Under what circumstances the basic timetable may be extended, reset or frozen?
Extension of timetable for pre-acceptance period.
There is no statutory time limit for the pre-acceptance period. Where the documents and materials submitted by the notifying parties are incomplete or inaccurate, MOFCOM will request the parties to make supplementary submissions or modifications, or to provide satisfactory clarifications or explanations. MOFCOM’s requests for further information are the primary reason for the extended length of this period.
Extension of timetable for formal reviews.
As described above, there is statutory time limit for the formal review process, and such timetable shall not be extended by any events, including an offer of remedies by the notifying parties or the interventions of third parties.
Having said the above, to our knowledge, in some conditional approval cases where MOFCOM requires additional information or agreement cannot be reached with MOFCOM at the end of the extended Phase II (or Phase III), the notifying parties may choose to withdraw and refile the notification to restart the timetable. In addition to the Glencore/Xstrata deal and the MediaTek/MStar deal mentioned above, the Western Digital/Hitachi Storage deal and the Marubeni/Gavilon deal also encountered this situation.
The time limit under Phase I may be extended from 25 to 35 business days if one or more of the participating undertakings propose commitments, including revised commitments.
The 90-day time limit under Phase II may be extended by up to 20 business days if one or more of the participating undertakings propose commitments, including revised commitments. The time limit may only be extended if, at the time when the commitments are proposed, less than 20 business days remain until a decision should have been made under Phase II.
The time limit under Phase II may also be extended upon a decision from the DCCA if one or more of the parties request or consent to the extension, which may not exceed 20 business days.
There are two circumstances in which the CCPC’s initial Phase I investigation period may be extended:
- The CCPC may issue an RFI at any point during Phase I, which has the effect of resetting the process timetable to start from the date on which a complete response to the RFI is received. An extension of this type can only occur once.
- The Phase 1 period is automatically extended to 45 working days where remedy proposals are made by the notifying parties to overcome competition concerns.
There are two circumstances in which the CCPC’s Phase II investigation period may be extended:
- If the CCPC issues an RFI within 30 working days of the opening of Phase II, the running of the clock is suspended until a complete response to the RFI is received. A suspension of this type can only occur once.
- the deadline by which the CCPC must issue a Phase II determination may be extended from 120 to 135 working days from the “appropriate date” where proposals are made by the parties.
As mentioned above, the merger review period may be extended formally by the Antitrust Tribunal according to the Commissioner's request. This is a rare practice. The more common practice is for the Israeli Antitrust Authority to informally request an extension from the merging parties.
Requests for information do not stop the clock for the review period, regardless of whether they are answered fully or correctly, nor do negotiations with the parties for remedies or interventions by third parties. Such procedures, if exceeding the 30-day period, will normally be conducted using voluntary extensions from the parties.
In a normal situation, there is no extension, reset or freeze of the basic timetable of the JFTC’s review. The review period runs even though the JFTC requests further information during the review or the parties offer remedies.
However, the JFTC is not bound by the time restraint in issuing an order for necessary action if it finds that the notification made by the parties includes a false statement on any important issue. Also, the JFTC can extend the time limitation to issue an order for necessary action if a proposed remedy is not completed within the deadline for completion. In such a case, the new deadline for the JFTC is one year from the deadline of the remedy.
The Regulations provide that, where information submitted with the notification is incomplete, the 6 week period mentioned in Point 5.3 shall commence upon receipt of the complete information.
In addition to the extensions and suspension which may be requested as discussed in Point 5.3, undertakings may, where asked to provide commitments, request by no later than 3 months from initiation of proceedings that the period be suspended for up to 1 month so as to allow the undertaking to duly consider the commitments.
The DG also has to right to suspend the periods discussed above where:
- Information requested by the DG from the notifying party has not been supplied in full within the time limit fixed by the DG;
- Information requested by the DG from a third party has not been supplied in full within the time limit fixed by the DG due to some reason pertaining to the notifying party;
- The notifying party or another involved party has refused to submit to an investigation deemed necessary by the DG or to cooperate in the carrying out of such an investigation;
- the notifying parties have failed to inform the DG of material changes in the facts contained in the notification.
Suspensions in terms of the above shall be made from the period of a request for information to the receipt of complete information, from the period between the unsuccessful attempt to carry out the investigation and the completion of the investigation ordered by decision, or the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information requested by decision, whichever applicable.
Any written information request by the Competition Board resets the clock and the review period starts again from day one once the responses are provided. As explained more fully in the previous section under Turkish law, the investigation takes about six months but if it deemed necessary, this period may be extended only once, for an additional period of up to six months, by the Competition Board.
If the information requested in the notification form is incorrect or incomplete, the notification is deemed filed only on the date when such information is completed upon the Competition Board’s subsequent request for further data.
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.
While not common practice, it is possible for the third parties to submit complaints about a transaction during the review period.
In exceptional circumstances, if the proposed transaction may lead to the monopolisation and the detailed analysis of the transaction is required, the AMC may initiate a merger investigation (Phase II). In such case, the total period from the start date of Phase II until the date of a decision may not exceed 135 calendar days.
In addition to issuance of a Second Request, the initial 30-calendar-day waiting period also may be extended if the acquiring person elects to “pull and refile” its HSR filing. At the end of the initial 30-calendar-day period, the acquiring person withdraws its filing, and submits an updated filing within two business days (the acquired person is not required to withdraw). The acquiring person does not need to pay an additional filing fee, but this process extends the waiting period for an additional 30 calendar days. The parties may only take advantage of the pull-and-refile process once. Occasionally, during the course of its investigation, the reviewing agency may discover that one of the transacting parties failed to submit all responsive documents with its HSR filing. In such circumstances, the agency may require the party to refile its HSR filing with all responsive documents, and restart the 30-calendar-day waiting period.
The duration of a review may be prolonged by the FAS up to two months (three months in total). In such a case, the FAS issues a decree containing the grounds for such extension.
The term for a review may be prolonged for the following reasons:
- Need for further analysis of all competition aspects of the deal;
- Request for further information.
Should the FAS determine a negative impact on competition, it may also delay clearance until the parties perform certain conditions (e.g., adoption of access conditions to production facilities). In this case, the FAS will set a term for performance of such conditions, which may not exceed nine months. Please note, however, that such an instrument applies to mergers or incorporation of a company only.
If a transaction is also subject to preliminary approval in accordance with the foreign investment control regime, the review period will be prolonged until the foreign investment control clearance is granted. Formally, the foreign investment control procedure takes six months but, in practice, might take much more - up to one year.
At the end of the 40 working day first-phase period the CMA must decide whether the transaction risks giving rise to a substantial lessening of competition and should therefore be subject to a second-phase investigation, unless remedies are agreed. This 40 day period may be extended in the following circumstances:
- Where the parties fail to provide information to the CMA by the deadline specified in a request for information.
- If the Secretary of State serves notice that a relevant public interest should be considered (see paragraph 4.3), the CMA can extend the period for its investigation by 20 working days. (The Secretary of State, however, is not subject to any specified binding deadline for his or her decision as to whether a second-phase investigation should be opened on public interest grounds.)
- If the CMA asks the European Commission to review the merger under the EU Merger Regulation (see paragraph 3.9 above).
In addition, if the parties offer remedies during the first-phase, an additional period for negotiation and finalisation of those remedies will apply – see paragraph 7.2.
The CMA can extend the 24-week period by a further eight weeks for special reasons. It can also 'stop the clock' from running if one of the parties to the merger has failed to comply with a formal notice requiring the provision of information and documents or the appearance of witnesses.
For uncompleted mergers, the CMA can also extend the 24 week period for up to three weeks if the parties indicate that they are considering abandoning the transaction, in order to give the parties time to decide whether or not to do so.
In addition, in cases where the CMA proposes to impose remedies on the parties, or to clear the transaction on condition that remedies are implemented, it will have a period of 12 weeks from the date of its second-phase report within which to negotiate and finalise those remedies. That period can be extended by six weeks in certain circumstances.
The Belgian Competition Authority’s review will be extended by 15 working days if the parties offer commitments in Phase One, and by 20 working days if they offer commitments in Phase Two.
The timetable for review may also be suspended if the Authority requests further information from the parties following notification, until such time as the information is provided.
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.
Save for the extensions permitted as set out above, the time period may be affected in the following circumstances:
- If the Commission issues a notice of incomplete filing within 5 business days of receiving notice of a large merger, or within 10 business days of receiving notice of a small or intermediate merger, the initial periods only commence on the business day after receipt of the requisite complete filing (unless the notice is set aside by the Tribunal on Appeal).
- If the Commission believes a merger filing contains false or misleading information, it may issue a Demand for Corrected Information. Unless the Demand is set aside by the Tribunal on appeal, the initial periods begin anew on the business day following submission of corrected information to the satisfaction of the Commission.
Outside of the above circumstances, the Commission is entitled to call for additional information during its investigation. However, such a request or demand does not affect the time periods.
- In the case of larger mergers, a contested hearing (whether contested by the Commission or by way of third party intervention) can result in a protracted hearing before the Tribunal.
In Phase 1, the timetable may be extended by 15 working days if the parties offer commitments to remedy potential competition concerns (Article L.430-5 of the FCC). In Phase 2, the timetable may be extended by 20 workings if the parties offer commitments less than 20 working days before the expiry of the 65-day period (Article L.430-7 of the FCC).
The review period may also be suspended:
- at the request of the parties for 15 working days in Phase 1, and 20 working days in Phase 2, in case of specific need; or
- by the FCA in Phases 1 and 2 without any time limit if the parties either: (a) fail to promptly inform the FCA of a new fact that should have been notified; (b) fail to provide information within the prescribed deadline; or (c) are responsible for a third party’s failure to provide information requested by the FCA.
Moreover, parties must comply with the waiting period granted to the Minister of Economy (Article L.430-7-1 of the FCC):
- At the end of Phase 1, the Minister 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 60 business day period mentioned above may be extended once in exceptional cases for another 40 business-days. However, the authority in charge of the review process will have to justify the need for the extension and in practice, is generally used in complex transactions where other major competition agencies have not cleared.
Likewise, as explained before, the authority has two opportunities to issue written formal requests for information which stop the clock and given that these requests in some cases tend to be very detailed, the parties generally have the need to extend the legal term to respond. Equally, when responses to these requests are incomplete or incorrect, the authority will reiterate the pending information and until the parties provide full and complete information, the legal term to resolve will not start counting.
In regard of remedies or potential competition risks, the new FECL contemplates a completely new process. Currently, as the 60-business day term is undergoing and before the matter is submitted before the Plenary for voting, the authority in charge of the merger review process will have to notify the parties that it has identified certain competition concerns and that potential remedies proposal might be required. In case this happens and parties want to address the competition concerns, the clock will restart and a new 60-business day will commence with a potential extension of additional 40-business day period.
The initial review period of one month from the date of filing cannot be extended further other than by the FCO entering into a Phase II investigation of the matter. The Phase II timetable, however, is subject to various extensions. The most common example is an agreed upon further extension of time, which is not unusual in complex merger reviews or in cases that require remedies. Even multiple extensions of time are conceivable subject to prior agreement with the notifying parties. In addition, the Phase II review period is being automatically extended by one more month should the parties submit commitments to the FCO. Consistent with EU merger control practice, the FCO also has the ability to stop-the-clock in Phase II proceedings if the parties fail to respond to the FCO’s questions in a timely and complete manner.
The vast majority of cases, of course, is being cleared by the FCO within the initial one month review period or even ahead of time. Should the one month period not be deemed sufficient and in lieu of facing the risk of a Phase II investigation, parties may in appropriate cases also decide to withdraw the notification at the end of Phase I and then refile as is quite frequently done under the US merger control system.
If the parties submit incomplete information, the ICA may request such information to be provided and interrupt the 30 calendar days deadline (the ICA issues a “stop the clock” letter). In practice, the ICA tries first to obtain the missing information informally (e.g., phone calls) with no interruption of the 30 calendar days deadline.
As mentioned above, failure to file the required information in phase II may imply an extension of the standard 45 calendar days period for further 30 calendar days. The phase II investigation may also be extended by 30 calendar days when the decision on a concentration requires the opinion of the Italian Communication Authority.
As the timeframes in relation to informal clearance are indicative only, there is no process for formal extensions of time. The ACCC will extend its indicative timeline for ‘clock stoppers’ such as information requests or consideration of undertakings.
The period for a decision by the ACCC can be extended by agreement with the applicant or by a further 20 business days because of the complexity of the matter or other special circumstances.
The Tribunal may extend the period for making a determination by not more than three months because of the complexity of the matter or other special circumstances.
If the Bureau determines that the information provided in a notification is incomplete, it will notify the relevant party of the deficiency and the applicable statutory waiting period will not commence until such information as is required to complete the notification is received. The Bureau will notify the parties shortly after receiving their initial notification forms whether it has certified the notifications as complete.
During the initial 30-calendar-day period the Bureau may issue a subsequent information request (“SIR”). In practice if the Bureau issues a SIR, it does so on the last day of the initial 30-day period. The issuance of a SIR extends the time period during which the parties are statutorily prohibited from closing their transaction until 30 calendar days after both parties have complied with the SIR.
The Bureau and parties may also enter into to a timing agreement that contractually extends the time period during which the parties cannot close their transaction. Such an agreement may set out alternative deadlines for the completion of various steps of the information-gathering and review process, including specifying the earliest date on which the transaction can close. Timing agreements have become less common in recent years.