Can the authority’s decision be appealed to a court? In particular, can third parties who are not involved in the transaction appeal the decision?
Merger Control (2nd Edition)
All merger control decisions, either clearing or prohibiting a merger, as well as imposing a fine on undertakings, are appealable to the Competition, Supervision and Regulation Court (CSRC), which is a specialized court with competence to hear appeals of the PCA’s (and some sectoral regulators’) decisions. The authors of the notification are entitled to challenge such decisions, as well as any interested third parties (including parties that have been previously involved in the proceedings before the PCA, as well as other third parties not previously involved in those proceedings), provided that they can demonstrate a "legitimate interest”.
Appeals must be lodged within 3 months of the notification of the decision by the PCA, unless the decision is null and void, in which case there is no time limit.
In general, the appeal does not have suspensive effect over the decision of the PCA.
Rulings by the CSRC can be appealed to the competent Appeals Court (Tribunal da Relação) within 30 days of the appealed ruling. Appeals against rulings of the Appeals Court, in cases of decisions other than the application of fines, are lodged with the Supreme Court (Supremo Tribunal de Justiça). The appeals to the Supreme Court are limited to points of law. Appeals which exclusively concern points of law shall be lodged to the Supreme Court directly.
Prohibition decisions may also be appealed, by the authors of the notification, to the Minister for Economic Affairs within 30 days of the notification of the decision. This extraordinary appeal is independent of the judicial appeal procedure and has suspensive effects on the time limit to lodge the appeal. The decision authorizing the concentration is taken by the Council of Ministers and must be grounded in “Fundamental strategic decisions of the national economy”.
HCC decisions on merger control cases may be challenged (and if challenged supported via an intervention) before the Administrative Court of Appeals of Athens within sixty calendar days as of the publication of the decision in question. Any party that can substantiate a legal interest can have standing before the ACA. The legal interest must be (i) direct, i.e. the damage by the decision must be borne by the party filing and not any third party, (ii) personal, i.e. there must be a factual or legal nexus between the filing party and the decision, and (iii) present, i.e. the damage should be on-going at the time the challenge is filed and heard.
Decisions of the CMA (or, in 'public interest' cases, the Secretary of State for Business, Energy and Industrial Strategy – see Section 15 above) can be appealed to the Competition Appeal Tribunal by the parties, or by third parties with sufficient standing. Appeals are judged on the basis of 'judicial review' standards, which means that the CAT will not review the merits of the relevant decision (i.e., it will not decide whether the decision was correct in every respect), but will instead consider whether, for example, the CMA acted unreasonably, considered factors that it ought not to have taken into account, failed to consider factors that it ought to have taken into account, or otherwise exceeded the bounds of its discretion.
Appeals must be lodged within four weeks of the date on which the applicant was notified of the disputed decision, or the date of publication of the decision, whichever is the earlier.
An ICA’s merger control decision can be appealed before the Regional Administrative Tribunal for Latium (TAR Lazio – Roma) by the merging parties or by third parties claiming to be harmed by the decision. The appeal shall be brought within 60 days from the publication (or notification) of the decision.
The judgment of first instance can be further appealed before the Italian Supreme Administrative Court (Consiglio di Stato).
If a proposed transaction presents competitive concerns, and the parties are unable or unwilling to remedy the reviewing agency’s concerns, the agency will challenge the transaction in federal court. The losing party at the district court level may appeal the decision to a US Court of Appeals. The FTC also has the authority under the FTC Act to pursue administrative proceedings before an administrative law judge.
If a third party opposes a potential transaction and is able to state a claim, it may file a private antitrust civil suit against the parties to the transaction.
The appeal procedure in Germany is centralized. Decisions of the FCO are subject to appeal to the Higher Regional Court (Oberlandesgericht) of Düsseldorf. The appeal must be launched within one month, running from the day the recipient has received the decision he wants to challenge. It should be noted that the appeal, notwithstanding the fact that the Higher Regional Court will decide, can be filed with both the FCO or the court. The time appeals take varies greatly, depending on the complexity of the case. A total duration of 6 to twelve months is common, but longer and shorter court proceedings may occur.
Decisions in phase 1 cannot be challenged at all.
The parties can appeal the JFTC’s order to the Tokyo District Court within 6 months after the order.
As noted, decisions by the Cartel Court can be appealed against to the Cartel Court of Appeals. However, an appeal may only be lodged on points of law, as the Cartel Court of Appeals is not competent to review the assessment of evidence. The period within which a remedy has to be brought is four weeks after the service of the decision.
Neither the merger review agency (the Bureau) nor the Commissioner (the head of the Bureau) can block a transaction itself. If the Bureau determines that a merger should be blocked or remedied, outside of reaching a settlement agreement with the merging parties to resolve its concerns consensually, the Bureau must apply to the Tribunal for an order prohibiting or remedying the merger.
Tribunal decisions can be appealed to the Federal Court of Appeal as a matter of right with respect to legal questions. Questions of fact can only be appealed with leave of the Federal Court of Appeal. The Tribunal decision must be appealed within 30-calendar-days after pronouncement. Subject to a limited exception involving the ability to challenge a consent agreement which directly affects them, third-parties who are not involved in a transaction do not generally have the right to appeal a decision of the Tribunal. As appeals from the Tribunal are extremely rare, there is no typical time frame for the process – however, the most recent appeal to the Federal Court of Appeal in a merger decision took approximately 8 months (Tervita/Complete Environmental Inc.). That decision was subsequently appealed to the Supreme Court of Canada, with the entire appeal process taking approximately 32 months.
Appeal is only open to a prohibition decision and can only be filed by the notifying parties. An appeal has to be made within 10 working days after the decision is issued by the FNE.
The TDLC will request the FNE to submit the investigation file and must schedule a hearing within 60 judicial days; i.e. working days including Saturdays, after receiving the FNE’s file. At the public hearing may participate the appellant party, the FNE and those who have provided information in phase II, if applicable. A decision must be rendered by the TDLC within 60 judicial days following the oral hearing.
The TDLC’s decision is not subject to further judicial review, unless the TDLC approves the operation imposing new remedies, different than the ones previously offered by the notifying parties. In such case, both the parties to the operation and the FNE may file an appeal before the Supreme Court.
The decisions of the CPC are administrative executive acts issued by a public authority. As such, an aggrieved party having legitimate interest and seeking to annul a CPC decision has the right to file for administrative recourse to the Supreme Court of Cyprus.
The time limit for commencing an administrative appeal is 75 days from receipt of notification of the CPC’s final decision or its publication in the Official Gazette.
The DCCA’s decisions on mergers can be appealed to the Danish Competition Appeals Tribunal within four weeks after the parties have been notified of the decision. This option is only available to the addressees of the decisions.
Once a merger decision has been brought before and tried by the Danish Competition Appeals Tribunal, the parties, or anyone with a legal interest in the matter, may bring the case before the Maritime and Commercial Court within eight weeks after notification of the decision.
To this date, no decisions on mergers have been appealed to the Danish Competition Appeals Tribunal.
All decisions by the Commission are subject to judicial review by the General Court and ultimately by the European Court of Justice.
In the context of merger control, such decisions include Phase I or Phase II decisions which prohibit or approve a concentration (as well as other decisions for as long as they have legal effects (e.g. a decision finding that a concentration does not have an EU dimension, or decisions which are conditional to commitments). Commission decisions to initiate a Phase II examination are not subject to judicial review.
An appeal against a Commission decision under the EUMR has to be lodged within 2 months and 10 days from the notification of the decision to the parties concerned or, in the absence of such notification, within 2 months and 10 days from the 14th day following the publication of the decision in the Official Journal of the EU.
The notifying party(-ies) and the merging entities (if different) are considered to be directly and individually concerned by the Commission’s decision and therefore have standing to lodge an appeal. The same is true for Member States which are considered to be “privileged applicants” that do not need to demonstrate direct or individual concern in order to have standing.
Third parties (e.g. competitors) can be found to have standing to lodge an appeal if they have participated in the administrative procedure that led to the contested decision. Other third parties (e.g. competitors that have not participated in the administrative procedure) may also have standing, if they demonstrate that they are directly and individually concerned by the Commission’s decision.
An appeal before the General Court on average lasts around 38 months, although in some cases the process can take longer. The General Court has instituted an expedited procedure, which allows for cases to be adjudicated in a much shorter time frame (e.g. 7 months).
Appeals against the General Court’s judgments before the European Court of Justice on average take around 11 months to be concluded.
Appeals before the General Court and the European Court of Justice do not suspend the applicability of the Commission decision. However, there is a possibility for the parties to lodge a request for interim measures seeking the suspension of the decision until the judgment of the General Court is issued.
Decisions by the FCA can be appealed by the parties concerned or by third parties before the French Administrative Supreme Court (Conseil d’Etat) within two months from the date of notification of the decision to the notifying parties, or publication of the decision for third parties.
Appeal is not suspensive so the parties can implement the transaction while the decision is appealed. Interim measures may be requested before the French Administrative Supreme Court subject an emergency is proven and serious doubts as regards the legality of the decision arise.
An undertaking concerned or a third party entitled to a hearing may appeal the DG’s decision within 20 calendar days, by seeking recourse to the Competition and Consumer Appeals Tribunal. Once notified of the appeal, the DG shall have 20 calendar days to reply to the appeal. The Tribunal will then proceed to confirm, quash or amend the DG’s original decision.
As a main rule; prior to appealing the NCA’s decision to the courts, the parties must have exhausted their right to administrative review the CAT (see further description on the procedures under question 18). After the CAT has reached its decision, the parties have three months to appeal to the Gulating Court of Appeal.
Third parties are not in principle cut off the right to appeal a CAT-decision. However, whether a third party may appeal a decision will depend on Norwegian civil procedure rules on locus standi. So far, no merger decision has been subject to judicial review.
A Competition Council’s decision adopted with respect to an economic concentration may be appealed by the concerned parties before the Bucharest Court of Appeal, within 30 calendar days as of the communication of the decision to the concerned parties. A third party not involved in the transaction may appeal the decision, in which case the abovementioned time-limit for launching the appeal starts to run when the third party becomes aware of the decision.
The duration of the appeal procedure depends on the complexity of the case. The court decision issued by the Bucharest Court of Appeal may further be appealed before the High Court of Cassation and Justice.
KN: Competition Commission’s decisions are final in administrative proceedings and cannot be appealed. Nevertheless, the Competition Commission’s decisions can be challenged before the Administrative Court in a judicial proceeding (as an administrative dispute) procedure.
The statutory deadline for initiating an administrative dispute before the Administrative Court is 30 calendar days from receipt of the decision by the relevant parties.
Generally, filing of a claim before the Administrative Court does not suspend the implementation of the Competition Commission decision. However, such implementation may be postponed by the Administrative Court based on a reasoned request by the claimant. In practice, the Administrative Court usually suspends implementation until it issues the ruling.
Decisions of the Commission can be appealed to the Tribunal and decisions of the Tribunal, whether at first instance or in appeals from the Commission, can be appealed to the CAC. The CAC prescribes time frames within which appeals and reviews can be brought and such applications will generally be heard within five months after the appeal is lodged.
The speed with which appeals and reviews are heard and decided will, to a large extent, depend on the filing of submissions by the parties within the time periods prescribed. Parties can also request an expedited hearing of an appeal or review where there is urgency and directions will be provided as to future conduct of the appeal.
The Act makes it clear that the parties to a merger, intervening government bodies, trade unions and third parties (as the case may be) who have established that they have a material interest in the merger have a right to appeal the decisions of the Tribunal.
As per Law No. 6352, the administrative sanction decisions of the Board can be submitted for judicial review before the administrative courts in Ankara by the filing of an appeal case within 60 calendar days upon receipt by the parties of the justified (reasoned) decision of the Board. Third parties can challenge the Competition Board’s decision on the transaction before the competent administrative courts on the condition that they can prove a legitimate interest.
As per Article 27 of the Administrative Procedural Law, filing an administrative action does not automatically stay the execution of the decision of the Board. However, upon request by the plaintiff, the court, providing its justifications, may decide the stay of the execution of the decision if such execution is likely to cause serious and irreparable damage; and if the decision is highly likely to be against the law (i.e. the showing of a prima facie case).
The judicial review period before the Administrative Court usually takes about eight to 12 months. After exhausting the litigation process before the Administrative Courts of Ankara, the final step for the judicial review is to initiate an appeal against the Administrative Court’s decision before the regional courts. The appeal request for the administrative courts’ decisions will be submitted to the regional courts within 30 calendar days of the official service of the justified (reasoned) decision of the administrative court.
As of 20 July 2016, administrative litigation cases will be subject to judicial review before the newly established regional courts (appellate courts), creating a three-level appellate court system consisting of administrative courts, regional courts (appellate courts) and the High State Court.
The regional courts will go through the case file both on procedural and substantive grounds. The regional courts will investigate the case file and make their decision considering the merits of the case. The regional courts’ decisions will be considered as final in nature. In exceptional circumstances laid down in Article 46 of the Administrative Procedure Law, the decision of the regional court will be subject to the High State Court’s review and therefore will not be considered as a final decision. In such a case, the High State Court may decide to uphold or reverse the regional courts’ decision. If the decision is reversed, it will be remanded back to the deciding regional court, which will in turn issue a new decision to take account of the High State Court’s decision.
Decisions of courts in private suits are appealable before the Supreme Court of Appeals. The appeal process in private suits is governed by the general procedural laws and usually lasts 24 to 30 months.
The AMC’s decisions may be appealed to commercial courts within two months following the receipt of the decision. Third parties who are not involved may also appeal the AMC’s decisions. The timeframe for the consideration of an appeal depends on case-by-case basis and may roughly be between two and five months for instance.
Yes, any administrative decision may be appealed to a judicial court, either by the parties involved or third-parties with legitimate interest and standing to sue (according to article 17 of the Brazilian code of Civil Procedure).
There is no statutory right of appeal available to the merger parties or third parties following an informal clearance decision, as the process is informal.
The ACCC's decision can effectively be challenged in the Federal Court of Australia if a merger party proposes to proceed with a transaction. The ACCC can apply for an injunction (and other remedies as set out in section 8) or alternatively, a merger party can issue proceedings seeking a declaration that the proposed transaction will not contravene the CCA. Third parties do not have standing to seek an injunction to prevent a merger but may seek divestiture orders or damages. Proceedings in the Federal Court can be expected to take a minimum of six months.
The applicant can apply to the Tribunal for a review of the ACCC's determination. Third parties who are not involved in the transaction cannot appeal. The application must be made within 14 days of the ACCC's determination. The Tribunal must make a decision within 30 business days after receiving the application, which the Tribunal can extend to 90 business days if it decides the matter cannot be properly dealt with either because of its complexity or other special circumstances.
A merger authorisation determination may only be subject to limited appeal to the Federal Court of Australia through administrative law mechanisms on questions of law. A merits review is not available.