Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?Pre-merger filing
The relevant business operator or operators must submit a pre-merger filing before the closing date (ie, the effective date of the amalgamation, asset acquisition or share acquisition) and the merger cannot be consummated until the approval from the TCC has been obtained. If a business operator is required to submit a pre-merger filing and fails to do so, the business operator may be subject to:
- administrative sanctions: a fine of not exceeding 0.5 per cent of the total value of the transaction may be imposed by the TCC; or
- civil penalties: any person who incurs loss or damage from the violation of pre-merger filing requirements by a business operator may claim civil damages against the business operator.
In addition, the TCC may order the relevant business operator or operators to suspend, cease or vary the merger transaction that was conducted in violation of the pre-merger filing requirements. In cases where the business operator fails to comply with this order, it may be subject to an additional administrative fine of not exceeding 6 million baht and a daily fine of not exceeding 300,000 baht throughout the period of violation.Post-merger notification
The relevant business operator must submit the post-merger notification within seven days of the closing date (ie, the effective date of the amalgamation, asset acquisition or share acquisition). If a business operator is required to submit a post-merger notification and fails to do so, the business operator may be subject to an administrative sanction of a fine of not exceeding 200,000 baht and a daily fine of not exceeding 10,000 baht throughout the period of the violation.
There is no enforcement practice for non-compliance with a pre-merger filing or post-merger notification within the stipulated deadline, as merger control has only recently been implemented in Thailand.
Which parties are responsible for filing and are filing fees required?Pre-merger filing
- Amalgamation: the entities that will amalgamate shall be jointly responsible for submission of the pre-merger filing.
- Asset acquisition: the acquirer of assets shall be responsible for submission of the pre-merger filing.
- Share acquisition: the acquirer of the shares shall be responsible for submission of the pre-merger filing.
The filing fee is 250,000 baht per transaction.Post-merger notification
- Amalgamation: the newly created entity shall be responsible for submission of the post-merger notification.
- Asset acquisition: the acquirer of assets shall be responsible for submission of the post-merger notification.
- Share acquisition: the acquirer of shares shall be responsible for submission of the post-merger notification.
There is no fee for submission of the post-merger notification.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
There is no concept of waiting periods under the TCA where the parties can close merger transaction upon the lapse of the specified period. In the event that a pre-merger filing is required, the merger transaction may not be consummated until the approval from the TCC has been obtained. The TCA stipulates that the TCC must complete consideration of a pre-merger filing within 90 days of submission. If the TCC cannot reasonably make a decision within this 90-day period, the TCC may extend the consideration period for an additional 15 days. In granting approval, the TCC may set a specific time period or other conditions with which the business operator or operators must comply.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
See question 9. As the merger control provisions of the TCA only came into effect on 29 December 2018, currently there have been no cases in which sanctions have been imposed by the TCC.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
As the merger control provisions of the TCA only came into effect on 29 December 2018, currently there have been no cases in which sanctions have been imposed by the TCC.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
In the event that a pre-merger filing is required, there are currently no mechanisms in place that would allow for closing prior to approval by the TCC.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
In addition to the TCA, an acquisition of shares of a company listed on the Stock Exchange of Thailand will be subject to the Securities and Exchange Act BE 2535 (1992), as amended; in particular, with respect to the public disclosure and tender offers.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
The TCC has prescribed a list of documents and information it requires for consideration of a pre-merger filing and post-closing notification.Pre-merger filing
- Application form (prescribed by the TCC) requiring, inter alia, general information on the relevant business operators and their businesses.
- Merger plan and implementation timeline.
- Details of the merging parties and the target company that shall, as a minimum, consist of the shareholding structure, voting rights, sales turnover and market share.
- Studies and analysis in respect of the merger transaction that shall, as a minimum, consist of:
- analysis of shareholding structure, controlling power of merging parties for the purpose of ascertaining the relationship in policy or directive power before and after the merger;
- analysis of the market for products or services relevant to the merging business operators for the purpose of ascertaining the effect as a result of the merger, that shall as a minimum consist of:
- market structure before and after the merger transaction;
- scope of market;
- market share of each of the merging parties before and after the merger transaction;
- sales turnover of each of the merging parties before and after the merger transaction;
- effect of the merger transaction in respect of the following items:
- market concentration;
- market entry and expansion, taking into consideration the relevant factors such as laws and regulations of the government, logistic costs, access to patent rights of existing technologies, or access to raw materials or other resources necessary for production, etc;
- non-coordinated effects, meaning the effect as a result of each of the merged entity’s profit gained by increasing prices or a reduction in the quality of the products attributable to a reduction of competition;
- coordinated effects, meaning the effect as a result of the business operators’ tendency to jointly increase price after the merger transaction;
- effect on the economy or consumers as a whole;
- other effects on competition in a market (if any); and
- efficiencies in a market after the merger transaction; and
- Studies and analysis in respect of valid business-related necessity and benefits in the promotion of business, damage to the economy, and consumers’ benefits as a whole.
- Notification form (prescribed by the TCC) requiring, inter alia, general information on the relevant business operators and their businesses.
- Copy of documents submitted to the Ministry of Commerce, in case of amalgamation.
- Copy of documents submitted to the Securities and Exchange Commission (if applicable).
- Copy of definitive documents evidencing the share or asset acquisition (eg, share purchase agreement and appraisal reports).
- Copy of the minutes of the executive committee’s meeting or shareholders’ meeting in which the merger transaction is approved of each of the merging parties or documents evidencing each of the merging parties’ intention to enter into the merger transaction.
- Other details in respect of the merger transaction.
- Copy of the minutes of the annual general meeting and audited financial statements for the preceding year of each of the merging parties for the previous three years.
- Copy of the list of shareholders of each of the merging parties before and after the merger transaction.
- Power of attorney (if any).
Business operators who intentionally provide false or misleading information to the TCC may be subject to criminal penalty under the Criminal Code for submission of false information to government officials. In addition, the approval for pre-merger filing can be revoked by the TCC if it becomes aware of such false or misleading information. Furthermore, any person whose right or interest is adversely affected by the approval of the TCC may file a case to the Administrative Court for revocation of such approval.
All information and documents submitted to the TCC must be in hard copy in Thai language (or translated into Thai).Investigation phases and timetable
What are the typical steps and different phases of the investigation?
No pre-consultations are required before submission of an application for a pre-merger filing and the TCA does not specify a process for pre-consultations. However, business operators may request an unofficial meeting with the OTCC to discuss the applicable merger control processes and the OTCC’s initial views and assessment. However, the OTCC may not provide a definitive assessment and the opinion of the OTCC is not binding and subject to change by the TCC.
Generally, the relevant business operators must prepare and submit all of the required information (outlined above) to the OTCC. After acceptance of the pre-merger filing, the TCC shall undertake the following steps:
- the Secretary-General proposes the application for approval of the merger to the Chairman of the TCC within seven days from the date of receipt of the application for approval for further consideration by the TCC;
- the TCC may require additional information from a business operator or operators conducting a merger by issuing a letter requesting information or inviting the applicant to offer clarification; and
- the TCC may serve notices of invitation to relevant business operators or third parties to offer opinions and information in support of the consideration.
What is the statutory timetable for clearance? Can it be speeded up?
The TCC must complete its consideration of a pre-merger filing within 90 days of submission. When a decision cannot reasonably be made within 90 days, the TCC may extend the period of consideration by up to 15 additional days.
There is no provision in the TCA that allows the pre-merger approval process to be expedited.