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Content last updated: 02-09-2019

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

No.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatoryif the thresholds described in Section 2.3.1 under the Merger Screening Schedule below are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Transactions shall be notified to the Competition Council prior to the implementation/completion and following the conclusion of the agreement, the announcement of a public bid, or the acquisition of controlling interest. 

A notification may also be made where the parties to the transaction demonstrate a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make a bid, provided that the intended agreement or bid would result in a notifiable transaction to the Competition Council.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

A transaction is caught by the Moldovan merger control rules if it brings a change of control on a lasting basis resulting from:

a) The merger of two or more previously independent undertakings or parts of undertakings; or

b) The acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The creation of joint ventures performing on a lasting basis all the functions of an autonomous economic entity resulting in permanent structural market change, i.e. a so-called "full function" joint venture. 

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

"Control" is defined as the possibility of exercising decisive influence on an undertaking by rights, contracts or any other means, either separately or in combination and having regard to the considerations of fact or law involved.

It has to be decided on the facts in each case, whether there is a possibility of exercising decisive influence over an undertaking. Decisive influence can be de jure in the form of acquisition of the majority of the voting rights or through special rights; or de facto based on a historic pattern of attendance at annual general meetings.

Only transactions that bring a lasting "change of control" to the undertakings concerned and in the structure of the market are covered by the Moldovan merger control rules. Thus, transactions resulting only in a temporary change of control, such as for instance a transitory transaction, are not covered.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Acquisitions of minority or other interests that do not lead to an acquisition of control do not fall within the Moldovan merger control rules and will not be considered by the Competition Council.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1?

In a merger, the "undertakings concerned" are each of the merging entities. 

In an acquisition of control, the undertakings concerned may vary depending on the characteristics of the transaction.

-  In case of acquisition of sole control, the undertakings concerned are the acquiring undertaking consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) and the target undertaking (i.e. not including the seller).

-  In case of acquisition of joint control of a newly created joint venture, the undertakings concerned are each of the undertakings jointly acquiring control. The same applies where one undertaking contributes a pre-existing subsidiary or a business (over which it exercises sole control) to a newly created joint venture.

-   In case of acquisition of joint control over a pre-existing undertaking or business, the undertakings concerned are each of the undertakings acquiring joint control, and the pre-existing acquired undertaking.

-   In case of entry of a new shareholder in a pre-existing joint venture, which leads to a change in the quality of control for the remaining controlling shareholders, the undertakings concerned are the newly entering controlling shareholder alongside with the remaining controlling shareholders. 

-   In case where a pre-existing, full-function joint venture acquires control over another undertaking, the undertakings concerned are the joint venture (i.e. not including the parent companies) and the target undertaking. Where a joint venture is mere acquisition vehicle, the undertakings concerned are in such situation the parent companies to the joint venture and the target undertaking.

-    In case of change from joint control to sole control, the undertakings concerned are the undertaking acquiring the sole control and the joint venture. The other "existing" shareholder (i.e. the seller) is not considered an undertaking concerned.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Whichever date is earlier of the date of conclusion of the binding legal agreement; the announcement of a public bid or the acquisition of a controlling interest.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

If the below cumulative threshold is met, the transaction will have to be notified to the Competition Council:

a) The combined aggregate worldwide turnover of all the undertakings concerned in the year prior to the concentration is more than MDL 25 million, and 

b) The turnover in the Republic of Moldova of each of at least two undertakings concerned in the year prior to the concentration is more than MDL 10 million.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

No.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

No.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Transactions falling below the above thresholds may not be investigated.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are not sector-specific or other ex ante merger control rules in Moldova.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions meeting the above thresholds have to be notified to the Competition Council, regardless of whether the undertakings concerned are domiciled outside of the Republic of Moldova.  

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the net turnover related to the sale of goods and/or services in the ordinary course of business exclusive of (i) rebates; (ii) value added tax and other taxes directly related to the turnover; and (iii) group internal sales.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Guidance to the calculation of turnover can be found in the Regulation on the Economic Concentrations no 17, as of 30 August 2013, based on the Law on Competition no 183, as of 11 July 2012 that comprises partially rules established by the Regulation (EC) no 139/2004 on Control of Undertakings concerned.

Official rules provided by the Regulation:

https://competition.md/public/files/uploads/files/Regulamente/Concurenta/eng/REGULATION%20on%20economic%20concentrations.pdf

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover figures should be based on the latest financial year for which audited annual accounts exist. 

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the „undertakings concerned” in Section 2.1.1 above. In short, the undertakings whose turnover is taken into account comprise the entire group that the acquirer belongs to and the target's group (i.e. target and any of its wholly or jointly-owned subsidiaries).  

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller`s turnover shall not be included in the target`s group turnover. 

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for investment funds; state-owned undertakings; financial institutions and insurance undertakings. 

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of acquisition of sole control, the acquirer is responsible for filing.

In case of acquisition of joint control or a merger creating a new entity, the notification must be jointly submitted.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, a transaction meeting the above thresholds has to be notified to the Competition Council prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Notification may be made where the undertakings concerned demonstrate to the Competition Council a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make such a bid, provided that the intended agreement or bid would result in a notifiable transaction.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

The filing fee is 0.1% of the aggregate turnover obtained by all undertakings involved in the territory of the Republic of Moldova in the year prior to the concentration, but not exceeding MDL 75,000.

1.4.2 When must the filing fee must be paid?

The fee is paid upon submission of the notification of the economic concentration.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The Competition Council publishes on its official website a non-confidential notice of the fact that it has received a notification, inviting third parties to comment on the proposed transaction.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The Competition Council will abstain from commenting on active cases in the media.

1.5.3 Will third parties be able to review the notification?

Third parties may upon request be granted access to file in a non-confidential version of the notification.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

The law allows transactions to be notified pursuant to a simplified procedure, if the undertakings concerned are not operating in the same or related markets, or if they have only very small market shares not reaching specific market share thresholds. Namely, if the parties combined market shares do not exceed 15 % on any markets where they both compete (horizontal links) or 25 % on any vertically related markets.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

For both the simplified and the complete procedures, the stages are:

1) Submission of the notification;

2) The Competition Council informs in writing within 10 business days that the notification is effective, or that additional information is necessary.

3)  First phase examination of the notification by the Competition Council. This lasts 30 business days as of the date when the notification became effective. 

4) The Competition Council issues a decision either approving the concentration or initiating a phase two investigation.

5) Phase two investigation. This lasts 90 business days as of the Competition Council’s decision to open the investigation.

6) The Competition Council issues the decision approving the concentration with or without the parties’ commitments (e.g. structural commitments such as divesture of assets or shares or commitments to grant access to products on equal terms) or declares that the concentration raises serious competition concerns and is anticompetitive. 

The difference between the simplified and the complete procedures consists in the quantity of information to be provided by the undertakings concerned.  The complete procedure form requires more information on the relevant markets identified in the notification. 

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Pre-notification contact with the Competition Council is not mandatory. 

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable. 

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Please see Section 2.2.1 above. In general, the Competition Council will have:

(1) 10 business days to confirm if the notification is effective;

(2) 30 business days to perform the first phase examination; and

(3) 90 business days for the second phase investigation. 

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The requests of the Competition Council for additional documents or information suspends deadlines until the party provides the requested information or documents. 

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

To discuss legal or practical aspects of the notification, the parties may request a pre-notification consultation with the Competition Council at least 3 days before the notification. The duration of such a contact is flexible, depending on the circumstances and nature of the notification to be submitted, as well as other considered criteria.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Competition Council has mandatory notification forms for the simplified and complete procedures, which are attached as Annex 1 and 2 to the Government Decision No 17/2013 on the Approval of the Regulation of Economic Concentrations.

Please see: http://www.legis.md/cautare/rezultate/39781

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Documents must be submitted in original or photocopies certified by the duly authorized representative of the notifying party. 

Documents in foreign languages shall be translated into Romanian by certified translators. 

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification form must be filled in the Romanian language. 

3.4.2 Does translations have to be certified/legalized and apostilled?

Documents in other languages must be translated into Romanian by certified translators. 

Statutory timetable

Step Description Time
1

Pre-notification

Pre-notification contact with the Competition Council is not mandatory. 

Please refer to Section 2.2.2 above.

To discuss legal or practical aspects of the notification, the parties may request a pre-notification consultation with the Competition Council at least 3 days before the notification. The duration of such a contact is flexible, depending on the circumstances and nature of the notification to be submitted, as well as other considered criteria.

2

Submission of the notification

The Competition Council informs in writing within 10 business days that the notification is effective, or that additional information is necessary. 

10 business days to confirm if the notification is effective.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Phase 1

First phase examination of the notification by the Competition Council. 

The Competition Council issues a decision either approving the concentration or initiating a phase two investigation.

This lasts 30 business days as of the date when the notification became effective.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

4

Phase 2

Phase two investigation. The Competition Council issues the decision approving the concentration with or without the parties’ commitments (e.g. structural commitments such as divesture of assets or shares or commitments to grant access to products on equal terms) or declares that the concentration raises serious competition concerns and is anticompetitive. 

This lasts 90 business days as of the Competition Council’s decision to open the investigation.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Step 4 4
  • 0-3 days
  • 10 days
  • 30 days
  • 90 days

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 02-09-2019 by
Contact Person
Igor Odobescu, Partner
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