How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?
Merger Control (2nd Edition)
Turnover is calculated broadly in the same way as it is for the purpose of the EU Merger Regulation, i.e. sales to third parties in the most recent financial year of goods and services, net of sales rebates, discounts and turnover-related taxes (such as VAT) and adjusted to take account fully of acquisitions and disposals of businesses. Turnover is usually (but not always) allocated geographically according to the location of the customer.
A party's turnover and/or share of supply should be taken as including the turnover or share of supply of entire group of companies to which it belongs. However, the turnover or share of supply of the seller (and any of the seller's group companies) is not taken into account when determining the turnover or share of supply of the target. In addition, the group of entities that is to be taken into account for the purposes of calculating turnover under the EA is slightly wider in scope than that which is taken into account for the purposes of the EU Merger Regulation. In particular, the following entities may be included in the turnover calculation:
- Entities or persons that are 'associated' with the target, for example because they are family relations, or because they carry on business 'in partnership' with the target.
- Where the target has material influence or control over the policy of an enterprise, but does not have a legally controlling interest (as defined in section 4 above), the CMA can include its turnover with that of the target for the purpose of assessing whether it has jurisdiction, although it is not required to. The same applies with respect to enterprises that have a material influence or control of the target's policy, but do not have a legal controlling interest.
For outsourcing transactions, the CMA may treat as turnover sales between the target and the seller, and may attribute such value to those sales as it considers appropriate to reflect their open market value.
For the share of supply test, the CMA has a broad discretion as to the category of goods or services that it uses as the frame of reference for assessing whether the test is met. In particular, the CMA will not – for the purposes of assessing whether it has jurisdiction – carry out a detailed assessment of the relevant economic market. Rather, it will consider the scope of products or services which appear to be broadly comparable, and potentially substitutable, with the products or services of the merging parties. That category may be considerably wider or narrower than the proper relevant economic product market to which the goods or services belong. As regards the geographic area that is used as the frame of reference for the share of supply test, this may be national, regional or local, depending on the circumstances (again, the CMA has a broad discretion).
Consistently with EU competition law, turnover includes the amount derived in the last financial year from the sale of products or provision of services (to customers located) in Italy. Turnover does not include intra-group sales, sales rebates, value added tax and other taxes directly related to it.
Special rules apply to banks, financial institutions and insurance companies. Pursuant to Art. 16(2) of the Law, the turnover of banks and financial institutions corresponds to one-tenth of their total assets, excluding memorandum accounts; while the turnover of insurance companies is equal to the total value of the collected premiums.
The turnover of the acquiring company corresponds to that of the entire group to which it belongs. The turnover of the target company does not include that of the seller.
Under the HSR Rules, the process of determining a transaction’s value depends on whether voting securities, non-corporate interests, or assets are being acquired.
The threshold values listed below are as of February 2017 and are adjusted annually.
For an asset acquisition, the transaction value is determined by looking at the fair market value (FMV) or, if higher, the acquisition price. FMV is determined by the board of directors of the acquiring person or its delegee within 60 calendar days of the filing (or if a filing is not necessary, 60 calendar days prior to closing). There is no specific accounting technique that the board of directors is required to use; however, the determination must be made in good faith. Acquisition price is equal to the total amount of consideration that the seller receives in the transaction. If the acquisition price is not known, the value of the transaction will be FMV.
The acquisition of non-US assets is exempt, unless, in the aggregate, the non-US assets to be held by the acquiring person as a result of the acquisition generated sales in or into the US of greater than US$80.8 million in the acquired person’s most recent fiscal year.
For an acquisition of voting securities of a US entity, the value is based on the value of the voting securities that will be held as a result of the transaction. If the voting securities are publicly traded, the value of the shares to be acquired is the greater of the acquisition price or market price. If the acquisition price is undetermined, publicly traded voting securities are valued based on market price. For open market purchases, tender offers, conversions, or exercises of options or warrants, market price is determined based on the lowest closing stock quotation during the 45 calendar days prior to closing. For transactions subject to an agreement or letter of intent, market price is determined by looking at the lowest closing stock quotation within the 45 calendar days before closing but not earlier than the day before execution of the agreement or letter of intent. If both the acquisition price and market price are undetermined, the value of the voting securities is their FMV.
If the voting securities are not publicly traded, the value of the privately held voting securities is either the acquisition price, if determined, or the FMV if the acquisition price is not determined.
An acquisition of voting securities of a non-US entity by a US person is exempt, unless the non-US entity and any entity it controls has US assets with a FMV greater than US$80.8 million, or made sales in or into the US of greater than US$80.8 million in its most recent fiscal year. An acquisition of voting securities of a non-US corporation by a non-US person is exempt unless the same thresholds are met, and the transaction confers control of the non-US entity.
For an acquisition of non-corporate interests in a transaction that will confer control of a non-corporate entity, the value is based on the acquisition price, if determined, or the FMV if the acquisition price is not determined.
The relevant timeframe is the last fiscal year of the undertakings in question. VAT and intragroup turnover will not be taken into account.
For Germany, the allocation rules are similar to those of the European Union. Therefore, the general rule is that turnover should be attributed to the place where the customer is located. For financial institutions, the turnover is to be allocated to the branch or division established which receives this income.
If undertakings that are active in certain industries are involved in the merger, the actual turnover is multiplied or divided to determine the value used in the threshold test. A multiplier of eight is applied to the turnover of an undertaking that edits, produces, distributes newspapers, distributes or produces broadcasting programs or sells time for advertisement in broadcasting. Turnover resulting from the mere trade of goods (i.e. the products are purchased and sold only) is to be taken into account by 75 % only. The calculation of relevant turnover values in the banking and insurance sector is also different from other industries. The relevant value in this sector is focused on the income side (i.e. financial income and premium income) instead of the usual turnover value.
“Turnover in Japan” means sales of products, including services, to customers located in Japan. However, sales to customers located outside Japan shall be included into “turnover in Japan” if the seller recognized that the buyer would re-sell the products to customers located in Japan without changing the characteristics of the products.
Sales to customers located in Japan can be excluded from “turnover in Japan” if the seller recognized that the buyer would re-sell the products to customers located outside Japan without changing the characteristics of the products.
A special rule applies with regard to media concentrations. In case of a media concentration, the turnover of the media companies and media services (Mediendienste) is multiplied by 200 and the turnover of companies providing auxiliary services for media companies (Medienhilfsunternehmen) is to be multiplied by 20. However, these multipliers are not applied with regard to the two EUR 5 million thresholds mentioned above.
The thresholds refer to net turnover. All undertakings which are linked to each other in a way that would constitute a concentration if newly established are deemed as one single undertaking and, therefore, the turnover of the entire group(s) has to be taken into account. There is a limit in case of indirect shareholdings (participation via stages) according to jurisprudence: The turnover is only to be considered if on each stage subsequent to an indirect participation a controlling influence exists.
Turnover within the meaning of Austrian merger control is, as under the EUMR, generally understood as turnover resulting from the ordinary activities of all undertakings involved during the last completed business year. In the banking sector, turnover refers to interest and similar income, income from shares and other equity interests, income from non-fixed income securities, commission revenues, net earnings from financial transactions and other operating revenues. In the case of insurance companies, the premium incomes have to be used.
The seller group is, in general, not regarded as an undertaking involved. The turnover of the seller must only be included if the seller also post transaction will be connected (typically) to the target company in a way as described above.
In addition to the above mentioned “classic” turnover thresholds, a concentration will have to be notified to the BWB, if
- the aggregate worldwide turnover exceeds EUR 300 million (same as first part of the mentioned classic turnover based threshold)
- the aggregate Austrian turnover exceeds EUR 15 million (half what is required under the classic turnover threshold)
- the value of the consideration for the transaction exceeds EUR 200 million, and
- the target is active in Austria “to a significant extent”.
As with the existing thresholds, all four conditions have to be met cumulatively. The new threshold will apply to transactions to be implemented as of November 1, 2017. It will apply in all industries and was inspired by a recent amendment to the German merger control regime.
As both, the term “consideration” and the condition “significant activity in Austria”, are not defined in the Cartel Act, there may arise quite some questions in practice. The official explanatory remarks to the amendment (travaux preparatoires) provide some additional guidance:
- The term “consideration” covers all assets and other services of monetary value (purchase price) which the seller receives from the purchaser in connection with the transaction plus the value of possible liabilities which the purchaser takes over.
- The “significant activity in Austria” criterion is expected to be interpreted broadly. It shall already be fulfilled where a site of the undertaking to be acquired is situated in Austria. However, this criterion may still be met in case there is no such presence. The official explanatory remarks state that in such a case the “recognised key measures used in the respective industry” have to be taken into account. As regards the digital industry, for example, the number of monthly active users (from Austria) or the number of unique visits can be taken into account for ascertaining an Austrian nexus. Concerning other industries, no factors are provided as examples.
Both assets and revenues are generally determined with reference to a party’s most recent audited annual financial statements.
The revenue thresholds refer to revenues generated on an annual basis. For the ‘size of parties’ threshold, revenues from sales in Canada (domestic sales), sales into Canada from another country (imports) and sales to another country from Canada (exports) are included. For the ‘size of transaction’ threshold, revenues generated from sales in Canada (domestic sales) and sales from Canada (exports) are included, but not revenues from sales made into Canada from another country (imports).
The value of assets in Canada is generally determined with reference to the value of the total assets as stated in the relevant party’s most recent audited annual financial statements. Subject to limited exceptions, assets on the audited financial statements of a Canadian entity are considered to be assets ‘in’ Canada. An entity is considered Canadian where it is incorporated in Canada or, in the case of an unincorporated entity, formed pursuant to a Canadian statute. For moveable assets that are listed on the balance sheet of an entity incorporated outside of Canada, but which were physically located in Canada for a portion of the relevant fiscal period, the Bureau expects the parties to include a proportion of the value of those assets in determining the value of the relevant party’s assets in Canada.
The sales that must be considered are the ones corresponding to the financial year preceding the operation.
When calculating the parties’ turnovers in Chile, the turnover in Chile of their entire group companies should be taken into account. This is different in case of an acquisition. In such cases the relevant turnover is the turnover of the company acquired and its subsidiaries or the assets acquired, as the case may be. The turnover of the seller is therefore not relevant.
DL 211 and the FNE’s Guidelines regarding the application of the thresholds state that the following items shall be excluded from the calculation of the thresholds indicated above: (i) special taxes (such as VAT, customs tariffs, taxes on alcoholic beverages, tobacco tax, etc.); (ii) discounted amounts from the sale price, such as sales or volume discounts; (iii) turnover generated by internal group sales; and (iv) sales not related to the exploitation of the ordinary business of the economic agents involved in the transaction or of its related persons.
The FNE’s Guidelines regarding the application of the thresholds also establishes the geographical assignation of sales, how group turnover should be established, and special rules for financial institutions, insurance companies, investment funds and public entities.
Regarding the geographical assignation of sales, the FNE’s Guidelines state that, as a general rule, the relevant criterion is the location of the customer at the moment the relevant sales agreement was entered into, regardless of the country where the agreement was concluded. This, as the location of the customer at the moment of the agreement’s celebration usually coincides with the place where the service or the product is finally provided. The Guidelines indicate that there are cases where the geographical allocation may be determined by other factors. For instance, in the case of supply of goods the location of the customer at the time of the subscription of the agreement may be different than the place where the product is delivered. In such case, the final place of delivery prevails over the location of the customer. Similarly, in the case of provision of services, it should prevail the place where the service is provided, regardless of where it is billed or where the client was located at the time of the conclusion of the contract.
Turnovers are calculated for groups of undertakings and are derived from the last audited financial statements of each of the undertakings concerned (or consolidated financial statements at a group level).
In calculating turnover in relation to banks and insurance companies, the following calculation methodology shall respectively apply:
- for a bank or other credit institution, the one tenth of the balance sheet of the last financial year
- for an insurance company the value of the gross premiums during the last financial year which shall comprise all amounts received or receivable in respect of insurance contracts concluded by it or on its behalf, including outgoing reinsurance premiums and after deduction of taxes and parafiscal contributions or levies charged by reference to the amounts of individual premiums or the total volume of premiums.
The aggregate turnover of a party participating in the merger is calculated on the basis of the company’s latest audited annual account.
The aggregate turnover in Denmark includes the net turnover from the sale of goods and services to customers who resided in Denmark at the time of the sale. Any turnover from intra-group sales, however, is excluded.
The DCCA follows the general EU principles for accounting measures for valuation of assets.
The turnover refers to the amounts derived from the sale of goods and the provision of services which correspond to the ordinary activities of the company in the previous financial year.
The turnover to be taken into account is “net” turnover. Discounts, rebates and refunds granted by the company to its customers in connection with sales and which directly affect sale proceeds have to be deducted. Value-added tax and other taxes directly related to turnover are also to be deducted.
The turnover of all the entities belonging to the groups involved in the concentration has to be taken into account when determining whether the jurisdictional thresholds are met. If a seller does not retain control over the target business, its turnover should not be taken into account.
Turnover should not include turnover from intra-group transactions between affiliated companies, e.g. between parent companies and subsidiaries within the target business. Adjustments should also be made to reflect post-year end acquisitions or disposals.
Turnover should generally be allocated geographically by reference to the location of the customer.
The method for calculating turnover under French Law is the same as in Article 5 of the European Union Merger Regulation. Thus, the turnover must be generated by products or services sold to companies or consumers in France, after deducting internal sales within a group of companies, and taxes. The turnover figures make it possible to see the overall economic strength of the business concerned, which is why the Authority takes into account the turnover of other companies within the same control group, and not only just the specific companies involved in the proposed merger.
When the merger involves the acquisition of only parts of a company (either through purchase of shares or assets), only the turnover from those parts of the target is included for reporting purposes.
Outsourcing transactions make it more difficult to calculate the relevant turnover for the purpose of merger control, since the activities are by nature intragroup sales before the transaction. (Intragroup sales by their nature do not have a market value.) In this case, the parties should generally consider both the turnover earned internally before the transaction, and the turnover the buyer expects in the next year following the transaction.
For the purpose of its geographic allocation, the turnover shall be allocated in principle by reference to the country where the client is located.
Thresholds are determined by reference to ‘aggregate turnover’, which is defined as the amount derived by each of the undertakings concerned in the preceding financial year from the sale of products and the provision of services to other undertakings or consumers falling under the undertakings’ ordinary activities after deduction of sales rebates and of value added tax and other taxes directly related to turnover. Sale of products and provision of services to group entities is however exempted.
The Regulations stipulate that the figures to be taken into account for the calculation of turnover shall be those arising in the financial year immediately preceding the transaction. The Regulations exclude asset values from being considered for threshold purposes.
In determining the geographical allocation of turnover, the OFC adopts the principles established in the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (2008/C 95/01), which establishes the general principle that turnover should be attributed to the place where the customer is located.
Asset-based thresholds are not provided for in the Regulations.
Thresholds are not based on market share.
Turnover is defined in the Regulation on the notification of concentrations as having the same meaning as “sales” under the Norwegian Accounting Act. In its guidelines on the notification of concentrations, the NCA states that the principles established in the European Commission’s consolidated jurisdictional notice to calculate turnover will give guidance.
To the extent that the transaction has a Community dimension, it becomes subject to the exclusive jurisdiction of the European Commission also with respect to Norway (only in theory, a transaction also may have an EFTA dimension whereby by the EFTA Surveillance Authority would have jurisdiction pursuant to the rules on divisions of competence in the EEA Agreement). Transactions may be referred between the European Commission and Norway according to the rules set out in Protocol 4 to the EEA agreement.
The turnover corresponds to the total revenues obtained by the undertaking from the sale of products and/or supply of services in the previous financial year (1st of January to 31 December), after deduction of taxes and exports (including intra-community deliveries).
As regards geographical allocation, the solution varies depending on the products / services. For instance, for the sales of products, as a general rule, the turnover must in principle be allocated to the place where the customer is located. Accordingly, for the purpose of calculating turnover achieved on the territory of Romania, all sales made to customers located in Romania, including sales made from another country, should be taken into account. This may vary in case of services, depending on the type of service. In any case, given the complexity of the situations that may arise in practice, it is important that the fulfilment of thresholds be checked on a case-by-case basis.
For credit institutions and other financial institutions, the turnover is replaced by the sum of the income items, after deduction of contributions and other taxes directly related to these items.
For insurance undertakings, the turnover is replaced with the value of gross premiums written which shall comprise all amounts received and receivable based on insurance contracts issued by or on behalf of the insurance undertakings, including outgoing reinsurance premiums, after deduction of taxes and contributions charged in reference to the amounts of individual premiums or the total volume of premiums.
KN: Merger filing thresholds are solely turnover based.
Turnover for the last financial year for which audited accounts are available is taken into account. In the Serbian legal system, a financial year runs from 1 January to 31 December. Intra-group turnover is not taken into account. The Competition Commission is reluctant to rely on management or any other form of provisional accounts in any but exceptional circumstances.
Where a concentration takes place within the first months of the year and audited accounts are not yet available for the most recent financial year, the figures to be taken into account are those relating to the previous year.
Aggregate turnover of the undertakings is calculated on a worldwide consolidated basis using figures from the preceding business year. The aggregate turnover of an undertaking concerned shall not include the sale of products or the provision of services between the undertakings affected by the concentration (thus, mutual transactions are not taken into account). There are special rules for the calculation of turnover of banks, other financial institutions, insurance companies and companies engaged in the reinsurance services.
In relation to geographic allocation of turnover, the turnover is allocated according to geographic location of customer. There are no detailed rules in relation to this thus the EU rules would most probably be observed in practice.
Special rules apply to the calculation of turnover of banks and other financial institutions – after VAT and other directly applicable taxes are deducted, their turnover is the sum of the following:
a) Interest income;
b) Securities income;
c) Commissions receivables;
d) Net profit from financial operations;
e) Other operating income.
Concerning insurance and other reinsurance companies, the value of gross premiums is used, which is comprised of all amounts received and receivables in respect of insurance and reinsurance contracts issued by or on behalf of the insurance companies, after deduction of taxes charged by reference to the amounts of individual premiums or the total volume of premiums.
A schedule to the Act deals with the Method of Calculation (the “Schedule”), which provides that the asset value of a firm must be calculated in accordance with GAAP (Generally Accepted Accounting Practice which, in South Africa, is in line with IFRS or being brought into line with IFRS). More specifically, the Schedule provides that for threshold purposes, the asset value of a firm at any time is based on the gross value of the firm’s assets as recorded on the firm’s balance sheet for the end of the immediately previous financial year, subject to other specific provisions. The thresholds relate only to assets in South Africa and, in this regard, among other provisions, the Schedule states that assets in South Africa includes all assets arising from activities in South Africa. In short, it is typically the gross asset value as included on the firm’s balance sheet as at the end of the most recent financial year.
Importantly, as far as the other specific provisions are concerned, the Schedule also provides, broadly, that if between the date of the financial statements being used to calculate the asset value of a firm, and the date on which that calculation is made, the firm has acquired any subsidiary company, associated company or joint venture not shown on those financial statements, or divested itself of any of these, then the value of the recently acquired assets must be added to the asset value or, conversely, the value of the recently divested assets must be deducted. Simply put, recent acquisitions or divestitures must be added, or deducted, as the case may be, to get to the correct asset value.
In terms of the Schedule, the annual turnover of a firm at any time is the gross revenue of that firm from income in, into or from South Africa, arising from the following transactions/events as recorded on the firm’s income statement for the immediately previous financial year:
- the sale of goods;
- the rendering of services; and
- the use by others of the firm’s assets yielding interest, royalties and dividends.
In short, the turnover is typically that of the firm, as reflected on its income statement as gross revenue, as at the most recent financial year-end.
As explained above, the jurisdictional thresholds under Turkish merger control regime are solely based on the turnover figures of the Parties. In other words there are no assets and/or market share based jurisdictional threshold. To that end, turnover consists of “the net sales realized at the end of the financial year preceding the date of the transaction according to the uniform chart of accounts, or if the calculation thereof is not possible, the net sales realized at the end of the closest financial year from the date of the transaction”. Captive/internal sales should be excluded.
Article 8 of Communiqué No. 2010/4 sets out detailed rules for turnover calculation. In short:
- The turnover of the entire economic group, including the undertakings controlling the undertaking concerned and all undertakings controlled by the undertaking concerned, will be taken into account.
- When calculating turnover in an acquisition transaction, only the turnover of the acquired part will be taken into account with respect to the seller.
- The turnover of jointly controlled undertakings (including joint ventures) will be divided equally by the number of controlling undertakings.
- Multiple transactions between the same undertakings realized over a period of two years are deemed as a single transaction for turnover calculation purposes. They warrant separate notifications if their cumulative effect exceeds the thresholds, regardless of whether the transactions are in the same market or sector or not and whether they were notified before or not.
Transactions that are closely connected in that they are linked by conditions or take the form of a series of transactions in securities taking place within a reasonably short period of time are treated as a single concentration (interrelated transactions theory).
On the matter of geographic allocation of turnover, unlike the EU legislation (i.e. para. 195-203 of the Consolidated Jurisdictional Notice), the Turkish merger control regime does not include any specific provisions regarding the geographic allocation of turnover. Also, the Board does not have any specific precedent directly on point concerning the geographic allocation of turnover. One decision that discusses geographic allocation of turnover concerns Air Berlin Plc./Intro (4.7.2007, 07-56/661-230) which suggests that “the location of the customer at the time of the transaction” is taken into consideration in assessing whether the revenue is attributable to Turkey.
There are also specific methods of turnover calculation for certain sectors. These special methods apply to banks, special financial institutions, leasing companies, factoring companies, securities agents and insurance companies.
The value of assets and turnover are calculated for the calendar year (as of 31 December of the relevant year) immediately preceding the year of the notification to the AMC. All worldwide assets must be calculated. The Ukrainian assets include all groups of assets, which are directly or indirectly owned by the parties and located in Ukraine. The Ukrainian turnover includes all group sales in Ukraine (of residents of Ukraine and non-residents) and the sales of residents of Ukraine to other countries. The values of assets and turnover must be calculated based on the financial statements.
See the answer to question 2 for the main thresholds; for market-share analysis, CADE applies the Herfindahl-Hirschman test -- see the answer to question 4.