What is the basic timetable for the authority’s review?
Merger Control (2nd Edition)
The CMA is required to complete its first-phase investigation within 40 working days. This runs from:
- in the case of notified mergers, the date on which the CMA confirms that the filing form is complete (which it will typically do within five working days of the date on which the notice is submitted); or
- in the case of unnotified mergers (i.e., where the CMA decides to review a transaction on its own initiative), the date on which the CMA informs the parties that it has sufficient information to commence its first-phase investigation.
This 40 day period can be extended in the circumstances described in paragraph 5.4 below. In particular, if the parties offer remedies during the first-phase investigation, an additional period for negotiation and finalisation of those remedies will apply.
Where a second-phase investigation is opened, the CMA must publish its report within 24 weeks from the date of reference, subject to the possible extensions described in section 20 below. If it proposes to impose remedies as a condition of clearance, it will have an additional period of 12 weeks (which can be extended by 6 weeks) to implement those remedies.
The ICA has 30 calendar days (15 calendar days in case of public bids) from filing to decide to: (i) clear the concentration, if it does not raise competition concerns (Phase I); or (ii) open an in-depth investigation, if it deems that the concentration raises serious doubts as to its compatibility with the Law (Phase II). Phase II has a 45 calendar-day duration (which can be extended by additional 30 calendar days if the parties fail to provide available information).
Concentrations affecting the media, telecommunication and broadcasting sector, as well as those affecting the insurance sector, typically have a longer clearance process, as the competent regulatory authorities (AgCom and IVASS, respectively) shall issue a specific (non-binding) opinion. The regulatory authorities have 30 calendar days to issue their mandatory opinion. Meanwhile, the ICA’s review period is suspended. Typically, the opinion is requested by the ICA before the adoption of the final decision (Phase I or Phase II).
Concentrations affecting the banking sector shall be assessed within 60 calendar days upon the receipt of a complete notification, with no distinction between Phase I and Phase II. In practice, when the ICA intends to open a Phase II investigation in connection with a concentration affecting the banking sector, it typically concludes Phase I within 15 calendar days from filing, so that a 45-day period is left to carry out the in-depth investigation.
Under the HSR Act, parties that meet the filing thresholds must file premerger notification forms and wait for the FTC or DOJ to review the transaction.
Once the parties have submitted their filings, FTC and DOJ staff consult on the filing and determine if the transaction warrants an initial review. If so, the matter is ‘cleared’ to the agency with more expertise in the relevant industry. The assigned agency then conducts a review of the transaction during the initial waiting period (30 calendar days following submission of the premerger notification filing or 15 calendar days for cash tender offers or certain bankruptcy transactions). The vast majority of reviewed transactions are allowed to proceed after the initial waiting period expires or is terminated. If, however, at the end of the initial waiting period, the reviewing agency believes the transaction raises competition issues that merit further review, the reviewing agency may extend the waiting period by issuing Second Request. On average, the FTC and DOJ issue a Second Request in less than five percent of filed transactions. When a Second Request is issued, the HSR waiting period is extended until 30 calendar days (10 days for cash tender offers and certain bankruptcies) following both parties’ certification of substantial compliance with the Second Request.
As a practical matter, parties typically require several months to be in a position to substantially comply with a Second Request, due to production of potentially hundreds of thousands of internal documents and extensive sales, marketing, and production data. While the parties are complying with the Second Request or shortly after substantial compliance with the Second request, the agencies may also notice depositions (known as investigational hearings at the FTC) of company executives and third party customers, competitors, and suppliers.
The agencies encourage the parties to negotiate the scope of a Second Request and the timing of substantial compliance, as well as the agency’s timing to reach a decision. In practice, the agency’s review is usually negotiated between the parties and the reviewing agency to extend beyond the second 30-calendar-day period after substantial compliance. At the end of the second waiting period, the reviewing agency must decide whether to close the investigation and allow the transaction to proceed, enter into a negotiated settlement with the parties, or challenge the transaction in federal district court (and, if the FTC is reviewing the transaction, through its administrative process). Depending on the complexity of the industry and the proposed transaction, it can take approximately 12 months from premerger notification to an agency filing in district court to block a transaction.
Most merger proceedings at the FCO are completed in phase one. Phase one can last a maximum of one month, starting with the date of the submission of the complete notification. If the transaction does not raise competitive concerns, the FCO will clear it within phase 1. Such a decision can’t be challenged by third parties. If the FCO does not take any decision within this period, the merger is automatically deemed to have been cleared. After phase one, the FCO may inform the parties that it has entered into phase two (“Hauptprüfungsverfahren”). In phase two, the FCO will investigate the transaction in greater detail. Phase one and two may take up to four months total, starting with the day of the filing of the complete documentation. This timetable is binding as after four months without any decision, the merger is presumed cleared.
If the parties missed to notify the transaction prior to closing, the transaction can be subject to a post-closing notice which contains the same information as the usual merger notification. The FCO will then examine the case at hand and either clear the transaction afterwards or order a de-merger. There is no statutory timetable for the review of such post-closing notices. In addition, the FCO may impose fines on the parties for disregarding their duties to notify the transaction prior to closing.
Any transaction that is subject to prior notification cannot be closed during the 30-day waiting period (Phase I), though the period may be shortened by the JFTC. The JFTC clears most transactions at Phase I. In FY 2016, the JFTC cleared 308 cases out of 319 cases at Phase I.
If the JFTC wishes to have a further review after Phase I, the transaction goes to the Phase II review. At the beginning of Phase II (which is normally at the last day of the 30-day review period of Phase I), the JFTC requests the parties to provide further information. The clock does not start running until the JFTC receives all requested information from the parties. The JFTC must reach the final conclusion within either 120 calendar days from the initial notification or 90 calendar days from the date when the JFTC receives all requested information from the parties, whichever is longer.
If the parties wish to conduct a pre-notification consultation with the JFTC, the period for such consultation should also be considered.
The Austrian review process is divided into three phases: Phase I which is performed by the official parties; Phase II which takes place before the Cartel Court, and – in rare cases – Phase III before the Cartel Court of Appeals:
Phase I: Phase I takes typically four weeks. Within this period, the BWB and the FCP can apply for an in-depth examination to the Cartel Court. It starts to run with the receipt of the notification by the BWB. In Phase I, third party undertakings that consider their legal or economic interests affected by the concentration can submit written statements within two weeks as of the publication of a short notice on the concentration at the website of the BWB.
If the official parties waive their right to apply for Phase II proceedings or if they do not apply for such a proceeding within the four weeks’ deadline, the concentration is deemed cleared and the merger can be implemented. The official parties inform the notifying parties that no application for Phase II was filed (or indeed if they waive their right to request such proceedings). Besides, the BWB publishes a short notice on its website.
The vast majority of notified mergers are cleared that way without there being a reasoned clearance decisions.
The four week deadline in Phase I can be extended by two additional weeks upon request by the notifying parties.
Phase II: Phase II is initiated by the request of the BWB and/or the FCP. The opening of such in-depth examination is published on the website of the BWB. In practice, the official parties also apply for Phase II proceedings if concerns cannot be removed within the time period of Phase I or if they consider that the notification should be rejected all together (for lack of a notifiable merger).
It may also be noted in this context that there is no ‘stop the clock’ mechanism for notifications regarded incomplete by the official parties.
Also in Phase II, third parties have the right to submit written statements to the Cartel Court.
Generally within five months after the receipt of the (first) application for an in-depth examination, the Cartel Court is to decide on the merits or to reject the notification. Upon request by the notifying party, the deadline within which the Cartel Court has to decide can be extended by one month to in total six months. Besides, the Cartel Court can issue an instruction to improve the notification within an appropriate deadline.
Phase III: A decision by the Cartel Court can be appealed to the Cartel Court of Appeals which triggers Phase III. This hardly ever occurs in practice. The Cartel Court of Appeals has to decide within two months after receiving the files.
An initial 30-calendar-day waiting period is triggered following the receipt of completed notification filings by both parties. A proposed transaction may not close until the expiry, termination or waiving of the applicable statutory waiting period.
The FNE has to analyze within 10 working days from the date of notification whether the notification submitted contains all the information required. Where the notification is deemed complete, the FNE will issue a notice declaring the notification complete.
In case the notification is declared incomplete, the notifying parties have 10 working days to amend the mistakes or omissions indicated by the FNE. If the notifying parties amend their presentation correctly within that term, such submission shall be considered as a new notification. On the contrary case, the notification shall be considered as not filed.
Once the notice of completion is issued by the FNE, or the 10 working days period has passed without any notice being issued, the FNE initiates phase I, which may take 30 working days, subject to extensions. Within that period, the FNE can: (i) approve the concentration purely and simply; (ii) approve the concentration subject to the commitments offered by the notifying parties; or (iii) initiate phase II, in case the FNE considers that the notified transaction, whether perfected purely and simply or subject to the remedies offered by the notifying parties, has the ability to substantially reduce competition.
Phase II may take an additional 90 working days period, subject to extensions, at the end of which the FNE can: (i) approve the concentration purely and simply; (ii) approve the concentration subject to the commitments offered by the notifying parties; or (iii) prohibit the operation.
If the FNE does not render a decision within the terms granted for phase I or phase II, the operation shall be considered approved in the terms offered by the notifying parties, including eventual remedies proposed by them.
Within one calendar month from the date of receipt of the notification and the filing fees or the date of receipt of additional information necessary towards achieving conformity of the notification to the requirements of the Law, the Service is required to inform the notifying undertakings of whether the concentration is cleared or whether it will proceed to a full investigation of the concentration.
If, owing to the volume of work or the complexity of the information contained in the notification, the Service is unable to comply with this time frame, it shall, within seven calendar days prior to the lapse of the one-month notice period, inform the notifying undertaking of an extension of fourteen calendar days.
In a Phase II investigation, the Service is required to prepare a report of findings to the CPC within three months as of the date of receipt the notification, provided that the fees payable towards a full investigation are settled.
In the case of full investigation, the notifying party or parties must be informed of the CPC’s decision no later than four months from the date of receipt by the Service of the original notification application. Where additional information is requested by the Service, the period is extended to four months from receipt of the additional information.
The DCCA’s review is divided into a Phase I and a Phase II. Phase I begins once the notification has been deemed complete by the DCCA which includes, among other things, the receipt of the filling fee. See further about filling fees in Question 24.
If the parties submit a simplified notification form, the DCCA will have 10 business days to determine whether the merger meets the requirements for a simplified notification. If this is the case, the merger will be deemed complete at the expiry of the 10-day time limit at the latest. If necessary, the DCCA may request further information from the parties within the 10-day time limit. If the DCCA finds that the merger does not meet the requirements, the parties must submit a full notification.
The DCCA will also have 10 business days to determine whether a full notification is complete. If necessary, the DCCA may request the parties to submit further information within the 10-day time limit, in which case the merger will not be deemed complete until the DCCA receives this information (and perhaps further information as well).
Once the notification is deemed complete and Phase I commences, the DCCA will have 25 business days to determine whether the merger can be approved. Phase II begins if the DCCA decides to initiate further investigations of the merger. In Phase II, the DCCA will have 90 business days from the time of the decision to initiate further investigations to determine whether the merger should be approved or prohibited.
If the DCCA does not make a decision within the relevant time limit, this will be considered to be a decision to approve the merger.
The Commission must reach a Phase I decision within 25 working days from the effective date of notification.
Should the Commission initiate a Phase II investigation, the decision must be taken within 90 working days from the date on which the proceedings were initiated (i.e. from the beginning of Phase II).
A first step which has become market practice is to prenotify the transaction once the main structure is stabilized so that informal discussions may take place between the FCA and the notifying party. This preliminary phase is not framed by a binding timetable but has proven very useful to clear all matters before formal filing.
Once the formal filing is made, the FCA has a 25 working days period of examination to adopt a clearance decision in the so called Phase I. For a clearance to be obtained in such timeframe, the transaction must not be likely to raise antitrust concerns. The 25 working days period may be extended if remedies are submitted.
At the end of a Phase I, the FCA either clears the transaction, finds that merger control does not apply or opens a so called Phase II which is an in-depth examination where the transaction is likely to raise antitrust concerns which are not alleviated by appropriate remedies.
A phase II examination lasts at least 65 more working days, subject to extension or suspensions notably if remedies are submitted. At the end of a Phase II, the FCA may clear the transaction with or without remedies, or prohibit the transaction.
If no decision is issues once the deadlines of Phase I or Phase II expire, the merger is deemed to be approved.
Finally, the waiting period granted to the Ministry of Economy shall also be taken into account: at the end of Phase 1, the Ministry of Economy can ask the FCA to conduct an in-depth examination of the concentration within 5 working days from the notification of the FCA’s decision. At the end of Phase 2, the Minister of Economy may review the case and take a final decision on the concentration on public interest grounds within 25 working days from the notification of the FCA’s decision.
The OFC’s procedure is divided into 2 phases. During Phase I, the DG shall examine the notification and within 6 weeks either:
- Conclude that the notified concentration falls outside the scope of the Regulations; or
- Conclude that a concentration, although within the scope of the Regulations, does not raise serious doubts about its lawfulness, declare it lawful and include any restrictions which may be required for the implementation of the concentration; or
- Conclude that a concentration is within the scope of the Regulations and initiate proceedings since it raises serious doubts as to its lawfulness.
This period may be increased to 8 weeks where undertakings submit commitments (by the fifth week from date of notification) so as to provide comfort to avoid the concentration being classified as raising serious doubts. In such cases, undertakings may also request that the running of the periods mentioned above be suspended for a period of three weeks to discuss a new or substantially revised commitment proposal but it shall be at the discretion of the Director General whether or not to accede to this request.
Phase II applies to those instances where a concentration is deemed to raise serious doubts as to its lawfulness. In such cases, the DG shall within 4 months:
- Declare a concentration lawful subject to certain conditions;
- Declare a concentration unlawful;
- In the case of a premature implementation, order the dissolution of the merger or cessation of joint control;
- If information provided to the DG is found to be incorrect or there is a breach of commitment, revoke a clearance decision previously issued.
The Regulations also provide for a simplified procedure in the case of certain concentrations, as follows:
- Acquisition of joint control by two or more undertakings and the turnover of the joint venture and/or the turnover of the contributed activities, is less than €698,812.02 in the Maltese territory and the total value of assets transferred to the joint venture is less than €698,812.02§ in the Maltese territory;
- Mergers or acquisitions that do not involve horizontal overlap or vertical links between the parties to the concentration;
- Mergers or acquisitions that involve horizontal overlaps or vertical links but their combined market share does not exceed 15% or 25% respectively.
If the Office considers that the concentration qualifies for a simplified procedure it shall issue a decision within 4 weeks from notification.
Following the submission of a notification, the procedure is as follows:
Within 25 working days of receiving a complete notification (including a redacted non-confidential version), the NCA must inform the parties to the transaction whether it will investigate the transaction further. The NCA must provide a brief explanation for its decision. If no such notice is given within the deadline, the transaction is cleared ipso facto. The deadline is extended to 35 business days if the notifying parties submit suggested remedies before 20 working days have passed since the notification was made. Note that such extension has no effect on the phase II deadline.
Within 70 working days following the receipt of a complete notification, the NCA must close the case by issuing a clearance decision or by accepting proposed remedies, or the NCA may issue a draft prohibition decision (comparable to a Statement of Objections). If remedies are proposed by the notifying parties after day 55, the deadline is extended accordingly, however for no longer than 85 working days after receipt of a complete notification.
After a draft prohibition decision, the parties will have 15 working days to submit their comments. Within 15 working days after the receipt of comments from the parties, the NCA must render its final decision. The latter deadline may be extended by an additional 15 working days, if remedies are proposed by the parties after the NCA issued its draft prohibition decision. The latter deadline may on request or acceptance by the notifying parties be extended by an additional 15 working days.
Note that remedies proposed by the parties may be adopted as part of a final binding decision by the NCA without any further formal notice.
Administrative review by the Competition Appeals Tribunal
The NCA’s decisions may be subject to administrative review by the CAT, in accordance with the following procedures:
- Within 15 working days after NCA rendered its decision, the parties must submit the complaint. The complaint is addressed to the CAT but sent to the NCA.
- Within 15 working days after receiving the complaint, the NCA must pass it on to the CAT, along with its comments on the complaint.
- Within 60 working days after the complaint was received by the CAT, the CAT must render its decision
Please note that CAT became operational only in April 2017, replacing the previous administrative review system under which challenges were decided by the responsible Ministry. Note that, under the old system, the Government could intervene on public policy grounds – this is no longer the case under the CAT which decides cases independently.
The time-limits for the Competition Council’s obligation to adopt a decision with respect to a notified economic concentration start to run on the date when the Competition Council considers that all necessary information and documents were provided by the concerned parties and the notification is complete (the effective date).
Within 30 calendar days as of the receipt of the complete notification, the Competition Council may decide that that the notified transaction does not fall within the merger control legislation. This instance may occur, for instance, because the notified transaction does not amount to a “concentration” within the meaning of the merger control legislation or even if it constitutes a concentration, it does not meet the jurisdictional thresholds.
In case the notified concentration falls within the merger control legislation, within 45 calendar days as of the receipt of the complete notification:
(i) the Competition Council may adopt a clearance decision (with or without conditions) in case there are no serious doubts regarding the compatibility of the notified concentration with a normal competitive environment or such doubts were eliminated by the remedies proposed by the concerned parties and accepted by the Competition Council (“phase I procedure”); or
(ii) the Competition Council may decide to launch an investigation when the serious doubts regarding the compatibility of the notified concentration with a normal competitive environment were not been eliminated; in this case, within 5 months as of the receipt of the complete notification, the Competition Council will adopt a clearance decision (with or without conditions) or a decision prohibiting the concentration (“phase II procedure”).
If no decision has been adopted once the deadlines of the “phase I procedure” or, as the case may be, “phase 2 procedure” have expired, the concentration may be implemented.
The decisions adopted by the Competition Council shall be motivated and communicated to the parties within maximum 120 calendar days as of their adoption. However, in practice, decisions are drafted and communicated to the notifying party within a few days of their adoption.
KN: The length of review in Serbia depends on whether the case at hand raises competition concerns. If there are no competition issues in Serbia arising from the transaction, the Competition Commission may decide on summary (fast-track) proceedings (Phase I). In contrast, if the transaction raises competition concerns in Serbia, the Competition Commission may decide on in-depth proceedings (Phase II).
For Phase I, the statutory deadline is one calendar month from filing a complete merger notification. Phase II can only be initiated after Phase I has expired. In Phase II, the Commission is obliged to issue a clearance within four calendar months as of the commencement of Phase II. If the Commission does not issue a decision either clearing (conditionally or unconditionally) or prohibiting the merger within the above cited deadlines, the transaction is considered cleared.
Parties to an intermediate or large merger may not implement the merger before obtaining the requisite approval. In the case of an intermediate merger, the Commission, within 20 business days of certifying that the notification is complete, must approve or prohibit the merger, but may extend the period it has to consider the merger by no more than 40 business days. In practice, the Commission often makes use of an extension period to complete its investigations.
If no response is received from the Commission within the time specified, the merger is deemed approved. Unlike in certain other jurisdictions, the Commission need not have competition concerns to make use of the extension period and is not required to justify the use of the extension period.
In the case of a large merger, which the Commission is obliged to refer to the Tribunal for decision, a date for hearing must be set within ten (10) business days of the matter being referred. A certificate of approval or prohibition must be issued within ten (10) business days of the end of the hearing and reasons must be provided within twenty (20) business days of the issue of the certificate. There is no prescribed period in which a hearing must be held and there is no deemed approval if the hearing does not take place. The Act provides that large mergers must be referred by the Commission within forty (40) business days and that the Tribunal, on application, may grant extensions of fifteen (15) business days each to the Commission.
However, in the event that the first period or any subsequent period expires, the party may apply to the Tribunal to consider the merger without a recommendation from the Commission.
In practice, the Tribunal has proved efficient, and disposes of matters in a reasonably short time.
The Competition Board, upon its preliminary review (Phase I) of the notification will decide either to approve, or to investigate the transaction further (Phase II). It notifies the parties of the outcome within 30 calendar days following a complete filing. There is an implied approval mechanism introduced with Article 10(2) of Law No. 4054 where a tacit approval is deemed if the Turkish Competition Board (Board) does not react within 30 calendar days upon a complete filing.
While the timing in the Law No.4054 gives the impression that the decision to proceed with Phase II should be formed within 15 calendar days, the Competition Board generally uses more than 15 calendar days to form their opinion concerning the substance of a notification, and it is more sensitive about the 30 calendar days deadline on announcement.
If a notification leads to an investigation (Phase II), it changes into a fully-fledged investigation. Under Turkish law, the investigation takes about six months. In practice, only exceptional cases require a Phase II review, and most notifications obtain a decision within 40 to 45 calendar days from the original date of notification.
Ukrainian competition law contemplates standard (45 calendar days) and simplified (25 calendar days) procedures for the consideration of a merger control notification.
During the initial period of 15 calendar days after the filing, the AMC decides whether to accept or reject the merger control notification on technical grounds, and during the next 30 calendar days the AMC considers the notification on merits.
During the initial period of 15 calendar days after the filing, the AMC decides whether (1) to accept or reject the merger control filing on technical grounds, and (2) to satisfy or reject the plea on considering the merger control notification within a framework of the simplified procedure (see our answer to question 5.4 for criteria of eligibility for such procedure).
If the AMC shares the parties’ view that the transaction qualifies for the simplified procedure, the AMC will have additional ten calendar days after the expiration of the initial period to consider the merger control notification on merits.
If the AMC considers that the transaction does not qualify for the simplified procedure, the AMC will reject the merger control filing. In that event, the parties must file a new merger control notification, which will be considered within the framework of the standard review procedure.
Chapter 2 of the Brazilian Antitrust Act establishes the basic timetable for the authority’s review.
After the notification is sent to CADE, an administrative procedure initiates at CADE’s General Superintendence. This initial procedure constitutes in a formal analysis of the notification. If the formalities were not met, the Superintendence will ask to the requesting party to amend the request. Afterwards, the Superintendence shall directly acknowledge the request or determine that complementary fact-finding be performed. After the conclusion of the complementary fact-finding, the General Superintendence shall either render a decision approving the act without restrictions or present an objection to CADE, if it understands that the act must be rejected or be approved with restrictions, or if there is no conclusive elements in regards to its effects in the market.
Within 48 hours after the Superintendence’s request, the case shall be randomly assigned to a Reporting Counselor. The applicant may offer a written petition, directed to the President of CADE, within thirty days of the issuance of the objection by the General Superintendence, exposing the findings of fact and matters of law against the objection to the concentration act by the General Superintendence.
The Reporting Counselor will then either render a decision or require the performance of complementary fact finding, submitting the case to trial once the fact finding is complete.
Within 15 days, the parties may appeal from CADE’s Decision. In case the General Superintendence approves the merger, CADE also may, within 15 days, request to analyze the case. In any of those cases, the Reporting Counselor shall, in 5 business days, review it and determine its submission to trial, dismiss it, or request further fact-finding procedures. Applicants may state their views about the appeal, within five (5) business days after such appeal is published by CADE or after the report is received with the conclusion obtained from the complementary fact-finding prepared by the General Superintendence, whichever occurs last.
Article 88 of the Antitrust Act states that the merger control of acts of concentration shall have a maximum duration of 240 days from the filing date or its amendment, extendable for up to 90 days if CADE deems necessary.