On March 1 2012 the Competition Bureau will commence publishing a Merger Register on its website that will disclose certain information about transactions that are subject to the pre-merger notification obligations contained in the Competition Act. Designed to increase transparency levels at the bureau, the register is not without controversy. Divulging such information is a marked departure in practice, as the bureau has traditionally felt constrained by the confidentiality restrictions in the Competition Act.
The bureau announced on February 6 2012 that any merger review completed after February 1 2012 will be included in the Merger Register, provided that the parties have either submitted a pre-merger notification or sought an advance ruling certificate in respect of the transaction. In essence, every merger transaction reviewed by the bureau – other than a non-notifiable transaction reviewed on the bureau's initiative – will be captured by the register. Inclusion in the register means that the following information will be published on the bureau's website:
- the names of the parties involved;
- the industry; and
- the outcome of the review.
Concerns have been raised that disclosing this information contravenes the strict confidentiality provisions found in the Competition Act. However, the bureau considers that publishing the register falls within one of the exceptions to the provisions, which permits disclosure "for the purposes of the administration or enforcement" of the statute.
In the majority of cases, particularly where the buyer or seller is a public company, the parties will have announced the transaction publicly before the conclusion of the bureau's review. In addition, in the overwhelming majority of cases, the bureau will already have had contacted market participants (ie, parties' customers and suppliers) as part of its merger review.
However, the Merger Register could represent the initial public disclosure of the transaction and the merger review in cases where:
- no market contacts have been made;
- the parties have decided not to make the transaction public; or
- the parties were under no other legal obligation to disclose the transaction.
Finally, the bureau has traditionally divulged the specific outcome of a merger review publicly (ie, whether an advance ruling certificate or a 'no-action' letter was issued) only in high-profile cases that merited a 'position statement' or 'technical backgrounder'.
There may be limited opportunities to minimise the impact of disclosure via the Merger Register process. Parties seeking to maintain the confidentiality of transactions and the outcome of reviews must identify these concerns to their legal advisers early in the process and develop appropriate communication plans to manage this process.
For further information on this topic please contact Kevin Ackhurst at Norton Rose OR LLP by telephone (+1 416 216 4000), fax (+1 416 216 3930) or email ([email protected]).