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?
Merger Control (2nd Edition)
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 case of acquisition of sole control over an undertaking, the duty to notify rests upon the acquiring undertaking. The notification may be filed directly by the company acquiring control, or by any of its controlling entities.
In case of mergers, the duty to notify rests upon the merging parties.
In case of acquisition of joint control by several undertakings, or creation of a concentrative joint venture, each undertaking acquiring control is responsible for filing.
When the duty to notify rests upon more undertakings, they can jointly submit a single notification and appoint a common representative.
For reportable transactions, each filing person is required to submit its own HSR filing. In practice, counsel for the filing parties usually coordinate on certain portions of the filing that contain common information including the description of the transaction and confirming which documents are responsive to item 4(c) and 4(d) of the HSR form for both filing parties. The HSR initial waiting period begins when both agencies have received complete HSR filings from both parties to the transaction, with the exception of § 801.30 transactions (tender offers and acquisitions of voting securities from third parties), where the acquiring party must notify the acquired party of the transaction, and the HSR waiting period begins upon the submission of the acquiring party’s HSR filing. The HSR filing fee must also be paid before the waiting period will start.
All undertakings involved in the merger, as specified above, are responsible for filing. This includes the seller in cases where the seller is also legally considered a undertaking involved in the merger. In practice, the acquirer usually notifies the transaction to the FCO.
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.
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.
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.
The obligation to notify rests jointly upon the parties taking part of the concentration; i.e. the parties to the agreement or the act constituting an operation of concentration. In cases of acquisitions of joint control the acquiring parties as well as the seller are responsible for the filing. In the case of the establishment of a new joint venture, the obligation rests upon the parties forming the joint venture.
Concentrations of major importance must be notified to the Service in writing, either jointly or separately by the undertakings participating in a merger, in the joint acquisition of control of another undertaking or the establishment of a joint venture. In all other cases, the party responsible for notification is the undertaking acquiring control.
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.
In case of an acquisition by one undertaking of a controlling interest in another, the acquirer alone is responsible for the filing. In case of either an acquisition of joint control or a merger, the filing must be jointly submitted by the parties to the merger or by the undertakings acquiring joint control. In case of a public bid to acquire an undertaking, the bidder must complete the notification. In case of a failure to file the required notification, the Commission may impose fines up to 10% of the aggregate turnover of the party(/-ies) responsible for the notification.
The notifying party is the acquirer(s) of control. In case of joint ventures, parent companies make joint notifications.
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.
The acquirer is responsible for submitting the notification. In the event of acquisitions of joint control and the creation of new joint ventures, the ventures’ together are responsible for filing. In the event of the merger of previously independent undertakings, the parties together are responsible for filing.
In case of concentrations resulting from mergers, acquisitions of joint control or creation of new joint ventures, the notification must be filed jointly by the merging parties or by the parties obtaining the joint control, as the case may be. Concentrations resulting from the acquisition of sole control must be notified by the party acquiring the control.
KN: In case of acquisition of control, the responsibility to file a notification lies on the acquirer, while in case of a joint venture, notification is to be made jointly by all the participants in the joint venture.
In the ordinary course, both parties to a merger are responsible for filing.
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.
Both parties are responsible for submitting the filing in these cases.