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What form should merger control notification take in Canada and what content is required?
Notifications may take two broad forms. One is a request for an advance ruling certificate or a no action letter. Pursuant to Sections 102 to 103 of the Competition Act, an advance ruling certificate, if issued by the commissioner of competition, confirms that the commissioner may not subsequently challenge the transaction based on the information which was provided to him or her in respect of the request for the advance ruling certificate. By contrast, a no action letter is a statement by the commissioner of competition that as presently advised, he or she does not intend to challenge the transaction. It is generally provided by the commissioner in conjunction with a waiver of the formal notification requirements.
Requests for an advance ruling certificate and no action letter are typically made in the form of a letter to the Competition Bureau outlining the transaction and the reasons why it is not likely to give rise to a substantial lessening or prevention of competition. These letters vary considerably in complexity. In transactions where there is virtually no overlap between the parties, the letter can be extremely short. In other cases where the transaction is complex and there is significant overlap, such requests can be extensive, detailed and involve considerable factual and economic evidence – typically similar to white paper submissions in the United States.
When an advance ruling certificate or no-action letter is requested without the filing of a formal notification, the Competition Bureau strives to respond promptly, but there is no formal time limit and the parties may not close the transaction until the bureau issues the advance ruling certificate or provides a no-action letter and waives the formal filing requirement.
The other notification approach is to file formal notification. This requires a considerable amount of detailed information, including:
- an overview of the transaction structure;
- an executed or draft copy of the legal documents used to implement the proposed transaction;
- a description of the transaction’s business objectives;
- a list of the foreign antitrust authorities that have been notified;
- a summary description of the principal business carried out by each party and their principal product categories, including contact information for the top 20 customers and suppliers for each product category;
- basic financial information;
- an indication of the geographic scope of sales of each of the party’s principal businesses; and
- all studies, surveys, analyses and reports prepared or received by an officer or director for the purpose of evaluating or analysing the proposed transaction – similar to the Section 4(c) documents under the US Hart-Scott-Rodino process.
Filing of this information, under oath or affirmation, starts a 30-day clock after which, if no supplementary information request is issued, the transaction may close. In transactions where timing is important, it is common to file formal notification to start the clock running. Where formal notification is filed, the parties almost always file a request for an advance ruling certificate or no action letter.
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