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Merger Control

Introduction

The purpose of a merger control regime is to assess, normally prospectively, the net competitive effects of a given transaction and to provide for remedies that preserve competition. Read more…

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    Applicable legislation and the competent authorities

  • 1.

    What is the legislation applicable to merger control and how long has merger control legislation been in force?

  • 2.

    Is there any additional sector- or industry-specific merger regulation legislation?

  • 3.

    Are parties that are required to file notification of a transaction pre-closing obliged not to close their transaction pending regulatory review?

  • 4.

    Where pre-closing notification and approval is required, can a transaction that has been approved be challenged after closing? Has this ever happened? 

  • 5.

    Who are the authorities responsible for merger enforcement and how is responsibility for investigation and decision-making allocated between authorities or within an authority?

  • Time frames

  • 6.

    Identify the last three times merger control legislation was used to prohibit a transaction, and for each, provide the ultimate outcome.

  • 7.

    With respect to notifiable transactions that do not raise obvious competition concerns, what is the expected time frame from notification to a decision? 

  • 8.

    With respect to notifiable transactions that raise obvious competition concerns, what is the expected time frame from notification to a decision?

  • Notifiable transactions: thresholds

  • 9.

    Which type of transactions must be notified?

  • 10.

    Where change in control is part of the test, what is the standard for defining control and changes thereof for pre-merger notification purposes? 

  • 11.

    What thresholds apply for determining whether a transaction must be notified? May the authority require the parties to notify a transaction that does not meet the thresholds?

  • 12.

    In what conditions must transactions between foreign companies be notified? 

  • Notification procedure, timing and penalties for non-compliance

  • 13.

    Who must file the notification?

  • 14.

    Are there filing fees?

  • 15.

    Is there a standard form? How long does it take to prepare a filing? What type of information is generally required? 

  • 16.

    When must notification be made? Is there a triggering event that requires a filing to be made within a specified period? 

  • 17.

    Is there a pre-notification requirement or custom whereby a draft notification is submitted first to the authority for comments and questions to be addressed before formal notification is made? How does that work in practice and what are the risks of submitting a formal notification without this step? 

  • 18.

    When must notification be made with respect to acquisitions of convertible non-voting securities or options? 

  • 19.

    Where there is an obligation not to close the transaction pending review, is there any alternative available to allow closing before formal clearance? Is there any guidance from the authority as to how the parties should conduct business between signing and closing?

  • 20.

    What is the timeline for review and clearance?

  • 21.

    Are there post-clearance obligations imposed on the parties for a clearance decision to remain valid? 

  • 22.

    Is there a simplified notification procedure with accelerated review periods? What type of transactions qualify?

  • 23.

    Are there special rules applicable for public takeover bids, private equity transactions or for corporate restructuring under bankruptcy procedures? 

  • 24.

    Can the authority be consulted on a no-names basis for guidance on notification requirements? Is this practice useful? 

  • 25.

    What are the risks if the parties do not file, if the transaction is closed before clearance or if notification is untimely? What type of behaviour can be considered gun-jumping? What sanctions can be imposed and on whom? What is the highest fine imposed to date for failure to file or gun-jumping? 

  • The review process, confidentiality and the role or influence of third parties

  • 26.

    What are the investigative powers of the authority? 

  • 27.

    Are there confidentiality rules to protect sensitive proprietary information provided to the authority and what procedure must be followed for confidentiality to apply? 

  • 28.

    Is notification and its content publicised? 

  • 29.

    Are there agreements in place to exchange information with foreign competition authorities? Must the authority seek a waiver from the transaction parties to disclose confidential information submitted in their filing? 

  • 30.

    As a matter of practice, how do the authorities investigate a transaction? Whom do they consult?  What weight, based on your experience, does the authority give to the information provided? 

  • 31.

    What rights do third parties such as competitors, suppliers or customers have to intervene and participate in the investigation process, including rights to access the investigation file? Is the content of their participation publicised?

  • 32.

    Can third parties appeal clearance decisions, and has this ever happened successfully?

  • 33.

    In a transaction that appears to raise competitive concerns, is it recommended to consult the authority prior to filing and, if so, why? 

  • 34.

    Do the authority and its staff share their concerns about a transaction with transaction parties at each stage of review? How can parties productively participate in the evaluation and decision processes?

  • Substantive analysis and remedies

  • 35.

    Are there published guidelines for merger analysis? 

  • 36.

    What are the prevailing theories of competitive harm and analysis, and how are they typically applied? 

  • 37.

    Are there safe harbours and what are they? 

  • 38.

    To what extent are economic efficiencies and non-competition issues taken into account in the review process? 

  • 39.

    Can remedies be negotiated, and, if so, at what stage in the process? How are they enforced? 

  • 40.

    How common are negotiated remedies? Can negotiated remedies be challenged by third parties? 

  • 41.

    Is there a vehicle for reconsideration by the authority of its decision? If so, please describe and provide recent examples where reconsideration led to a revised outcome.

  • Judicial review

  • 42.

    Can a decision from the regulator be appealed and if so what is the timetable for judicial review to take place?

  • 43.

    What has been the most important challenged decision in the past five years that has been overruled and how often generally do appeals result in reversal?

  • 44.

    When reviewing decisions from the competition authority, do courts restrict themselves to procedural aspects, or can they review the substance of the authority’s analysis?

  • Case law

  • 45.

    Briefly highlight any notable merger control decisions rendered over the past 12 months.

  • 46.

    Update and trends