Legislation and jurisdictionRelevant legislation and regulators
What is the relevant legislation and who enforces it?
Saudi Arabia recently adopted and published a new Competition Law that will come into effect 180 days from its publication in the Official Gazette. The New Competition Law, along with its Implementing Regulations - expected to be issued in the second half of 2019 - will come into force as of October 2019. Until then, the provisions of the current Competition Law (the Current Law) still apply. This chapter covers both the current and new aspects of the Competition Law.
The current Competition Law became effective in 2005 and is accompanied by implementing regulations issued by the Competition Council under Resolution No. 126 dated 4/9/1435H (1 July 2014) (the Current Regulations). Both instruments deal with merger control as well as other aspects of competition law. The Council has also issued a number of guidance rules in support of the Law and the Regulations. Most significant of these are the Rules Governing Economic Concentration (the Rules), which contain guidance on the procedural aspects of the merger control regime. In addition, the following guidance rules are available:
- rules governing the pleading procedures before the Council;
- rules governing the work of the judicial investigation officers;
- rules governing exceptions and exemptions; and
- rules governing dominant positions.
In June 2015, the Council issued a set of competition law guidelines, taking into account principles of international best practice. The guidelines have the stated aim of raising awareness and encouraging competition compliance across the Saudi economy and include:
- guidance for businesses on how to comply with Saudi competition law;
- guidance on information exchange between competitors; and
- guidance relating to government sectors and public procurement.
These guidelines are not legally binding and may be further amended by the Council.
The Council is responsible for the enforcement of the Law and the Regulations. The Council’s duties are set out in the Law and include the following:
- approving economic concentrations;
- ordering investigations into complaints and practices in violation of provisions of the Law and prosecution of such practices;
- approving the initiation of criminal proceedings against those in violation of the Law; and
- proposing draft competition legislation in response to developments in the market and proposing amendments to the Law.
In October 2017, the name of the Competition Council was changed to the General Authority for Competition (the Authority) and it was given its new organisational statute. The New Competition Law is enforced by the Authority, which is governed by a Board (the Board) consisting of representatives from the Ministry of Finance, the Ministry of Economy and Planning, the Ministry of Trade and Investment, the Ministry of Energy, Industry and Mineral Wealth, as well as four other experts. The Board has a Chairman appointed by virtue of Royal Decree.
The New Competition Law was published on 29 March 2019 and will replace the Current Law in October 2019. Its overall objective is similar to that of the Current Law, with more emphasis on the protection of consumer welfare, and on medium and small businesses to ensure their continuity in a fair and competitive market environment. In comparison to the Current Law, the New Competition Law seeks to enhance market competition by adopting a more liberalised approach to market regulation. The most prominent changes include:
- acceptance of settlements with infringing businesses in accordance with the Authority’s set criteria, controls and mechanisms to compensate injured parties;
- greater flexibility with respect to the types of sanctions that the Authority can impose on violating businesses;
- potential exemptions for businesses that report infringements;
- potential exemptions based on benefits to consumers;
- the New Competition Law specifically captures transactions occurring outside of Saudi Arabia that have an impact on fair competition in the Saudi Arabian market; and
- introduction of turnover-based merger control thresholds, procedure and substance to be set by the Board.
Details will be determined by the Implementing Regulations (the New Regulations). In addition, the Board is expected to issue further guidelines to clarify the visions of the Authority in its consideration and treatment of the New Competition Law regime.Scope of legislation
What kinds of mergers are caught?
The Saudi merger control regime applies to economic concentrations as defined by the Current Law and the Current Regulations.
An economic concentration is created by full or partial transfer of ownership (including beneficial ownership) of an entity’s assets, rights, shares, interests or obligations to another entity operating in the Saudi market (an establishment), thereby creating ‘dominance by way of merger, takeover, acquisition, or combining two or more managements into one joint management or any other means that lead to a state of economic concentration’.
The definition of ‘economic concentration’ set out in the Current Law and the Current Regulations is sufficiently broad to capture almost every type of transaction that would ultimately result in an economic concentration in Saudi Arabia, be it mergers, acquisitions or takeovers.
The New Competition Law maintains the same definition of ‘economic concentration’ but adds a turnover-based threshold to be determined by the New Regulations.
What types of joint ventures are caught?
The definition of economic concentration under the Current Law and the Current Regulations, which covers any transaction combining the management of two or more entities into one joint management (see question 2), is widely drafted and may therefore apply to a broad range of joint ventures. However, it is not clear from the legislation to what extent the Saudi merger control regime may follow the EU law distinction between ‘full function’ joint ventures (that are notifiable) and ‘non-full function’ joint ventures (that fall to be assessed under the provisions relating to restrictive agreements). The New Regulations may provide further insight on the type of joint ventures that are treated as restrictive agreements.
Is there a definition of ‘control’ and are minority and other interests less than control caught?
The existence of an economic concentration does not depend on the criterion of control, therefore there is no definition of control in the Current Law or the Current Regulations. Minority interests may be caught under the regime, as a concentration may arise where there is a partial transfer of ownership rights and no minimum level is specified for such partial transfers. Other interests, namely usufruct, are also caught (see question 2).
The same arrangement exists in the New Competition Law, but a new criterion may be set by the Board in the New Regulations.Thresholds, triggers and approvals
What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
The merger control regime applies to transactions that result in a dominant position by an establishment.
Dominance is determined by reference to a 40 per cent market share threshold in Saudi Arabia (based on sales) held throughout a 12-month period or an ability to influence the prevailing market price of a specific commodity, product or service. This latter part of the test means that, in theory, dominance may be found at a market share below 40 per cent, thereby triggering a notification obligation below this threshold. Further, it is unclear whether the market share threshold may be met by one party alone, or whether an overlap between the parties is required.
As competition law and practice in Saudi Arabia is still relatively new, there is often little or no precedent relating to market definition on which dominance should be assessed. Companies may, therefore, need to be guided in their assessment by precedents in other jurisdictions, specifically, the European Union. While to date it is not clear to what extent the Authority would choose to follow such precedents in conducting its own assessment, it is noteworthy that Saudi Arabia has recently joined the International Competition Network, fostering cooperation between member agencies in establishing and applying international competition law principles.
Going forward, the threshold for notification will change as the New Competition Law provides that reaching a dominant position, or economic concentration, will depend on both parties reaching an annual turnover exceeding an amount to be determined by the New Regulations. It is possible for the Authority to grant exemptions to mergers that result in economic concentration if such exemption would lead to better market performance and provide benefits to consumers that outweighs the restriction. The New Regulations will provide further details on the threshold for notification and merger exemption.
Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
Filing is mandatory and must occur prior to completion of a prospective transaction that would create an economic concentration in Saudi Arabia. The law currently exempts fully stated-owned entities from the scope of its application. Further, any establishment that deals with government-owned entities may submit an application to be exempted in case of meeting the required conditions. The New Competition Law, however, provides that government-owned establishments and companies will be excluded only if they were solely authorised by the government to provide services or commodities in a particular area.
Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
The Current Law and the Current Regulations apply to all entities operating in Saudi markets as well as to activity that takes place abroad and leads to consequences contrary to fair competition within Saudi Arabia, although this is not specifically set out in the Current Law and Regulations.
Foreign-to-foreign mergers must therefore be notified in Saudi Arabia where the jurisdictional threshold is met, regardless of the location or nationality of the parties, subject to the local effects test (ie, the parties must operate in Saudi markets or engage in activity abroad that has harmful effects on competition in Saudi Arabia). The New Competition Law now expressly captures foreign-to-foreign mergers.
Are there also rules on foreign investment, special sectors or other relevant approvals?
Yes. Foreign investment is not permitted in a number of sectors, which are specified in a list maintained by the Saudi Arabian General Investment Authority (SAGIA). In the most recent version of the list, the relevant sectors include:
- oil exploration, drilling and production;
- manufacturing of military equipment, devices and uniforms;
- manufacturing of civilian explosives;
- catering to military personnel;
- security and detective services;
- tourist orientation and guidance services related to Hajj and Umrah;
- real estate investment in certain regions of Saudi Arabia;
- printing and publishing (subject to a number of exceptions);
- commission agents;
- services provided by midwives, nurses, physical therapy services and certain quasi-doctoral services;
- fisheries; and
- poison centres, blood banks and quarantine.
In addition, SAGIA requires a minimum Saudi participation in entities that operate within certain sectors (eg, retail and wholesale trade, where SAGIA requires a minimum of 25 per cent Saudi participation in the relevant entity). While SAGIA issued a statement in September 2015 saying that it would permit 100 per cent foreign ownership of entities engaged in retail and wholesale trade, this has yet to be implemented.
For other sectors, non-Gulf Cooperation Council (GCC) countries (Saudi Arabia, Bahrain, Kuwait, Oman, Qatar and the United Arab Emirates) must apply for and obtain a foreign investment licence from SAGIA. Foreign investments will be pursuant to the Saudi Arabian Companies Regulations and the Foreign Investment Regulations, and are overseen and regulated by SAGIA.
Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
Currently, transactions resulting in an economic concentration must be notified to the Authority at least 60 days prior to their effective date (although in practice the Authority has up to 90 days to approve or deny approval for a filing).
Any violation of the provisions of the Current Law, which would include a failure to file, can be subject to a fine of up to 10 per cent of sales, not exceeding 10 million Saudi riyals, to be multiplied in the case of recurrence. The fines that may be imposed under the Current Law are without prejudice to any other penalties that may be applicable under any other laws.
The Authority may also take one or more of the following actions where a violation of the Current Law has been established:
- order the infringing establishment to cease the infringement immediately;
- require the infringing establishment to dispose of assets, shares or proprietary rights, or to undertake any other action to remove the effects of the infringement (this provision is drafted widely and, arguably, could be interpreted by the Authority as giving it the power to order the unwinding of the transaction);
- compel the infringing company to pay a daily fine of not less than 1,000 Saudi riyals and not exceeding 10,000 Saudi riyals until the infringement has ceased;
- order the infringing establishment to return (to the government) all gains made from the violation; and
- if the violation continues following imposition of a fine and order to end violation, order a temporary cessation of operations for a period of up to one month or permanently withdraw governmental licences (such as foreign investment, industrial or sector specific licences) required to operate.
The Law also establishes a right of action before the competent courts for natural or legal persons who suffer harm as a result of a violation of the Law.
To date, although there are no public records of the Authority imposing a fine for failure to file, the Authority is known to be investigating an alleged violation in this respect - including seeking to make full use of the above available sanctions.
Going forward, the time frame for notification prior to completion of an economic concentration transaction has been set at 90 days upon entry into force of the New Competition Law. The same penalties for failure to notify the Authority are maintained in the New Competition Law, with the addition of a further option for the Authority to replace the previously mentioned penalties by imposing a fine not exceeding three times the profits made by a violating entity. However, under the New Competition Law, the Authority no longer has the authority to permanently withdraw a government licence.
Which parties are responsible for filing and are filing fees required?
Currently, notification must be made by the entity that will be acquiring or increasing its economic concentration.
In the case of an acquisition involving a single acquirer, the acquirer alone must notify, while in the case of a merger that creates a new undertaking, or an acquisition by one or more parties, both (or all) parties will have an obligation to notify.
A filing fee of 1,000 Saudi riyals is required.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
Economic concentrations must not be implemented before one of the following has occurred:
- the notifying party has received approval in writing from the Authority;
- 60 days have expired since notification, without the notifying party having been informed by the Authority in writing that the concentration is under review or has been blocked; or
- 90 days have expired since notification, without the notifying party having received written approval or rejection of the concentration from the Authority.
Neither the Current Law nor the Current Regulations provide for any exceptions to the suspension obligation.
The New Competition Law increases the waiting period for notification by the Authority to 90 days.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?
There are a number of possible sanctions for violations of the provisions of the Current Law, which would include closing before clearance. The possible sanctions are outlined in question 9.
As mentioned above, the penalties under the Current Law and the Current Regulations are applied (at least in theory) to parties that close a transaction before clearance is obtained from the Authority or where time periods imposed by the Law or the Authority are not observed.
While there has been no published decision to date where the Authority has imposed any sanction for failing to notify, the Authority has been known to investigate possible failures to notify.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The Current Law and the Current Regulations do not distinguish between a merger involving local or foreign entities. As noted in question 12, to date, there have been no examples of fines being imposed, and the instances where the Authority is investigating possible failures to notify are in relation to transactions involving Saudi entities. However, while there is no practical guidance available as to whether the Authority would apply sanctions in foreign-to-foreign transactions, this possibility cannot be excluded where the filing thresholds are met and the transaction has effects in Saudi Arabia.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
The Current Law and the Current Regulations do not distinguish between a merger involving local or foreign entities. A transaction that is notifiable should therefore not be closed prior to one of the events listed in question 11 occurring. Alternatively, the relevant business entity in Saudi Arabia could be subject to a different set of documentation that has as a condition precedent the obtaining of the Authority’s clearance.
In theory, hold-separate arrangements may be a solution; however, such arrangements have not yet been tested with the Authority.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
The Merger and Acquisition Regulations issued by the Saudi Capital Markets Authority (the M&A Regulations) require that, where a public offer for shares would, if completed, be subject to the Law, the offeree company and the offeror must, inter alia, notify the Authority pursuant to the applicable provisions of the Law.
The M&A Regulations further provide that an offer that is subject to the Law must contain a condition that the offer will lapse if the Authority notifies the offeror or the offeree company in writing that it objects to the deal or has placed it under study and review as specified in the Law.
The M&A Regulations apply to publicly listed companies in Saudi Arabia and contain additional merger control provisions that apply to such transactions.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 filing must be made using the forms published by the Authority. A separate form must be completed for each merging entity.
The notification must include, for example, information on the relevant markets, the value of the notifying party’s (or parties’) sales in those markets, positive effects of the concentration on the market, and competitive dynamics in the market. Supporting documentation, namely the transaction agreement and the constitutional documents and financial statements of the notifying and target entities, must also be provided. The notification forms, as well as all supporting documentation, must be submitted in Arabic.
The Current Law and the Current Regulations do not contemplate derogations from the amount of information to be provided.
Going forward, however, the New Regulations will specify the procedures to be followed for notification of economic concentration, including the content, information and documents required under the New Competition Law regime.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Upon notification, the Authority will verify whether all the necessary information has been provided. If the notification is complete, the Authority will notify the relevant party (or parties) and the time frame shall run from the date of the Authority’s notice. If not, the relevant party or parties shall be informed of the missing information that must be provided.
Once a complete notification has been received, the Authority has 60 days within which to review the transaction and notify the notifying party (or parties) of its decision. The Authority may extend this period by 30 days, provided that the notifying parties are informed of the extension prior to the expiry of the 60-day period (see question 11).
The length of time to obtain a decision from the Authority is determined on a case-by-case basis. The Authority has rendered decisions in as few as seven days and as long as 60 days.
The New Competition Law extends the time period within which the Authority will review and notify the notifying party to 90 days. The New Regulations will specify further details on the mechanism of review and notification by the Authority’s decision.
What is the statutory timetable for clearance? Can it be speeded up?
The Authority may request additional information during the investigation. Such requests must be in writing and must specify the required documents or information. The parties must provide the documents or information within 15 days of the Authority’s request.
The Law and Regulations give the Authority wide discretion in terms of what additional information (if any) it may request.
Substantive assessmentSubstantive test
What is the substantive test for clearance?
The substantive test for clearance is contained in the Rules and provides that the Authority shall prohibit or grant conditional clearance to a transaction where the Authority considers that it will lessen competition in Saudi Arabia.
No guidance is currently available on how the substantive test for clearance interacts with the jurisdictional test. The latter requires the creation or strengthening of a dominant position (see questions 2 and 5), which would appear to entail by definition a lessening of competition. However, in practice, not all mergers that have to be notified under the jurisdictional test would automatically be prohibited or cleared only with conditions under the substantive test. It is thus unclear in what circumstances a merger that meets the jurisdictional test of dominance will be cleared under the substantive test.
In determining whether a notified transaction will lead to a lessening of competition, the Authority will examine the following factors, which are set out in the Rules:
- the level of competition in the market;
- the prospect of new entry into the market;
- the effect on the commodity or product price;
- the existence of any regulatory or other barriers to entry;
- the level and historical trends of anticompetitive conduct in the market;
- the likelihood that the transaction would give the merged entity market power;
- the dynamic characteristics of the market including growth and innovation; and
- any opinions received as part of the public consultation process.
The Authority’s review will also take account of some more general factors, namely:
- the need to maintain and promote effective competition between persons producing or distributing commodities or products and services in the market;
- promoting the interests of consumers, purchasers and other users in particular with regard to the quality, price and variety of commodities and services; and
- promoting the reduction of costs and development of new commodities and facilitating new entry.
Finally, where the Authority considers that the transaction is likely to substantially prevent or lessen competition, it will consider public interest justifications (see question 22) and pro-competitive efficiencies (see question 23).
With respect to the New Competition Law regime, the New Regulations, along with further guidance rules from the Authority, will determine the substantive test for clearance.
Is there a special substantive test for joint ventures?
There is no special substantive test for joint ventures. The Authority may, however, assess possible coordination between parents, which remain independent under the provisions on coordination set out in article 4 of the Law.Theories of harm
What are the ‘theories of harm’ that the authorities will investigate?
The factors set out in the Rules for the consideration of economic concentration (see question 19) suggest that the Authority’s review will entail an economic analysis based on the effects of the merger on competition and will look beyond the market shares of the merging entities.Non-competition issues
To what extent are non-competition issues relevant in the review process?
The Rules specifically require the Authority to consider whether the concentration can be justified by public interest, as well as economic efficiencies, where it appears from other factors that the concentration is likely to substantially prevent or lessen competition (see question 19). The Rules do not specifically identify what constitutes a ‘public interest’ for these purposes.Economic efficiencies
To what extent does the authority take into account economic efficiencies in the review process?
The Authority is required to consider economic efficiencies where it appears from other factors that the concentration is likely to substantially prevent or lessen competition (see question 19). In such cases, the Authority shall determine whether the concentration is likely to result in any technological efficiency or other pro-competitive gain that will be greater than the effects of any prevention or lessening of competition.
Remedies and ancillary restraintsRegulatory powers
What powers do the authorities have to prohibit or otherwise interfere with a transaction?
The Authority may exercise a number of powers to prohibit or otherwise interfere with a transaction where it considers that the transaction will lessen competition in Saudi Arabia. Such powers include:
- declaring the transaction unlawful;
- prohibiting the acquisition by any of the parties of the whole or part of an undertaking or the assets of the undertaking;
- requiring any person to effect the dissolution of any organisation, whether incorporated or not, or the termination of any association (ie, partnership) where the person concerned is a party to an economic concentration;
- approving the transaction subject to restrictions with regard to the manner in which any party to the concentration carries on business; and
- generally making such provisions as are necessary to terminate or prevent the transaction or to alleviate its anticompetitive effects.
Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
Yes. The Authority may adopt a clearance decision subject to structural conditions, namely the dissolution of an organisation or the termination of an association, or behavioural conditions, namely restrictions with regard to the manner in which any party to the concentration carries on business (see question 24).
What are the basic conditions and timing issues applicable to a divestment or other remedy?
Neither the Current Law nor the Current Regulations specify conditions or the timing relating to remedies.
What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
None, based on publicly available information.Ancillary restrictions
In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?
There is no specific guidance as to whether a clearance decision would cover ancillary restrictions.
Involvement of other parties or authoritiesThird-party involvement and rights
Are customers and competitors involved in the review process and what rights do complainants have?
The Current Regulations allow any concerned party to raise an objection to the proposed concentration at the outset of the process (it is not specified who is a concerned party for these purposes). Any objection must be in writing, identify the name and address of the concerned party, and be made no later than 15 days following the announcement by the Authority of the concentration. The Authority will deal with all communications in strict confidence.
In addition, natural or legal persons who suffer harm as a result of an infringement of the merger control provisions in the Current Law have a right of action before the competent courts (see question 9).
A similar arrangement is provided under the New Competition Law with a firmer confirmation of the right of natural or legal persons to be compensated for damage or harm suffered as a result of anticompetitive activities in the market. In addition, the New Competition Law introduces provisions relating to the power of the Authority to summon official judicial officers to investigate, search and gather evidence in respect of complaints relating to establishments in violation of the law. The New Competition Law goes further by imposing a fine not exceeding 5 per cent of annual turnover, or 5 million Saudi riyals, on establishments that hinder or prevent judicial investigation officers from carrying out their official investigation duties.Publicity and confidentiality
What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
The Authority publishes a summary of the notification in the local media at the outset of the process.
Commercial information will normally be protected from disclosure through the confidentiality obligations to which the Authority is subject under the Law. Specifically, the Law requires the Authority’s members and employees to maintain the confidentiality of information and documents that are obtained from firms and prohibits them from providing such information to any other party without the approval of the Authority.
The Law and Regulations do not provide details on the situations in which the Authority would approve of sharing information that is confidential to one party with another party.
The Law also provides, on the other hand, that a firm may not conceal information from the Authority on the pretext of confidentiality or for any other reason.Cross-border regulatory cooperation
Do the authorities cooperate with antitrust authorities in other jurisdictions?
No guidance on the extent to which the Authority will cooperate with antitrust authorities in other jurisdictions is currently provided in the regulations or legislation. It is of note, however, that a notifying party is required to inform the Authority in the notification form whether the concentration or a related concentration has been or will be notified to any foreign competition authorities.
Judicial reviewAvailable avenues
What are the opportunities for appeal or judicial review?
Decisions of the Authority can be appealed to the Administrative Court within 15 days from notification of the decision (reduced from 60 days prior to the 2014 amendments to the Competition Law).
Decisions relating to fines or the temporary suspension of business are, in principle, effective and enforceable upon issuance (rather than on the determination of any appeal), unless the Administrative Court issues a freezing order in respect of the Authority’s decision.
Details of appeals or judicial review under the New Competition Law regime will be provided in the New Regulations.Time frame
What is the usual time frame for appeal or judicial review?
See question 32.
Enforcement practice and future developmentsEnforcement record
What is the recent enforcement record and what are the current enforcement concerns of the authorities?
Based on publicly available information, there has not been any enforcement action taken by the Authority in the context of foreign-to-foreign mergers. While, as noted in question 12, the Authority has enquired about possible failures to notify transactions, these have, so far, related only to deals taking place in Saudi Arabia. Similarly, the majority of transactions reported, which have been either approved or are currently still under review by the Authority, also appear to relate to Saudi entities.
Nonetheless, there are some foreign transactions reported by the Authority, including:
- Marriott International’s acquisition of Starwood Hotel and Resorts;
- Nestlé SA’s acquisition of Pfizer Nutrition;
- General Electric’s acquisition of Alstom Power and its merger with Baker Hughes; and
- the acquisition by Unilever of the Camay and Zest soap brands from Procter & Gamble.
In July 2014, the Authority issued its first prohibition decision, in relation to Saudi Vitrified Clay Pipe Co’s (SVCP) proposed acquisition of Ceramic Pipes Co (Al Khazif for Pipes Co). Details of the prohibition decision have not been published. However, the transaction related to Saudi entities.
There is no explicitly stated specific enforcement concern of the Council at this time. However, the Authority is investigating at least one known case of failure to notify. This relates to a local deal.Reform proposals
Are there current proposals to change the legislation?
Yes, the New Competition Law, which will enter into force in October 2019, is the new legislation that will replace the Current Law.
Separately, the GCC is currently considering draft legislation that would create a ‘unified competition law’ applicable to all GCC countries.
Update and trendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?No updates at this time.