Does the authority seek or invite the views of third parties?
As mentioned above, in China, relevant factors such as the influence on national economic development, influence on technological progress, as well as influence on consumers and other business operators shall be taken into consideration during the merger review process. To achieve this objective, MOFCOM may solicit the opinions of other government agencies, relevant industry associations, upstream suppliers, downstream customers and competitors of the parties to the concentration under some circumstances. The government agencies to be consulted are mainly industry regulators, such as the Ministry of Industry and Information Technology, the National Development and Reform Commission, and the State Administration for Industry and Commerce, as the case may be.
For cases under the normal review procedure, MOFCOM usually solicits third party opinions by way of a survey questionnaire, or by way of telephone consultation and site visits. In some extreme cases where the concentration transaction is quite complex, MOFCOM may hold public hearings and invite the above mentioned third parties to provide comments on the concentration transaction.
Simple cases are presumed not to be problematic and will not raise competition concerns in China. Therefore, under the simplified review procedure, MOFCOM will mainly invite the views of third parties with respect to whether the concerned concentrations are qualified as simple cases. Third parties may submit written opinions to MOFCOM in this regard during the public comment period which lasts only 10 calendar days.
During the assessment of the merger, the DCCA will generally invite anyone interested (primarily customers, suppliers and competitors) to comment on the proposed merger. However, when the simplified procedure is applied, the DCCA will usually depend solely on the information submitted by the parties.
The notice of the transaction on the CCPC website invites third parties wishing to make submissions about the merger to do so within 10 working days of the publication of the notice. This invitation is open in all cases; the CCPC will not differentiate between cases that raise prima facie competition issues and those that do not. However, the CCPC may change the time limit for third party submissions by notice on its website in individual cases if required. Submissions from third parties should clearly indicate any information that should be treated as confidential. The CCPC will make reference to whether any third party submissions were received in its determination.
In addition to inviting submissions from third parties when posting notice of the transaction on its website, the CCPC merger notification form requires notifying parties to provide contact details for their top 5 customers, competitors and suppliers (worldwide and in Ireland), as well as any trade associations of which the notifying parties are members. It is open to the CCPC to contact these parties in the course of its investigation and to send them requests for information concerning the notified transaction, although it is under no obligation to do so. The CCPC’s market testing will generally be carried out within the first 10 working days of receipt of the notification.
If a Phase II investigation is initiated, any third party is entitled to make submissions and the CCPC must consider all submissions received. Submissions from third parties must be received in writing within 15 working days of the date of the opening of the Phase II investigation. The CCPC may change this time limit by notice on its website in individual cases, if required.
The CCPC is not required to hear third parties in the context of a merger investigation. During Phase II, third parties that have made submissions to the CCPC may be requested to make oral submissions, but this is at the discretion of the CCPC.
During its merger review process, the Israeli Antitrust Authority approaches third parties, such as customers, suppliers and competitors.
Such third parties will normally be approached by phone. The Israeli Antitrust Authority will ask them to provide information about the relevant markets, including their input regarding the merger. To the extent required, normally only for more complex mergers, written requests for information will be issued. Under the Israeli Antitrust Law, third parties are obliged to respond to requests for information, and are subject to penalties if they fail to do so.
The Israeli Antitrust Authority normally does not ask third parties for an opinion in writing, but will accept third parties' written submissions in objection or in support of a merger if filed promptly and within the Israeli Antitrust Authority's time framework.
Third parties such as customers and competitors may submit their opinions to the JFTC at any time. Also, the JFTC seeks public comments when it decides to initiate a Phase II review. Any person may to submit their opinions to the JFTC. The JFTC does not have to respond to such third party opinions, but normally takes them into account in its substantive review.
The Director General shall on notification publish in the Government Gazette and a daily newspaper the fact of the notification, the names of the parties, the nature of the concentration and the economic sectors involved.
Pursuant to article 15 of Communiqué No. 2010/4, the Competition Board may request information from third parties including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. According to article 11(2) of Communiqué No. 2010/4, if the Turkish Competition Authority is required by legislation to ask for another public authority’s opinion, this would cut the review period and restart it anew from day one. Third parties, including the customers and competitors of the parties, and other persons related to the merger or acquisition may participate in a hearing held by the Competition Board during the investigation, provided that they prove their legitimate interest.
Although it is not a common practice; Turkish Competition Authority may even invite the views of third parties for a transaction that clearly does not raise competition issues. There is no specific provision that a market testing is carried out in the merger control filing process.
As a matter of practice, the AMC never invites views of third parties, if the transaction does not raise any competition issues.
If the AMC reveals that the proposed transaction may result in the monopolisation or substantial restriction of the competition in any Ukrainian market, during the review period it may communicate with other state bodies, concerned entities (main competitors, supplies and customers of the concentration participants), and engage various experts.
The DOJ and FTC frequently solicit input from a variety of market participants during the course of a merger investigation. The most valuable third-party input typically comes from customers of the transacting parties, but the agencies will obtain the views of others in the market as well, such as competitors or trade associations. The agencies may also subpoena documents and data from third parties, as well as conduct interviews or depositions of knowledgeable individuals. The agencies typically do not engage in third-party outreach during the very preliminary stages of a review, but if they believe a transaction warrants a more thorough evaluation, they may engage with third parties during the initial 30-day waiting period, as well as during the Second Request.
Any third parties are entitled to provide the FAS with information on the deal’s impact on competition. This relates to any deal considered by the authority.
The CMA routinely – indeed, without exception – invites third parties to comment on transactions that it is reviewing. In addition, within a few days of commencing its investigation, the CMA will usually directly contact relevant customers, suppliers and competitors of the parties, based on details supplied by the parties.
The CMA may also, where appropriate, solicit views on merger cases from other governmental departments, sectoral regulators, industry associations and consumer bodies.
The Belgian Competition Authority has the power to contact third parties as it deems necessary for the purposes of its investigation. This can include customers, suppliers, and competitors of the parties concerned, as well as relevant trade unions or trade associations.
In addition, third parties that demonstrate a “sufficient interest” may intervene in a merger investigation of their own motion. The Belgian Supreme Court has confirmed that interested third parties may be granted access to a non-confidential version of the Authority’s file in order to intervene effectively; interested third parties may also receive a non-confidential version of the Authority’s draft decision before it is formally adopted.
It is important to note the particular rights of trade unions in relation to merger reviews in Belgium. Unions that represent workers in affected markets have a right to receive and submit their views on non-confidential draft decisions of the Belgian Competition Authority before they are adopted, in both Phase One and Phase Two, except under the simplified procedure.
The rights which are granted to third parties are rather limited.
The notification of a concentration is disclosed to the public immediately after the receipt of the application. The BWB essentially publishes the names of the undertakings involved, the nature of the concentration, the affected business branche(s).
Within two weeks as of such publication third parties are allowed to submit statements. The consideration of such statements is at the discretion of the official parties, however. The same applies to any statements by third parties in Phase II proceedings before the Cartel Court. In particular, third parties do not formally become parties to the proceedings and have no standing to lodge an appeal.
It may also be noted in this context that, if considered necessary, the BWB may also upon its own initiative contact market participants for further information; inter alia, they may market test remedies offered.
The authority typically solicits the views of third parties. In particular:
- trade unions
- any other stake-holders considered relevant by the authorities.
This may be informal or by way of formal, written requests for information. If circumstances warrant, the authority may conduct market surveys.
The FCA is empowered to contact third parties in the review process. Third parties, including competitors, suppliers, customers, or trade unions, may intervene in different ways: they may (a) submit spontaneous observations; (b) be consulted by way of questionnaires or hearings; (c) reply to a market test sent by the FCA; and/or (d) challenge the FCA’s final decision.
Nonetheless, no automatic right to be informed is granted to third parties; they only have access to the information published on the FCA’s website.
There is no exception for transactions that clearly do not raise any competition issues except that the FCA is unlikely to send market tests in such cases.
Third parties have no recognized legal rights over merger control processes. However, the FECL provides that all economic agents may assist the enforcer by submitting data and documents that they consider relevant to the case. Common practice dictates that in complex transactions, the enforcer tends to request information from third parties, especially relevant competitors, important clients or other sector regulators, which will help the enforcer to have a better understanding of the specific markets and hear opinions from third parties about the potential impact of the transaction.
Unless a notified transaction quite obviously does not require market testing, the FCO routinely reaches out to third parties to solicit their feedback, be it in Phase I and much more broadly of course in Phase II merger reviews. Third parties such as customers, competitors, consumer and trade associations thereby often have a significant impact on the outcome of merger reviews before the FCO. Within the context of a Phase II merger review, third parties that may be implicated by the outcome of the decision can also request to be formally admitted to the merger control proceedings. This, in turn, will give them the right to access to FCO’s files and provide formal submissions as well as to ultimately challenge formal Phase II decisions of the FCO. By contrast, such rights do not exist during the Phase I merger review process so that notifying parties typically will have a strong interest in avoiding Phase II reviews, in particular if third party opposition is to be expected.
Third parties can submit their observations to the ICA within 5 business days from the date of publication of the notice of merger submission. The ICA generally contacts customers and competitors, on its own initiative, during the market test in order to assess the potential effects of a notified transaction on competition in the relevant markets.
The ICA’s decision to start phase II is published on its website, allowing customers and competitors representing private or public interests (e.g., trade associations and consumer organisations), to intervene in the proceeding, providing evidence that they would be directly and immediately harmed by the proposed transaction. Third parties are entitled to submit documents, including briefing papers, and can request to have access to the non-confidential version of the ICA’s case file. Furthermore, third parties can ask the ICA to be heard in a hearing.
If pre-assessment is sought confidentially but the transaction is public, the ACCC may seek the views of targeted third parties. The ACCC will not seek the views of third parties in the market about a transaction if it is notified on a confidential basis and the transaction is not public. The ACCC will invite the views of third parties, such as competitors, suppliers and customers as well as other relevant stakeholders, as part of a public review.
Formal clearance and authorisation
The ACCC invites the views of third parties through a public consultation process notified on its website after the application is received (either directly or from the Tribunal in the case of authorisation). Under the CCA, the ACCC (and the Tribunal in the case of authorisation), may also seek any relevant information, and consult with any persons that it considers reasonable and appropriate.
When reviewing mergers that may raise potential competition issues the Bureau almost always conducts “market tests” to confirm information that has been provided by the parties and ask questions about the parties’ businesses and the relevant industry. This process involves consulting various stakeholders including customers, competitors, trade associations and consumer organizations regarding the proposed transaction. On occasion the Bureau has directly solicited the views of the public (e.g., for a retail merger where customers of the merging firms were individual members of the public), but this is not the standard practice.
The Bureau typically begins making market contacts shortly after commencing its review, but in the past has agreed to hold off on contacting market participants temporarily if a transaction has not yet been announced publicly (or the target’s employees have not been informed). While the authors are aware of a small number of transactions that clearly raised no competition concerns where the Bureau decided not to make market contacts, this is the exception and should not be expected in any given case.