Are there any circumstances in which the review timetable can be shortened?
As noted, Phase I proceedings may be shortened by approx. one and a half weeks if the official parties waive their right to apply for an in-depth examination. In practice, the BWB and FCP are willing to do so, if the deadline for third parties to submit statements has expired (two weeks upon publication of the concentration plus some days for postal delivery) and provided their examination of the concentration results in no concerns.
Such waivers are at the discretion of the official parties. In any case, the applicant has to substantiate the urgency of a fast conclusion of the proceedings.
As far as we know, there are no regulations that expressly provide for circumstances under which the review timetable in China can be shortened. However, simple cases as described below in section 6.2, unlike normal cases, often take less time for review and are generally cleared in Phase I.
In general it can be expected that the review timetable will be shortened if the parties initiate pre-notification discussions with the DCCA.
The CCPC does not have a formal process for shortening its review period, but it is also not obliged to take the full 30 working day investigation period at Phase I or the full 120 working day investigation period at Phase II to reach its determination and clear transaction. In practice, the CCPC regularly clears transactions more quickly than the maximum timeframe allowed for under the Competition Act (between 31 October 2014 and 31 December 2015, the average time to clear Phase I transactions was 24 working days), although this depends on the nature of the transaction and the workload of the CCPC at a particular point.
The Commissioner will issue her decision once the Israeli Antitrust Authority's review has been completed, even before the 30-day review period elapses.
In May 2016 The Israeli Antitrust Authority publicised an experimental "Bright Green Merger" review track, whereby a review may be completed within a timeframe much shorter than the formal 30-day period, based mainly on the information included in the filings themselves.
For a merger to be reviewed under the "Bright Green Merger" track, the following conditions must apply:
- The merger clearly does not raise reasonable concerns of competitive harm.
- The parties use the full merger notification form and not the abbreviated one.
- The parties include in their filing detailed additional information to help analyse the merger's competitive effects, preferably based on objective resources such as industry surveys.
- The merger notification is signed by the CEO or chief internal legal counsel of the company.
It should be noted that the initial experiment period for this new track already elapsed on August 8th, 2016. As of the publication of this document, the Israeli Antitrust Authority has not yet announced whether it intends to fully adopt this experimental review track or withdraw it.
The JFTC may shorten the 30-day waiting period if a party files a request in writing and it is clear that the transaction may not substantially restrain competition in any relevant market, such as where the transaction falls into the safe harbour provided by the JFTC’s guidelines. In FY 2015, the JFTC agreed to shorten the 30-day waiting period for 145 cases out of 295 cases notified in that period.
The standard review period is shortened in cases where the simplified procedure applies as discussed above.
Neither Law No. 4054 nor Communiqué No. 2010/4 foresees a ‘fast-track’ procedure to speed up the clearance process. Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.
Other than a possibility to apply the simplified procedure (25 calendar days), as described below, there are no legal grounds to speed up the consideration period.
Simplified procedure for the consideration of a merger control notification is applied in the following cases:
- only one party to the concentration is active in Ukraine; or
- combined market share of the parties to the concentration does not exceed 15% on an overlapping market or 20% on a vertically related market.
As a matter of practice, occasionally the AMC may grant a merger control clearance faster than within the prescribed timeframes. However, it greatly depends on the workload of the AMC.
The parties to a reportable transaction can request the FTC and DOJ to grant “early termination” of the HSR waiting period. Requesting early termination simply consists of checking a box on the HSR form. The likelihood that a particular transaction may receive early termination depends largely on the competitive merits of the transaction. A transaction that clearly presents no competitive concerns is more likely to receive early termination than a transaction that requires a more in-depth review. However, the agencies are never required to grant early termination, and even a transaction that is competitively benign may not receive early termination. There is no set time period for when early termination is granted. Although two weeks is common, early termination may be granted sooner, or later, or not at all.
It is almost impossible to shorten the initial 30 day review period (very rare cases in practice). If the review period is extended for two months, the applicant may get a decision earlier (the specific time “discount” depends on the circumstances of the deal and/or the speed at which additional information is provided to the authority).
Please note that in order to avoid the extension of the review period or shorten the extended period, the parties may indicate the completion date in the initial application to the authority.
There are no formal mechanisms for shortening the review period. However, the CMA may be prepared to give early clearance in cases where no competition concerns arise and where the parties can demonstrate a credible and urgent need for early clearance.
In addition, if a transaction gives rise to complex issues such that a second-phase investigation is likely, the CMA may exceptionally, at the parties' request, agree to make a referral on an accelerated timetable or 'fast track', if there is sufficient evidence available to meet the CMA’s statutory threshold for reference.
Concentrations may be eligible for expedited approval if they do not pose any competition concerns and they satisfy the conditions for the simplified procedure. This shortens the review timetable to 15 working days.
This simplified procedure is available for any of the following:
- Acquisitions of joint control over a joint venture which is not active on the Belgian market or has a limited presence. This condition is fulfilled when the turnover in Belgium of the joint venture and/or the activities that will be combined to form the joint venture is below €40 million, and the value of the joint venture’s total assets in Belgium is below €40 million.
- Mergers or acquisitions where the parties are not active in the same product or geographic market or in markets which are upstream or downstream of each other.
- Mergers or acquisitions where the parties’ combined market share, in markets where they overlap either horizontally or vertically, is below 25%.
- A change from joint to sole control.
There are no specific provisions for shortened time periods and the Commission typically relies on the timing set out in the statute.
However, in exceptional circumstances (such as a failing firm) the Commission may be willing informally to "fast track" an investigation based on representations made at or shortly before filing, provided that the merger raises no substantive competition or public interest concerns.
Under the Merger Control Guidelines the merger review procedure may be simplified in limited cases (paras. 163 to 171):
- Transactions which are not likely to raise competition problems (i.e., when the buyer is not present on the same market as the one on which the target is operating);
- Transactions in the retail trade sector which meet two conditions: (a) they meet the turnover thresholds applicable in the retail trade sector (Article L.430-2, II of the FCC) but fall below the general turnover thresholds (Article L.430-2, I of the FCC); and (b) they do not give rise to a change in the brand name of the retail stores concerned.
In these cases the FCA may issue a simplified decision within 15 working days of the filing (para. 612 of the Merger Control Guidelines).
The FCA is not bound however to follow the simplified procedure even where the conditions of eligibility are met. However, in its Merger Control Guidelines the FCA highlights the benefits of the shortened procedure and it has in practice been applied to a significant number of transactions reviewed by the FCA over the last few years.
The FLEC provides for a fast-track process if the parties prove to the enforcer that it is notorious that a concentration does not have as its purpose or its consequences to have the effect of diminishing, damaging or impeding competition.
In these cases, the enforcer must resolve the filing within a term of 15 business days from the date the enforcer formally acknowledges receipt of the filing through a resolution (which must be made within five business days following the date of the filing). The cases eligible for the fast-track process are the following, provided that the acquirer does not participate in any related market and it is not an actual or potential competitor of the target:
- If the transaction implies the first participation of the purchaser in the relevant market. To this end, the structure of the relevant market should not be modified and should only involve the substitution of the economic agent;
- If, before the transaction, the purchaser holds no control of the acquired agent, and with the transaction it increases its relative participation in such agent, without having additional power to influence the operation, management, strategy and main policies of the company, including the appointment of members of the board and managers; or
- If the purchaser has the control of a company and increases in relative participation in the capital stock of such company.
In the majority of straightforward matters that are being notified in Germany, the FCO will be often in a position to give clearance ahead of the expiration of the Phase I timetable of one month and does so as a matter of course, depending on other factors such as overall workload and the case handler’s availability to clear the matter early. It is also often possible to short-cut the German merger review, in particular to the extent that there are important grounds for the parties to push for clearance ahead of time.
In less complex cases, the parties may be able to receive the clearance decision a few days before the expiry of the 30 calendar days deadline.
The notifying parties can start pre-notification talks with the ICA prior to the filing, and submit a summary of the main terms of the proposed transaction and a brief description of the markets potentially affected, at least 15 calendar days before the formal filing. In such pre-notification talks, the parties and the ICA discuss the likely effects of the proposed transaction on the relevant markets and clarify the information required in order to file a complete notifying form.
There are no specific provisions for an expedited process or shortening the timetable.
Under its non-binding service standards the Bureau may designate a merger as “non-complex”, which means it will attempt to complete its review within 14 calendar days of receiving a complete filing. In such cases it is common for the parties to forego the submission of notification forms and instead file a joint briefing letter which: (i) describes the parties, the transaction, and the reasons for which the transaction does not raise material issues under the Act; and (ii) requests a waiver of the statutory requirement to submit a full notification form. The parties can close the transaction as soon as the Bureau completes its review and waives the statutory requirement to submit a notification form.
There is no mechanism envisaged for the expedition of the assessment timetable. The completeness level of the notification is the only catalyst towards facilitating a smooth assessment, subject always to the Service’s workload and the statutory timeframe.