Which party is responsible for submitting the filing? Who is responsible for filing in cases of acquisitions of joint control and the creation of new joint ventures?
The Party responsible for filing depends on the form of the concentration transaction. For a concentration transaction conducted by way of a merger, all of the business operators participating in the merger are obliged to submit a merger notification. When it comes to other forms of concentration transactions, the notifying party shall be the business operator who will obtain control or decisive influence over the target company after the concentration transaction, and the other business operators are required to provide necessary support. If the party responsible for filing fails to carry out this obligation, other business operators may voluntarily submit a merger notification.
When creating new JVs, the business operator who will obtain control or decisive influence over the JV shall be responsible for the filing.
Both parties to the merger are responsible for submitting the notification in the sense that both parties can be penalised for failure to submit the relevant filing. However, in practice, one of the parties will usually assume the responsibility of preparing and sub-mitting the notification to the DCCA.
Under the Competition Act, each of the undertakings involved in a merger or acquisition has an obligation to notify is responsible for notification. For example, in an acquisition of a company by one acquirer, the obligation to notify falls on both the acquirer and the target company. In an asset acquisition, the vendor has no obligation to notify, i.e. the obligation to notify falls on the acquirer only.
It is usual practice for the parties to notify the transaction jointly, although this is not a requirement under the Competition Act.
Both the acquiring party and acquired party must file their own merger notification, describing their own activities, market shares and the like. The Israeli Antitrust Authority will only start its review when both parties have filed their merger notifications. A rare exception may be made when one party refuses to cooperate in the process, such as in the case of a hostile takeover.
In stock acquisitions and business/asset transfers, the acquiring party is responsible for filing. In other types of transactions, both parties are responsible for filing.
A concentration shall be notified by the undertaking acquiring control. Where it consists of a merger or the acquisition of joint control it shall be notified jointly by the parties to the merger or by those acquiring joint control as the case may be.
Under the Turkish merger control regime, persons or undertakings that are parties to the transaction or their authorized representatives can make the filing, jointly or severally. In case of filing by one of the parties, the filing party should notify the other party of the fact of filing. In practice, the majority of notifications are “buyer only”. Joint notifications are not uncommon, but “seller only” notifications are relatively rare.
The merger control notification must be signed by representatives of both parties (purchaser and target). From the transactional perspective, it is commonly accepted practice that the obligation to obtain a merger control clearance rests on the purchaser.
In case of the creation of new JVs the obligation to obtain the merger control clearance rests on all founders.
Each party to a reportable transaction is required to submit its own HSR filing. Although each party’s filing is unique, the parties frequently coordinate on some portions, such as the description of the transaction.
In acquisition deals, the acquirer is responsible for filing. In cases of mergers and JV`s incorporation, all parties participating in such a merger or JV. In the event of incorporation, all or any entity taking a decision on incorporation of the company. Please note that only a responsible party may be held liable for non-submission of the filing.
As there is no penalty for not filing, no party has a legal responsibility to file. However, the usual practice is for the acquiring party to file, as it will be responsible for paying the filing fee. Where two parties are merging or forming a joint venture, it is usually the case that both file jointly.
In the case of an acquisition of sole control, only the acquiring party is legally obliged to notify the concentration. Fines for failure to notify can only be levied on the buyer. It should be noted, however, that under Belgian civil law a concentration that is implemented without prior approval is deemed void, which will also affect the seller.
In the case of a merger, the acquisition of joint control, or the creation of a joint venture, both parties are legally responsible for notifying the concentration.
According to the Cartel Act, each undertaking involved in the concentration is entitled to file the notification. However, this entitlement rather can be classified as an obligation to notify because the Cartel Act also contains the ban on implementation whose infringement is penalised.
In the absence of any special provisions with regard to joint ventures, the same principles apply.
The obligation to file falls jointly on the "parties to the merger". In practice, typically a single filing is submitted jointly by the primary acquiring and primary target firms. However, depending on transaction structure additional acquiring or target firms may also submit filing documents. Provision is also made for separate filing in the case of hostile takeovers.
In the case of joint control, each acquirer is entitled to submit filing documents; but where the merger is achieved through a special purpose vehicle, it is possible to submit information on behalf of each controlling member of the acquiring vehicle through the vehicle itself.
While the seller of target assets is not required to submit filing documents, the law is not clear on whether the seller may be liable with the target and acquirer for a failure to notify and on occasion the authorities have sought to impose penalties on sellers for a failure to notify.
The party(-ies) acquiring or retaining control is(are) responsible for filing a concentration (Article L.430-3 of the FCC). In cases of mergers, acquisitions of joint control and the creation of new joint ventures, both merging parties/parent companies are under an obligation of joint notification.
Mexican merger control regulations require a joint filing. Specifically, the FLEC provides that all economic agents directly participating in the transaction shall make the filing. However, the FLEC will allow for the acquirer to make the filing independently if it can demonstrate that (i) the other parties are unable to do so (legally or de facto), and this is evidenced and justified before the enforcer; or (ii) a simplified filing is made.
In case of asset and share deals, both parties are responsible for the filing. In the event of an acquisition of direct or indirect control by one or more businesses by way of rights, contracts or other means, only the buyer is responsible for the filing.
In case of acquisition of sole control, the party responsible for the filing is the purchaser, while in case of merger or acquisition of joint control, the responsibility lies with each party of the transaction. In this case, the parties have the possibility to jointly file, using the same form and appointing a common representative.
Applications are usually made by the acquirer, though as the process is voluntary and informal, often merger parties will submit a joint application.
The acquirer must make an application for formal clearance (where a party elects to file).
The acquirer makes an authorisation application. The target or vendor may seek leave to intervene in the application as an interested party, such that the process can involve direct input from both parties.
All entities/parties to a notifiable transaction are responsible for filing and each of them may be penalized for any failure to file. In a hostile bid situation, the 30-calendar-day waiting period will begin to run when the offering party files a notification, at which point the target company will receive a notice from the Bureau and must then file its notification within 10-calendar-days.