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What form should the notification take? What content is required?
The notification can be filed as either Form I, Form II or Form III. Pre-notification can be filed through either Form I or Form II. These two forms contain a list of questions which must be comprehensively answered by the parties.
Form I is relatively limited in scope and is the recommended form for notifying transactions which are smaller in scale and will thus have a lesser impact on the market. While there is no requirement to file Form II, the parties are recommended to file Form II if their combined markets exceed:
- 15% in case of a horizontal overlap; or
- 25% in case of a vertical overlap in either relevant market.
Form III is the prescribed form for acquisitions by certain financial institutions pursuant to a covenant in a loan or investment agreement; this is filed post-implementation and the commission’s approval is not required.
Failure to provide complete information could result in invalidation of the notification form. In some cases the commission may also initiate proceedings against the parties for providing incomplete information, which could result in the imposition of fines (see Sumitomo Mitsui Trust Bank (C-2014/12/235), order under Sections 44 and 45 of the Competition Act).
The commission may also ask the parties to re-submit Form I as Form II if it feels that detailed information is required (eg, see Denali Holding Inc (C-2016/01/370)). There is no hybrid form. Thus, if Form II is filed, it must be completed for all products involved in the transaction, even if not all meet the relevant thresholds (GE Company, GE Industrial France SAS, Alstom, Alstom Holdings (C-2015/01/241)).
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