Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
No specific deadlines are provided for filing. The only obligation is to obtain a clearance from the Competition Council prior to closing the transaction. Given the level of details requested by the Competition Council as part of the filing, the transaction should be referred to the Competition Council as soon as it has become sufficiently advanced and certain.
In this sense, it is worth noting that the upcoming reform of Ordinance 03-03 provides that the notification shall be made when the project is sufficiently advanced to enable the file to be examined, in particular when the parties have reached an in-principle agreement or signed a letter of intent.
The absence of filing is sanctioned by Ordinance 03-03 when a referable transaction is closed without the clearance of the Competition Council (see question 12).
Which parties are responsible for filing and are filing fees required?
When the concentration takes the form of a merger or the creation of a full-function joint venture, it shall be jointly notified by the parties to the concentration.
When the concentration takes the form of a takeover, the acquirer is responsible for the notification.
No filing fees apply.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
The Competition Council shall render its decision within three months of the filing.
During the timeline required for the decision of the Competition Council, the authors of the concentration operation shall not take any measure rendering the concentration irreversible. In other words, the filing has a suspensory effect.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?
The sanction incurred in case of a concentration closed without prior clearance consists of a maximum fine of 7 per cent of the turnover realised during the last fiscal year in Algeria by the parties to the concentration or by the undertaking resulting from the concentration (article 61 of Ordinance 03-03).
Ordinance 03-03 and Decree 05-219 do not expressly provide for the dismantling of the concentration in Algeria (and cancellation of the effects of the concentration) in case the latter is closed without the prior clearance by the Competition Council.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The sanctions described in question 12 apply where a referable transaction is closed before clearance by the Competition Council, regardless of whether the transaction is foreign-to-foreign.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
Ordinance 03-03 and Decree 05-219 do not provide for specific solutions to permit closing of foreign-to-foreign mergers before clearance.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
The Algerian competition legislation does not provide for any special merger control regime applicable to public takeover bids. General rules should therefore be applied.
The upcoming reform of Ordinance 03-03 provides for a special provision whereby notification of a merger in the context of a takeover bid shall take place at the time of the announcement of the offer.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
Decree 05-219 specifies the content of the file to be submitted to the Competition Council regarding the application for the authorisation of a concentration, which is fairly detailed.
The main documents and information to be provided consist of:
- the application form (according to Annex 1 of Decree 05-219) dated and signed by the ‘concerned undertakings’ (or their representatives duly authorised) indicating:
- identity of the applicants;
- identity of the other participants to the filing;
- subject matter of the application; and
- statement from the applicants whereby they declare that the information and documents provided to the Competition Council are sincere and conform to the facts, and that the estimates, figures and assessments are indicated in a manner as close as possible to the reality; and
- the information form (according to Annex 2 of Decree 05-219) providing for:
- activity concerned by the notification;
- turnover generated by the concerned activity;
- share capital structure of each undertaking;
- nature of the concentration;
- economic and financial structure of the concentration;
- market data (alternative markets of the products or services; geographical zone where the concerned undertakings offer their products or services); and
- impact of the concentration on the concerned market of products or services (markets impacted by the concentration, structure of the concerned market of products or services, existence of barriers to entry into such market, extent of the impact of the concentration on the competition, measures to mitigate the effects of the concentration on the competition).
The Competition Council may ask for any other documents or information it deems necessary (it can even order the seizure of any documents it deems necessary).
The Decree 05-219 does not provide any sanctions for supplying wrong or missing information. The general rule of article 59 of the Ordinance 03-03 should therefore be applied.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Since its reactivation, the Competition Council is sparsely seized of concentration cases. Except for the indications provided by Algerian law (as described herein), it is difficult at this stage to rely on an outstanding practice from the Competition Council to describe the typical steps in an investigation.
What is the statutory timetable for clearance? Can it be speeded up?
Ordinance 03-03 provides that the overall process from the filing until the decision by the Competition Council shall not exceed three months. No detailed procedure or timetable per phase is provided by Algerian law.
The Algerian competition legislation does not provide for any accelerated procedure.