What is the basic timetable for the authority’s review?
In general, merger reviews in China can be divided into two stages, the pre-acceptance stage and the formal review stage. The time taken during the pre-acceptance stage is quite unpredictable, while the time taken in the formal review stage is subject to a statutory time limit.
The time taken during the pre-acceptance period is quite unpredictable.
There is no statutory time limit for the pre-acceptance period. Based on our experience, MOFCOM will not start the formal review process unless they view the filed notification package as complete. MOFCOM tends to ask many questions during the pre-acceptance period, and will typically require the concerned parties to supply additional information. It is only when MOFCOM is satisfied with the initial filing and the supplemental information provided by the parties that it will issue a formal Case Establishment Notice, indicating that the notification has been formally accepted by MOFCOM, which starts the clock for the formal review period mentioned below.
In light of the above, the time between initial submission of the notification package and its formal acceptance by MOFCOM is quite unpredictable, which can last several weeks or span several months. MOFCOM’s workload and its internal priorities, the filer’s responsiveness to MOFCOM’s information requests and the complexity of the case will all affect the length of this period.
The formal review is subject to a statutory time limit.
Articles 25 and 26 of the AML establish a specific timeline for the formal review process: a preliminary review that lasts up to 30 calendar days (Phase I), a more detailed review that lasts up to 90 calendar days (Phase II), and an extension period that can last up to 60 calendar days (extended Phase II or Phase III). In total, MOFCOM has 180 calendar days for its formal review.
1) Preliminary Examination: Phase I
MOFCOM shall, within 30 days upon the formal acceptance of a merger filing, conduct a preliminary examination of the concentration transaction so notified, and make a written decision on whether or not to conduct a further examination.
There are no substantive thresholds for MOFCOM to commence a Phase II review. Sometimes it could do so simply because it does not have sufficient time to complete its review in Phase I. In practice, most cases under normal procedures will proceed to Phase II.
2) Further Examination: Phase II and extended Phase II (or Phase III)
Where the MOFCOM Anti-monopoly Bureau decides to conduct a further examination, it shall, within 90 days from the date of such decision, complete the examination and make a final decision on whether to clear or prohibit the concentration transaction.
MOFCOM has full discretion to move into the extended Phase II (or Phase III) which shall last no more than 60 calendar days, provided that the business operators to the concentration agree to extend the time limit for the examination, the documents or materials submitted by the relevant business operators are inaccurate and require further verification, or the relevant circumstances have undergone significant changes after the declaration by the business operators.
The DCCA’s review is divided into a Phase I and a Phase II. Phase I begins once the notification has been deemed complete by the DCCA.
If the parties submit a simplified notification form, the DCCA will have 10 business days to determine whether the merger meets the requirements for a simplified notifica-tion. If this is the case, the merger will be deemed complete at the expiry of the 10-day time limit at the latest. If necessary, the DCCA may request further information from the parties within the 10-day time limit. If the DCCA finds that the merger does not meet the requirements, the parties must submit a full notification.
The DCCA will also have 10 business days to determine whether a full notification is complete. If necessary, the DCCA may request the parties to submit further information within the 10-day time limit, in which case the merger will not be deemed complete until the DCCA receives this information (and perhaps further information as well).
Once the notification is deemed complete and Phase I commences, the DCCA will have 25 business days to determine whether the merger can be approved. Phase II begins if the DCCA decides to initiate further investigations of the merger. In Phase II, the DCCA will have 90 business days from the time of the decision to initiate further investigations to determine whether the merger should be approved or prohibited.
If the DCCA does not make a decision within the relevant time limit, this will be con-sidered to be a decision to approve the merger.
In an initial Phase I investigation, the CCPC has 30 working days from the "appropriate date" as defined under the Competition Act to either clear the transaction or open a Phase II investigation. The "appropriate date" is the date of notification or, where the CCPC makes a formal request for information in writing (“RFI”) during Phase I, the date on which the RFI is complied with.
In a full Phase II investigation, the CCPC has 120 working days from the “appropriate date” to make a Phase II determination. For example, provided the “appropriate date” is the date of notification (and is not reset by an RFI during Phase I) and the CCPC takes the full 30 working days in Phase I, a further 90 working days in Phase II. If the CCPC makes an RFI during the first 30 working days of the Phase II process, the running of the clock is suspending until the request is complied with.
In its Phase II determination, the CCPC may clear the transaction unconditionally, clear it subject to conditions being complied with, or prohibit the transaction.
Parties to a merger or acquisition can request a pre-notification meeting with the CCPC to discuss jurisdictional and other legal issues that may arise. The CCPC has stated that it welcomes the opportunity to have pre-notification discussions with parties who have expressed a good faith intention to proceed with a transaction, either in the form of a meeting or conference call. However, unlike the practice of the European Commission, in most cases the CCPC does not require the parties to engage in detailed pre-notification discussions prior to submission of the notification.
The Israeli Antitrust Law sets out a 30 calendar-day period after filing notification for the review process to take place. If the Commissioner does not issue a decision within this time, it is seen as an approval. The review process does not have a distinct "phase-2" stage. In some cases, the 30-day review period may be extended formally by the Antitrust Tribunal according to the Commissioner's request, but this is a rare practice. The more common practice is for the Israeli Antitrust Authority to informally request an extension from the merging parties.
The Israeli Antitrust Authority's average clearance period in 2015 was 29.2 days. In practice, the great majority of mergers are reviewed within the allocated 30-day period although the review of a complex merger may take up to several months.
There are also no pre-filing procedures. The IAA will normally not grant the merging parties specific guidance as to how to fill the merger notifications and not involve itself in the parties' market definitions. In competitively simple mergers, the IAA will settle for information requests from the merger parties and normally phone calls with third parties. In more complex cases, the IAA may issue detailed data requests to third parties. This will usually result in a longer review period, due to the time it takes third parties to respond to such written requests.
The Commissioner must consult with the Advisory Committee Mergers and Exemptions prior to rendering her decision. Normally, the Committee convenes once in every one or two weeks, though in the past it has convened for urgent consultations.
Any transaction that is subject to prior notification cannot be closed during the 30-day waiting period (Phase I), though the period may be shortened by the JFTC. The JFTC clears most transactions at Phase I. In FY 2015, the JFTC cleared 281 cases out of 295 cases at Phase I.
If the JFTC wishes to have a further review, the transaction goes to the Phase II review. At the beginning of Phase II, the JFTC requests the parties to provide further information. The clock does not start running until the JFTC receives all requested information from the parties. The JFTC must reach the final conclusion within either 120 calendar days from the initial notification or 90 calendar days from the date when the JFTC receives all requested information from the parties, whichever is longer.
If the parties wish to conduct a pre-notification consultation with the JFTC, the period for such consultation should also be considered.
The OFC’s procedure is divided into 2 phases. During Phase I, the DG shall examine the notification and within 6 weeks either:
- Conclude that the notified concentration falls outside the scope of the Regulations; or
- Conclude that a concentration, although within the scope of the Regulations, does not raise serious doubts about its lawfulness, declare it lawful and include any restrictions which may be required for the implementation of the concentration; or
- Conclude that a concentration is within the scope of the Regulations and initiate proceedings since it raises serious doubts as to its lawfulness.
This period may be increased to 8 weeks where undertakings submit commitments (by the fifth week from date of notification) so as to provide comfort to avoid the concentration being classified as raising serious doubts. In such cases, undertakings may also request that the running of the periods mentioned above be suspended for a period of three weeks to discuss a new or substantially revised commitment proposal but it shall be at the discretion of the Director General whether or not to accede to this request.
Phase II applies to those instances where a concentration is deemed to raise serious doubts as to its lawfulness. In such cases, the DG shall within 4 months:
- Declare a concentration lawful subject to certain conditions;
- Declare a concentration unlawful;
- In the case of a premature implementation, order the dissolution of the merger or cessation of joint control;
- If information provided to the DG is found to be incorrect or there is a breach of commitment, revoke a clearance decision previously issued.
The Regulations also provide for a simplified procedure in the case of certain concentrations, as follows:
- Acquisition of joint control by two or more undertakings and 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;
- Mergers or acquisitions that do not involve horizontal overlap or vertical links between the parties to the concentration;
- Mergers or acquisitions that involve horizontal overlaps or vertical links but their combined market share does not exceed 15% or 25% respectively.
If the Office considers that the concentration qualifies for a simplified procedure it shall issue a decision within 4 weeks from notification.
The Competition Board, upon its preliminary review (Phase I) of the notification will decide either to approve, or to investigate the transaction further (Phase II). It notifies the parties of the outcome within 30 calendar days following a complete filing. In the absence of any such notification, the decision is deemed to be an ‘approval’, through an implied approval mechanism introduced with article 10(2) of the Competition Law. While the timing in the Competition Law gives the impression that the decision to proceed with Phase II should be formed within 15 calendar days, the Competition Board generally uses more than 15 calendar days to form their opinion concerning the substance of a notification, and it is more sensitive about the 30 calendar days deadline on announcement.
If a notification leads to an investigation (Phase II), it changes into a fully-fledged investigation. Under Turkish law, the investigation takes about six months. In practice, only exceptional cases require a Phase II review, and most notifications obtain a decision within 40 to 45 calendar days from the original date of notification.
Ukrainian competition law contemplates standard (45 calendar days) and simplified (25 calendar days) procedures for the consideration of a merger control notification.
During the initial period of 15 calendar days after the filing, the AMC decides whether to accept or reject the merger control notification on technical grounds, and during the next 30 calendar days the AMC considers the notification on merits.
During the initial period of 15 calendar days after the filing, the AMC decides whether (1) to accept or reject the merger control filing on technical grounds, and (2) to satisfy or reject the plea on considering the merger control notification within a framework of the simplified procedure.
If the AMC shares the parties’ view that the transaction qualifies for the simplified procedure, the AMC will have additional ten calendar days after the expiration of the initial period to consider the merger control notification on merits.
If the AMC considers that the transaction does not qualify for the simplified procedure, the AMC will reject the merger control filing. In that event, the parties must file a new merger control notification, which will be considered within the framework of the standard review procedure.
The HSR Act does not require an affirmative approval from the FTC or DOJ. It merely imposes notification and waiting period obligations on merging parties, allowing the agencies the opportunity to review a transaction for antitrust issues before it closes. If the agencies believe a transaction raises significant antitrust concerns, they must go to court to obtain an injunction to prevent a transaction from closing.
The FTC or DOJ will undertake a preliminary review of a transaction during the initial 30-calendar-day waiting period. For the vast majority of transactions, the 30-calendar-day waiting period expires with the FTC and DOJ taking no further action, and the transaction is permitted to close. If, at the end of the initial waiting period, one of the agencies believes the transaction warrants further investigation, the agency may issue a “Second Request” for information. Only one agency will issue a Second Request for any given transaction.
The Second Request extends the HSR waiting period until 30 calendar days following both parties’ substantial compliance with the Second Request. A Second Request consists of a lengthy set of document requests and interrogatories, similar to civil discovery. The agencies may also notice depositions of company officials during the Second Request process. As a practical matter, substantial compliance with a Second Request frequently requires several weeks or months to complete, so the Second Request process can extend the timetable for antitrust review substantially. At the end of the second 30-calendar-day waiting period, the FTC or DOJ must decide whether to allow the transaction to close or seek to challenge it in court. If the agencies believe that a transaction presents competition issues that can be cured by divestitures, they may enter into negotiations with the transacting parties around agreed-upon divestitures to avoid litigation.
Frequently, the exact scope and timing of compliance with the Second Request, as well as the agency’s timing in reaching a decision, are the subject of negotiations between the parties to the transaction and the agency. The end result is often an extension of the time for completion of the agency’s review beyond the statutory 30-calendar-day period.
By default, it takes 30 calendar days for the FAS to consider a filing after its submission.
Should the applicant file an incomplete package of documents, the FAS notifies the applicant about this within 10 calendar days of the filing and returns the package of documents to it.
The CMA is required to complete its first-phase investigation within 40 working days. This runs from:
- in the case of notified mergers, the date on which the CMA confirms that the filing form is complete (which it will typically do within five working days of the date on which the notice is submitted); or
- in the case of unnotified mergers (i.e., where the CMA decides to review a transaction on its own initiative), the date on which the CMA informs the parties that it has sufficient information to commence its first-phase investigation.
This 40 day period can be extended in the circumstances described in paragraph 5.4 below. In particular, if the parties offer remedies during the first-phase investigation, an additional period for negotiation and finalisation of those remedies will apply.
Where a second-phase investigation is opened, the CMA must publish its report within 24 weeks from the date of reference, subject to the possible extensions described in paragraph 5.4 below. If it proposes to impose remedies as a condition of clearance, it will have an additional period of 12 weeks (which can be extended by 6 weeks) to implement those remedies.
The Belgian Competition Authority’s review consists of two stages. In Phase One, the Authority has 40 working days to adopt a decision to either: (i) approve the concentration; or (ii) open an extended Phase Two investigation, if the transaction gives rise to serious concerns. If no decision is issued within 40 working days, the concentration is deemed to be cleared (hence, tacit approval through lapse of time is possible). The timetable in Phase One can be extended if commitments are given (see below). It can also be shortened in cases where the simplified procedure is applicable.
The Authority has a further 60 working days to conduct its more detailed investigation once it decides to open Phase Two. Again, this period can be extended (see below) but it may not be shortened.
It should be noted that Saturdays are treated as working days for the purpose of the above timetable.
The Austrian review process is divided into three phases: Phase I which is performed by the official parties; Phase II which takes place before the Cartel Court, and – in rare cases – Phase III before the Cartel Court of Appeals:
Phase I: Phase I takes typically four weeks. Within this period, the BWB and the FCP can apply for an in-depth examination to the Cartel Court. It starts to run with the receipt of the notification by the BWB. In Phase I, third party undertakings that consider their legal or economic interests affected by the concentration can submit written statements within two weeks as of the publication of a short notice on the concentration at the website of the BWB.
If the official parties waive their right to apply for Phase II proceedings or if they do not apply for such a proceeding within the four weeks’ deadline, the concentration is deemed cleared and the merger can be implemented. The official parties inform the notifying parties that no application for Phase II was filed (or indeed if the waive their right to request such proceedings). Besides, the BWB publishes a short notice on its website.
The vast majority of notified mergers are cleared that way without there being a reasoned clearance decisions.
The four week deadline in Phase I can be extended by two additional weeks upon request by the notifying parties.
Phase II: Phase II is initiated by the request of the BWB and/or the FCP. The opening of such in-depth examination is published on the website of the BWB. In practice, the official parties also apply for Phase II proceedings if concerns cannot be removed within the time period of Phase I or if they consider that the notification should be rejected all together (for lack of a notifiable merger). It may also be noted in this context that there is no ‘stop the clock’ mechanism for notifications regarded incomplete by the official parties.
Also in Phase II, third parties have the right to submit written statements to the Cartel Court.
Generally within five months after the receipt of the (first) application for an in-depth examination, the Cartel Court is to decide on the merits or to reject the notification. Upon request by the notifying party, the deadline within which the Cartel Court is to decide can be extended by one month to in total six months. Besides, the Cartel Court can issue an instruction to improve the notification within an appropriate deadline.
Phase III: A decision by the Cartel Court can be appealed to the Cartel Court of Appeals which triggers Phase III. This hardly ever occurs in practice. The Cartel Court of Appeals has to decide within two months after receiving the files.
For small and intermediate mergers:
- The Commission has an initial period of 20 business days to consider the merger.
- That period may be extended by formal notice (but without good cause shown) for a further 40 business days.
- On expiry of the initial period (if not extended) or the extended period, the Commission must render a decision to approve (with or without conditions) or prohibit the merger, failing which the merger is deemed to have been approved.
- Accordingly, the maximum period for consideration of a small or intermediate merger is 60 business days.
For large mergers:
- The Commission has an initial period of 40 business days to consider and refer a large merger to the Tribunal.
- The Tribunal may, on application by the Commission, extend this period by no more than 15 business days at a time.
- Within 10 business days of the referral of a large merger, the Tribunal must schedule a pre-hearing or hearing. This period may be extended on application to the chairperson of the Tribunal.
- Within 10 business days of the hearing, the Tribunal must approve or prohibit the merger.
The FCA’s review process is divided into two phases.
- In the first phase (Phase 1), the FCA has 25 working days from the complete filing to adopt a decision, subject to extension or suspension (see below, Section 5.4) (Article L.430-5 of the FCC).
At the end of Phase 1, the FCA may: (a) find that the transaction does not fall within the scope of French merger control; (b) authorise the concentration with or without remedies; or (c) open a second phase of (in-depth) review (Phase 2) if the concentration raises serious doubts as to its compatibility with competition on the relevant markets in France.
- In Phase 2, the FCA has 65 working days to carry out an in-depth review of the transaction. Here again, this period may be suspended or extended (see below, Section 5.4) (Article L.430-7 of the FCC).
At the end of Phase 2, the FCA may: (a) authorise the concentration with or without conditions; or (b) prohibit the transaction.
If no decision has been issued once the deadlines of Phase 1 or, as the case may be, Phase 2 have expired, the concentration is deemed to be approved.
Under the Merger Control Guidelines, working days do not include Saturdays, Sundays and public holidays (para. 182).
According to statutory provisions, local competition agencies must render and serve their resolution within 60-business days period counted from the date of receipt of the notification form or the submission of the additional information requested by the enforcer. If the enforcer has not issued a resolution at the end of this term, then the FECL provides that the transaction shall be understood as tacitly approved.
However, it is common and standard practice for the enforcer to issue written requests of information, which interrupt the 60-day term. According to the FECL, formal written requests of information are made in two different stages:
- Within the 10 business days after the filing has been made, the enforcer may issue a request of basic information, granting the parties a 10-business days to respond; and
- Within the 15 business days following filing (if no basic information request has been made), or following the date the parties submit the basic information requested by the enforcer, the enforcer may request additional information, where the parties would need to address such request on a 10 business day term.
The second request of information normally involves data required for substantive analysis and tends to be long and very detailed requests so extensions of the legal term to respond them are very common.
In practice regarding notifiable transactions that do not raise obvious competition concerns, procedures tend to take a range between four to six weeks. However, complex transactions and especially cross border operations tend to take longer and will generally wait for other major jurisdictions to resolve first.
Following submission of a complete notification, the FCO must decide within one month whether to clear the transaction or enter into a more detailed (so-called Phase II) investigation of the matter. Phase II decisions must be issued within a period of three further months, so within four months after filing.
According to ICA’s communication on certain procedural aspects related to merger notification, issued on 20 June 2005, companies may start discussing the transaction with the ICA at least 15 calendar days before the submission of the notification. If a company chooses this option, it shall provide the ICA with a description of the main elements of the transaction.
The ICA shall decide whether to clear the transaction or start an in-depth investigation within 30 calendar days (15 calendar days in case of public takeovers) of receipt of the notification (phase I). If an in-depth investigation is started (phase II), the ICA shall issues its final decision within 45 calendar days. Such deadline can be extended of additional 30 calendar days, if the parties fail to provide the information requested by the ICA, which are in their disposal.
In the banking sector, the ICA and the Bank of Italy have a time limit of 60 business days from the request of documentation, to conduct their respective assessments concerning the acquisition of control of banks.
There is no statutory timetable, however the ACCC has published indicative timeframes. For an initial assessment or 'pre-assessment', the period is 2 weeks, but in practice can take up to 6 or 8 weeks. Where a merger is confidential and the ACCC determines a matter cannot be pre-assessed or the merger parties request a confidential review, the indicative timeframe is 2-4 weeks, but in practice can take up to 6 or 8 weeks. If (once) the proposed transaction is public and the ACCC determines it cannot be pre-assessed or confidentially cleared, the ACCC undertakes a public review, including market inquiries, with an indicative (Phase 1) timeframe of 6-12 weeks. If the ACCC is concerned the transaction may contravene the CCA, it will issue a 'Statement of Issues' and initiate a second phase of market inquiries with an indicative (Phase 2) timeframe of 6-12 weeks before a final decision.
The formal clearance process is governed by statutory timeframes. The ACCC must make a decision within 40 business days of the application, unless extended (see below).
The authorisation process is governed by statutory timeframes. The Tribunal must make a decision within 3 months of the application, unless extended (see below).
An initial 30-calendar-day waiting period is triggered following the receipt of completed notification filings by both parties. A proposed transaction may not close until the expiry, termination or waiving of the applicable statutory waiting period.