For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?
Merger Control (2nd Edition)
Whether or not to notify voluntarily a merger to the CMA is a question to be determined by a commercial risk assessment. The parties are likely to view the risks differently, but the following points can be made.
On the one hand there is the question whether the merger raises any competition concerns, and if so whether they are likely to elicit complaints from customers/competitors and/or are of sufficient magnitude that a second-phase investigation is a realistic prospect. The CMA can open such an investigation at any time up to four months from the date of completion of the transaction, or from the date on which facts about the transaction became public (e.g. when it is announced, or when it receives significant press coverage in the national or trade press), whichever is the later. Acquirers effectively face the risk of the CMA opening an investigation on its own initiative if transactions are not made 'sufficiently public'; this was underlined by a case involving Tesco's acquisition, through a nominee company, of a single grocery store operated under the Brian Ford fascia, which resulted in a first-phase review being commenced almost five years after the transaction completed.
On the other hand, there is the desire for legal certainty. If the parties and their advisers consider that the risk of a reference is low, the parties may decide not to notify. Equally, the parties may take the view that the transaction is low-profile enough to escape the CMA's attention (notwithstanding the CMA's dedicated mergers intelligence unit that monitors various sources of information). Or the parties may take the risk that, even if the CMA hears about it, a second-phase investigation is unlikely. However, the interests of the purchaser may be better served by insisting upon a notification being made, backed up by clearance being a condition of closing. The potential consequences for a purchaser of completing a transaction without having obtained prior clearance are set out in Section 1 above.
Finally, for takeovers of publicly listed companies, the UK City Code on Takeovers and Mergers requires that any offer for a public company must lapse in the event of a second-phase investigation by the CMA, or the initiation of in-depth proceedings by the European Commission under the EU Merger Regulation. Consequently, if the CMA has jurisdiction to review an offer, the bidder will often opt to notify it to the CMA for clearance.
Not applicable. Filing is mandatory if the jurisdictional thresholds of the EUMR are met.
No. As set out in question 2 above, the parties may file a voluntary notification, but this option is rarely used.
However, the Competition Commission has the power to institute an ex officio merger control procedure if an unnotified concentration results in the merged undertakings having a market share above 40% (40% being one of the factors that could possibly lead to finding a dominant position and not a jurisdictional merger filing threshold). Therefore, in order to avoid a situation of an ex post analysis by the Competition Commission, it may be advisable to notify the transaction when parties’ joint market share exceeds 40%. To the best of our knowledge, however, there have not been instances of such ex post analysis so far in practice.
N/A, as Brazil imposes mandatory filing.