Process and timing
Is the notification process voluntary or mandatory?
The notification process is mandatory. Transactions that give rise to a concentration must be notified to the director general before implementation.
What timing requirements apply when filing a notification?
A concentration must be notified within 15 working days of conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest.
What form should the notification take? What content is required?
Form CN, which largely corresponds to European Commission Form CO, is a schedule attached to the legislation which specifies the information and the documentation that must be provided by an undertaking when notifying the director general.
Form CN specifies that the notifying party is encouraged to consult the director general regarding the possibility of dispensing with the obligation to provide certain information (eg, information that is not reasonably available to the notifying party). A notification in short form may also be made in the case of a joint venture where the turnover of the joint venture and/or the turnover of the contributed activities is less than €698,812.02 in Malta and the total value of assets transferred to the joint venture is less than €698,812.02 in Malta.
Is there a pre-notification process before formal notification, and if so, what does this involve?
There is no mandatory pre-notification process before formal notification; however, in practice, pre-notification is often sought by both the Office for Competition and the notifying party through informal meetings in order to discuss the nature and the quality of the data required by the director general.
Can a merger be implemented before clearance is obtained?
A concentration cannot be put into effect either before notification or until it has been declared lawful by the director general. However, the director general may – either before notification or after the transaction has closed – grant a derogation from this provision after considering, among other things, the effects of the suspension on the undertakings concerned or on third parties, and the threat to competition posed by the concentration.
In the case of a public bid which has been notified to the director general, where such derogation is granted the acquirer must not exercise the voting rights attached to the securities in question or must exercise the voting rights only insofar as they are intended to maintain the full value of those investments.
Guidance from authorities
What guidance is available from the authorities?
The Office for Competition has issued general guidance on the legislation, which can be found at http://mccaa.org.mt.
What fees are payable to the authority for filing a notification?
The notifying party must pay a notification fee of €163.06 on submission of the duly completed notification form.
Publicity and confidentiality
What provisions apply regarding publicity and confidentiality?
Upon notification, the director general must publish in the Government Gazette and a daily newspaper the notification, the names of the parties, the nature of the concentration and the economic sectors involved.
The legislation also specifies that any information furnished at the request of the director general is protected under the confines of professional secrecy and must be used solely for the purposes of the relevant request. The legislation further provides that the director general and public officers employed by or attached to the office – including consultants contracted by the office – are prohibited from disclosing information that they acquire through the application of the legislation.
Further, the right of access to the file in a Phase II investigation does not extend to confidential information or to internal documents of the director general, the European Commission or the competition authorities of other member states. Equally, this right does not extend to correspondence between or among the director general, the European Commission and the competition authorities of other member states.
Finally, before publishing its decision, the office will give the parties the opportunity to identify confidential information and business secrets that should be redacted from the public documents.
Are there any penalties for failing to notify a merger?
Failure to notify a merger before implementation may result in the imposition by the director general of an administrative fine of between €1,000 and €10,000.
The director general may impose an administrative fine of up to 10% of the total turnover of the undertakings concerned in the preceding business year for puting into effect a concentration before its notification.
Where a concentration has already been implemented, the director general may also require the undertakings or assets brought together to be separated, the cessation of joint control or any other action that may be appropriate in order to restore effective competition.