These tables are for quick reference only. They are not intended to provide exhaustive procedural guidelines, nor to be treated as a substitute for specific advice. The information in each table has been supplied by the authors of the chapter.

Albania

 

Voluntary or mandatory system

Mandatory system: the filing of a notification with the Albanian Competition Authority is mandatory in cases where the applicable turnover thresholds are met.

Notification trigger/filing deadline

Concentrations have to be notified within 30 days from the date of entering into the merger agreement or the agreement pursuant to which a controlling interest is acquired, or from the date of publication of the public offer to purchase or exchange shares.

Clearance deadlines (Stage 1/Stage 2)

A preliminary proceeding (Phase I) applies where a merger is unlikely to lead to the creation or strengthening of a dominant position in the relevant market. The Authority has to decide on the merger within two months of the working day following the confirmation of receipt of a complete notification. Since June 2016, a fast-track proceeding is available.

An in-depth (Phase II) proceeding applies where the transaction gives rise to concerns regarding a dominant position being created or reinforced. The Authority must investigate the case and issue a decision within three months from the start of such Phase II proceeding (which can be extended by up to one month).

If within these time limits, the Authority does not issue a decision, the concentration is deemed to be approved.

Substantive test for clearance

The Authority assesses whether the concentration may lead to a substantial lessening of competition in the market or a part thereof, especially by the creation or strengthening of a dominant position on the relevant market.

Penalties

If the undertakings that are required to notify the merger fail to duly file within the set time limits (late filing), the Authority may impose fines of up to 1 per cent of their annual turnover in the last completed business year. If the undertakings concerned close the transaction prior to clearance, the Authority may impose fines amounting to up to 10 per cent of each participating undertaking’s previous annual turnover.

Remarks

Although the Albanian merger control regime is still a rather young regime, it has experienced a clear increase in activities by the Authority in enforcing merger control law (and competition law in general).

 

Algeria

 

Voluntary or mandatory system

An operation is subject to merger control when such operation qualifies as a ‘concentration’ within the meaning of the Algerian competition law and this concentration is likely to affect competition on a relevant market. The notification is automatically required when the concentration aims at achieving a threshold in excess of 40 per cent of the sales or purchases made on a given market.

When those conditions are met, notification of such operation to the Competition Council is mandatory, the Competition Council having a three-month period to render its decision. It should be noted that the notification has a suspensory effect.

Notification trigger/filing deadline

As soon as the transaction becomes sufficiently advanced and certain.

The upcoming reform of the competition law clarifies the notification trigger (ie, when the parties concerned are in a position to submit a project sufficiently advanced (signing of a letter of intent in particular)).

Clearance deadlines (Stage 1/Stage 2)

The Algerian competition law does not provide for deadlines per phase. Overall, the Competition Council has three months from the filing to render its decision.

Substantive test for clearance

The substantive test for clearance is whether the concentration impacts competition on a relevant market, in particular by strengthening a dominant position.

The notification is automatically required when the concentration aims at achieving a threshold in excess of 40 per cent of the sales or purchases made on a given market.

Penalties

The sanction incurred in case of a concentration closed without prior clearance, consists in a maximum fine of 7 per cent of the turnover realised during the past fiscal year in Algeria by the parties to the concentration or by the undertaking resulting from the concentration.

Remarks

Recently, the Competition Council published press releases intended for the economic operators on the merger control framework, recalling the sanctions incurred when a notifiable concentration is realised without the Council authorisation.

 

Australia

 

Voluntary or mandatory system

Voluntary, although there are two ways of obtaining clearance: informal clearance and authorisation.

Notification trigger/filing deadline

Because the system is voluntary, there are no mandatory notification triggers or filing deadlines. However, the ACCC’s Merger Guidelines indicate that it expects to be notified where the products of the merger parties are substitutes or complementary and post-merger the firm will have a market share of more than 20 per cent. The informal clearance process can take between two and 28 weeks, and significantly more in complex cases or where a remedy is proposed, so parties should file with the ACCC early enough to allow the informal clearance process to be finalised before the transaction is completed.

Clearance deadlines (Stage 1/Stage 2)

Informal clearance may take between two and 28 weeks, possibly significantly more in complex cases or where a remedy is proposed.

The ACCC must reach a determination on an application for authorisation of a merger within 90 days (which can be extended). If a decision has not been made within this period, the ACCC is taken to have refused to grant the authorisation.

Substantive test for clearance

For informal clearance, the ACCC considers whether the acquisition would have, or be likely to have, the effect of substantially lessening competition in the relevant market.

For authorisation applications, the ACCC can grant merger authorisation if it satisfied that either the proposed acquisition would not be likely to substantially lessen competition, or the likely public benefit from the proposed acquisition outweighs the likely public detriment.

Penalties

The maximum penalty for a corporation breaching the merger provisions of the CCA is the greater of the following: A$10 million; three times the value of the benefit that the body corporate obtained directly or indirectly and that is reasonably attributable to the contravening conduct; or where that value cannot be readily calculated, 10 per cent of the annual turnover of the body corporate and its related bodies corporate.

For individuals, the maximum penalty is A$500,000.

Other remedies include injunctions restraining completion of the transaction, divestiture and a declaration that the transaction is void.

Remarks

Although merger clearance in Australia is voluntary, the law is vigorously enforced by the ACCC. Where parties choose not to make a voluntary merger notification to the ACCC, it is not uncommon for the ACCC to contact the parties seeking information to enable the ACCC to determine if the transaction is likely to raise competition concerns.

 

Austria

 

Voluntary or mandatory system

Mandatory system, based on:

  • turnover thresholds; and
  • specific legal definitions for transactions constituting notifiable concentrations.

Notification trigger/filing deadline

A merger must be notified prior to its completion if, in the last business year:

  • the combined worldwide turnover of all undertakings concerned exceeded €300 million;
  • the combined Austrian turnover of all undertakings concerned exceeded €30 million; and
  • the individual worldwide turnover of at least two of the undertakings concerned each exceeded €5 million.

 

Even where these thresholds are met, mergers are exempt from the notification obligation where the domestic turnover of only one of the undertakings concerned exceeded €5 million and where the worldwide combined turnover of the other undertakings concerned did not exceed €30 million.

Note: a merger must be notified in any case if: the combined worldwide turnover of all undertakings concerned exceeded €300 million, the combined Austrian turnover of all undertakings concerned exceeded €15 million, the value of consideration exceeds €200 million and the target is active in Austria to a significant extent.

It is possible to file a pre-merger notification even prior to the signing of the relevant agreement, provided the parties have, in principle, agreed on structure and timing of the transaction and intend to enter into this agreement in the foreseeable future. There is no filing deadline but mergers subject to merger control must not be completed before clearance.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: four weeks from filing (six weeks in the case of extension upon request by the notifying party; legal amendment of 2013).

Stage 2: five months from receipt by the Cartel Court of a request of Stage 2 proceedings (six months in the case of extension upon request by the notifying party; legal amendment of 2013).

Substantive test for clearance

Whether the merger will create or strengthen a dominant market position.

Penalties

The Cartel Court can impose on each party that has intentionally or negligently violated the standstill obligation a fine in the amount of up to 10 per cent of the worldwide turnover achieved by that party in the last business year.

Remarks

Acquisitions of 25 per cent or more of the shares of a company are subject to merger control even if they do not confer sole or joint control on the acquirer. Special rules for media mergers, both as regards the calculation of turnover and the substantive test for clearance. Special rules also for calculation of turnover of banks and insurance companies. Bank exemption – temporary acquisitions by financial institutions are exempted from merger control subject to certain conditions. Due to the two-level authority system (with the statutory parties having a right to appeal against court decisions), long stop dates need to be carefully considered for (potentially) problematic cases.

 

Belgium

 

Voluntary or mandatory system

Mandatory system. The form of notification is the special form similar to Form CO and made in French or Dutch.

Notification trigger/filing deadline

Combined Belgian turnover over €100 million and at least two of the parties have an individual Belgian turnover of at least €40 million. A concentration must be notified and cleared prior to its implementation.

Clearance deadlines (Stage 1/Stage 2)

Stage 1 decisions must be adopted within 40 working days. Stage 2 decisions must be made within an additional 60 working days. If the parties offer commitments in order to meet competition concerns, the first phase can be extended by 15 working days and the second phase by 20 working days.

Substantive test for clearance

Whether a concentration would ‘significantly impede effective competition’ on the Belgian market or on a substantial part of it, in particular as a result of the creation or strengthening of a dominant position.

Penalties

A fine of up to 1 per cent of the total turnover in the preceding financial year where the notifying parties obstruct merger control investigations (eg, by providing incorrect or incomplete information). Where parties implement the concentration without clearance, a fine of up 10 per cent of the total turnover in the preceding financial year can be imposed.

 

Bosnia and Herzegovina

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

Signing of the respective agreement, the announcement of a public offer of shares or an acquisition of control – 15 days.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 30 days from the issuance of the certificate of completeness for (i) the approval of the concentration or (ii) initiation of Stage 2.

Stage 2: 3 months from the initiation of Stage 2, possible extension by additional 3 months.

Substantive test for clearance

Concentration resulting in the creation or strengthening of a dominant position that may restrict competition in the market.

Penalties

Failure to notify within due time:

  • a fine of up to 1 per cent of the total turnover of the undertakings concerned, realised in the business year preceding the concentration;
  • a fine of between 5,000 and 15,000 Bosnia and Herzegovina convertible marks for the responsible individuals.

Closing a concentration without obtaining prior clearance:

  • a fine of up to 10 per cent of the parties’ total turnover in the year preceding the closing;
  • a fine of between 15,000 and 50,000 Bosnia and Herzegovina convertible marks for the responsible individuals.

 

Brazil

 

Voluntary or mandatory system

Mandatory system for mergers, acquisitions, consolidations and joint ventures that produce an effect in Brazil and meet the double turnover legal threshold.

Notification trigger/filing deadline

There is no deadline for filing in Brazil, but transactions cannot be closed or implemented before clearance.

The notification with CADE should be made preferably after the signing of the binding document.

Clearance deadlines (Stage 1/Stage 2)

Simple and ordinary cases that are not challenged by the General Superintendence do not go to CADE’s Tribunal are approved at the General Superintendence level. Complex cases that are challenged by the General Superintendence are first reviewed by the General Superintendence and then sent to CADE’s Tribunal for analysis and decision. Clearance time has been in an average of 15 days for simple cases, and can take six or more months for complex ones (up to 240 plus possible 60 or 90-day extensions).

In complex cases, pre-filing meetings with authority are not only welcome but required.

Substantive test for clearance

The law provides for both dominance and substantial lessening of competition tests, though the former one has implicitly been more used by CADE.

CADE can approve transactions, despite any anticompetitive effects, if the merger achieves the following results:

  • an increase in the productivity or competitiveness;
  • an increase in the quality of goods and services; and
  • it contributes to efficiency and technological and economic development.

Additionally, a relevant part of these results must be shared with the consumers.

Penalties

Pecuniary penalty that may range from 60,000 to 60 million reais:

  • act null and void;
  • administrative proceeding if the deal is considered harmful to competition.

Remarks

CADE has stated in the decision of the Cisco/Technicolor merger review (merger review No. 08700.009018/2015-86) that CADE will not accept carveouts of the Brazilian assets as a means to avoid gun jumping.

We welcome the publication of CADE’s Resolution No. 16 establishes that the analysis of fast-track cases will not surpass 30 days, and Resoluion No. 17 sets forth rules on the ‘associative agreements’ and the Memorandum of the Understanding signed between CADE and the Central Bank deals with each agency’s jurisdiction in merger control cases involving the banking sector.

In July 2019, CADE’s Tribunal approved Resolution No. 24 of 2019 that replaces Resolution No. 13 and establishes procedural aspects for gun-jumping investigations and the notification of transactions the submission of which is not mandatory. It also sets forth the criteria for the calculation of gun-jumping fines based on CADE’s practices, including aggravating factors (eg, timing, severity of conduct and intent). On the same date, CADE approved Resolution No. 25 of 2019 that provides for the formal aspects and standards for the Commissioners of CADE’s Tribunal to write and present their votes on cases before they are read during CADE’s hearing sessions.

 

Bulgaria

 

Voluntary or mandatory system

Mandatory and voluntary.

Notification trigger/filing deadline

The entry into an agreement, the publication of a bid or the announcement of acquisition of control as a result of trading in exchange traded securities, but before the undertaking of actual actions to accomplish the concentration. No filing deadline.

Clearance deadlines (Stage 1/Stage 2)

Phase I: three + 25 working days (possibility to extend by up to 20 working days).

Phase II: four months (possibility to extend by up to 40 working days).

Information requests stop the clock. The deadlines are instructive.

Substantive test for clearance

The creation or strengthening of a dominant position as a result of which effective competition would be significantly impeded.

A clearance is possible despite the creation or strengthening of dominance, where significant efficiencies resulting from the transaction outweigh any potential negative effects.

Penalties

Up to 10 per cent of the annual turnover of the infringer.

 

Canada

 

Voluntary or mandatory system

Notification is mandatory for transactions that exceed certain thresholds. However, the Competition Act’s substantive jurisdiction extends to mergers of any size that have an effect on the Canadian marketplace, whether involving domestic parties or purely foreign-to-foreign mergers.

Notification trigger/filing deadline

No filing deadline. Where advance notification is required, parties may file at any time after reaching an agreement or letter of intent. However, transactions may not be completed during mandatory no-close periods.

Clearance deadlines (Stage 1/Stage 2)

A mandatory 30-day no-close period is triggered by submission of a notification. If the Commissioner issues a supplementary information request, submission of the required responses will trigger a further no-close period that expires 30 days after both parties have responded.

Substantive test for clearance

Whether the merger is likely to prevent or lessen competition substantially in a relevant market.

Penalties

The criminal penalty for not filing a mandatory notification is a fine of up to C$50,000, as well as the possibility of an additional penalty of up to C$10,000 per day for closing a transaction prior to the expiry of a waiting period.

Remedies for an anticompetitive merger include prohibition of a proposed merger, dissolution or divestiture.

Remarks

The acquisition of control of a Canadian entity by a non-Canadian will also require notification and possibly review and approval under the Investment Canada Act.

 

China

Voluntary or mandatory system

Notification is mandatory.

Notification trigger/filing deadline

Notification is required for any transaction that constitutes a ‘concentration of undertakings’ if one of the following notification triggers is met:

The total worldwide turnover of all parties to the transaction exceeded 10 billion yuan and the PRC turnover of each of at least two parties to the transaction exceeded 400 million yuan in the preceding financial year.

The combined PRC turnover of all parties to the transaction exceeded 2 billion yuan and the PRC turnover of each of at least two parties to the transaction exceeded 400 million yuan in the preceding financial year.

There is no filing deadline.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 30 days from the notification being declared complete by SAMR.

Stage 2: 90 days from the date of SAMR’s decision to initiate further review of the transaction with the possibility of extension by another 60 days.

Substantive test for clearance

Whether the concentration has or is likely to have ‘the effect of eliminating or restricting competition’.

Penalties

SAMR may order the undertakings to cease the implementation of the concentration, dispose of shares or assets, or transfer businesses within a given time limit and adopt other necessary measures to restore the market situation to that before the implementation of the concentration. SAMR may also impose a fine of a maximum of 500,000 yuan.

Remarks

SAMR may order the undertakings to cease the implementation of the concentration, dispose of shares or assets, or transfer businesses within a given time limit and adopt other necessary measures to restore the market situation to that before the implementation of the concentration. SAMR may also impose a fine of a maximum of 500,000 yuan.

 

Colombia

Voluntary or mandatory system

Mandatory system when the companies meet certain conditions.

Notification trigger/filing deadline

Merger control triggers whenever the transaction implies the acquisition of competitive control between parties engaged in the same economic activities or value chain, and surpassing an economic threshold of approximately US$16 million in operating income or total assets.

No specific deadlines for filing are established in the law. However, the parties must obtain clearance before closing the transaction.

Clearance deadlines (Stage 1/Stage 2)

For a notification proceeding (ie, when the parties account for less than 20 per cent of the relevant market), SIC has 10 business days to issue an acknowledgement of receipt.

For a prior approval proceeding, once the parties have submitted all the required information, SIC has (i) 30 business days to decide the proceeding in Stage I, or (ii) three months from the time the answer to the second information request has been submitted to decide the proceeding in Phase II; exceptionally (iii) SIC may reset the three-month period for one time only through a second Phase II information request.

Substantive test for clearance

It is assessed whether a transaction produces an ‘undue restriction on competition’. In the analysis conducted by SIC, the following aspects are reviewed:

Relevant market definition. This covers two aspects: market product and geographical market.

Quantitative assessment, including market shares estimate, and concentration, asymmetry and dominance indexes.

Qualitative assessment, including barriers to entry and buyer power.

Potential anticompetitive effects.

Penalties

For gun jumping, SIC could impose the following sanctions:

Against the parties, fines up to 100,000 monthly legal wages (approximately US$25 million for 2018) or 150 per cent of the revenue obtained from the infraction.

Against individuals involved, fines up to 2,000 monthly minimum legal wages (approximately US$500,000 for 2018).

Additionally, SIC may order the reversion of the transaction, if there is evidence that it generated an undue restriction on competition.

Remarks

In Colombia, all of the parties to the transaction (including the seller) may be fined if they fail to notify the transaction before SIC.

There are special provisions for cases involving financial entities and aeronautical matters, which are covered by the respective regulatory authorities; each of those sectors is under special surveillance and transactions have to meet sector-specific conditions.

 

Costa Rica

Voluntary or mandatory system

Mandatory

Notification trigger/filing deadline

Five days after closing.

Clearance deadlines (Stage 1/Stage 2)

Thirty days after the information is complete (special complexity cases may be extended up to 60 days).

Substantive test for clearance

Anticompetitive effects analysis. Analysis of potential anticompetitive effects of the transaction. If such anticompetitive effects exist, the Commission analyses the potential efficiencies generated by the transaction and determines whether they offset the anticompetitive effects. Market dominance, coordinated effects, vertical foreclosure, are among the issues considered.

Penalties

Up to approximately US$200,000.

 

Croatia

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

The notification has to be submitted to the CCA prior to the implementation of the concentration and following the conclusion of the merger agreement on the basis of which control or decisive influence will be acquired or following the publication of the invitation to tender.

Clearance deadlines (Stage 1/Stage 2)

In Phase I, the CCA has 30 days to clear the concentration. If no decision has been adopted after the expiry of the waiting period, the concentration is deemed to be cleared in Phase I. Should the authority enter into Phase II proceedings, the final decision regarding the concentration must be taken within three months (which may be extended by an additional three months). If no decision is taken prior to the expiry of the waiting period, the concentration is presumed by law to be approved in Phase II.

Substantive test for clearance

The CCA assesses whether the intended concentration would significantly impede effective competition in the market, in particular as a result of the creation or strengthening of a dominant position.

Penalties

In the case of a breach of the merger control rules, the CCA may impose fines ranging between up to 1 and up to 10 per cent of an undertaking’s total annual turnover realised in the preceding business year, depending on the type of breach.

 

Cyprus

Voluntary or mandatory system

Mandatory system for concentrations of major importance.

Notification trigger/filing deadline

No filing deadline exists but a concentration cannot partially or entirely be implemented without notification and clearance while the CPC can order the partial or complete dissolution of a concentration that was not notified and was implemented.

Clearance deadlines (Stage 1/Stage 2)

Clearance is notified within one month to the notifying undertakings, as of the date of the notification or the date at which additional information is received by the CPC, which period can be extended by 14 days.

In the case where a full investigation will be conducted (Phase II), the Service has three months to submit its report to the CPC and the latter has four months from such submission to issue its decision as to the compatibility or not of the concentration, by which time the parties must also be notified.

Substantive test for clearance

A concentration, which creates or strengthens a dominant position in the affected markets within Cyprus, shall be declared incompatible with the requirements of the competitive market.

In reviewing a concentration as to its compatibility with the competitive market, the CPC takes into account the following:

  • the structure of the affected markets;
  • the market position of the participants;
  • the economic power of all the undertakings in the market;
  • any barriers of entry to the affected market;
  • the interests of the intermediate and end consumers of the products and services; and
  • the alternative sources of supply of the products and services that are traded in the affected markets and of their substitutes.

Penalties

Partially or completely putting into effect a concentration without prior approval carries a fine of 10 per cent of the total turnover of the notifying undertakings in the financial year immediately preceding the concentration, in addition to a fine of up to €8,000 for each day that the infringement persists.

Implementing a concentration without conforming to a condition imposed by the CPC carries a fine of 10 per cent of the total turnover of the notifying undertakings in the financial year immediately preceding the concentration, in addition to a fine of up to €8,000 for each day that the infringement persists.

A fine of up to €50,000 may be imposed for a failure to provide requested information or clarifications, or for providing misleading or inaccurate information.

 

Czech Republic

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

There is no deadline for filing the notification, but the concentration may not be implemented unless and until it has been approved by the Office.

The notifying party may file the notification as soon as the legally binding transaction documents have been signed.

The notification may even be submitted prior to the signing of the relevant transaction documents, provided the parties have, in principle, agreed on the structure and timing of the concentration.

Clearance deadlines (Stage 1/Stage 2)

Phase I: 30 days (in case of a simplified procedure, 20 days).

Phase II: up to five months.

Where remedies are proposed, extension of the above deadlines by 15 days.

Substantive test for clearance

The Office assesses the notified concentrations against a test which basically corresponds to the ‘substantial impediment to effective competition’ test under the EU Merger Regulation.

The Office shall prohibit implementation of concentrations that would significantly impede competition on the relevant market. A significant impediment to competition can be caused particularly by the creation or threat of a dominant position.

The Act presumes that a concentration will not have as its result the significant impediment of competition where the aggregate market share of the parties to the concentration on the relevant market does not exceed 25 per cent.

Penalties

Fine up to 10 million Czech koruna or 10 per cent of the net turnover.

Measures necessary to restore effective competition on the relevant market, particularly demerger obligation.

 

Denmark

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

Combined aggregate turnover in Denmark of all the undertakings concerned is more than 900 million kroner and the aggregate turnover in Denmark of each of at least two of the undertakings concerned is more than 100 million kroner; or

the aggregate turnover in Denmark of at least one of the undertakings concerned is more than 3.8 billion kroner and the aggregate worldwide turnover of at least one of the other undertakings concerned is more than 3.8 billion kroner.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 25 working days from notification.

Extension: 35 working days from notification if one or more of the participating undertakings are proposing commitments.

Stage 2: 90 working days from the expiry of stage 1.

Extension: possible if new or revised commitments are proposed at a later time, on request by the parties or with the parties’ consent.

Suspension: the transaction is suspended until a final decision is reached with limited exceptions for public bids.

Substantive test for clearance

The substantive test is substantial impediment of effective competition (SIEC): A merger that will not significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be approved. A merger that will significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be prohibited.

Penalties

Fines for failure to file, implementation before clearance or breach of conditions set by the Competition Council.

Remarks

Special rules for the calculation of turnover of financial institutions.

 

Ecuador

Voluntary or mandatory system

The Antitrust Law includes mandatory economic concentration notifications when established thresholds are exceeded, as well as informative notifications.

Notification trigger/filing deadline

The Antitrust Law requires that economic concentration notifications be filed within a period of eight calendar days from the date of agreement execution.

30% of the market

78.8% of prior year’s turnover

Clearance deadlines (Stage 1/Stage 2)

Sixty working days from the date the SCPM notifies that it has received the submitted notification. The SCPM may suspend the term for up to 60 calendar days. Furthermore, the initial term of 60 working days may be extended for up to 60 working days, as an exception.

In total, up to six months.

Substantive test for clearance

Structure of the defined relevant market.

Concentration indexes.

Barriers to entry.

Efficiencies analyses.

Supply and demand structure.

Benefits for or detriments to the consumer that the concentration and competitive pressures could cause.

General interest.

Penalties

8 per cent of the breaching economic operator’s total turnover in the fiscal year prior to the year the fine is imposed for having filed an economic concentration notification beyond the legally defined time period.

10 per cent, for executing an economic concentration operation when notification is mandatory, before the operation is notified to or authorised by the SCPM.

 

Egypt

Voluntary or mandatory system

Mandatory post-closing obligation. No exemption as long as conditions are met. Purely informative, no approval or clearance is sought or granted.

Notification trigger/filing deadline

Thirty calendar days from closing.

Clearance deadlines (Stage 1/Stage 2)

Not applicable.

Substantive test for clearance

Not applicable.

Penalties

Criminal fine up to 500,000 Egyptian pounds for failure to notify and up to 1 million Egyptian pounds for intentionally providing false information.

 

European Union

Voluntary or mandatory system

European Merger Control Regulation. Mandatory system. Form of notification: special form. Form CO. Detailed information on the parties (turnover, business sectors, groups), the merger proposal, the affected markets, competitors and customers in any of the EU official languages. Short Form CO can be used in certain circumstances for mergers raising no issues and Form RS is applicable for pre-notification referral requests by the notifying parties.

Notification trigger/filing deadline

Combined worldwide turnover over €5 billion and EU-wide turnover of at least two parties over €250 million unless each of the parties achieves more than two-thirds of the EU turnover in one and the same state;

  • combined worldwide turnover over €2.5 billion;
  • EU-wide turnover of at least two of the undertakings over €100 million each;
  • combined turnover in each of at least three member states over €100 million; or
  • a turnover in each of those three member states by each of at least two of the undertakings over €25 million unless each of the parties achieves more than two-thirds of the EU turnover in one and the same state.

Filing must be made prior to implementation. The filing can be made prior to the conclusion of a binding agreement so long as the parties intend in good faith to enter a binding agreement.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 25 working days from notification or 35 working days from notification where the parties have submitted commitments intended to form the basis of a clearance decision.

Stage 2: 90 working days, plus 15 working days where commitments have been offered after the 55th day. Possibility of 20-working-day extension.

Suspension effects: suspension of transaction until final decision with limited exceptions for public bids.

Substantive test for clearance

Whether a merger will significantly impede effective competition in the EEA or a substantial part of it, in particular as a result of the creation or strengthening of a dominant position. In addition, the cooperative aspects of full-function joint ventures are appraised in accordance with the criteria of article 101(1) and (3) TFEU. Broadly, economic benefits must outweigh the detriment to competition.

Penalties

Failure to file or implementation before clearance: fines of up to 10 per cent of parties’ turnover.

Failure to provide information or supply of incorrect, incomplete, misleading information: fines of up to 1 per cent of parties’ turnover (in certain circumstances).

Failure to comply with a condition or obligation imposed by decision: fines of up to 10 per cent of parties’ turnover. Possible revocation of clearance decision (for breach of obligation) and order for dissolution or other measures (for breach of condition).

Implementation contrary to a prohibition Commission decision: fines of up to 10 per cent of parties’ turnover and possible order for dissolution of the merger or other measures.

Periodic penalties of up to 5 per cent of average daily aggregate turnover payable for each day that certain infringements persist.

Remarks

Special rules for the calculation of thresholds for banks and insurance companies.

 

Faroe Islands

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

The participating undertakings must have a total turnover of 75 million kroner in the Faroe Islands and at least two of the participating undertakings must have a turnover of at least 15 million kroner in the Faroe Islands, or at least one of the participating undertakings must have a turnover of 75 million kroner in the Faroe Islands and at least one other of the participating undertakings must have a turnover of 75 million kroner worldwide.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 30 days from notification.

Stage 2: three months in addition to the 30 days of Stage 1.

Substantive test for clearance

The substantive test is substantial impediment of effective competition (SIEC). A merger that will not significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be approved. A merger that will significantly impede effective competition, in particular due to the creation or strengthening of a dominant position, shall be prohibited.

Penalties

Fines for failure to file, implementation before clearance or breach of conditions set by the Competition Council.

Remarks

Filing can be made either in Faroese or Danish. Possibility on case-by-case basis to make arrangements with the Faroese Competition Authority to file in other languages.

 

Finland

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

Combined aggregate worldwide turnover of the parties exceeds €350 million and the aggregate turnover in Finland of at least two of the parties exceeds €20 million.

Filing must be made prior to implementation. The filing can be made as soon as the parties demonstrate with sufficient certainty their intention to conclude a concentration.

Clearance deadlines (Stage 1/Stage 2)

The FCCA must either approve the concentration or initiate an in-depth investigation within 23 working days of the filing of the complete notification (Stage 1). If the FCCA decides to initiate an in-depth investigation, it must within 69 working days (or 115 working days with the permission of the Market Court) of such decision either approve the concentration or request the Market Court to block it (Stage 2).

Substantive test for clearance

Whether the concentration may significantly impede effective competition in the Finnish market or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position.

Penalties

Fines of up to 10 per cent of the total turnover of the relevant undertaking(s) may be imposed. In addition, the Market Court may order the concentration to be dissolved or annulled (eg, by requiring the undertakings concerned or assets brought together to be separated or by requiring the cessation of the joint control).

Remarks

Foreign-to-foreign mergers are caught where the relevant jurisdictional thresholds are met.

 

France

Voluntary or mandatory system

Compulsory system.

Form of notification: no special form. Similar type of information but less detailed than Form CO. In French.

Notification trigger/filing deadline

Main thresholds:

  • combined worldwide turnover over €150 million; and
  • at least two of the undertakings concerned each achieved turnover in France over €50 million; and
  • the concentration does not have an EU dimension.

Thresholds specific to retail sector:

  • worldwide combined pre-tax turnover of over €75 million; and
  • at least two of the undertakings concerned each achieved in the retail trade sector in France a turnover exceeding €15 million; and
  • the concentration does not have an EU dimension.

Thresholds specific to the French overseas territories:

  • worldwide combined pre-tax turnover of over €75 million; and
  • at least two of the undertakings concerned each achieved a pre-tax turnover exceeding €15 million (or lowered to €5 million in the retail trade sector) in at least one (but not necessarily the same) French overseas department or community; and
  • the concentration does not have an EU dimension.

Filing: No time limit for notification; but in any event sufficiently in advance of completion, as French merger control has a suspensive effect.

Clearance deadlines (Stage 1/Stage 2)

First phase: 25 working days for the Authority, plus five working days for the Minister to possibly ask the opening of a second phase; review is automatically extended by 15 working days if remedies are proposed, and it can also be further extended by up to 15 working days if the notifying party requests a ‘stop the clock’. The Authority may also stop the clock if it is not provided with relevant information.

Second phase: 65 working days for the Authority, plus 25 working days for the Minister to possibly decide the case. Second phase may be extended by up to 20 working days if remedies are proposed/modified after the first 45 days of the second phase, and can also be further extended by up to 20 working days if the notifying party requests a ‘stop the clock’. Eventually, it can be extended with no limit of time by the Authority if the notifying party or a third party fails to provide in due time requested pieces of information.

In a nutshell:

  • the first stage will normally last between 25 and 60 working days; and
  • the second stage will normally last between 90 and 130 working days, and even longer with no time limit in the event of failure to provide information.

Suspension effect: suspension until clearance (possibility of a derogation upon request).

Substantive test for clearance

Substantial lessening of competition with particular emphasis on the creation or reinforcement of a dominant position. The authorities also examine whether the operation creates or reinforces purchasing power, placing suppliers in a state of economic dependency.

Penalties

Failure to file or implementation before clearance: for corporate entities, 5 per cent of their turnover in France; for individuals, €1.5 million.

Remarks

Special rules for press and audiovisual sectors, banks and insurance companies.

Foreign investments are generally unrestricted but some of them in strategic sectors are subject to declaration or prior authorisation.

Foreign-to-foreign mergers are subject to notification if the French relevant turnover thresholds are met.

 

Germany

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

Notification trigger:

  • the concentration does not have an EU dimension; and
  • combined worldwide turnover of all parties is over €500 million; and

Either (i):

  • at least one party has turnover of over €25 million in Germany; and
  • another party has turnover of over €5 million in Germany;

Or (ii):

  • one party has turnover of over €25 million in Germany, but neither the target nor any further participating undertaking has a turnover in Germany exceeding €5 million;
  • the value of consideration for the transaction of over €400 million; and
  • the target is active in Germany to a significant extent.

No notification is required if thresholds in (i) are met but one party to the merger achieved less than €10 million worldwide turnover (in the case of the target including the seller and its affiliates provided that the seller controls the target and, in the case of the acquirer, including its affiliates).

Clearance deadlines (Stage 1/Stage 2)

Stage 1: one month from notification.

Stage 2: four months from notification (extension possible if merging parties consent). Extension by one month, if merging parties submit remedies proposals.

Suspension effects: suspension until clearance (possibility of a derogation upon request for important reasons).

Substantive test for clearance

Whether a merger will significantly impede competition, in particular if it will create or strengthen a dominant market position (statutory rebuttable presumptions of dominance) which is not outweighed by improvement of market conditions on other markets (balancing clause).

Penalties

For incomplete, incorrect or late notification and completion before clearance, fines of up to €1 million or, in the case of undertakings, of up to 10 per cent of their total worldwide group turnover in the preceding business year. If the transaction is completed before clearance, it is also regarded as invalid until final clearance is given.

Remarks

Special rules for calculation of thresholds in cases of goods traded only as well as for the publishing and broadcasting sector and for credit and other financial institutions and insurance companies. In addition to merger control proceedings, there are special regulatory procedures for certain strategic sectors, banks and insurance companies. Post-completion notice is required ‘without undue delay’ after completion of the notified merger.

 

Greece

Voluntary or mandatory system

Filing is mandatory, in Greek.

Notification trigger/filing deadline

Pre-merger filing: combined aggregate worldwide turnover of at least €150 million and aggregate turnover in Greece for each of at least two participating undertakings exceeding €15 million. Filing within 30 calendar days of signing of a binding agreement.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: one month from notification.

Stage 2: two additional months. Implementation is prohibited until issuance of the Commission’s decision.

Substantive test for clearance

A concentration must not substantially restrict competition in the Greek market, especially by way of creating or reinforcing a dominant position.

Penalties

Pre-merger filing: in case of failure to file, fines ranging from €30,000 up to 10 per cent of the aggregate turnover may be imposed by the Commission. In case of early closing, fines range from €30,000 up to 10 per cent of the aggregate turnover.

Remarks

Special provisions for acquisition of major holdings in companies in traditionally regulated sectors (ie, banking, insurance, media, telecommunications, etc).

 

Greenland

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

Combined aggregate turnover in Greenland of all the undertakings concerned is more than 100 million kroner; and

the aggregate turnover in Greenland of each of at least two of the undertakings concerned is more than 50 million kroner.

Filing deadline: Concentrations falling within the thresholds must be notified to the Consumer and Competition Authority after the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest; and in any event before implementation. A specific deadline can be expected in the future executive orders.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 40 working days from notification.

Stage 2: 90 working days from the expiry of Stage 1.

Extension: possible if new or revised commitments are proposed at a late time, on request by the parties or with the parties’ consent.

Suspension: the transaction is suspended until a final decision is reached.

Substantive test for clearance

Whether the concentration significantly impedes effective competition, in particular as a result of the creation or strengthening of a dominant position. In addition, the cooperative aspects of full-function joint ventures are appraised in accordance with the criteria applying to anticompetitive agreements.

Penalties

Fines may be imposed for failure to notify (and unlawful implementation).

Remarks

Filing fees were introduced by Executive Order No. 3 of 10 March 2016.

 

Hong Kong

Voluntary or mandatory system

Voluntary apart from the mandatory requirement under the Takeovers Code, which requires that an offeror of a potential mandatory general offer seeks the prior consent of the CA in relation to the ‘change’ of a carrier licensee before it triggers an obligation to make a mandatory general offer.

Notification trigger/filing deadline

There is no financial trigger for notification. There is generally no requirement for pre-notification except in a situation involving a mandatory general offer.

Clearance deadlines (Stage 1/Stage 2)

There is no formal timeline for clearance.

The Competition Ordinance only stipulates that the competition authority may only commence an investigation of a merger within 30 days after the day on which the competition authority first became aware, or ought to have become aware, that a merger has taken place; if the competition authority reasonably believes that a merger contravenes the Merger Rule, it must apply to the Tribunal for an order within six months of the day on which the merger was completed or the competition authority became aware of the merger (whichever is later).

Substantive test for clearance

The substantive test to be applied is whether the merger has, or is likely to have, the effect of substantially lessening competition in Hong Kong.

Penalties

There are no specified sanctions for not filing, because the merger control regime is voluntary in general. However, the competition authority may apply to the Tribunal for an order to unwind a completed merger or to prohibit a proposed merger, if it has reasonable cause to believe that the merger will likely contravene the Merger Rule.

In the case of a mandatory general offer involving the ‘change’ of a carrier licensee, failure to obtain the CA’s prior consent before triggering the mandatory general offer may result in disciplinary action under the Takeovers Code. Possible sanctions include issuance of a public apology, public censure, and requirements on the company involved, licensed representatives and registered institutions not to act or implement the merger or acquisition.

Remarks

The merger control regime at present only applies to transactions where an undertaking that directly or indirectly holds a telecommunications carrier licence is involved.

It is anticipated that the regime might be extended to more or all sectors in the future.

 

Hungary

Voluntary or mandatory system

Filing is mandatory in the case of mergers that reach the jurisdictional thresholds.

Filing is voluntary in the case of mergers that do not reach the jurisdictional thresholds, but may be subject to the GVH’s investigation.

Notification trigger/filing deadline

No deadline for filing, but the merger cannot be implemented without the GVH’s permission. Mergers above the statutory threshold must be notified.

Clearance deadlines (Stage 1/Stage 2)

Fast-track review: eight days.

Stage 1: 30 days (including fast-track review).

Stage 2: four months (including Stage 1).

Substantive test for clearance

The SIEC test is applied.

Penalties

The GVH may block the transaction and impose fines.

Remarks

Sector-specific rules apply to mergers in the media, energy, telecom and financial sectors.

 

Iceland

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

The CA shall be notified of a merger before it takes effect but after the conclusion of an agreement on the proposed merger, the public announcement of a takeover bid or the acquisition of a controlling interest in an undertaking.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 25 working days.

Stage 2: up to 90 working days.

Substantive test for clearance

The substantive test for clearance is whether the merger impedes effective competition by creating or strengthening an individual or collective dominant position or otherwise significantly impeding effective competition.

Penalties

A merger falling within the regime shall not take effect while it is being examined by the CA. Any violation of this can be subject to fines of up to 10 per cent of the total turnover of the preceding business year of any undertaking or association of undertakings involved in the violation.

 

India

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

A combination would be required to be notified to the CCI, and receive approval from the CCI prior to closing.

Clearance deadlines (Stage 1/Stage 2)

Phase I: 30 working days from receipt of notification excluding ‘clock stops’ for responding to information requests. This can extend to 45 working days if the CCI reaches out to third parties.

Phase II: Up to 210 days from receipt of notification.

Where modifications are proposed in Phase II, the time may be extended up to an additional 60 working days.

Substantive test for clearance

Combinations that cause, or are likely to cause, an appreciable adverse effect on competition (AAEC) in India are void.

Penalties

The CCI has the power to impose a penalty of up to 1 per cent of the total turnover or value of assets, whichever is higher, of the proposed combination. In addition, in the event the CCI believes the transaction will have or be likely to have an AAEC in India, the transaction will be treated as void, and all actions taken in pursuance of the void transaction shall also be void. In such a case, the CCI also has the power to unwind the transaction, though this has not happened to date.

 

Indonesia

Voluntary or mandatory system

Both systems are applicable. Notification is voluntary prior to the closing of transaction (pre-merger notification) and mandatory after the completion of transaction (post-merger notification).

Even though a merger has been notified prior to its completion, the notification of the complete merger is still mandatory. However, there will be no reassessment as long as there is no substantial change to market conditions and accordingly the review process will be completed in a short period of time.

Notification trigger/filing deadline

The specified threshold is met.

The merger is between or among non-affiliates.

The merger has a direct impact to the market in Indonesia (local effects test).

The merger is a share-based transaction (or other transaction that is similar to or has a similar impact to a share-based transaction) which results in change of control.

Clearance deadlines (Stage 1/Stage 2)

For pre-merger review, there are two phases. Phase I: maximum 30 working days and Phase II: maximum 60 working days. The KPPU will clear the merger in Phase I if the post-HHI is less than 1,800 or above 1,800 but the delta is less than 150 points in case of a horizontal merger or if there is no dominant position in the relevant markets concerned in case of a vertical merger.

For post-merger review, the process consists of only one phase and must be completed within a maximum of 90 working days.

Substantive test for clearance

Factors to be considered are:

  • level of concentration after the transaction;
  • barriers to entry;
  • the possibility of unilateral, coordinated effects, or foreclosure effects;
  • efficiencies; and
  • whether one of the merging parties is a failing undertaking.

Penalties

The penalties do not apply for failure to file before the closing of a transaction. However, fines of 1 billion rupiah per day commencing after 30 working days have elapsed since the transaction, while a maximum fine of 25 billion rupiah may be imposed by the authority for failure to file a post-merger notification.

Remarks

For transactions cleared with conditions, the parties to the transaction may proceed with the transaction provided that they fulfil the conditions stipulated in KPPU Opinion. In addition, the KPPU will supervise the implementation of the conditions required, the behaviour of the parties and the competition in the relevant market.

 

Ireland

Voluntary or mandatory system

The Irish merger control regime is a mandatory system and no exceptions exist. The mandatory obligation to notify arises where, for the most recent financial year:

  • the aggregate turnover in the state of the undertakings involved is not less than €60 million; and
  • the turnover in the state of each of two or more of the undertakings involved is not less than €10 million.

Section 18(3) of the Act provides for voluntary notification of a merger that does not meet the jurisdictional thresholds.

The CCPC can request parties to potentially problematic mergers that fall below the relevant financial thresholds to voluntarily notify mergers under section 18(3).

Notification trigger/filing deadline

The notification must be made prior to the merger or acquisition being put into effect.

The notification may be made in the following circumstances:

  • one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted;
  • the undertakings involved demonstrate to the CCPC a good faith intention to conclude an agreement or a merger or acquisition is agreed; or
  • in relation to a scheme of arrangement, a scheme document is posted to shareholders.

Clearance deadlines (Stage 1/Stage 2)

A Phase I clearance determination must be issued by the CCPC within 30 working days of the submission of a full and complete filing by the merging parties (the ‘appropriate date’), unless either the CCPC has used its power to ‘stop and restart the clock’ by issuing a formal request for information, or where the parties and the CCPC negotiate remedies to ‘ameliorate the effects of the merger’, which extends the Phase I period to 45 working days.

A Phase II clearance determination must be issued by the CCPC within 120 working days of the appropriate date, unless the CCPC has used its power to ‘stop the clock’ by sending a formal request for information, or where the parties and the CCPC negotiate remedies to ‘ameliorate the effects of the merger’, which extends the Phase II period to 135 working days.

Substantive test for clearance

Section 20(1)(c) of the Act provides that the substantive test for assessment of competition issues is ‘whether the result of the merger or acquisition would be to substantially lessen competition in markets for goods or services in the State’ (the SLC test).

Penalties

Under section 18(9) of the Act, wilful and knowing failure to notify a merger or acquisition that is caught by the jurisdictional thresholds is a criminal offence punishable by fines of up to €250,000, plus €25,000 per day for a continued breach. The CCPC does not have legal powers to impose a fine itself; instead the CCPC can recommend that the Director of Public Prosecution initiate a prosecution in the Irish Courts.

Liability attaches to the undertaking itself and/or the ‘person in control’ of an undertaking. Section 18(11) of the Act provides that the ‘person in control’ of an undertaking is:

  • in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention;
  • in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention; or
  • in the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the contravention.

Remarks

The revised thresholds have resulted in a significant reduction in merger notifications in 2019. 

As of 20 June 2019, 16 mergers had been notified to the CCPC, a 68% reduction as compared to the same time period in 2018.

 

Israel

Voluntary or mandatory system

If thresholds are met, filing of pre-merger notification forms is mandatory.

Notification trigger/filing deadline

A merger that has to be notified under the Competition Law may not be executed before it has been cleared by the Director General.

Clearance deadlines (Stage 1/Stage 2)

Thirty days for decision-making, otherwise the merger is deemed to be cleared. This period can be extended either with the parties’ consent or the ICA Director General’s decision.

Substantive test for clearance

The Director General shall object to a merger or stipulate conditions for it, if he or she believes that there is a reasonable risk that, as a result of the merger as proposed, the competition would be significantly damaged or the public would be injured in one of the following: price level, quality, quantity of a product (or scope of a service) supplied, or the constancy and conditions of such supply.

Penalties

In the criminal arena: up to three years’ imprisonment (in aggravating circumstances – up to five years); fine of up to about 2.2 million shekels plus 14,000 shekels for each day such offence persists. Fines are doubled for a corporation.

Administrative:

  • financial sanctions: 8 per cent of the annual revenue, up to a maximum of 24 million shekels;
  • an administrative declaration, stating that a merger has been unlawfully implemented, exposing the merging parties to civil lawsuits; or
  • separation of an entity merged in violation of the Competition Law subject to several conditions to be fulfilled.

Remarks

According to the Competition Law, the Minister of Industry, Trade and Labour is authorised to exempt a merger from all or some provisions of the law, if he or she believes that it is necessary on the grounds of foreign policy or national security.

 

Italy

Voluntary or mandatory system

Mandatory system. Form of notification: special form. Detailed information similar to the EU Form CO. In Italian.

Notification trigger/filing deadline

Combined turnover over €498 million in Italy and turnover of each of at least two of the undertakings involved in Italy over €30 million. No filing deadline; no standstill obligation. Pre-notification procedure is available but not required for all transactions. It is necessary to notify the transaction prior to implementation: the IAA, when opening a Phase II investigation, has the power to order the suspension of a notified concentration pending approval if it raises serious competition concerns.

Clearance deadlines (Stage 1/Stage 2)

Phase I: 30 days (15 days for public bids) from notification.

Phase II: 45 additional days (extendible by a further 30 days where the information provided is materially incomplete). As a general rule, the transaction can be implemented after notification (not suspensory).

Substantive test for clearance

Whether the merger will create or strengthen a dominant position in the national market in a way that threatens to eliminate or reduce competition to a considerable and lasting extent. De facto the same test under the EUMR is applied.

Penalties

Failure to file: fines of up to 1 per cent of the notifying parties’ worldwide turnover in the last fiscal year.

Implementation before clearance: no penalties.

If parties implement the transaction notwithstanding a prohibition decision or non-compliance with conditions imposed in a Phase II clearance decision, the IAA may impose fines of between 1 and 10 per cent of the turnover of the businesses concerned.

Remarks

Special provisions in the electricity and gas, defence, broadcasting, telecommunications and film distribution sectors and for banks and insurance companies. In addition, special powers granted to the government (golden share rules) applicable to M&A transactions relating to assets in key industries, such as defence and national security, energy, communications and transportation.

 

Japan

Voluntary or mandatory system

It is a mandatory system.

Notification trigger/filing deadline

Different thresholds apply depending on the transaction structure. For example, for share acquisitions exceeding the threshold of either 20% or 50% stake, the acquiring group must have Japanese turnover of over ¥20 billion and the target group (excluding the seller) over ¥5 billion. No filing deadline, apart from the suspensory obligation until clearance.

Clearance deadlines (Stage 1/Stage 2)

30 calendar days from formal submission of filing for Stage 1. Once Stage 2 is triggered, the later of 120 days from the date of the FTC’s acceptance of the notification or 90 days from the date of submission of the additional materials or information.

Substantive test for clearance

Merger Guidelines elaborate on the items considered by the FTC, but generally consistent with other major jurisdictions.

Penalties

Gun jumping is subject to a criminal fine of up to ¥2 million.

 

Kenya

Voluntary or mandatory system

Currently, Kenya has a mandatory notification system.

Notification trigger/filing deadline

There are no notification triggers under the Act, nor is there a filing deadline. Nevertheless, the merging parties are prohibited from implementing the merger without the Authority’s approval.

Clearance deadlines (Stage 1/Stage 2)

The Authority has up to 180 days after the submission of a merger notification form to determine whether to approve the proposed merger, or approve it with conditions or reject it outright.

Substantive test for clearance

The Authority applies both the substantial lessening of competition and the public interest tests.

Penalties

Any person who fails to comply with the Part IV notification and approval requirements commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding 10 million Kenya shillings or both. The Authority may also impose a financial penalty for an amount not exceeding 10 per cent of the preceding year’s annual turnover in Kenya of the offending undertakings.

 

Korea

Voluntary or mandatory system

Filing with the Korea Fair Trade Commission (KFTC) is mandatory.

Notification trigger/filing deadline

The following transactions must (subject to the jurisdictional threshold set forth below) be reported to the KFTC:

  • the acquisition of 20 per cent (15 per cent in the case of listed companies in Korea) or more of the shares of the target company;
  • the acquisition of additional shares of the target company to become the largest shareholder of that company as a result thereof;
  • participation in the establishment of a new company as the largest shareholder;
  • the acquisition of all or a principal portion of the business or fixed assets of the target company;
  • merger with the target company; and
  • the occupation by an officer or an employee of a position as an officer of the target company, where such person maintains his or her officer status in the acquiring company (except for interlocking directorate between affiliate companies).

As a jurisdictional threshold, there is a reporting requirement if the one party involved, together with its affiliates both before and after the transaction, has total assets or annual turnover of 300 billion won or more, and the other party involved, together with its affiliates both before and after the transaction, has total assets or annual turnover in the amount of 30 billion won or more.

The acquiring company must report a transaction within 30 days of the date on which the underlying transaction takes place. Where a large enterprise with total assets or annual sales together with its affiliates both before and after the transaction) of 2 trillion won or more acquires a company, the pre-closing notification must be filed any time after the date of signing the relevant agreement and before the date of the consummation of the transaction.

Clearance deadlines (Stage 1/Stage 2)

Thirty days, which can be extended by up to 90 days. Therefore, the total can be 120 days.

Note that this period can be prolonged upon the KFTC officer’s request for supplementary information.

Substantive test for clearance

Whether a proposed M&A transaction has an anticompetitive effect on the relevant Korean market.

If the combined market share of the parties meets all the elements stated below, the business combination is presumed to have an anticompetitive effect on the relevant market:

  • whether the combined market share of the company resulting from the business combination in question results in monopoly status. The test for monopoly status is whether the market share of a single company is 50 per cent or more in the relevant market or the aggregate market share of three companies or fewer is 75 per cent or more in the relevant market;
  • whether the aggregated market share of the combined company is the largest in the relevant market; and
  • whether the aggregated market share of the combined company exceeds that of the company holding the second-largest market share by 25 per cent or higher of the combined market share of the parties.

Penalties

These include prohibition of the merger transaction, disposition of all or part of the shares acquired, transfer of business, or any other behavioural remedies deemed necessary to correct the anticompetitive effect caused by the transaction. The KFTC may impose a fine of up to 100 million won on companies that fail to file.

Remarks

Since new guidelines for foreign-to-foreign mergers became effective on 1 July 2003, the KFTC has enforced them quite actively and expects more foreign-to-foreign merger cases to be caught in the future.

 

Liechtenstein

Voluntary or mandatory system

In general, there is no specific national legislation regarding merger control in Liechtenstein.

The Liechtenstein Authority (ie, the Office of Justice) is authorised to apply merger control.

For merger control on a supra-national level in Europe, the basic provisions are contained in the EEA Agreement and Annexe XIV to the EU Merger Regulation. Additionally, the provisions of Protocol 4 on the functions and powers of the EFTA Surveillance Authority in the field of competition do apply (Protocol 4 to the Agreement between the EFTA states on the establishment of a Surveillance Authority and a Court of Justice).

Notification trigger/filing deadline

There is no special merger control legislation in Liechtenstein; however, the EU Merger Regulation is directly applicable.

According to the provisions of the EU Merger Regulation, a transaction can be notified prior to the conclusion of a binding agreement.

Once an agreement has been entered into, or a bid launched, there is no deadline or recommended period in which the parties must file a notification. However, the notification of the concentration needs to be made before its implementation.

Clearance deadlines (Stage 1/Stage 2)

Within 25 working days of when the notification is made, the EFTA Surveillance Authority (ESA) or the European Commission must reach a decision where the parties submit commitments (remedies) to resolve competition issues.

In case of serious doubts, the competent authority will commence investigations; the period of this investigation is 90 working days.

Substantive test for clearance

The principle is that the activities of the EU and its member states should be conducted in accordance with the principle of an open market economy with free competition.

Concentrations significantly impeding effective competition in the common market or a substantial part of it are prohibited in accordance with the provisions of the EU Merger Regulation.

Penalties

Companies failing to suspend implementation of a merger pending examination or that put into effect a merger that is prohibited by the ESA or the European Commission are exposed to fines.

Remarks

There is no specific national merger control, antitrust or cartel legislation in Liechtenstein.

It is unlikely that a national merger control legislation will be implemented in the near future in Liechtenstein.

 

Malaysia

Voluntary or mandatory system

Both regimes are voluntary.

Notification trigger/filing deadline

Notification trigger

Aviation services sector

Combined turnover in Malaysia in the preceding financial year of at least 50 million ringgit; or

combined worldwide turnover in the preceding financial year of at least 500 million ringgit.

Communications and multimedia sectors

Proposed horizontal M&A:

At least one party is a licensee in a dominant position; or

M&A would result in the proposed merged or acquired firm obtaining a dominant position (post-M&A market share of 40 per cent or more).

Completed horizontal M&A:

Merged or acquired entity is a licensee in a dominant position.

Proposed non-horizontal M&A:

At least one of the parties is a licensee in a dominant position.

Completed non-horizontal M&A:

Merged or acquired entity is a licensee in a dominant position

Filing deadline

Aviation services sector

Anticipated mergers:

When merger parties have bona fide intention to proceed with anticipated merger;

details of the anticipated merger are available; and

anticipated merger has been made public or may be made public by MAVCOM.

Completed mergers:

At any time.

Communications and multimedia sectors

Notification & assessment:

Parties are encouraged to submit transactions prior to completion. However, this is not mandatory. MCMC may even assess M&A that proceeded prior to the issuance of the M&A Guidelines.

Authorisation of conduct:

MCMC allows licensees to apply before, during or after submitting an assessment application pursuant to the M&A Guidelines;

however, parties are encouraged to apply prior to engaging in any conduct that may be construed to have the purpose or effect of substantially lessening competition.

Clearance deadlines (Stage 1/Stage 2)

Aviation services sector:

On a case-by-case basis.

Communications and multimedia sectors:

Phase 1 assessment: within 30 days of receipt of valid Form 1.

Phase 2 assessment: will commence within 10 business days from the date of receipt of a valid Form 2. Indicative timeframe for completion is 120 business days from the date of commencement.

Substantive test for clearance

Both regimes use the ‘substantial lessening of competition’ test.

Penalties

Aviation services sector

Up to 10 per cent of worldwide turnover of the enterprise over period of infringement.

non-compliance of guidelines can lead to fines of up to 1 million ringgit or 5 per cent of annual turnover.

Communications and multimedia sectors

Criminal penalties: fine of up to 500,000 ringgit, imprisonment up to five years, or both.

A person may further be liable to a further fine of 1,000 ringgit for every day or part of a day during which the offence is continued after conviction.

 

Malta

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

Filing of a notification of concentrations, for which there is an administrative filing fee of €163.06, must be done within 15 days prior to their implementation and following: the conclusion of the relevant agreement; the announcement of the public bid; or the acquisition of a controlling interest.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: six weeks, but can be increased to two months if after notification and not later than the end of the fifth week the undertakings concerned submit commitments. Also, until the end of the fifth week, the undertakings concerned may request suspension of periods for three weeks to discuss a new commitment proposed but which would be granted at the discretion of the DG. Under the simplified procedure, duration of Stage 1 is four weeks instead of six weeks.

Stage 2: four months but suspension for a period of up to one month may be requested by the undertakings concerned when they submit commitments, and the request will be generally acceded to. But concentration is suspended only during Stage 1.

Substantive test for clearance

The DG will consider: the need to maintain and develop effective competition in the Maltese market; the geographical and product markets and potential competition from other undertakings; whether the business or part of the business of a party to the concentration has failed or is likely to fail; the market position of the undertakings concerned and their economic and financial power; the alternatives available to suppliers and users and their access to supplies or markets; any legal or other barriers to entry; supply and demand trends for the relevant goods and services; the interests of the intermediate and ultimate consumers; the development of technical and economic progress provided that it is to consumers’ advantage and does not form an obstacle to competition; and the nature and extent of development and innovation in a relevant market.

Penalties

Penalties for failure to file a notification before implementation are a fine of between €1,000 and €10,000; and penalties for breaching the mandatory waiting period are up to 10 per cent of the turnover of the undertaking that benefits from the transaction.

Remarks

There are no bills or amendments to the law in the pipeline, though one may envisage an amendment to the Control of Concentrations Regulations and the Maltese Competition Act aimed at increasing the thresholds, which are currently set at low parameters that are easily exceeded even where the effect on competition may in fact turn out to be negligible.

 

Mexico

Voluntary or mandatory system

Mandatory.

Filing fee of approximately US$9,000

Notification trigger/filing deadline

Monetary thresholds met. The transaction must be notified before closing.

Mandatory waiting period upon notice by the agency.

Main monetary thresholds: consideration above approximately US$75 million. For the Mexican component of the transaction; acquisition of 35 per cent or more of target’s assets or stock and target’s sales or assets in Mexico above approximately US$75 million; or combined sales or assets of parties of approximately US$200 million and target size of over approximately US$35 million.

Clearance deadlines (Stage 1/Stage 2)

Fast-track: 15 days.

Stage 1: approximately 35 days.

Stage 2: from 60 to 155 days.

Substantive test for clearance

Lessening, impairing or preventing competition.

Penalties

Up to 5 per cent of the parties’ turnover in Mexico for failing to notify. The agency may order divestitures or behavioural remedies.

Remarks

No waiting period or freeze orders.

Closing, only after the COFECE or IFT issues its final resolution.

 

Morocco

Voluntary or mandatory system

The filing is mandatory.

Notification trigger/filing deadline

The notification of a concentration must occur when:

  • the combined aggregate worldwide pre-tax turnover of all of the undertakings or groups of natural or legal persons parties to the concentration is equal to or more than 750 million dirhams; or
  • the aggregate Morocco-wide pre-tax turnover of at least two of the undertakings or groups of natural or legal persons concerned by the concentration is equal to or more than 250 million dirhams; or
  • the undertakings that are parties to the concentration, or that are the subject of the concentration, or the undertakings that are economically linked to them, have generated altogether, during the previous calendar year, more than 40 per cent of the sales, purchases or other transactions on a national market of identical or substitutable goods, products or services, or on a significant part of such market.

The notification should take place as soon as the parties concerned are able to present a sufficiently concrete file to allow the investigation of the case.

Clearance deadlines (Stage 1/Stage 2)

Phase I: the Competition Council assesses the concentration within 60 days of the notification.

If the parties offer commitments during Phase I, the 60-day deadline may be extended by 20 days. In case of particular necessity, parties may ask the Competition Council to suspend the deadline of the examination of the transaction for a maximum of 20 days.

Phase II: the Competition Council assesses the transaction within 90 days.

If the notifying parties offer commitments less than 30 days before the end of the 90-day deadline, the deadline will then expire 30 days after the reception of the commitments.

The 90-day deadline may also be suspended at the request of the parties for up to 30 days in case of particular necessity.

This deadline may also be suspended by the Competition Council, in particular when the notifying parties have failed to provide it with requested information or to inform it of the occurrence of a new material event. The time limit resumes when the cause of the suspension has been addressed.

Substantive test for clearance

The substantive test for clearance is whether the planned concentration is likely to infringe competition, notably by creating or strengthening a dominant position or a buying power that places suppliers in a position of economic dependency.

Penalties

The sanctions for not filing are as follows:

  • for legal entities responsible for filing: a fine that amounts to a maximum of 5 per cent of the pre-tax turnover made in Morocco during the last fully closed financial year, increased, when applicable, by the turnover made in Morocco during the same period by the acquired company; and
  • for natural persons responsible for filing: a fine of a maximum amount of 5 million dirhams.

Upon failure to file a notification, the Competition Council also compels the parties, subject to a daily penalty payment, to notify the operation, unless they revert to the previous state of affairs.

Remarks

Law No. 104-12 of 30 June 2014 on free pricing and competition and Law No. 20-13 of 30 June 2014 relating to the Competition Council, which transfer the merger control function to the Competition Council, have taken effect after the appointment of the new Competition Council’s president and members, which occurred in November and December 2018.

 

Netherlands

Voluntary or mandatory system

Mandatory system. Form of notification: Standard form.

In Dutch.

Notification trigger/filing deadline

Combined worldwide turnover exceeding €150 million and at least two undertakings each with turnover in the Netherlands exceeding €30 million.

Filing deadline: complete notification prior to merger becoming effective. Special thresholds apply to concentrations in the insurance and healthcare sectors.

Clearance deadlines (Stage 1/Stage 2)

Phase I: Four weeks, Phase II: 13 weeks (subject to suspension should the authority require additional information).

Substantive test for clearance

Whether the concentration significantly impedes effective competition in the Dutch market or any part thereof, in particular as a result of the creation or strengthening of a dominant position.

Penalties

Failure to file or implementation before clearance: transaction void plus fines of maximum €900,000 or 10 per cent of the worldwide turnover (whichever is higher).

Incorrect or incomplete information: fines of up to €900,000 or 1 per cent of the worldwide turnover (whichever is higher).

 

North Macedonia

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

The participants are obliged to notify the Commission prior to the implementation of a concentration and following the conclusion of the merger agreement, or the announcement of the public bid on the purchase or the acquisition of the controlling interest in the charter capital of the undertaking.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 25 business days.

Stage 2: 90 business days.

Substantive test for clearance

A concentration, that would significantly prevent, restrict or distort efficient competition on the market or its significant part, in particular as a result of the creation or strengthening of a dominant position of the participants, is non-compliant with the provisions of the LPC.

Penalties

Failure to notify is a misdemeanour penalised by a fine amounting to up to 10 per cent of the value of the aggregate annual income of the undertaking (respective to its group) made in the business year preceding the year when the misdemeanour was committed. In addition to the fine, the Commission for misdemeanour matters may impose to the legal person a temporary ban on the performance of specific activity for between three and 30 days, and to the natural person a ban on the performance of an occupation, activity or duty for between three and 15 days.

Remarks

The average duration of procedures in 2018 in which the Commission approved the concentrations was 20 business days.

 

Norway

Voluntary or mandatory system

Mandatory notification for concentrations where the undertakings concerned exceed certain turnover thresholds. No particular rules for foreign-to-foreign mergers. Combined threshold is 1 billion kroner annual turnover in Norway. Individual threshold is 100 million kroner annual turnover in Norway.

Notification trigger/filing deadline

No deadline for filing. As long as the transaction is not implemented, it is entirely up to the parties when to submit the notification. The notification can be submitted as early as desired by the parties; as long as the content requirements can be fulfilled, and as soon as the parties are ready to go public.

Clearance deadlines (Stage 1/Stage 2)

After receipt of a notification the NCA has 25 working days to give notice that intervention may take place (Phase I) and then another 45 working days to present a reasoned draft prohibition decision or accept and make binding remedies presented by the notifying party or parties (Phase II). The parties have 15 working days to comment on a draft prohibition decision and the NCA then has another 15 working days to render such a decision.

Substantive test for clearance

The NCA shall intervene against concentrations that significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position. The NCA investigates possible unilateral, coordinated, vertical and conglomerate effects of the concentration. The NCA takes into account substantiated efficiencies that benefit consumers, are merger-specific and verifiable.

Penalties

Infringement of the prohibition against implementation of the transaction (automatic suspension) may lead to significant fines. The same goes for infringement of a final decision of intervention. The NCA may issue a fine of up to 10 per cent of the undertaking’s global turnover.

Remarks

As of 1 April 2017, an independent Board of Appeals handles the appeals against decisions of the NCA made after the implementation date.

Some amendments to the Norwegian Competition Act also applied as of 1 July 2016, including the change of the substantive test for clearance of mergers to that of the EUMR.

 

Pakistan

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

As soon as agreement is reached in principle or a non-binding letter of intent is signed.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: Most mergers are cleared at this stage. The CCP has 30 working days to examine a merger application from the time of its filing. No decision in 30 working days means the merger is cleared.

Stage 2: Few merger issues reach this stage. If the CCP raises concerns, then Stage 2 begins after the conclusion of the 30-working-day period for Stage 1. Stage 2 involves its own 90-working-day period for review. No decision in 90 working days of Stage 2 (or 120 working days overall) means the merger is cleared. The CCP will issue a show-cause notice and provide the opportunity of a hearing before passing any adverse order, interim or final.

Substantive test for clearance

Substantial lessening of competition by creating or strengthening of a dominant position.

Penalties

Prohibition, unwinding the merger, including interim orders to protect competition. Fines of up to 10 per cent of turnover or 75 million Pakistani rupees.

Remarks

No penalty has ever been imposed in merger-related cases since the CCP’s inception in 2007.

 

Philippines

Voluntary or mandatory system

Mandatory.

Prior clearance required for all transactions exceeding the threshold.

Failure to comply results in:

  • nullity of agreement; and
  • imposition of administrative penalties.

Notification trigger/filing deadline

The trigger is based on the Size of the Party Test and Value of the Transaction Test.

Notification shall be done prior to the consummation of the transaction.

The transaction is void if no prior clearance is obtained.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 30 days from the submission of completed documents as determined by the PCC.

Stage 2: 60 days from the lapse of the Stage 1 period.

Substantive test for clearance

The SLC test.

Penalties

Behavioural remedies are used (eg, a cease and desist order or consent judgment).

There are also administrative fines of up to 250 million Philippine pesos.

In addition, divestiture, disgorgement of excess profits, corporate reorganisation and other structural remedies may be used.

 

Poland

Voluntary or mandatory system

If a concentration meets the statutory thresholds and no exemptions apply, the notification is mandatory.

Notification trigger/filing deadline

There is no official deadline for filing. The parties are obliged to notify their intention of the concentration, which means that the notification has to be filed before implementation. There is a bar on closing.

Clearance deadlines (Stage 1/Stage 2)

The authority has one month to issue its decision for simple case in stage one. Complex cases may enter into the second stage, which gives the OCCP an additional four months to complete the review.

Substantive test for clearance

The OCCP clears a concentration that does not result in significant impediments to competition in the market, in particular, by the creation or strengthening of a dominant position in the market (in practice, the SIEC test applies).

Penalties

If an undertaking has implemented a concentration without regulatory clearance, the general principle is that the OCCP may fine the undertaking by way of a decision, the fine not to exceed 10 per cent of the revenue earned in the accounting year preceding the year within which the fine is imposed.

 

Portugal

Voluntary or mandatory system

Mandatory notification.

Notification trigger/filing deadline

  • Combined market share in Portugal higher than 50 per cent;
  • combined market share in Portugal equal to or higher than 30 per cent and lower than 50 per cent, provided that the individual turnover in Portugal of at least two participant undertakings exceeds €5 million; or
  • combined turnover in Portugal of more than €100 million, provided that the individual turnover in Portugal of at least two participant undertakings exceeds €5 million.

Two or more concentrations made within a period of two years among the same individuals or legal entities, which considered individually would not be subject to prior notification, are deemed as a sole concentration subject to such prior notification when the set of concentrations reaches the turnover figures set out above. Notification must be filed after the conclusion of the agreement and before their closing or, whenever relevant, after the date of disclosure of the preliminary announcement of a public takeover bid or of an exchange offer or the date of disclosure of the announcement of the acquisition of a controlling shareholding in a listed company, or, in the case of a public procurement procedure, after the definitive award of the contract and before the closing.

When the participant undertakings show serious intent to conclude an agreement or, in the case of a public takeover bid or of an exchange offer, the undertakings show public intent to carry out the offer, the concentration may be notified before the above deadlines. Projected concentrations may be the object of pre-notification assessment by the Authority.

Clearance deadlines (Stage 1/Stage 2)

Phase I: within 30 working days of the notification’s effective date (extendible, notably, if requests for additional information are made), the Authority shall clear the concentration (with or without conditions or obligations) or initiate an in-depth investigation. Lack of decision is deemed as clearance.

Phase II: within 90 working days, counted as of the effective date of the notification (extendible, notably, if requests for additional information are made), the Authority must authorise the concentration (with or without conditions or obligations), or prohibit the concentration. Lack of decision is deemed as clearance.

Substantive test for clearance

Concentrations falling within the scope of the Act are forbidden if they create significant impediments to competition in the Portuguese market or in a substantial part of it, in particular if such impediments result in the creation or strengthening of a dominant position.

Penalties

Penalties are applied within a sanctioning procedure launched by the Authority, which shall be subject to the opportunity principle, pursuant to which the Authority may, on public interest grounds, grant different degrees of priority in respect of the matters it is called to assess.

Failure to file: fines up to 10 per cent of the turnover in the year preceding that of the decision; periodic penalty payments up to 5 per cent of the average daily turnover in the year preceding that of the decision, applied per day.

Violation of obligation of suspending transaction until clearance: fines of up to 10 per cent of the turnover in the year preceding that of the decision.

Non-compliance with decision that prohibited the transaction or that approved it with conditions or obligations attached: fines up to 10 per cent of the turnover in the year preceding that of the decision, legal transactions being null and void.

Remarks

Filing subject to fees. Obligation of suspending transaction may be derogated by the Authority.

 

Romania

Voluntary or mandatory system

The filing of a notification with the RCC is mandatory, provided the thresholds are met.

Notification trigger/filing deadline

The notification has to be submitted to the RCC prior to the implementation of the concentration.

Clearance deadlines (Stage 1/Stage 2)

Phase 1 – 45 days as of the effective date.

Phase 2 – five months as of the effective date.

Substantive test for clearance

The RCC assesses whether the intended concentration would significantly impede effective competition in the market, in particular as a result of the creation or strengthening of a dominant position.

Penalties

In case a merger is implemented before a clearance decision is received, the RCC may impose a fine of between 0.5 and 10 per cent of the undertaking’s total annual turnover in the preceding financial year.

In addition, the RCC may order measures aimed at restoring efficient competition in the relevant market.

 

Russia

Voluntary or mandatory system

Mandatory system. Free form of notification, standard form for disclosure of certain information, in Russian.

Notification trigger/filing deadline

No filing deadline but prior to the completion of transaction if:

the aggregate book value on a worldwide basis of all companies within the acquirer’s group and the target’s group > 7 billion roubles and the aggregate book value on a worldwide basis of all companies within the target’s group > 400 million roubles; or

the aggregate turnover on a worldwide basis of all companies within the acquirer’s group and the target’s group > 10 billion roubles and the aggregate book value on a worldwide basis of all companies within the target’s group > 400 million roubles; and

for joint venture agreements between competitors operating in the territory of Russia: the aggregate book value on a worldwide basis of all parties to the agreement (and their respective groups) exceeds 7 billion roubles or their aggregate turnover on a worldwide basis exceeds 10 billion roubles for the calendar year preceding entry into the joint venture agreement.

Clearance deadlines (Stage 1/Stage 2)

Two-stage process. Statutory waiting period at Stage 1 is 30 days from submission of all necessary documents, and at Stage 2, another two months. Either at Stage 1 or Stage 2, conditions for clearing the transaction may be issued. Suspension effects: completion prior to clearance is prohibited. The transaction may be challenged by the antimonopoly authority if completed before clearance.

Substantive test for clearance

Would the transaction constitute or strengthen a dominant position of a legal entity? Does (or may) it cause limitation of competition in a market? Positive social and economic effects from the transaction are taken into consideration.

Penalties

Failure to submit a pre-acquisition filing 300,000 roubles to 500,000 roubles (on legal entities) and 15,000 roubles to 20,000 roubles (on managers).

Remarks

Special rules apply to certain Russian law-specific types of transactions and to transactions with ‘financial entities’ (eg, banks, securities dealers and brokers, insurance companies, non-governmental pension funds, share investment trusts, leasing companies, credit consumer unions) and natural monopolies (eg, gas and oil pipeline distribution, electric power transmission, rail transport, services provided at transport terminals, public electronic and postal communications providers) as targets.

 

Saudi Arabia

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

Creation of an establishment with a dominant position (ie, an establishment that is in a position to influence the prevailing price of a specific commodity, product or service through controlling at least 40 per cent of the total supply of that commodity, product or service in Saudi Arabia). Notification must occur at least 60 days prior to implementation.

Clearance deadlines (Stage 1/Stage 2)

The Competition Council has 60 days to inform a notifying party whether the transaction is under review, or whether the transaction has been blocked. If the Council has informed the notifying party that the transaction is under review within the 60-day deadline and has not cleared the transaction within that period, the Council will have an additional 30 days to conduct its review.

Substantive test for clearance

Whether the transaction will lessen competition in Saudi Arabia. No guidance is given on how the substantive test interacts with the ‘dominance’ jurisdictional test.

Penalties

Failure to notify: fines of up to 10 per cent of sales, capped at 10 million Saudi riyals (to be doubled in the case of recurrence). Other sanctions may also be imposed.

Remarks

In its assessment, the Council is required to consider whether the notified transaction can be justified by reason of ‘public interest’, as well as economic efficiencies where it appears from other factors that the transaction is likely to substantially prevent or lessen competition. There is, however, no guidance on what constitutes ‘public interest’ for these purposes.

 

Serbia

Voluntary or mandatory system

The filing of a notification with the Commission is mandatory in cases where the applicable jurisdictional thresholds have been met.

Notification trigger/filing deadline

The merger notification must be submitted to the Commission within a period no later than 15 days after the triggering event, ie, the signing of the agreement, the announcement of a public offering, the announcement of the start or end date of a public takeover bid, or the acquisition of control (whichever occurs first).

The filing may already be submitted once the parties have a serious intention to conclude the relevant agreement (ie, they sign a letter of intent, or announce their intention to make a public offer for the purchase of shares in an undertaking).

Clearance deadlines (Stage 1/Stage 2)

After submitting the complete filing, the Commission will decide either in one month (in Phase I) or within four months from the decision to initiate in-depth proceedings (Phase II).

Substantive test for clearance

The Commission assesses whether the notified concentration will lead to a significant prevention, restriction or distortion of effective competition, in particular, if it will result in the creation or strengthening of a dominant position in the relevant market. In addition to a test of dominance (over 40 per cent market share), the Commission will consider anticompetitive effects that could potentially arise out of a concentration (eg, loss of current and potential competition, unilateral effects resulting from horizontal mergers, joint dominance, conglomerate effects, vertical effects).

Penalties

For late filing, the Commission may impose on the notifying party a procedural penalty in the range of €500 to €5,000 per day (but capped at a maximum of no more than 10 per cent of the total annual turnover of that undertaking).

For failure to file and breach of the suspension obligation the Commission may impose a fine of up to 10 per cent of the total annual turnover of the responsible undertaking generated in Serbia in the preceding financial year (protective measure). Moreover, it may also order to dissolve the concentration, sell shares, terminate a contract, or take other measures necessary to re-establish the status as before implementation of the concentration (measure of de-concentration).

 

Singapore

Voluntary or mandatory system

Voluntary.

Notification trigger/filing deadline

Notification encouraged where:

the merged entity will have a market share of 40 per cent or more; or

the merged entity will have a market share of between 20 and 40 per cent and the post-merger market share of the three largest firms, that is, the concentration ratio of three largest firms (CR3), is 70 per cent or more.

 

Mergers involving small companies where the turnover in Singapore in the financial year preceding the transaction of each of the parties is below S$5 million and the combined worldwide turnover of all of the parties is below S$50 million will be unlikely to raise competition concerns.

Clearance deadlines (Stage 1/Stage 2)

Phase I review: approximately 30 working days.

Phase II review: approximately 120 working days.

Substantive test for clearance

Whether a merger has resulted, or may be expected to result, in a substantial lessening of competition within any market in Singapore for goods or services.

Penalties

Financial penalty of up to 10 per cent of turnover in Singapore for each year of infringement for such period, up to a maximum of three years for an infringement that was committed intentionally or negligently.

Directions at the discretion of the Commission include directions to:

  • prohibit an anticipated merger from being carried out or dissolve or modify a merger in such manner as the Commission may direct;
  • dispose of operations, assets or shares;
  • enter into legally enforceable agreements; or
  • provide a performance bond, guarantee or other form of security on such terms and conditions as the Commission may determine.

 

Slovakia

Voluntary or mandatory system

The filing of a notification with the AMO is mandatory in cases in which a concentration meets the applicable jurisdictional thresholds.

Notification trigger/filing deadline

There is no explicit filing deadline. However, in any event the concentration has to be notified to the AMO prior to its implementation (ie, before any rights or obligations resulting from a concentration are executed). Inter alia, the notification can be filed with the AMO already prior to the conclusion of a formal merger agreement.

Clearance deadlines (Stage 1/Stage 2)

If the concentration does not require an in-depth analysis due to the identification of competition law concerns, the AMO issues a decision within 25 working days of the receipt of the notification (Phase I proceedings). In cases that require an in-depth analysis, the AMO may initiate in-depth proceedings within 25 working days from the receipt of the notification (Phase II proceedings). Once the AMO has initiated Phase II, it must issue a decision within 90 working days.

Requests for information stop the clock. At the request of the parties or with their consent, the AMO may also prolong the Phase I and II periods, even repeatedly, by a total of up to 30 working days at a maximum.

The AMO may request the parties to propose conditions (commitments) within 30 working days upon delivery of such request. This effectively stops the clock, that is, the above-described Phase I and II review/decision-making periods are not in effect until the parties submit their proposed commitments or the expiry of the 30-day period (whichever occurs first).

Substantive test for clearance

The AMO examines whether the concentration will not significantly impede effective competition in the relevant market, in particular due to the creation or strengthening of a dominant position (SIEC test).

Penalties

In the event of failure to notify the concentration or failure to comply with the standstill obligation, the AMO may impose a fine of up to 10 per cent of the undertaking’s worldwide turnover generated in the preceding business year; or up to €330,000 on an undertaking that generated a turnover not exceeding €330 or has not achieved any turnover, or when its turnover cannot be calculated.

 

Slovenia

Voluntary or mandatory system

The filing of a notification with the CPA is mandatory in cases where the applicable jurisdictional thresholds have been met.

Notification trigger/filing deadline

A merger notification has to be submitted to the CPA no later than 30 days after the conclusion of the agreement, the announcement of a public bid, or the acquisition of a controlling interest (whichever of these triggering events occurs first).

If the CPA requested the parties to provide a notification of the concentration because their combined market share in Slovenia exceeds 60 per cent, the merger notification has to be submitted no later than 30 days from receipt of this request.

Clearance deadlines (Stage 1/Stage 2)

In the event the concentration does not raise serious doubts as to its compatibility with the Slovenian competition law rules, the CPA must issue its decision within 25 working days of the receipt of a complete notification (Phase I).

In cases that raise serious doubts as to their compatibility with the Slovenian competition law rules, the CPA initiates Phase II proceedings within 25 working days of receipt of a complete notification. Once the CPA has initiated Phase II, it must issue a decision within 60 working days from initiating such proceedings.

If the parties propose remedies, the deadline for issuing the Phase I or II decision is extended by an additional 15 working days.

Substantive test for clearance

The CPA assesses whether the intended concentration results in a significant impediment of effective competition within the territory of the Republic of Slovenia, or on a substantial part of it, in particular due to the creation or strengthening of a dominant position.

Penalties

In the case of a failure to notify the concentration within the filing deadline (or failure to notify the concentration at all), the CPA may impose fines of up to 10 per cent of the annual turnover generated by the undertakings concerned in the preceding business year.

In addition, a fine of between €5,000 and €10,000 may be imposed on the responsible persons of such undertakings and (if applicable) a fine of between €3,000 and €5,000 on a natural person already controlling at least one undertaking.

If the nature of the infringement of the filing obligation is particularly serious, a fine of between €15,000 and €30,000 may be imposed on the responsible person of a legal entity, and (if applicable) a fine of between €10,000 and €15,000 on a natural person already controlling at least one undertaking.

 

South Africa

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

N/A.

Clearance deadlines (Stage 1/Stage 2)

Small and intermediate mergers – 60 business days.

Large mergers – 40 business days, extensions of 15 business days at a time.

Substantive test for clearance

(i) Whether the merger results in a substantial lessening or prevention of competition in any relevant market, which cannot be outweighed by technological, efficiency or other pro-competitive factors, and (ii) the effect of the merger on certain public interest grounds.

 

Penalties

The merger parties may face the following sanctions for failing to notify an intermediate or large merger:

an administrative penalty of up to 10% of annual turnover in South Africa and exports from South Africa during the preceding financial year; and

be ordered to sell any shares, interest or other assets it has acquired pursuant to the merger (ie, divestiture) and any provision of an agreement to which the merger was subject may be declared void.

Penalties

N/A.

 

Spain

Voluntary or mandatory system

Mandatory system. Form of notification: special form. Detailed information similar to Form CO. In Spanish. Short notification for straightforward cases is also available.

Notification trigger/filing deadline

Combined turnover in Spain of over €240 million and at least two parties have turnover of over €60 million each; or

combined market share in Spain (or in a ‘defined’ market within Spain) of 30 per cent or more, unless the turnover in Spain of the target or the target’s asset value does not exceed €10 million and the individual or combined market share of the parties does not amount to 50 per cent or more in any ‘affected market’ in Spain or in any ‘defined’ geographical market within Spain.

 

Filing prior to completion.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: one month, extended by 10 days if commitments offered. Stage 2: two months, extended by 15 days if commitments offered. If no unconditional clearance, the Ministry of the Economy has 15 days to decide whether to request government intervention. If it does, the government has one month to make a decision. Suspension until clearance.

Substantive test for clearance

Whether the notifiable concentration might prevent the maintenance of effective competition in the whole or part of the national market.

Penalties

Failure to file: fines up to 1 per cent of the turnover of the relevant undertaking if (i) the parties fail to file a concentration carried out through a public takeover bid in Spain within statutory deadline; or (ii) the parties fail to file a concentration upon ex-officio request by the CNMC.

Implementation before clearance: fines of up to 5 per cent of the turnover of the relevant undertaking.

Non-compliance with relevant final decision: fines of up to 10 per cent of the turnover of the relevant undertaking and potential daily penalties of up to €12,000 per day of delay.

Remarks

If the Ministry of the Economy requests the government’s intervention at the end of Stage 2, the government’s decision is based on general public policy and general interest criteria.

 

Sweden

Voluntary or mandatory system

Mandatory system.

Notification trigger/filing deadline

Combined turnover in Sweden of 1 billion kronor, and each of at least two of the undertakings concerned has a turnover in Sweden exceeding 200 million kronor. Filing prior to completion.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 25 working days from a complete notification, or 35 working days if commitments have been offered.

Stage 2: three months.

Suspension: suspensory effect during Stage 1 and possibility of suspension during Stage 2.

Substantive test for clearance

Whether the merger will significantly impede the existence or development of effective competition in Sweden as a whole, or a substantial part thereof, in particular as a result of the creation of a dominant position. However, a merger may not be prohibited if essential national interests of security or resources are thereby set aside.

Penalties

Failure to file: no penalties (unless in a particular case the parties have been ordered to notify subject to a fine). Implementation before clearance: no penalties (unless in a particular case the parties have been ordered to respect the standstill requirement subject to a fine).

Remarks

The Swedish merger control rules are modelled on the EU Merger Regulation.

 

Switzerland

Voluntary or mandatory system

Mandatory filing.

Notification trigger/filing deadline

Turnover of 2 billion Swiss francs worldwide or 500 million Swiss francs in Switzerland and turnover of at least two enterprises involved of 100 million Swiss francs in Switzerland. Prior to completion of merger.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: one month (clearance or opening of investigation).

Stage 2: four months (investigation).

Substantive test for clearance

No dominant market position created or enhanced liable to eliminate effective competition. Improvement of competition in other markets outweighing dominant market position.

Penalties

Penalty up to 1 million Swiss francs. Fine of up to 20,000 Swiss francs (on the individual manager).

Remarks

Special approvals for: banks; acquisition of Swiss real estate companies; companies holding special concessions or licences.

 

Taiwan

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

A notification filing must be made where a combination meets any of the thresholds set out in the FTA and where there are no exemptions. Clearance must be obtained before completion of the combination. Clearance occurs 30 working days from the date the FTC accepts the complete filing materials, provided that this period may be shortened or extended by the FTC by written notice as it deems necessary. The filing thresholds include:

where any of the parties has a 25 per cent share in a market in Taiwan;

as a result of the merger, the enterprises will have a 33 per cent market share;

where all the parties in aggregate, in the preceeding fiscal year, had combined global sales in excess of NT$40 billion, and each of at least two of the parties has sales, in the preceding fiscal year, in Taiwan exceeding NT$2 billion; and

where the Taiwan-sourced annual turnover of one of the parties is NT$15 billion in general with another party having NT$2 billion of the same or NT$30 billion in the case of a financial enterprise with another party having NT$2 billion of the same.

Clearance deadlines (Stage 1/Stage 2)

Clearance before closing is required. The reviewing authority has 30 working days from accepting the complete filing materials to acquiesce, object, unilaterally shorten the review period, or unilaterally extend the review period for an additional 60 working days. Thus, filing should be made at least 90 working days before the scheduled closing.

Substantive test for clearance

Generally, whether the economic benefits of the combination outweigh the restrictions on competition that result from the combination.

Penalties

Fines range from NT$200,000 to NT$50 million. The FTC also has broad equitable powers to block or unwind unauthorised combinations. Further, according to the Administrative Penalty Act, if the benefit gained exceeds the maximum statutory fine permitted, the fine may be increased to an amount comparable to the benefit gained.

Remarks

No ‘carveouts’ are allowed. Where required, the notification must be made in a timely manner, or the parties will be subject to a penalty.

 

Thailand

Voluntary or mandatory system

Merger control in Thailand is a mandatory system whereby any business merger that may result in the creation of either a monopoly, or a business operator with dominant market power, as prescribed by the Trade Competition Commission (TCC), is required to file an application to obtain prior approval from the TCC (pre-merger filing). In addition, the merging entity must notify the TCC within seven days after the completion of the merger if the merger may substantially lessen competition (post-merger notification).

Notification trigger/filing deadline

The deadline for pre-merger filing is any date before the closing date of the transaction (ie, the date of the merger).

The deadline for post-merger notification is seven days from the closing date of the transaction.

Clearance deadlines (Stage 1/Stage 2)

The TCC must complete its consideration of an application within 90 days of filing. If the TCC is unable to complete its consideration within this period, the TCC may extend the period by up to 15 additional days.

Substantive test for clearance

The substantive test for clearance is that the merger:

  • is reasonably necessary in the business;
  • is beneficial to business promotion;
  • does no serious harm to the economy; and
  • has no material effect on the due interest of consumers in general.

Penalties

Failure to submit a pre-merger filing may result in:

  • administrative sanction: a fine of not exceeding 0.5 per cent of the total value of the merger transaction; or
  • civil penalty: any person who incurs damages from the violation of pre-merger filing by a business operator under section 51 may claim such damages.

In addition, the TCC may issue an order to a business operator to suspend, cease or vary the merger that is in violation of the pre-merger filing requirement. In the case where the business operator fails to comply with this order, it will be subject to an administrative fine of not exceeding 6 million baht and a daily fine of not exceeding 300,000 baht throughout the period of violation.

Failure to submit a post-merger notification may result in:

  • administrative sanction: a fine of not exceeding 200,000 baht and a daily fine of not exceeding 10,000 baht throughout the period of the violation.

Remarks

The merger control provisions have just come into force in Thailand. Interpretation and application of the laws by the authority of certain criteria and requirements for pre-merger filing and post-merger notification are still unclear.

 

Turkey

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

No filing deadline. Final and executed version of the transaction document requested. No closing before approval.

Clearance deadlines (Stage 1/Stage 2)

Thirty days following a ‘complete’ notification. Waiting period of six months with the possibility of a further six months’ extension in the case of a Phase II investigation.

Substantive test for clearance

Dominance test: creation of a dominant position or strengthening of an existing dominant position as a result of which, competition is significantly decreased in any market for goods or services within the whole or a part of the country.

Penalties

Realisation of a notifiable transaction without the approval of the Competition Board: turnover-based monetary fine of 0.1 per cent of the turnover generated in the financial year preceding the date of the fining decision (if this is not calculable, the turnover generated in the financial year nearest to the date of the fining decision will be taken into account). The minimum fine for 2019 is 26,027 liras. Liability for fines is on the acquiring firm in the case of an acquisition or on both merging parties in the case of a merger. Moreover, a notifiable transaction, not notified to and approved by the Competition Board shall be deemed as legally invalid with all its legal consequences. If the Board concludes that a non-notified notifiable transaction would have been prohibited had it been notified, fines of up to 10 per cent of turnover generated in the financial year preceding the date of the fining decision will be incurred (if this is not calculable, the turnover generated in the financial year nearest to the date of the fining decision will be taken into account). Managers or employees of parties that had a determining effect on the creation of the violation may also be fined up to 5 per cent of the fine imposed on the respective party.

 

Ukraine

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

A transaction qualifying as a concentration requires AMC merger clearance if in the last financial year immediately preceding the year of the concentration:

the combined worldwide value of assets or turnover of the parties to the concentration exceeds €30 million and the value of Ukrainian assets or turnover of each of at least two parties exceeds €4 million; or

Ukrainian value of assets or turnover in Ukraine of the target, or of the seller of the assets, or of at least one of the founders of a new entity exceeds €8 million and worldwide turnover of at least one other party exceeds €150 million.

 

All figures shall be taken for the last financial year immediately preceding the year of the concentration.

In either case, the parties to a concentration should be considered at their group level. That means that the assets or turnover of the controlling shareholder or seller should still be counted towards the target.

Clearance deadlines (Stage 1/Stage 2)

Preview period: 15 calendar days.

Phase I review period: up to 30 calendar days.

Phase II review period: up to 135 calendar days.

Also, there is a fast-track simplified 25-day review procedure for transactions where:

(i) only one party is active in Ukraine; or (ii) parties’ combined shares do not exceed 15 per cent on the overlapping markets or 20 per cent on vertically related markets.

Substantive test for clearance

No monopolisation or substantial restriction of competition in the Ukrainian market or a significant part of it.

Penalties

Statutory maximum fine for pre-clearance closing or closing without clearance is up to 5 per cent of the consolidated turnover in the year immediately preceding the year when the fine is imposed.

In practice, according to the Guidelines on Fines, the actual fines in merger cases are lower.

Remarks

The Ukrainian merger control regime is extraterritorial, in some cases excessively: the AMC claims jurisdiction over transactions reasonably lacking sufficient local nexus.

 

United Arab Emirates

Voluntary or mandatory system

Mandatory; however, a number of exclusions currently exist (for companies operating in certain sectors, government-owned or government-controlled entities, and for small and medium-sized enterprises).

Notification trigger/filing deadline

Forty per cent market share thresholds, as well as a preliminary assessment as to whether the transaction is likely to affect competition in the UAE. Filing must be made at least 30 days prior to the conclusion of a draft contract or agreement bringing about the transaction (unclear whether this allows for the signing of a legally binding share purchase agreement).

Clearance deadlines (Stage 1/Stage 2)

Initial review period of 90 days, may be extended by a further 45 days.

The Law does not provide for any expedited review process.

Substantive test for clearance

Whether the transaction will negatively affect competition, or whether there may be economic benefits that would outweigh the detriment to competition.

Penalties

Fine of between 2 and 5 per cent of sales in the UAE, or alternatively 500,000 to 5 million UAE dirhams for failure to notify.

Fine of 50,000 to 500,000 dirhams for implementing the transaction before clearance (gun jumping).

Closing down of an infringing establishment for three to six months.

Possibility for affected third parties to seek damages.

Remarks

Although the Competition Law is now officially in force, certain gaps in the legislation and considerable uncertainty in its application remain.

Companies doing deals in the UAE that are likely to meet the 40 per cent market share threshold will need to consider carefully whether to make a merger control filing, and if so how to approach the Ministry, in the absence of any formal filing process or of any public record of decisions to date.

 

United Kingdom

Voluntary or mandatory system

Voluntary system. Form of notification: CMA’s prescribed form. In English.

Notification trigger/filing deadline

The turnover in the UK of the enterprise being taken over exceeds £70 million or combined share of supply in UK of 25 per cent created or enhanced. Filing: no formal time limit.

Clearance deadlines (Stage 1/Stage 2)

Stage 1: 40 working days.

Stage 2: 24 weeks (can be extended for eight weeks for special reasons).

Suspension effects: ability to impose ‘hold-separate’ obligations on mergers at either stage.

Substantive test for clearance

Whether the merger will result in a substantial lessening of competition in the United Kingdom or a substantial part of the United Kingdom.

Penalties

Failure to file: no penalties.

Implementation before clearance: no penalties, unless in breach of a statutory prohibition, undertaking or order.

Non-compliance with orders for the production of documents or information: penalties.

Remarks

Special provisions for cases involving national security, media mergers, government contractors, water mergers or mergers necessary to protect financial stability.

 

United States

Voluntary or mandatory system

Mandatory system. Each party must submit a filing. Filing fee (paid by acquiring person) is between US$45,000 and US$280,000, depending on size of the transaction.

Notification trigger/filing deadline

Must satisfy the commerce test, size-of-parties test (for deals valued between US$90 million and US$359.9 million) and size-of-transaction test, and not qualify for an exemption. No filing deadline.

Clearance deadlines (Stage 1/Stage 2)

30-day initial waiting period (15 days for all-cash tender offer or sale in bankruptcy). Can be shortened by early termination or extended by issuance of a second request. Stage 2 period ends on the 30th day after compliance by all parties with the second request (in the case of a cash tender offer, Stage 2 ends on the 10th day after compliance by the acquiring person with second request). Transaction suspended until waiting periods have been observed.

Substantive test for clearance

Whether the transaction may substantially reduce competition or tend to create a monopoly.

Penalties

Failure to file: fine of up to US$42,530 per day; divestiture can be required. Transaction cannot be implemented prior to clearance. Same penalties apply if transaction is consummated before approval.

Remarks

Special rules can apply to certain industrial sectors (telecommunications, banking).

 

Uzbekistan

Voluntary or mandatory system

Mandatory.

Notification trigger/filing deadline

For legal entities in commodities markets:

the notification and pre-approval are required if the aggregate balance sheet value of the assets of both parties to the transaction; or

the aggregate amount of sales of goods for the last calendar year of both parties exceeds 100,000 times the minimum monthly wage (MMW), which is currently 202,730 soums.

 

For legal entities in the financial market: the notification and pre-approval are required if the aggregate balance sheet value of the assets of both parties to the transaction exceeds:

US$450 million with respect to banks;

US$25 million with respect to insurance companies;

US$3 million with respect to leasing companies;

US$400,000 with respect to non-banking credit organisations and professionals in the securities market.

 

There are no legal deadlines for a pre-completion filing. Merger control clearance must be obtained before the transaction.

Clearance deadlines (Stage 1/Stage 2)

Ten calendar days.

May be extended to up to 30 calendar days. Acquisition of 35 per cent or more shares in a joint-stock company or 50 per cent or more shares in a limited liability company, when the related threshold is reached.

Substantive test for clearance

Acquisition of 35 per cent or more shares in a joint-stock company or 50 per cent or more shares in a limited liability company, when the related threshold is reached.

Penalties

Administrative liability: a fine in the amount of one to three times MMW applies where an individual is involved, and five to 10 times MMW applies where a legal entity is involved.

Criminal liability (applicable after imposing administrative fine): a fine in the amount of 25 to 50 times MMW, or deprivation of a right to hold certain positions for a period of three to five years, or up to three years of corrective labour. There is no notion of corporate criminal liability in Uzbekistan, therefore criminal liability is imposed on the official or any other authorised person from the company of the purchaser and only if such violation is repeated twice during one year.

In addition, the Antimonopoly Committee may apply to a court to invalidate, in full or in part, agreements and other transactions for which its prior authorisation or subsequent notice was required but has not been obtained or given, or to liquidate a company if it was incorporated without prior approval, provided that the relevant transaction or incorporation results in limitation of competition.

 

Zambia

Voluntary or mandatory system

Filing is mandatory only in relation to the mergers that meet the notification requirements. A filing is not mandatory in the case of a transaction that does not meet the prescribed threshold. However, a party seeking clarification as to whether a proposed merger is required to be notified may apply to the Commission for negative clearance in the prescribed manner and upon payment of the prescribed fee.

Notification trigger/filing deadline

A merger transaction requires authorisation by the Commission where the combined turnover or assets, whichever is higher, in Zambia of the merging parties is at least 50 million fee units (equivalent to 15 million kwacha) in the merging parties’ most recent financial year in which these figures are available.

The CCP Act does not impose deadlines for filing; however, the Commission will normally penalise and stipulate a period within which the enterprise should file its notification for failure to do so at an earlier stage.

Clearance deadlines (Stage 1/Stage 2)

The CCP Act stipulates the clearance time to be 90 days, but the interim authorisation for cases that do not appear to raise competition concerns can be granted within three weeks. Interim authorisations are subject to the board of commissioners’ ratification and can be reversed.

Substantive test for clearance

The Competition and Consumer Protection Commission uses a multiple assessment criteria encompassing the substantial lessening of competition (SLC) test, the dominance test, efficiency test and the public interest test. However, the SLC test has the greatest weight in analysing a case.

Penalties

Various penalties exist under the CCP Act in respect of specific provisions. There is a general penalty of 30,000 kwacha prescribed in section 82 of the CPP Act.