by the Czech government in late 2024. However, it is unlikely that it will be adopted by the parliament before the general election in October 2025. The OPC confirmed its intention tore-introduce the amendment to the new parliament after the gen - eral election. As a result, the amendment will not enter into force before 1 July 2026 at the earliest. 2.12 Requirement for Clearance Before Implementation The standstill obligation applies in the Czech merger control regime: undertakings may not implement a transaction meeting the notifica - tion criteria before clearance from the OPC is received. The merging undertakings are required to run their businesses separately and indepen - dently until the approval decision is issued and enters into force.
2.13 Penalties for the Implementation of a Transaction Before Clearance 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 the 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 latest decisions of the OPC concerning gun-jumping case were both issued in 2024, the authority imposed a sanction of CZK18.8 million (approximately EUR752,000) on EP ENERGY TRADING and CZK1.8 million (approximately EUR72,000) on Auto UH group for exercising control over target companies before filing to the OPC. There are no known cases where the OPC has imposed fines on foreign-to-foreign transactions. 2.14 Exceptions to Suspensive Effect The prohibition of implementation before clear - ance 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 pro - ceedings 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 excep - tions to the suspensive effect.
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