CZECH REPUBLIC Law and Practice Contributed by: Robert Neruda, Roman Světnický, Martin Rott and Robert Nersesjan, HAVEL & PARTNERS
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications 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 as part of the filing of the transaction. Accordingly, separate notifications are not possible. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties may get involved in the merger control process in various ways. In particular, competitors may file objections against a con - centration, which the OPC is obliged to address in its final decision. Historically, competitors who adopted an active approach in the pro - ceeding through substantiated objections were given grounds to appeal against the OPC’s first- instance decision. This practice was later aban - doned. Customers may be involved by the OPC through an RFI or a market survey. The OPC takes these documents into account, particularly when defin - ing relevant markets and assessing demand substitution. 7.2 Contacting Third Parties The OPC usually contacts third parties in more complex merger proceedings, especially those
assessed in phase II investigations. It is rather uncommon for the OPC to reach out to third par - ties 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. 7.3 Confidentiality 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 com - ments. 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. 7.4 Co-Operation With Other Jurisdictions The OPC is a member of the European Competi - tion 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’ per - mission to share information with other jurisdic - tions after the filing is made. Within the pre-noti - fication procedure, on the other hand, the OPC seeks parties’ permission to share information with other jurisdictions in transactions concern - ing multiple member states.
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