Are there any circumstances in which the review timetable can be shortened?
Merger Control (2nd Edition)
There are no formal mechanisms for shortening the review period. However, the CMA may be prepared to give early clearance in cases where no competition concerns arise and where the parties can demonstrate a credible and urgent need for early clearance.
In addition, if a transaction gives rise to complex issues such that a second-phase investigation is likely, the CMA may exceptionally, at the parties' request, agree to make a referral on an accelerated timetable or 'fast track', if there is sufficient evidence available to meet the CMA’s statutory threshold for reference.
In less complex cases, the parties may receive the clearance decision before the expiration of Phase I. However, there is no accelerated procedure or right to obtain clearance in a shorter period.
Either party to a reportable transaction may request that the waiting period be terminated before the statutory HSR waiting period expires. This is known as a request for ‘early termination’ and requires the filing person to simply mark the appropriate section of the HSR form. A request for early termination may be granted where one party to a transaction makes the request but the other does not. A party may also request early termination after filing, while the waiting period is still open, by sending letters to both agencies making a request for early termination. A request for early termination will only be granted after the review of the filing has been completed and both agencies have determined not to take any enforcement action. Therefore, a transaction presenting no competitive concerns is more likely to receive early termination than a transaction with substantive overlaps.
There is no set time period for granting early termination – early termination may be granted as early as approximately one week after filing or not at all. All grants of early termination are published on the FTC’s website in the early terminations index and in the Federal Register, which provides the issued transaction number, the date early termination was granted, and the names of the acquiring and acquired persons.
Law does not provide regulations or specify circumstances under which the review timetable may be shortened by the FCO in advance leading to any kind of “fast-track” review. A decision may, of course, be issued before the time runs out if the workload of the FCO permits.
The JFTC may shorten the 30-day waiting period if a party files a request in writing and it is clear that the transaction may not substantially restrain competition in any relevant market, such as where the transaction falls into the safe harbour provided by the JFTC’s guidelines. In FY 2016, the JFTC agreed to shorten the 30-day waiting period for 171 cases out of 319 cases notified in that period.
As noted, Phase I proceedings may be shortened by approx. one and a half weeks if the official parties waive their right to apply for an in-depth examination. In practice, the BWB and FCP are willing to do so, if the deadline for third parties to submit statements has expired (two weeks upon publication of the concentration plus some days for postal delivery) and provided their examination of the concentration results in no concerns.
Such waivers are at the discretion of the official parties. In any case, the applicant has to substantiate the urgency of a fast conclusion of the proceedings.
Under its non-binding service standards the Bureau may designate a merger as “non-complex”, which means it will attempt to complete its review within 14 calendar days of receiving a complete filing. In such cases it is common for the parties to forego the submission of notification forms and instead file a joint briefing letter which: (i) describes the parties, the transaction, and the reasons for which the transaction does not raise material issues under the Act; and (ii) requests a waiver of the statutory requirement to submit a full notification form.
The parties can close the transaction as soon as the Bureau completes its review and waives the statutory requirement to submit a notification form.
The Competition Act or FNE’s Guidelines do not indicate circumstances in which the review timetable can be shortened. However, the Competition Act sets maximum days and the FNE has the faculty to render its decision in a shorter period of time. It has done so in at least one occasion.
There is no mechanism envisaged for the expedition of the assessment timetable. The completeness level of the notification is the only catalyst towards facilitating a smooth assessment, subject always to the Service’s workload and the statutory timeframe.
In general it can be expected that the formal review timetable will be shortened if the parties initiate pre-notification discussions with the DCCA. However, the actual total processing time is probably largely unaffected, as a good part of the DCCA’s review is simply performed during the pre-notification stage.
There is no formal means to accelerate the review under the EUMR. However, the Commission has showed some flexibility in certain cases, notably by issuing “accelerated” clearance decisions during the financial crisis, even in cases that raised competition concerns and required remedies. Moreover, in cases that clearly do not raise any competition concerns, the Commission sometimes issues the clearance decision a few days ahead of the formal deadline.
The formal examination period may be shortened in two cases i.e. where the transaction meets the criteria for a simplified procedure as it does not raise competition issues (no market concerned for example as there is no overlap, no vertical relationship), and where the transaction is in the retail sector and does not give rise to a change of brand names.
In both cases, the FCA may (but is not bound to) issue a clearance decision within 15 working days as from the formal filing. Such simplified procedure is frequently used by the FCA where the conditions are met.
The standard review period is shortened in cases where the simplified procedure applies as discussed above.
The NCA may at its own discretion speed up the process and clear a transaction prior to the formal time limit, which occurs often in uncomplicated cases cleared in phase I. It is unlikely that the NCA will bind itself to a more expedient process – at least not at an early stage of the process.
The regulations do not provide for specific circumstances which may shorten the review timetable, but in practice submitting a notification form which is as complete as possible may speed up the process. Likewise, concentrations which are less complex or for which a simplified notification form may be used are cleared faster in practice.
KN: Shortening of the review periods is not possible under the Competition Law.
In practice, it may be possible to obtain it informally through communication with a particular case handler working on the filing and subject to his/hers sole discretion.
Neither Law No. 4054 nor Communiqué No. 2010/4 foresees a ‘fast-track’ procedure to speed up the clearance process. Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.
Other than a possibility to apply the simplified procedure (25 calendar days), as described below, there are no legal grounds to speed up the consideration period.
Simplified procedure for the consideration of a merger control notification is applied in the following cases:
- only one party to the concentration is active in Ukraine; or
- combined market share of the parties to the concentration does not exceed 15% on an overlapping market or 20% on a vertically related market.
As a matter of practice, occasionally the AMC may grant a merger control clearance faster than within the prescribed timeframes. However, it greatly depends on the workload of the AMC.
Section 2 of the CADE Resolution No. 2/2012 dictates that an expedited procedure is available to cases in which there is less potential harm, due to the simplicity of the cases. The following cases may qualify for expedited procedures: (a) classic joint-ventures or cooperatives; (b) substitution of economic agent; (c) low market share with horizontal overlapping; (d) low market share with vertical integration; (e) lack of causual link, and in other cases CADE deems fit. According to CADE Resolution No. 16/2016, the General Superintendence will have a 30-day deadline to conclude expedited analysis.