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MERGERS: Antimonopoly Office of the Slovak Republic imposed fines for the failure to notify the change of control over the undertaking Panta Rhei

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On 16 October 2018 the Antimonopoly Office of the Slovak Republic, the Division of Concentrations, (hereafter "the Office") issued a decision imposing fines on the undertaking J&T FINANCE GROUP SE, the Czech Republic (hereafter "JTFG") in the total amount of EUR 600 000 and Ladislav Bödők, the Slovak Republic (hereafter "LB") in the total amount of EUR 7 571 (hereafter "parties to the proceedings”).

The Office stated in the decision that the parties to the proceedings infringed the Act on the Protection of Competition by failing to notify the merger grounded in the acquisition of the joint control of the undertaking JTFG and LB over the undertaking Panta Rhei. They infringed the Act also by exercising rights and obligations arising from the merger before it was finally decided on it by the Office, with the full implementation of the merger being occurred, i. e. it came to the acquisition of the share in the company Panta Rhei by the undertaking JTFG and to the subsequent exercise of the joint control of the parties to the proceedings over the company.

Before the merger, the company Panta Rhei was under the exclusive control of LB. Already in the autumn of 2012, the Office initiated the investigation in relation to the medialized information about the sale of this company. It was found out that a certain share in the company Panta Rhei was acquired by the undertaking Diversified Retail Company, a.s., Bratislava (hereafter "DRC"). On the basis of the information available, the Office had suspicions in relation to the real acquirer of the share in Panta Rhei. In the view of this information, the Office further investigated whether by the transfer of share and the setting-up of decision-making processes did came to the creation of a merger that should be notified to the Office. In the framework of the investigation outside the administrative proceedings, the Office used several options to acquire information and documentation, among other things, he carried out an inspection in the business premises of the undertaking DRC and the undertaking Panta Rhei.

Its findings in relation to the infringements of the Act were communicated by the Office in the call for expression before the issuance of the decision addressed towards the parties to the proceedings. At the same time, the Office may, in the interests of economy of the proceedings or of swift and effective remedy on the market, on its own initiative or at the request of a party to proceedings, conduct a settlement hearing. In this case, the Office began negotiations on settlement. If the party to proceedings and the Office agree with the conclusions of the settlement negotiations and the participant to the proceedings admits his/her participation in the infringement and assumes the responsibility for such participation, the Office shall reduce the fine that he would otherwise have imposed. Both parties, having regard to the Office's findings, made the settlement, resulting in the reduction of the fine by 50 %.
The decision on the matter is final and the Office expects a redress to be made in the form of an additional notification of the merger in question.
The decision came into force on 2 November 2018.