GREECE Law and Practice Contributed by: Stathis Orfanoudakis, Theodore Konstantakopoulos and Yolanda Antoniou-Rapti, Zepos & Yannopoulos
It is to be noted that, further to the adoption of the EU Foreign Direct Investment (FDI) Screen- ing Regulation, there has been increased regula- tion regarding foreign investments in many EU member states. Greece, however, has not yet implemented an FDI screening mechanism. 7.4 National Security Review/Export Control Except for the restrictions mentioned in 7.3 Restrictions on Foreign Investments , there are currently no further national security review/ export control regulations applicable in Greece. 7.5 Antitrust Regulations Takeovers and business combinations (includ- ing full-function joint ventures) may be notifiable to the HCC, provided the entities involved meet certain turnover-related thresholds, as set out in the Greek Competition Act. The parties involved are subject to a standstill obligation not to con- summate the respective transaction until it has been cleared by the HCC. The statutory frame- work is almost identical to that of the EU and HCC decisions are usually in line with EU case law and practices. The statutory merger control thresholds that would trigger a notification obligation to the HCC are stipulated in Article 6 of the Greek Competi- tion Act and are as follows: • the combined worldwide turnover of all undertakings concerned amounts to at least EUR150 million; and • each of at least two undertakings concerned has an aggregate Greek turnover exceeding EUR15 million. The above-mentioned criteria must be cumula- tively met.
Under the provisions of the Greek Competition Act, the turnovers of the parties are calculated at a group level (ie, they include turnover of all entities belonging to the same group of compa- nies), and they include all products and services offered by the parties. Larger transactions may be notifiable to the EC if the respective thresholds set out in Council Regulation No 139/2004 (the EC Merger Regula- tion) are met. 7.6 Labour Law Regulations The main labour law considerations concern- ing M&A transactions in Greece usually revolve around the issue of a transfer of business and the protection of the rights of employees in the context of such transfer. Thus, the most com- mon instances of such issues are identified either in transactions structured as asset deals or in transactions involving some type of corpo- rate transformation (eg, a demerger or a spin- off), given that share deals do not result in a change in the identity of the employer. A transfer of business within the meaning of the Greek TUPE (Transfer of Undertakings (Protec- tion of Employment)) legislation (Presidential Decree 178/2002) occurs when the transferred economic entity retains its identity, meaning an “organised grouping of resources” (eg, tangible and intangible assets, licences, personnel and customers) that has the objective of pursuing an economic activity– whether that activity is cen- tral or ancillary. The tendency of the Greek courts is to interpret the above-mentioned definition in a wide manner and in favour of the employees. Indicatively, the courts base their assessment on the transfer of (tangible and intangible) assets, transfer of personnel, transfer of clientele, con- tinuation by the transferee of the same or similar business activity, etc. Based on the foregoing
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