CZECH REPUBLIC Law and Practice Contributed by: Robert Neruda, Roman Světnický, Martin Rott and Robert Nersesjan, HAVEL & PARTNERS
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review If a decision prohibiting a concentration is issued, parties can appeal to the chairperson of the OPC. In second instance, the appeal is reviewed and decided upon by the chairper - son of the OPC. If the first instance decision is confirmed by the chairperson, the parties may bring an administrative action against the chair - person’s decision before the Regional Court in Brno. 8.2 Typical Timeline for Appeals Once a decision is issued and delivered, the par - ties (usually the acquirer) may lodge an appeal against the decision within 15 days. The appeal has a suspensory effect. Following the chairper - son’s decision, the parties have two months to file an action with the Regional Court in Brno. 8.3 Ability of Third Parties to Appeal Clearance Decisions 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 objec - tions. 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 par - ties to the proceedings may appeal a clearance decision.
9. Foreign Direct Investment/ Subsidies Review 9.1 Legislation and Filing Requirements Czech FDI Screening Regime The Czech FDI 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 infrastruc - ture, 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 manda - tory if the target holds a licence for nationwide radio or television broadcasting, or publishes periodicals with a combined average daily print run of at least 100,000 copies. Moreover, the FDI Act grants the MIT the power to open an investigation into any foreign invest -
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