Are there any circumstances in which different stages of the same, overall transaction are separately notifiable or reviewable?
Merger Control (3rd edition)
As indicated in answer number 4 above, DL 211 defines operation of concentration as facts, acts or agreements, or a combination thereof, which have the effect of terminating the independence of an economic agent with respect to another economic agent. Once the fact, act or agreement, or a combination thereof, qualifies as an operation of concentration and meets the thresholds indicated above, it must be notified to the FNE as a whole.
Moreover, the FNE’s Guidelines on Jurisdiction expressly regulates the situation of interrelated transactions and successive transactions, providing guidelines to determine whether they constitute a single operation of concentration.
Regarding interrelated transactions, the Guidelines establishes that, in certain situations, several transactions individually considered may not qualify as an operation of concentration. However, if they are considered together, they may qualify as a concentration notifiable to the FNE. Such transactions shall be interrelated if there is a link of mutual conditionality between them.
In relation to successive transactions, the FNE indicates in its Guidelines that they will be such, if there are two or more transactions between the same economic agents during a period of two years, whenever it is reasonable to conclude that they tend towards a single operation of concentration when analyzed together.
Therefore, if different transactions should be considered as part of the same operation of concentration, they must be notified and reviewed by the FNE as a single operation, notwithstanding the fact these may represent different stages of an overall transaction.
Article 2 of Communiqué No. 2017/2 modified Article 8(5) of Communiqué No. 2010/4. Together with this amendment, the Board would now be in a position to evaluate the transactions realised by the same undertaking concerned in the same relevant product market within three years as a single transaction, as well as two transactions carried out between the same persons or parties within a three year period.
Other than the situation mentioned above where the Board evaluate these transactions as a single transaction, there are no other circumstances in which different stages of the same, overall transaction are separately notifiable or reviewable
The Commission’s jurisdictional notice generally applies to matters regarding jurisdiction in Denmark. This includes, for example, successive transactions in which two or more parties acquire an undertaking jointly in one transaction and then succeed to splitting the undertaking in following transactions. According to the jurisdictional notice, if these transactions take place within a two-year period and concern the same parties, they are to be considered as a single concentration. Thus, only the latter transactions splitting the target undertaking are notifiable.
The CCPC generally adopts the same approach to inter-related or interdependent transactions as adopted by the European Commission under the EUMR and the CJN, and will focus on the economic reality as to whether control has been acquired, whether by one or several legal transactions (for example, One Equity Partners/Genband Inc/CVAS). The CCPC’s assessment will focus primarily on the extent to which individual transactions are inter-conditional upon each other, such that they result in a single overall deal (for example, Citigroup/Legg Mason).
As noted above, the 2014 Act also closed off the “warehousing exception” previously available, by which certain temporary acquisitions of control were not notifiable. The position under the Competition Act is now that this exception does not apply to transactions involving the future onward sale of the business to an ultimate buyer in circumstances where the ultimate buyer bears the major part of the economic risk.
The Law provides that a concentration carried out in stages in the course of a period not exceeding 4 years is effected on completion of the last stage resulting in a permanent change in control. That is also the date by which the transaction must be cleared. A concentration carried out in stages is thus notifiable as a single concentration.
With respect to transactions initially entailing the acquisition of a temporary joint control, which is then converted into sole control, the ICA follows the principles applicable at the EU level (see, e.g., para. 34 of the EU Commission Consolidated Jurisdictional Notice).
Under the PCA IRR, a merger or acquisition consisting of successive transactions, or acquisition of parts of one or more entities, which shall take place within a one-year period between the same parties, or any entity they control or are controlled by or are under common control with another entity or entities, shall be treated as one transaction. If a binding preliminary agreement provides for such successive transactions or acquisition of parts, the entities shall provide notification on the basis of such preliminary agreement. If there is no binding preliminary agreement, notification shall be made when the parties execute the agreement relating to the last transaction which, when taken together with the preceding transactions, satisfies the Size of Party and Size of Transaction Thresholds (PhP5 billion and PhP2 billion, respectively).
Each stage of an overall transaction is to be assessed separately from the perspective of Russian merger control rules. Consequently it may happen that multiple steps of an overall transaction each require approval under Russian merger control rules. In most cases interrelated steps can be combined into one merger control filing.
Where an overall transaction is carried out in stages through a series of subsequent transactions, the FCA considers, as under Article 5.2 of the EUMR, that two or more transactions taking place within a two-year period between the same parties is to be treated as one and the same concentration.
More generally, the Guidelines provide that multiple transactions constitute a single concentration as long as they are interdependent, in the sense that one transaction would not have been carried out without the other. These “interdependent transactions” must be treated as a single concentration if (i) they are subject to a conditional relationship (i.e. they are linked by a de jure or de facto condition) and (ii) control is acquired ultimately by the same undertakings.
Should the above mentioned conditions not be met, each transaction must be filed with the FCA separately (if the French merger control thresholds are met).
It is conceivable that different stages of the same, overall transaction are separately notifiable. However, the situation that typically arises is the single notification of mergers which involve multiple interdependent and indivisible steps. The competition authorities typically accept a single notification in these circumstances if the steps are factually and legally part of a single transaction aimed at acquiring control of the target firm.
Each acquisition related to a particular transaction must be analysed independently and is separately subject to the HSR Act. If a transaction involves multiple steps that happen simultaneously (i.e., at the exact same time) and two or more of these steps would be separately reportable, the ‘continuum principle’ applies. Under the continuum principle, parties do not need to file on the intermediate steps of a transaction as long as they make an HSR filing on the final reportable step of the transaction. The timing of the steps must be simultaneous in order for the continuum principle to apply. Practitioners often seek out informal guidance from the FTC to confirm on a no-names, hypothetical basis that their structure warrants a single filing.
Transactions must be analysed closely to determine if an acquisition related to the overall transaction may trigger additional HSR reporting obligations. For example, if, as a result of a transaction, an acquiring person will obtain control of issuer ‘A’ who holds, but does not control, voting securities of issuer ‘B”, then the acquisition of the voting securities of issuer ‘B’ is a ‘secondary acquisition’ and is separately subject to the HSR Act and may require an additional HSR filing. Additionally, certain stock-for-stock ‘backside’ transactions may be subject to a separate HSR filing obligation.
For HSR filings that are part of the same overall transaction, the antitrust agencies have advised parties submitting multiple filings to note that the filings are related in both the cover letter submitted with each filing as well as the transaction description in item 3(a) of the HSR form. For more information on the items included in an HSR filing, please refer to the response to question 23.
Generally, no. With regard to the calculation of the turnover thresholds, where two or more control transactions take place within two years between the same undertakings, these transactions must be regarded as a single concentration.
German merger control follows a strictly formalistic approach. A specific transaction is notifiable as soon as the conditions for notification are fulfilled. It doesn’t matter insofar whether the parties consider multiple mergers to constitute a single “transaction” in a broader sense. Accordingly it doesn’t matter either whether the parties consider a certain action to be part of a bigger transaction: as long as its completion wouldn’t constitute a merger, it is not notifiable. Parties should, however, be careful as certain actions that may appear to be only of a preparatory nature (e.g. granting a call-option for shares) may already need approval.
No. According to Law No. 26876, there is a prohibition on closing the operation before notifying it and getting the authorization, so it is not relevant for the INDECOPI if the transaction has different stages.
According to Bill No. 2604, the transaction is only notified once, although it can be carried out in different stages. All of these will be reviewed in a single procedure. Bills No. 3279 and 2634 make no reference about it.
The Competition Act does not anticipate any circumstances in which different stages of the same transaction could be separately notifiable for review. Instead, the Competition Act sets out that two or more concentrations between the same natural persons or undertakings, within a period of two years, even when individually not considered to be subject to prior notification, are deemed to constitute a single concentration subject to prior notification where the two or more concentrations, when assessed in conjunction, satisfy the relevant jurisdictional thresholds. For the purposes of the relevant assessment, the Competition Act does not require that the two or more concentrations be linked and, therefore, there is no need for a de facto or de jure relation between them. The overall transaction should be notified to the PCA following the conclusion of the agreement related to the last transaction, and before its implementation.
A notification under the Antimonopoly Act is triggered in every occasion where any part of a transaction meets each of the relevant thresholds. Therefore, one overall transaction often triggers more than one filing obligations under the Antimonopoly Act. For example, a merger between two companies triggers two filing obligations, a filing for “merger” and another filing for “share acquisition,” if the transaction includes not only a merger but also an acquisition of shares by a former shareholder of the merged company.
As per Regulation 9(4) of the Combination Regulations, where the ultimate effect of a transaction is achieved by way of a series of steps or smaller individual transactions which are inter-connected, then a single merger notification form is required to be filed with the CCI covering all the steps or individual transactions, if any of the stages or steps of the interconnect transaction is individually notifiable to the CCI.
As a general rule, the CMA will consider all stages of a transaction as part of the same, reviewable transaction.
However, in the case of "break up bids" - in which a business is acquired with a view to dividing its assets between two or more purchasers according to a pre-existing plan upon completion of the transaction - the CMA is unlikely to investigate the initial acquisition where it is clear that the subsequent division of assets will occur within the four-month time period within which the CMA has the ability to initiate a second phase investigation (see question 6). Each acquisition of assets by the respective purchasers will instead be a separately reviewable transaction. Where it appears that the subsequent steps may not take place within four months, the CMA may open an initial investigation. If it considers that a second phase investigation would be required if the subsequent division of assets is not undertaken, then the CMA would require the parties, as a condition of not opening that investigation, to enter into binding commitments setting out when and how the assets will be divided among the investors.
One situation where the same overall transaction might be notifiable twice is where the transaction requires significant divestitures to obtain clearance from the European Commission. The divestiture can independently trigger new merger control filings either at the EU level or at the level of Member States (depending on what turnover thresholds are met).
The opposite situation – where two seemingly independent transactions are considered as a single transaction for merger control purposes – can be trickier. Two or more transactions constitute a single concentration if they are “unitary in nature”, which depends largely on the economic reality underlying the transactions and specifically whether the transactions are interdependent in such a way that “one transaction would not have been carried out without the other” (e.g., when two transactions are conditional on each other). In these circumstances, two or more transactions are considered as one transaction if control is ultimately acquired by the same undertaking.
Article 5(2) EUMR allows the Commission to consider two or more transactions to constitute a single concentration for the purposes of calculating the turnover of the undertakings concerned and determining whether merger control thresholds are met.
Generally, a transaction must be reviewed as a whole. Nonetheless, when the merger transaction itself has different stages, e.g., when it includes an option for future sale or purchase, the future sale or purchase does not have to be reviewed with the main merger transaction. However, if the option itself constitutes a merger (i.e., when the first transaction crosses a holding threshold of 25% of a company’s shares, and the option is for the acquisition of over 50% of the shares), it must be reviewed prior to consummation.
The Commissioner is sometimes willing to review options at the time of issuance if they are part of a merger transaction currently under review; the merger will be carried out within one year of the date of approval and the options will be exercised no later than three years from the date of approval (the latter period may sometimes be shorter, depending on the specific competitive circumstances).
Generally, different stages of the same, overall transaction should be treat as one single concentration of business operators, and be notified for once after the concentration agreement is concluded and prior to the implementation of the first stage.