Can the authority’s decision be appealed to a court? In particular, can third parties who are not involved in the transaction appeal the decision?
According to Article 53 of the AML, MOFCOM’s merger review decision can be challenged by way of administrative review and administrative litigation, and the administrative review procedure must precede any administrative litigation. In other words, if the parties to the concentration are not satisfied with MOFCOM’s decision, they cannot appeal such decision to a court directly before requesting a further administrative review.
According to the relevant PRC law with respect to administrative reviews and administrative litigation, the request for an administrative review for MOFCOM’s merger review decision shall be made within 2 months of issuance of such decision. The review will be handled by the MOFCOM legal department. MOFCOM shall complete the administrative review within 60 days from the date it accepts an application. When the circumstances are deemed to be complex, this 60-day time limit can be extended by another 30 days.
It is only when the parties to the concentration remain unsatisfied with the result of MOFCOM’s administrative review, may they submit the case for judicial review to a Beijing Intermediate Court within 15 days following the administrative review decision, with a possibility that such appeal may fall under the jurisdiction of a Beijing High Court. A competent people's court shall render a first instance judgment within six months from the day that the case is opened. Extension of this time limit shall be approved by a higher level people’s court. If the parties refuse to accept the first instance judgment by a competent people's court, they shall have the right to file an appeal with a higher level people's court within 15 days of being served with the written judgment. In handling appellate cases, a competent people's court shall make a final judgment within three months from the day of receiving the appeal.
Besides the business operators to the concentration, third parties whose lawful interests are closely linked to MOFCOM’s merger review decision can also challenge such decisions by way of administrative review and administrative litigation, provided that they can prove their lawful rights and interests are harmed by such decision.
To our knowledge, no administrative litigation has been brought against MOFCOM’s merger review decisions to date.
The DCCA’s decisions on mergers can be appealed to the Danish Competition Appeals Tribunal within four weeks after the parties have been notified of the decision. This option is only available to the addressees of the decisions.
Once a merger decision has been brought before and tried by the Danish Competition Appeals Tribunal, the parties, or anyone with a legal interest in the matter, may bring the case before the Maritime and Commercial Court within eight weeks after notification of the decision.
An appeal may be taken by the notifying parties to the High Court in respect of a Phase II determination prohibiting a transaction or allowing it subject to conditions. Any issue of fact or law concerning the determination may be the subject of an appeal, but, with respect to an issue of fact, the High Court, on the hearing of the appeal, may not receive evidence by way of testimony of any witness and shall presume, unless it considers it unreasonable to do so, that any matters accepted or found to be fact by the CCPC in exercising its relevant powers were correctly so accepted or found. Such an appeal must be brought before the High Court within 40 working days of the relevant determination. The High Court may, at its discretion, expend this period. A further appeal may be taken from a decision of the High Court to the [Supreme Court] on a point of law only.
Third parties do not have any rights of appeal in respect of merger determinations.
A decision to object a merger or approve it under conditions may be appealed by the parties.
Third parties may appeal a Commissioner decision if injured by the merger. Tribunal precedent states that injury must be an antitrust injury (i.e., where the source of injury harms to competition and the appellants are the ones injured).
Appeals are filed with the specialist Antitrust Tribunal in the Jerusalem District Court. The parties may file an appeal within 30 days of receiving the Commissioner's decision. Third party appeals must be filed within 30 days of the publication of the Commissioner's decision in two daily newspapers. Appeal proceedings may last anywhere between several months to over a year. Antitrust Tribunal decisions may be appealed to the Supreme Court.
In practice, few appeals are filed and fewer reach a decision. This is due to the limited lifespan of many transactions, which become irrelevant due to the length of Antitrust Tribunal proceedings.
The parties can appeal the JFTC’s order to the Tokyo District Court within 6 months after the order.
An undertaking concerned or a third party entitled to a hearing may appeal the DG’s decision within 20 calendar days, by seeking recourse to the Competition and Consumer Appeals Tribunal. Once notified of the appeal, the DG shall have 20 calendar days to reply to the appeal. The Tribunal will then proceed to confirm, quash or amend the DG’s original decision.
As per Law No. 6352, the administrative sanction decisions of the Board can be submitted for judicial review before the administrative courts in Ankara by the filing of an appeal case within 60 days upon receipt by the parties of the justified (reasoned) decision of the Board. Third parties can challenge the Competition Board’s decision on the transaction before the competent administrative courts on the condition that they can prove a legitimate interest.
As per Article 27 of the Administrative Procedural Law, filing an administrative action does not automatically stay the execution of the decision of the Board. However, upon request by the plaintiff, the court, providing its justifications, may decide the stay of the execution of the decision if such execution is likely to cause serious and irreparable damage; and if the decision is highly likely to be against the law (i.e. the showing of a prima facie case).
The judicial review period before the Administrative Court usually takes about eight to 12 months. After exhausting the litigation process before the Administrative Courts of Ankara, the final step for the judicial review is to initiate an appeal against the Administrative Court’s decision before the regional courts. The appeal request for the administrative courts’ decisions will be submitted to the regional courts within 30 calendar days of the official service of the justified (reasoned) decision of the administrative court.
As of 20 July 2016, administrative litigation cases will be subject to judicial review before the newly established regional courts (appellate courts), creating a three-level appellate court system consisting of administrative courts, regional courts (appellate courts) and the High State Court.
The regional courts will go through the case file both on procedural and substantive grounds. The regional courts will investigate the case file and make their decision considering the merits of the case. The regional courts’ decisions will be considered as final in nature. In exceptional circumstances laid down in Article 46 of the Administrative Procedure Law, the decision of the regional court will be subject to the High State Court’s review and therefore will not be considered as a final decision. In such a case, the High State Court may decide to uphold or reverse the regional courts’ decision. If the decision is reversed, it will be remanded back to the deciding regional court, which will in turn issue a new decision to take account of the High State Court’s decision.
Decisions of courts in private suits are appealable before the Supreme Court of Appeals. The appeal process in private suits is governed by the general procedural laws and usually lasts 24 to 30 months.
The AMC’s decisions may be appealed to commercial courts within two months following the receipt of the decision. Third parties who are not involved may also appeal the AMC’s decisions. The timeframe for the consideration of an appeal depends on case-by-case basis and may roughly be between two and five months for instance.
The US enforcement agencies do not have affirmative “approval” authority over transactions. If the FTC or DOJ believes that a proposed transaction presents competitive concerns, they must go to federal district court to obtain an injunction prohibiting the transaction from closing. The FTC may also commence administrative litigation before an administrative law judge to halt the transaction. In either case, the losing party at the district court level may appeal the decision to a US Court of Appeals.
The FAS decision and/or order may be appealed to a state arbitration court by the parties to the deal and the target within three months of its issue. Formally, third parties may also challenge the FAS decision and/or order if they prove that such a decision/order affects their rights.
Decisions of the CMA (or, in 'public interest' cases, the Secretary of State for Business, Energy and Industrial Strategy – see paragraph 4.3 above) can be appealed to the Competition Appeal Tribunal by the parties, or by third parties with sufficient standing. Appeals are judged on the basis of 'judicial review' standards, which means that the CAT will not review the merits of the relevant decision (i.e., it will not decide whether the decision was correct in every respect), but will instead consider whether, for example, the CMA acted unreasonably, considered factors that it ought not to have taken into account, failed to consider factors that it ought to have taken into account, or otherwise exceeded the bounds of its discretion.
Appeals must be lodged within four weeks of the date on which the applicant was notified of the disputed decision, or the date of publication of the decision, whichever is the earlier.
Appeals of the Belgian Competition Authority’s decisions are heard by the Brussels Court of Appeal. Except in the case of appeals relating to the use of data obtained in the course of a search (where the Court of Appeal may replace the Authority’s decision with its own), the Court of Appeal only has jurisdiction to annul or uphold the Authority’s decisions.
Decisions which may be appealed include:
- A decision which states that a concentration falls outside the scope of the merger control law.
- A decision approving a concentration (conditionally or unconditionally), or prohibiting a concentration, in Phase One or Phase Two.
- A decision approving a concentration under the simplified procedure.
- A tacit approval decision, based on the expiry of the Authority’s review deadline in Phase One or Phase Two.
- A decision concerning the use of data obtained in a search conducted during the course of a merger investigation.
The process of an appeal does not suspend the decision of the Authority. However, the Court of Appeal may suspend the execution of the decision until its judgment if:
- a person with an interest in the matter has explicitly requested it;
- serious reasons capable of justifying the annulment of the contested decision are invoked; and
- the immediate execution of the decision may have serious consequences for the person concerned.
A decision of the Authority can be appealed by the parties concerned, as well as by third parties that have a sufficient interest in the matter and have previously asked the Authority to be heard during the investigatory stage. The Minister of State may also appeal a decision (without having to prove an interest and without having been represented during the procedure).
Appeals must be brought within 30 calendar days of the notification of a decision. Generally, appeals are heard within one year.
As noted, decision by the Cartel Court can be appealed against to the Cartel Court of Appeals. However, an appeal may only be lodged on points of law, as the Cartel Court of Appeals is not competent to review the assessment of evidence. The period within which a remedy has to be brought is four weeks after the service of the decision.
In the case of an intermediate or small merger, the decision of the Commission may be referred to the Tribunal for consideration by any party to the merger within 10 business days of the Commission's decision. In the case of an intermediate merger, any registered trade union or employee that formally participated in the Commission's investigation also has right to request the Tribunal to consider the Commission's decision.
Decisions of the Tribunal can be appealed to the Competition Appeal Court by any party to the merger, or by a registered trade union or employee which formally participated in the Tribunal hearing, within 20 business days of the Tribunal decision.
Where a decision of the Appeal Court raises constitutional issues, an appeal to the Constitutional Court may be brought.
Other than trade unions and employees, third parties have no right of appeal, but can bring a review application (as soon as reasonably possible in the case of a review of a Commission decision and within 15 business days in the case of a Tribunal decision).
The length of time for an appeal or review to be heard and decided depends on the circumstances of the case. As a rule of thumb, approximately 3 months is typical.
Decisions by the FCA can be appealed by the parties concerned or by third parties before the French Supreme Court for Administrative Matters (Conseil d’Etat) under Article R.311-1 of the French Code of Administrative Justice.
The period within which an appeal must be launched is two months from the date of notification of the FCA’s decision for the notifying parties, and two months from the date of publication of the decision for third parties.
The appeal does not suspend the execution of the FCA’s decision, except if an action is lodged before the Conseil d’Etat through an emergency suspension procedure (référé suspension). In this case, the appealing party must prove that there are (a) emergency concerns and (b) serious doubts regarding the legality of the decision.
Appeals generally take at least 18 months.
As a result of the Constitutional reforms, the internal appeal process has been repealed for resolutions issued by the new authority.
However, resolutions of the competition enforcers may only be challenged through an amparo proceeding before federal specialized courts on competition, broadcasting and telecom matters. In addition, if constitutionality issues are to be resolved, the Supreme Court may be competent. The term for a final and definitive decision varies from case to case, but it may it will take several months or years to be resolved.
In addition, amparo proceedings can be initiated by any of the parties in a 15 business day term after they have been served with the final decision rendered by the enforcer. Likewise, as exposed before, third parties could also challenge the final decision before federal courts.
The parties can appeal Phase II decisions before the Higher Regional Court (Oberlandesgericht OLG) Düsseldorf. Phase I decisions are not subject to appeal.
Third parties that have been formally admitted as intervening parties in a Phase II proceeding can appeal only if they can demonstrate that the decision directly and individually affects their competitive interests.
Appeals must be filed within one month after service of the decision.
Proceedings before the Higher Regional Court of Düsseldorf will typically last 12 to 36 months until judgment. The judgment of the Higher Regional Court can then be appealed further on legal grounds within one month to the German Federal Court of Justice in Karlsruhe provided the Higher Regional Court of Düsseldorf has admitted such further legal appeal. A judicial review before the Federal Court of Justice will normally take another one to three years.
In exceptional cases, the parties can apply for ministerial authorization by asking the Federal Minister of Economic Affairs and Energy to overrule the FCO’s prohibition decision.
The decisions of the ICA can be appealed before the TAR Lazio - Roma, on grounds of lack of jurisdiction or competence, violation of the law, or abuse or misuse of powers. The appeal shall be filed within 60 calendar days from the notification of the ICA’s decision. The judgment of the TAR Lazio – Roma can be appealed before the Council of State, within 60 calendar days from the notification (these terms are suspended between 1 August and 15 September of each year).
Third parties involved in the transaction may bring an action before the relevant administrative courts for annulment of the ICA’s decision, providing evidence that they have suffered a prejudice. According to the regulation on the transparency of public institutions, third parties may request to have access to all non-confidential documentation contained in the case file of the ICA.
There is no statutory right of appeal available to the merger parties or third parties following an informal clearance decision, as the process is informal.
The ACCC's decision can effectively be challenged in the Federal Court of Australia if a merger party proposes to proceed with a transaction. The ACCC can apply for an injunction (and other remedies) or alternatively, a merger party can issue proceedings seeking a declaration that the proposed transaction will not contravene the CCA. Third parties do not have standing to seek an injunction to prevent a merger but may seek divestiture orders or damages. Proceedings in the Federal Court can be expected to take a minimum of six months.
The applicant can apply to the Tribunal for a review of the ACCC's determination. Third parties who are not involved in the transaction cannot appeal. The application must be made within 14 days of the ACCC's determination. The Tribunal must make a decision within 30 business days after receiving the application, which the Tribunal can extend to 90 business days if it decides the matter cannot be properly dealt with either because of its complexity or other special circumstances.
A merger authorisation determination may only be subject to limited appeal to the Federal Court of Australia through administrative law mechanisms on questions of law. A merits review is not available.
Neither the merger review agency (the Bureau) nor the Commissioner (the head of the Bureau) can block a transaction itself. If the Bureau determines that a merger should be blocked or remedied, outside of reaching a settlement agreement with the merging parties to resolve its concerns consensually, the Bureau must apply to the Tribunal for an order prohibiting or remedying the merger.
Tribunal decisions can be appealed to the Federal Court of Appeal as a matter of right with respect to legal questions. Questions of fact can only be appealed with leave of the Federal Court of Appeal. The Tribunal decision must be appealed within 30-calendar-days after pronouncement. Subject to a limited exception involving the ability to challenge a consent agreement which directly affects them, third-parties who are not involved in a transaction do not generally have the right to appeal a decision of the Tribunal. As appeals from the Tribunal are extremely rare, there is no typical time frame for the process – however, the most recent appeal to the Federal Court of Appeal in a merger decision took approximately 8 months (Tervita/Complete Environmental Inc.). That decision was subsequently appealed to the Supreme Court of Canada, with the entire appeal process taking approximately 32 months.