What information is required in the filing form?
Merger Control (2nd Edition)
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.
Notifications are filed using either a short form or a long form. Both forms require detailed information on the parties, the transaction, and its competitive impact.
The full-form notification, which includes in-depth information on the relevant markets, is required when:
- Two or more undertakings concerned are active on the same affected market and the concentration results in a combined market share of 25% or more; and/or
- Any party to the concentration, following the transaction, will hold a market share of 40% or more, and at least another party is active on an upstream or downstream market.
The full-form notification is not required, however, when the market share of the target or merged company is less than 1%.
If a proposed transaction is reportable under the HSR Act and no exemptions apply, each party must submit a premerger notification to the FTC and DOJ. The HSR form and accompanying attachments provide information about, among other things, the structure and value of the transaction, the parties involved, certain financial information about each party, and each party’s structure and holdings.
The introductory section and item 1 of the HSR form require certain preliminary information including the how the filing fee will be paid, whether the party will request early termination and certain basic information about the filing party. Items 2-3 require information regarding the transaction including the names and addresses of the transacting parties, a description of the transaction, the type and value of the transaction, and copies of the documents that constitute the agreement. Item 4 requires a filing person to submit a registration number for certain entities that file annual reports with the US Securities and Exchange Commission (SEC), annual reports or annual financial statements, and certain competition-related documents. Item 5 requires the reporting of revenues from US operations from the last completed fiscal year, allocated according to the industry in which the revenues were derived as provided by North American Industry Classification System (NAICS) codes, which are used by the US Census Bureau to classify business revenues. Item 6 requires a filing person to submit, among other things, information regarding certain subsidiaries, and five percent or greater shareholders as well as minority shareholdings in entities that may compete with the target. Item 7 requires certain information to be submitted if both filing persons in a transaction report revenues in the same item 5 NAICS code (or codes). Finally, item 8 requires the acquiring person to disclose certain prior acquisitions within the past five years in any overlapping NAICS codes.
A certification signed by an officer of the filing party or one of its controlled entities must accompany a notification under the HSR Act stating that the filing is, to the best of his or her knowledge, ‘true, correct, and complete.’ In a negotiated transaction each party’s notification must also include a sworn affidavit (or declaration under penalty of perjury) affirming that an agreement has been executed and the filing person has the good-faith intent to complete the transaction that is the subject of the notification. In open-market purchases and certain acquisitions of shares from third parties, only the acquiring person must submit an affidavit with its notification that states, among other things, that the acquiring person has the good faith intention to make the acquisition reported and has provided certain information about the proposed acquisition in a written notice to the acquired person.
The FCO does not provide a standard form for filings. Practitioners have, however, developed standardized layouts used for most filings that are very similar and based on the layout the FCO uses for its decisions. A standard notification must include at least information about the undertakings involved, the industries these undertakings are active in, turnover (national, Europe, worldwide) or other data replacing turnover, information about market shares including relevant information about the approach taken to calculate or estimate them, in case of a share deal the percentage of shares acquired and contact information. The scope of information required is – in particular compared to other authorities – very limited.
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.
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.
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.
DL 211 establishes that the notification must be submitted with the necessary background information in order to identify the operation and the economic agents that will take part in it and its business group; the relevant information for the preliminary assessment on possible competition risks that the notified operation may entail; the declaration of the parties indicating that, in good faith, they intend to carry out the notified transaction, and the rest of the information and documents required under the Regulation on Notification of a Concentration Operation, issued by the Ministry of Economy, Promotion and Tourism on March 1st, 2017 (the “Regulation”).
The Regulation requires an extensive set of information, including but not limited to: (i) a brief description of the projected operation and ownership structure post-operation; (ii) descriptions of the economic activities of the notifying parties and of the entity subject to the operation; (iii) definition of the relevant market(s); (iv) certain market data regarding the eventual affected market(s); and (v) a description of the productive and/or dynamic efficiencies expected from the operation.
The Regulation establishes moreover a simplified notification procedure. A simplified notification can be made if:
(i) If there is no horizontal or vertical overlap between the parties to the operation or between the entities of their respective business group.
(ii) If the market participation of the parties and of the entities belonging to their respective business groups are not capable to substantially reduce competition because of its little significance. Participations of little significance are:
- joint market shares below 20%; and
- individual or joint market share below 30% in a relevant market vertically related to a relevant market in which any other party of the concentration, or any entity of their business group, operates.
(iii) If, except in the case of the establishment of a new joint venture, the following requirements are met:
- the joint market share of all the parties and the members of their respective business groups is lower than 50%; and
- the increase (“delta”) of the Herfindahl-Hirschman Index resulting from the operation is below 150.
It is relevant to clarify that the simplified notification only means that there is no need to submit certain information. It does not provide for shorter time schedules.
The FNE has published Forms for both the ordinary and simplified notification.
The notification of a concentration of major importance should include the information prescribed in Appendix III to the Law. The notification must be made in Greek and must be accompanied by various supporting documents. There is no “short form” filing prescribed under the Law. The Service is entitled to request additional information where it deems the notification does not satisfy the statutory requirements.
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, e.g. due to the mere size of the parties, still require a full-form notification, which will trigger an enhanced filling fee. See further about filling fees in Question 18 and 24.
Notification is made to DG Competition using a so-called “Form CO”. The parties are required to provide the Commission with detailed information regarding the transaction, the undertakings involved (corporate details and structure), the definition of the relevant markets, as well as the potential effect of the merger on any affected markets (including information on competitors and customers and economic evidence in more complex cases) and possible efficiency gains arising from the transaction. The notification should typically include contact details for customers, suppliers and competitors.
Under certain circumstances, in cases where the concentration is unlikely to raise competition concerns, the parties can opt for a simplified notification procedure and submit a “short form” filing (a so-called “Short Form CO”). This form requires less detailed information from the parties than the standard Form CO. Recent amendments to the Notice on Simplified Procedure and the Short Form CO have extended the categories of merger cases suitable for the simplified procedure.
The Commission may, however, require the submission of a full Form CO where it appears either that the conditions for using the Short Form CO are not met, or, exceptionally, where these conditions are met but the Commission nonetheless determines that a full Form CO notification is required for an adequate investigation of possible competition concerns.
The filing form basically contains (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 presentation of the markets concerned and the competitive analysis are obviously the most important part of the form. The markets “concerned" shall be distinguished from the markets “affected” by the transaction, i.e., on which the parties have a combined market share of more than 25% in case of horizontal overlaps, or when at least one party has more than 25 % market share in case of vertical relationship or where a potential competitor would be eliminated. In case the transaction leads to affected markets, additional information must be provided by the parties.
The notifying parties shall calculate their own market shares both in value and in volume, and those of their competitors in value and volume when possible. The Authority will accept estimates of competitor data when authoritative data does not exist. The parties may also provide the data on which their findings are based and in any case refer to it.
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.
The notification to the NCA shall include the following information:
a) Contact information;
b) A description of the transaction;
c) A description of the parties;
d) Name of the five most important competitors, customers and suppliers in markets in Norway or of which Norway is a part, where the parties have horizontal overlapping activity;
e) An explanation of the affected horizontal and vertical markets. A market is affected horizontally if at least two of the parties are active on the same product market and the parties’ combined market share exceeds 20%. A market is affected vertically if one party operates on a preceding or following level of the value chain to that on which another party operates, and their combined market share exceeds 30% on each of the vertically related markets. The explanation shall include a description of the market structure in the affected markets, a description of the parties’ most important competitors, customers and suppliers in the affected markets, and a description of possible barriers to enter in the affected markets;
f) A short description of vertically related markets where the concentration is between a party operating on a preceding or subsequent level of the value chain to that on which another party operates, and their individual or combined market share exceeds 30 per cent on at least one of these vertically related markets. The description of these markets shall at least include the parties’ three most important competitors, customers and suppliers;
g) A description of possible efficiency gains;
h) Information on whether the concentration is subject to inspection by other competition authorities;
Please note that where the parties' combined market share in the affected horizontal market does not exceed 20% or where the parties’ market share (either combined or individual) in the affected vertical market does not exceed 30%, the concentration is subject to simpler filing requirements.
One of the secondary enactments issued by the Competition Council (the Regulation on economic concentrations) sets forth the template of the notification form (the full form and the simplified form).
Information which is required to be included in the full form refers mainly to the concerned parties and their turnovers, the structure of the concentration, the definition of the relevant markets and their assessment.
As regards the simplified form, which may be used in certain cases indicated by the Regulation on economic concentrations (where it is apparent that the concentration in question has negligible effects on competition), such form requires less information on the relevant markets that the full form.
The Competition Council may require the notifying party to complete the notification form with the missing information or documents. The notification shall be effective only when the Competition Council considers that all necessary information and documents were provided and the notification is complete.
The Merger Regulation that came into force in February 2016 introduced an abbreviated from of a notification (“short-form”) in addition to the existing “long” notification. The Regulation was intended to disburden the merger control procedure especially for no-issue (Phase I) filings.
In line with the new rules laid down under the Regulation, exact information and documents to be submitted to the Competition Commission depends on whether the concentration qualifies to be notified as a “short-form” notification or it requires a “long” notification.
The “short-form” applies in the following cases:
1. in cases of an acquisition of sole or joint control, if:
- the parties to the concentration are not active on the same relevant product market and the same relevant geographic market and none of the parties to the concentration is active on the vertically connected markets at which the other party is active (i.e. there are no overlaps between the parties); or
- in case of horizontal overlaps between the parties, the combined market share of the parties to the concentration is less than 20%; or
- in case of vertical overlaps between the parties, the combined market share on the relevant market on which either of the parties to the concentration is present is less than 30%;
2. in cases concerning change from joint to sole control over an undertaking.
3. if the combined market share of all parties to a horizontal merger is below 40% and the incremental increase in post-concentration HHI is less than 150.
Please note that the Competition Commission has a discretion to require “long” notification to be submitted even if the formal conditions for “short-form” notification have been met, when it reasonably suspects that the concentration may give rise to competition concerns in certain instances prescribed under the Regulation.
Prescribed forms and declarations need to be submitted, but are generally not as detailed as those required under the US or EU systems. Generally, merging parties submit a joint competitiveness report as part of the notification. Various documents relating to the transaction are required to be submitted. Filings have become more sophisticated and parties often file expert economic reports in support of their merger filings. In 2010, the Commission also published a practice note setting out requirements for ‘complete’ merger notifications.
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 information required in the form for the regular (non-expedited) notification can be separated in 12 different parts, which are the following: (I) description of the transaction (II) information related to the relevant parties (III) aspects related to the transaction (IV) Documents related to the transaction and to the relevant parties (V) definition of the relevant markets (VI) Supply structure analysis (VII) demand structure analysis (VIII) analysis of the monopsony power related to the transaction (IX)Analysis of entry conditions and competition (X)Analysis of coordinated power, which takes into consideration the relevant markets previously indicated (XI) Contrafactual material – a description of the probable configuration of the relevant market if the transaction does not take place (XII) final notes .