What information is required in the filing form?
There are two sets of merger review procedures in China, the normal review procedure and the simplified review procedure. Different notification forms have been developed for these two different merger review procedures, and the scope of information required to be provided under these two procedures also differs from each other.
Normal review procedure
With respect to a normal case review, the information that the notifying party shall provide on the notification form includes but is not limited to the following:
- Basic information on the parties to the concentration: contact information, power of attorney (if any), turnover for the immediately preceding fiscal year and audited financial reports, main business, shareholding structure, ultimate controller, affiliated entities inside and outside of China, etc.;
- Description of the concentration transaction: concentration agreement, transaction amount, description of the transaction, equity and control structures before and after the transaction, joint venture enterprise (if applicable), etc.;
- Relevant market definition and competition analysis: definition of the relevant market and reasons for the concentration, market data of the parties to the concentration and its main competitors, impact of the concentration on market competition, etc.;
- Other information: supply and demand structures in the relevant market, market entry information, whether the transaction involves bankrupt enterprises or enterprises on the verge of bankruptcy; information on industry associations in the relevant market; opinions of parties related to the transaction; compliance matters related to this transaction and Chinese compliance matters related to parties to the concentration, etc.
Simplified review procedure
Pursuant to Article 2 of the Interim Provisions on the Standards Applicable to Simple Cases of Concentrations of Undertakings promulgated by MOFCOM on February 11, 2014, a concentration of business operators shall be considered a simple case if it falls under the following circumstances:
- Where, in the same relevant market, the combined market share of all undertakings participating in the concentration is less than 15%;
- Where an upstream-downstream relationship exists among the undertakings participating in the concentration, the respective market share of such undertakings in each of the upstream and the downstream markets is less than 25%;
- Where the undertakings participating in the concentration are neither in the same relevant market nor have any upstream-downstream relationship, their market share in each market relevant to the concentration is less than 25%;
- Undertakings to the concentration have established a joint venture outside of China and such joint venture does not engage in any economic activities in China;
- Undertakings to the concentration have acquired the equity or assets of an overseas enterprise which does not engage in any economic activities in China;
- A joint venture jointly controlled by two or more undertakings becomes controlled by one or more of such undertakings through the concentration.
Generally speaking, the notifying party needs to provide less information under the simplified review procedure. A simplified notification form is available for simple cases, for which the following information is not required to be provided: business licenses of the parties to the concentration’s affiliated entities in China, supply and demand structures in the relevant market, market entry information, horizontal or vertical cooperation agreements, possible efficiencies of the concentration, whether the transaction involves bankrupt enterprises or enterprises on the verge of bankruptcy, etc. However, the notifying party must provide information about its reasoning for seeking application of the simplified review procedure.
The parties generally have to submit information about the companies involved in the transaction and provide a comprehensive description of the merger, including an assessment of the merger’s impact on the relevant market(s). Furthermore, the parties are required to submit information regarding the competition on and access to the relevant market(s).
The DCCA can generally require additional information about the transaction if the notification proves to be unsatisfactory.
In some cases, the parties may use the simplified procedure (short-form filing) instead of a full-form notification (standard filing). The simplified procedure requires less in-formation to be provided to the DCCA.
If the simplified procedure is applicable, the parties are not required to provide an extensive and thorough assessment of the general terms of the merger or the general market conditions. However, the DCCA enjoys a wide margin of discretion when deciding whether a merger can be submitted under the simplified procedure or not. Moreover, under both the simplified and the full-form procedure, the DCCA enjoys a wide margin of discretion when deciding which specific information is required. Finally, even if the requirements for submitting a simplified notification are fulfilled, the DCCA may still require a full-form notification, e.g. due to the mere size of the parties.
Notifications to the CCPC must be made on the standard notification form, which is available on the CCPC’s website.
The notification form sets out the scope of information required from the parties, which includes a detailed description of the undertakings involved and the rationale for the proposed transaction, an analysis of the horizontal overlaps and vertical relationships arising, definitions of the relevant product and geographic markets, the market shares of the parties and their competitors in relevant markets, and the views of the parties as to the effect of the transaction on competition in the State.
There is no “short form” version of the CCPC notification form. However, in cases where no material overlaps or competition issues arise, the notifying parties may request waivers from the CCPC in respect of certain detailed information required in the notification.
The Regulations set a specific merger notification form which must be filed. The extent and kind of information required will depend on the type of merger (horizontal, vertical or "conglomerate", which is a residual definition which applies to mergers that are neither horizontal nor vertical) and on the parties' estimated market shares.
All mergers will normally require a basic description of the transaction, the filing party's activities and its market shares. Horizontal or vertical mergers, where the parties have over 25% market share, will require some detailed sales information regarding quantities and revenues, as well as further information about the market, such as a description of entry and the switching of barriers. Conglomerate mergers will sometimes require very detailed information about each party's holdings, to ensure that no horizontal or vertical overlaps exist between the parties.
An abbreviated form may be filed if the parties' combined market shares are less than 30%in the market in which the merger transaction occurs (the "transaction market"); neither party is a monopoly (defined by the Israeli Antitrust Law as having over 50% market share) in a market adjacent to the transaction market, and no party has arrangements or agreements with its competitors in the transaction market. The abbreviated form requires only the most basic information about the parties and their activities, though it requires certain information which is not required by the longer forms, such as identifying the filing party's ultimate controlling owner.
The forms indicate which parts of the notification will remain confidential. Parts which are not marked as confidential will be published on the Israeli Antitrust Authority's website once the review is concluded and the Commissioner's decision is made public.
The parties have to fill out the specific format prescribed by the JFTC. While the formats vary depending on the types of the transactions (such as share acquisitions, mergers, etc.), they require, among other information, descriptions of the parties to the transactions, financial information for the last fiscal year, the purpose of and background to the transaction, the corporate group profile, market share information for each of the relevant markets. There is no simplified notification, so no simplified filing format exists.
The JFTC may request further information at any time during the review period.
The information requested in the CN Form allows the DG to establish if the concentration shall have the effect of substantially lessening competition, by looking at the parties involved, nature of the concentration and the relevant affected markets.
The Regulations empower the DG generally to obtain all the necessary information to allow him to perform his obligations in terms of the Regulations.
A short form notification is allowed in the case of an acquisition of joint control by two or more undertakings where the turnover of the joint venture and/or the turnover of the contributed activities, is less than €698,812.02 in the Maltese territory and the total value of assets transferred to the joint venture is less than €698,812.02 in the Maltese territory.
The following details are not required for short form notifications:
- Certain details about the concentration;
- Certain details relating to ownership and control;
- Personal and financial links;
- Information and general conditions on affected markets;
- General market information;
- Other general matters.
Communiqué No. 2010/4 provides a complex notification form, which is similar to the Form CO of the European Commission. One hard copy and one electronic copy of the merger notification form shall be submitted to the Competition Board. In parallel with the notion that only transactions with a relevant nexus to the Turkish jurisdiction will be notified, a wide range of information is requested by the Turkish Competition Board, including data with respect to supply and demand structure, imports, potential competition, expected efficiencies, etc. Some additional documents such as the executed or current copies and sworn Turkish translations of some of the transaction documents, annual reports including balance sheets of the parties, and, if available, market research reports for the relevant market are also required. Bearing in mind that each subsequent request by the Competition Board for incorrect or incomplete information will prolong the waiting period, detailed and justified answers and information to be provided in the notification form is to the advantage of the parties.
There is a short-form notification (without a fast-track procedure) if: (i) one of the transaction parties will be acquiring the sole control of an undertaking over which it has joint control; or (ii) the total of the parties’ respective market shares is less than 20 per cent in horizontally affected markets and each party’s market share is less than 25 per cent in vertically affected markets. There are no informal ways to speed up the procedure.
In general, the Ukrainian competition law requires submission of a considerable amount of information, including the following:
- detailed description of the transaction;
- general description of the purchaser group, the target group and the seller group, and their activities worldwide;
- relations of control of the parties, the UBOs of each party (if applicable);
- details of the parties and all affiliated undertakings (non-residents and residents of Ukraine), which are active in Ukraine or have been active in Ukraine during the last two years and in the most recent reporting period of the current year;
- calculation of the total value of assets and turnover for the last financial year;
- the market data in respect of the relevant market(s); and
- very detailed and scrupulous economic feasibility study (EFS) of the transaction, etc.
The AMC has quite wide discretion to request any relevant additional information at any time within the framework of the consideration period.
If the transaction qualifies for the simplified procedure (see our answer to question 5.4 above), the parties must provide the AMC with the same information as under the standard procedure (however, in less detailed manner), except for the EFS. Instead of the EFS the parties must only provide a brief information regarding the purpose of the transaction and planned results for each party.
The HSR Act requires each party to submit a Notification and Report Form (Form). The Form is relatively straightforward, and requires a short transaction description along with basic information from the parties. Unlike some other jurisdictions, the parties are not required to provide an affirmative statement on the markets involved and the impact of the transaction on those markets.
Items 1-3 require basic information about the transaction that both parties will need to provide, including contact information, value of the transaction, and description of the transaction. Item 4 has several subparts requiring (a) SEC registration numbers; (b) annual reports or annual financial statements; and (c)-(d) the production of internal documents as attachments to the Form (described further below). Item 5 requires the reporting of revenues from the last completed fiscal year, allocated according to the industry in which the revenues were derived as provided by the North American Industry Classification System. Item 6 requires filing persons to report: (a) certain subsidiaries with sales in or into the United States; (b) greater than 5% shareholders of the filing person and acquiring or acquired entity, if applicable; and (c) certain minority shareholdings in entities that may compete with the target. Item 7 requires basic information on possible overlapping Item 5 revenues. Item 8 requires the acquiring person to disclose certain prior acquisitions within the same industry as the present target.
The specific scope of the information to be included on the filing form depends on the nature of the deal. For example, slightly different information may be required for mergers and acquisition of production assets of the company. Also as mentioned above, acquisition of financial organisations has its own features.
Yet, in general, it is necessary to provide the following information:
- Information on the deal, its parties and their groups;
- Information on the financial figures of the parties (their groups);
- General information on the market in question;
- Information on the activities of the parties (their groups) on the Russian market;
- Information on the applicant`s beneficiaries.
Russian law does not provide any template form for filing; it just provides a list of information and documents required. Consequently, the volume of the filing depends on the deal and the applicant`s approach to such filing.
Because the UK filing regime is voluntary, transactions that are notified tend to be ones that raise at least potential or conceivable competition concerns. Consequently, the Merger Notice requires relatively extensive information. This includes information on the transaction itself, the parties' respective businesses, market definition, the nature of competitive constraints posed by the parties and their competitors, substitutability of their products (including any available bidding data), contact details for customers and competitors, the buying power of the parties and their customers, potential competition, the existence of horizontal, coordinated, conglomerate or vertical effects arising from the transaction, and barriers to entry and expansion in the relevant markets.
Where the parties' combined market share on a relevant market is below certain thresholds (15% for horizontally affected markets and 25% for vertically affected markets), the information to be provided is less extensive.
A merger notification in Belgium must follow the format of Form CONC C/C, which requires a substantial amount of information to be provided. This includes detailed descriptions of the parties, the transaction, and the relevant market(s), and extensive sales data. The form must be completed in an official language of Belgium (i.e., French or Dutch). The notifying party or parties may request a waiver of certain information, which will be granted if the information in question is not material to the Belgian Competition Authority’s assessment.
A “short form” filing can be used to notify concentrations that are eligible for the simplified procedure. The short form requires less substantial information to be provided in some areas, such as in relation to relevant markets.
According to the Cartel Act, the notification must contain exact and exhaustive information on all circumstances which are relevant to the creation or strengthening of a dominant position. The Cartel Act indicates some circumstances such as the structure of each undertaking involved (in particular the ownership structure including corporate links, the relevant turnover separated into specific goods and services of the last years before the concentration), the market shares for each undertaking and the general structure of the market.
Further, the BWB has published a form which gives good indication of the essential information to be provided. This form can be downloaded from the website of the BWB.
The notification form foresees the provision of information such as a brief description of the notification, information about the undertakings involved, market definition(s) and data, reasons for justifications, special information on joint ventures and media concentrations.
A shorter version of the form may be filled-out in case there are no affected markets. This term is defined in the form itself. An affected market is given in case of (i) horizontal overlaps where two or more undertakings involved are active on the same product market and the concentrations leads to a common market share of 15% or more; or (ii) vertical overlaps, ie the undertakings involved are active on different markets, of which one is upstream or downstream with regard to the other and their market shares amount to 25% or more.
The provided information has to be correct and complete. In the case of incorrect or misleading statements, the Cartel Court can impose a fine amounting to 1% of the total group turnover achieved in the preceding business year.
The notification has to be filed in German. As regards exhibits, the official parties generally accept English documents as well; the Cartel Court may well require translations.
The actual notification has to be submitted to the BWB in quadruplicate. If relevant information cannot be provided or documents cannot be submitted, the applicants have to give detailed reasons.
In form, the filing consists of:
1) A merger notice (form CC4(1)) disclosing: the details of the acquiring and target firms; a list of trade unions or employee representatives; and a summary of the effect of the merger on employment.
2) A statement of merger information (form CC4(2)) for each of the primary acquiring and primary target firm. The statement must inter alia include the following detail:
- A description of the entire group (control structure)
- Financial information
- Description of the transaction
- Relevant market information (which may be submitted in a separate report on competition) including a list of top 5 competitors and customers
- Descriptions of the products and services offered by the merging parties
- Explanation of any existing business relationships between the parties
3) Confidentiality claim (form CC7) setting out information over which confidentiality is claimed
No provision is made for a short-form filing. In practice, mergers that introduce no overlaps in products and services are more streamlined as detailed market information is not required.
The required statutory forms must be signed by a representative of the filing party, as confirmation of accuracy.
The notification form is governed by Article R.430-2 of the FCC. The notification file must include the elements listed in annex 4-3 of Book IV of the regulatory part of the FCC: (a) a description of the transaction; (b) information on the identity of the parties involved and their business; (c) information on the relevant market(s) and an assessment of the market shares of the main players; and (d) a declaration that certifies that the notification is accurate and complete.
The markets “concerned”, i.e., on which the concentration will have some influence, must be distinguished from the markets “affected” by the transaction, i.e., on which the parties concerned have a combined market share of more than 25% or from which a potential competitor would be eliminated. In the case of “affected” markets, additional information must be provided by the parties.
Four hard copies of the filing and an electronic version of the document must be sent to the FCA.
A “short form” filing notification with more limited information to be provided can be used for concentrations that meet the requirements of the simplified procedure (see above, Section 5.5). Notably, there is no requirement to provide an analysis of the relevant market(s) and the market shares of the parties and their main competitors in a “short form” filing notification.
Mexican merger control system does not contemplate a standard filing form but the FECL and its Regulatory Dispositions provide what type of information will be required in the filing. Likewise, Cofece has published non-binding documents that contains list of other relevant information that is suggested to be included in the filing.
Obviously, filings in regard of transaction that don’t raise obvious competition concerns, a simple filing will suffice including basic corporate information, description of business and activities (generally world-wide and Mexico specific), detailed information about products and services, information about locations in Mexico (including plants, offices, sales points, etc.) and market share data of target and competitors in all cases. Yet, for transactions that involve horizontal or considerable vertical overlaps, filing would also need to include economic analysis in relation to market definition, market share data, and barriers to entry, among other more substantial information.
Unlike in other jurisdictions, there is no mandatory notification form. Notifying parties are typically required to provide at least the following information:
- Name, place and description of the type of business of each of the parties;
- Turnover in Germany, the EU, and worldwide;
- A description of the transaction as well as the products and markets involved;
- Market shares, including the basis for their calculation or estimate, if combined shares exceed 20% in Germany;
- An assessment of the competitive impact of the transaction;
- A designated legal representative in Germany for parties that are domiciled abroad.
The information required in order to fill in the notification form includes details of the parties and their activities, description and details of the transaction; information related to the markets affected by the concentration and the parties’ market shares.
Notification shall be filed by filling in either a long form or a short form, which differ in relation to the scope of the information required. A long form shall be submitted when:
- two or more parties to the concentration operate in the same affected market and the concentration will lead to a combined market share of 25 per cent or more; and/or
- one of the parties to the concentration will have, after the concentration, a market share of 40 per cent or more, provided that at least one other party operates in an upstream or downstream market.
In any event, full-form notification is not required where the market share of the undertaking being acquired or merged is less than 1 per cent.
There is no prescribed form or statutory information requirements for an informal clearance application. The ACCC publishes Merger Guidelines to which parties should have regard.
Additional information may be provided voluntarily to the ACCC throughout the process, or at the request of the ACCC itself. The ACCC also has statutory information-gathering powers under the CCA and may issue a formal request for information and documents, or to interview persons, with which compliance is compulsory.
Formal clearance and authorisation
Applications for formal clearance and authorisation must be made by completing and lodging a prescribed form. The forms contain detailed information and evidence requirements including in relation to the parties, the acquisition, the market, market concentration, suppliers, competitors, customers and constraints on market power. The authorisation form contains additional categories related to net public benefits arising from the transaction. A form must be completed in its entirety for the application to be valid.
The notification form must include information relating to the nature of the parties’ businesses and affiliates, as well as principal suppliers and customers of the parties and their affiliates and general financial information. While there is no “short form” notification, in certain cases (e.g., where there is no or very limited horizontal overlap between the businesses of the purchaser and the target), the parties may choose to submit only the joint briefing letter described above, requesting a waiver of the statutory requirement for each of them to file a notification.