CZECH REPUBLIC Trends and Developments Contributed by: Robert Neruda, Roman Světnický, Martin Rott and Robert Nersesjan, HAVEL & PARTNERS
To address these issues, the most common rec - ommendations included: • publishing guidelines on how the call-in mechanism would be applied; • establishing objective criteria or risk indica - tors; • offering a voluntary pre-notification system for borderline cases; or • creating a safe harbour for transactions clearly outside competitive concern. Whether these safeguards will be incorporated into the final legislation remains uncertain. With - out them, the CCA’s broadened powers may introduce significant friction into the M&A land - scape, particularly for smaller players unfamiliar with regulatory expectations. Revisiting the Notion of “Concentration” Alongside procedural reform, the CCA is also re-evaluating the substantive scope of what qualifies as a concentration under Czech law. This reconsideration is crucial, as it determines which transactions fall under the merger control jurisdiction. Traditionally, the notion of concentration has centred on full mergers, acquisitions of control, and the creation of full-function joint ventures. The proposed reform aims to expand and clarify this scope, particularly in relation to non-struc - tural, hybrid and serial transactions. The CCA has indicated that certain joint ventures and platform arrangements, previously consid - ered outside its remit, may fall within reviewable territory in the future. While this aligns with developments in the EU, the proposed Czech approach remains less clearly defined. Without a structured framework,
parties may struggle to determine whether their transaction amounts to a concentration or trig - gers competition law concerns under a different legal theory. However, the evolving interpretation of concen - tration raises a broader issue: the blurring of lines between merger control and behavioural enforcement. As the CCA moves towards cap - turing more transaction types under merger rules, there is a risk of overlap with Article 101 TFEU enforcement, especially in cases involving joint ventures or co-operation agreements. This raises questions regarding the ne bis in idem principle. That is why stakeholders have called for greater clarity on how the authority intends to distin - guish between these categories, and whether duplicative review under different legal theories may become more common. Ultimately, businesses may need to rethink how they structure deals, particularly where par - tial acquisitions or co-operative strategies are involved. Greater emphasis will likely be placed on transactional documentation, and early-stage regulatory self-assessments. Institutional and Procedural Reform A key objective of the proposed reform is to enhance the institutional capacity and proce - dural flexibility of the CCA. In recent years, the CCA has expressed frustration with legal con - straints that prevent it from reviewing potentially harmful concentrations, particularly those falling below current thresholds or involving novel deal structures. To address these concerns, the reform proposes significantly broader powers for the CCA. These include the ability to initiate reviews motu pro -
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