What information may be published by the authority or made available to third parties?
Information that will be made public by MOFCOM
Information published on the Public Notice Form under the simplified merger procedure
For cases filed under the normal review procedure, MOFCOM does not make any immediate public announcements about its receipt or formal acceptance of merger notifications during its review process. Neither will it publish any documents submitted by the notifying party to the public during the merger review process.
For simple cases, MOFCOM will publish a Public Notice Form for public comment immediately following its formal acceptance of the notification. The Public Notice Form for the simple cases will still be available on MOFCOM’s website after the end of the 10 calendar day public comment period. The Public Notice Form is prepared and submitted by the notifying party, and it outlines basic information of the transaction, with a brief introduction of undertakings to the concentration and reasons for seeking application of the simplified review procedure.
Information published on the decisions that MOFCOM has made
For unconditionally approved cases, MOFCOM will publish a case list on its website quarterly. Information contained in the case list is quite limited, and includes only the name of the transaction, undertakings to the concentration and the approval date.
MOFCOM will only make detailed public announcements under circumstances where it has prohibited a concentration or where it has imposed conditions on a concentration. In both cases, MOFCOM will make the announcement right after the decision is made. These public announcements are available on MOFCOM's official website. Such public announcements generally contain the timetable of MOFCOM's review process, basic information of the transaction and the parties concerned, the definition of the relevant market, MOFCOM's competitive analysis and its final decision. MOFCOM also makes public the remedial solutions which have been submitted by the notifying parties and agreed to by MOFCOM, as well as MOFCOM’s conditional approval decisions.
Information that may be made available to third parties
When submitting a confidential notification form and its supporting materials, the notifying party is also required to submit a non-confidential version of the notification materials. In the non-confidential version of the submission documents, the parties to the concentration may redact certain confidential information. For the non-confidential notification form, information such as turnover, value of the transaction, market share figures, and other data may be submitted in the form of a range. In addition, supporting materials such as powers of attorney, annual reports, and contact information of main competitors are not required to be attached to the non-confidential notification form.
Non-confidential version documents are typically used by MOFCOM to solicit opinions from third parties during its merger review process. Based on our experience, if the notifying parties conceal too much information in the non-confidential version document, MOFCOM may challenge the document and ask for the notifying party to disclose more information in the non-confidential version in order to better inform interested third parties. Since the non-confidential version document is submitted by the notifying party, MOFCOM will not re-confirm with the parties to the concentration whether it can disclose the information on the non-confidential version document to third parties, and the parties will also have no opportunity to review the document disclosed by MOFCOM to third parties prior to publication.
The pre-notification phase is confidential and no documents or information will be pub-lished, should the merger be cancelled by the parties.
The notification in itself (including supporting documents) will not be published on the DCCA’s website, but the DCCA will issue a press release shortly after receiving notifi-cation of a merger, which generally includes information such as the names of the par-ties, the type of transaction, and the relevant market(s).
If the DCCA carries out market tests etc., the DCCA may make a non-confidential ver-sion of the notification available to third parties.
A non-confidential version of the DCCA’s merger decision is published on its website shortly after a decision has been made.
In general, all confidential information relating to the notifying parties will be kept confidential by the CCPC. The CCPC will, in particular, keep confidential business secrets of the parties, such as technical and/or financial information relating to a party's knowhow, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing and business plans, cost and price structures and sales strategies. However, information that is publicly available or that is already otherwise known outside the party making the confidentiality claim will not normally be considered confidential by the CCPC.
The CCPC does not publish notifications it receives, or any supporting documents provided with the notification. A short summary of the parties and the sectors involved in the transaction is included as part of the notice of the notification published on the CCPC’s website. Similarly, the CCPC does not publish submissions received from third parties either at Phase I or Phase II.
The CCPC will publish a notice of its determination on its website once made. The text of the CCPC's determination of a merger is also published on its website, typically within 1-2 weeks of the determination being made. Confidential information will be redacted from the determination and the notifying parties are given an opportunity to make representations as regards to confidentiality redactions.
Once the Commissioner's decision is given, the Commissioner's decision and the non-confidential elements of the merger notifications will be scanned and published as-is on the Israeli Antitrust Authority's website. Supporting documents, such as financial statements will not be published and neither will responses to information requests.
A third party who has the right to appeal the Commissioner's decision will have the right to review the Israeli Antitrust Authority's file, but this will be subject to limitations, including trade secrets, due to confidentiality,. Certain information may be disclosed according to requests under the Israeli Freedom of Information Law, 1998, again, subject to limitations on disclosure of trade secrets. Nearly any such disclosure is subject to a procedure whereby the suppliers of information are given the opportunity to object to the disclosure of the information they provided.
The JFTC publishes a summary of its decisions on Phase II cases and even Phase I cases which the JFTC considers important or useful. However, the JFTC redacts business secrets before making information public. Other than that, the information such as the parties’ notification, supporting documents and information submitted to the JFTC is not published by the JFTC.
The DG shall not publish the parties’ notification itself, but rather the details outlined in Point 6.5 above. No other documents are published, and moreover the DG has the obligation to take into account the legitimate interest of undertakings in the protection of their business secrets. At the end of the process, the DG’s decision is published.
The fact of notification and decision are both immediately published in the Government Gazette. The former is also published in a daily newspaper, while the latter is posted on the website of the Malta Competition and Consumer Affairs Authority.
Parties are entitled to outline information which they deem is confidential, together with the reasons for such determination.
Parties are not granted the opportunity to review documents prior to publication.
The main legislation that regulates the protection of commercial information is Article 25(4) of the Competition Law and Communiqué No. 2010/3 on Regulation of Right to Access to File and Protection of Commercial Secrets (Communiqué 2010/3), which was enacted in April 2010. Communiqué No. 2010/3 puts the burden of identifying and justifying information or documents as commercial secrets to the undertakings. Therefore, undertakings must request confidentiality from the Competition Board and justify their reasons for the confidential nature of the information or documents that are requested to be treated as commercial secrets. This request must be made in writing. While the Competition Board can also ex officio evaluate the information or documents, the general rule is that information or documents that are not requested to be treated as confidential are accepted as not confidential. Turkish Competition Authority publishes the parties’ notification on its official website, including only the names of the undertakings concerned and their areas of commercial activity. Lastly, the final decisions of the Competition Board are published on the website of the Turkish Competition Authority after confidential business information is taken out.
Pursuant to the Article 12(4) of Communiqué 2010/3, information that has been published, made public, or included in official registers or balance sheets as well as annual reports, together with information that has lost its trade significance due to causes such as the fact that it is five years old or more, may not be deemed trade secret.
Further to that, under article 15(2) of Communiqué 2010/3, the Turkish Competition Authority may not take into account confidentiality requests related to information and documents that are indispensable to be used as evidence for proving the infringement of competition. In such cases, the Turkish Competition Authority can disclose such information and documents that could be considered as trade secrets, by taking into account the balance between public interest and private interest, and in accordance with the proportionality criterion.
Moreover, under Article 25 of Competition Law, the Board and personnel of the Authority are bound with a legal obligation of not disclosing any trade secrets or confidential information they have acknowledged during their service.
The parties may file the merger control notification in a confidential mode. At the same time, the parties must clearly indicate the documents and information, which contain confidential information/commercial secrets with the respective substantiation. In that event, the AMC will not publish any confidential documents/information.
The AMC publishes its decisions on merger control notifications on the AMC’s official website within ten business days following the adoption of the respective decision. The decisions contain general information regarding the participants to the concentration and do not contain any confidential information/commercial secrets.
Information submitted to the FTC and DOJ in connection with the HSR process is confidential and exempt from the Freedom of Information Act. The agencies may not disclose the parties’ filings, supporting documents, or other data and documents provided to the agencies, except in very limited circumstances. If the 30-day waiting period expires with no action taken by the agencies, the fact of the filing will remain confidential as well. If the agencies grant early termination of the HSR waiting period, the identity of the parties and the date of the early termination grant will be published in the Federal Register and on the FTC’s web site, typically within a day or two of the early termination grant. However, the filings themselves and all supporting documentation will remain confidential.
The applicant or any other company that provides commercially sensitive information to the FAS may mark it as confidential and the FAS will be obliged not to disclose such information to any third parties.
Information disclosed on the FAS website is quite limited. In most cases, this is general description of the deal, including the names of the parties and the target, information on their activities and the number of shares to be acquired. The authority does not disclose any confidential information. In particular, the FAS does not publish applications (notifications) or any documents provided to the FAS together or in connection with the application (notification). The FAS’s decision that is officially published also contains only general information on the deal and the parties thereto.
Submissions to the CMA are treated in confidence, although the substance of the arguments put by the parties may be communicated by the CMA to interested third parties (except in cases where parties have sought informal advice from the CMA on a certain novel point of substantive assessment or procedure).
The CMA publishes all its decisions in cases where there is a relevant merger situation. Decisions not to open a second-phase investigation are announced briefly on the Stock Exchange Regulatory News Service. The full text of the CMA's decision is published shortly afterwards, subject to the excision of confidential information.
Decisions to open a second-phase investigation are also announced on the Regulatory News Service, but the CMA will also generally issue a press release stating the main concerns raised by the merger. The CMA will also publish a statement of the terms of reference. The full text of the CMA's decision to open a second-phase investigation will be published shortly afterwards, subject to the excision of confidential information.
The CMA's second-phase reports are published, as are its issues statements, provisional findings and remedies statements during the investigation, although specific items of confidential information are usually excluded. The CMA publishes key submissions made by the parties (e.g. the initial submission and responses to the provisional findings and remedies statement) as well as comments, or summaries of comments, received from third parties.
The parties (and third parties) are given an opportunity to request excisions from the published documents of the CMA to protect confidentiality.
The CMA is required by the Enterprise Act to balance its obligation to be transparent with the confidentiality needs of the parties or third parties. In so doing, it takes into consideration whether the parties or third parties would be significantly harmed by the publication and whether the publication would be against the public interest.
The parties’ notification itself, their supporting documents, and any submissions made during the proceedings, are not made public. Note, however, that interested third parties may be granted access to a non-confidential version of the Authority’s file in some cases, and trade unions may review non-confidential versions of the Authority’s draft decisions. In such cases, the parties are given the opportunity to identify information that they consider to be confidential before it is disclosed.
As noted above, a notice is published in the Belgian State Gazette and on the website of the Belgian Competition Authority after notification. This identifies the parties and the transaction, but does not contain any confidential information. A summary of the Authority’s decision is also published at the end of the process, prior to which the parties may request the removal of confidential information.
As mentioned, the BWB publishes the fact that a notification has been made (not the notification as such) and a short description of the concentration on its website.
Further, the BWB publishes a note on its website when a request to open an in-depth (Phase II) examination is made and the notified transaction is cleared.
Besides, Austrian merger control law foresees certain further publications on the BWB’s website such as established infringements of conditional clearances.
Business secrets are generally not at issues regarding such publications.
As noted, the BWB may, however, in its own motion request additional information from market participants in the course of it examinating the notified transaction. In so doing, the BWB may want to provide certain pieces of information to third parties. In practice, it appears advisable to provide a non-confidential version of the notification together with the original notification; thereby making clear what the applicant(s) consider business secrets which shall not be disclosed to third parties.
Further, it may be mentioned that final decisions of the Cartel Court are published by inclusion in a special on-line archive (www.ediktsdatei.justiz.gv.at). The publication identifies the parties involved and provides at least the essential content of the decision. Parties have the possibility prior to such publication to comment on issues of business secrets. Decisions by the Cartel Court of Appeals are as a matter of principles published via the federal legal information system (www.ris.bka.gv.at/Judikatur). At least the names of the undertakings concerned are redacted.
In practice, third parties are not granted access to the files of the BWB nor, in general, to the files of the Cartel Court.
Any information submitted to the authority may be claimed as confidential if it meets the following definition: "trade business or industrial information that belongs to a firm, has particular economic value, and is not generally available to or known by others".
A confidentially claim must be formally made by way of a form CC7. Upon receipt of such a claim, the Commission is obliged to treat the information as confidential unless the parties waive confidentiality or the Tribunal determines that the information falls outside of the above definition. The Commission will consider whether a confidentially claim is legitimate and push back if required.
Confidential information may not be disclosed to any third party without the consent of the party claiming confidentiality or pursuant to an order of the Tribunal.
Upon completion of an investigation, a non-confidential version of the Commission's decision is published. All information (including non-confidential information) obtained by the Commission is generally treated as restricted information while the investigation is underway. However, this restriction (save for confidential information) falls away after the investigation is complete. Although the Commission's full investigatory record is generally not made publicly available in the ordinary course, a non-confidential version can be requested by any interested party.
As indicated above (Section 6.5), once a transaction is notified, the FCA only publishes a brief notice of the transaction that comes from the non-confidential summary of the operation provided by the parties with the notification form. However, the parties’ notification itself, their supporting documents, and any submissions made during the proceedings (i.e., responses to questionnaires) are not made available.
When the final decision is notified to the parties, the parties can ask the FCA within 15 calendar days not to refer to confidential information in the published version of the decision (Article R.430-7 of the FCC). The FCA is not bound by the requests for non-disclosure submitted by the parties and it may reject them if they would prevent third parties from understanding an essential element of the decision (para. 217 of the Merger Control Guidelines). Thereafter, the FCA publishes a non-confidential version of the decision on its website. There is no specific deadline binding the FCA in terms of publication of the decision.
Parties have the right and the authority has the obligation to classify as confidential, information that meets certain parameters. Therefore, the parties’ notification, supporting documents and other submissions made over the course of the proceeding will not be available for third parties. However, as stated before, third parties can request access to such information and the authority will have the obligation either to deny access or prepare a non-confidential version of the documents (which are also provided by the parties in every filing they make).
In addition, the final decision rendered by the authority will be made public once it has been served by to the parties at the authority’s web resolution search site. Yet, only a non-confidential version will be published, which will be prepared by the authority.
Other than information disclosed in the public statement (see 6.5 above), no information is disclosed. Phase I decisions are not made public. In some instances, the FCO publishes case reports on Phase I or Phase II cases which, however, do not contain any confidential information.
Following a Phase II investigation, a redacted version of the final decision is published on the FCO’s webpage unless the notifying parties withdraw the notification prior to the FCO reaching a final verdict.
The parties may indicate at the time of filing and during the proceeding which information shall be kept confidential. In particular, the parties shall state the reasons why certain information shall be considered as business secret. If the request of confidentiality is granted, the ICA will make available a non-confidential version of the decision/document.
Where clearance is sought on a confidential basis the ACCC will not publish any details regarding the clearance application or transaction.
If the transaction is public and a public review is undertaken, the ACCC will list the transaction on its public register (available online). The ACCC accepts information and submissions as confidential and commercially sensitive subject to certain permitted disclosures (for example, if compelled by law). It will not publish or disclose the contents of the application, supporting documents or third party submissions.
Formal clearance and Authorisation
Formal clearance and authorisation are generally public processes, subject to limited claims for confidentiality.
In relation to formal clearance, the CCA requires that the application and supporting material, as well as the ACCC's determination, be published on the ACCC's public register and/or website, subject to claims for confidentiality. Certain information is protected under the CCA as confidential (relating to a secret formula, cash consideration or current costs). Otherwise, determination of confidentiality is at the ACCC's discretion. The applicant has an opportunity to withdraw information (before it is published) if the ACCC determines it is not confidential.
A similar process applies in respect of the Tribunal's treatment of confidential information in the authorisation process (subject to the Tribunal's directions).
All information submitted to the Bureau is subject to strict confidentiality obligations under the Act.
The Bureau does not publish or make publicly available the parties’ notifications, any of their supporting documentation, or other submissions made by the parties such as responses to voluntary information requests.
There is an exception to the general principal of confidentiality for sharing information with other Canadian law enforcement agencies or for the purposes of the administration of the Act. The Bureau’s view is that this exception allows it to share confidential information about a merger review with merger enforcement agencies in other jurisdictions (e.g., the US DOJ/FTC) without a waiver from the parties.
Following the termination of an investigation, the outcome of the review, along with basic information about the proposed transaction, will be included in the Bureau’s public merger registry (see above). In certain complex and important cases the Bureau may post a press release or position statement on its website as well. In those cases, the Bureau will typically share a draft of its press release and position statement with the parties before publication, to allow the parties the opportunity to correct any errors in the drafts.