Are there any future developments or planned reforms of the merger control regime in your jurisdiction?
Merger Control (3rd edition)
One of two proposals in context of merger control was included in the latest amendment, namely the introduction of a new notification threshold which among other things takes into account the value of the consideration. However, the second often discussed proposal was not adopted. This proposal aimed at the extension of the Cartel Court’s decision competence with regard to cooperative effects.
A further amendment of the Austrian competition law (including merger control) is not expected in near future, as the latest amendment came into effect just recently (May 2017).
As the new the merger control regime entered into force as of June 1st, 2017, there are no future developments or reforms planned.
The major development expected in the Turkish competition law regime is the adoption of the draft law amending Law 4054 on the Protection of Competition. To that end, the draft law was officially submitted to the presidency of the Turkish Parliament on January 23, 2014 and was reviewed by a parliamentary sub-committee. However, the parliamentary sub-committee could not conclude its work on the necessary changes within the relevant parliamentary legislative year. Therefore, at present the draft law is statute barred. In order to re-initiate the parliamentary process, the draft law must again be proposed and submitted to the presidency of the Turkish Parliament. Although it is impossible to say when this will happen, it is likely that a draft reform law will remain on the competition law agenda.
The draft law aims to achieve further compliance with the EU competition regime, on which it is closely modelled. It adds several new dimensions and changes which should result in a procedure that is more efficient in terms of time and resource allocation. The draft law proposes several significant changes in terms of merger control:
- The substantive test for concentrations will be changed. The EU significant impediment of effective competition test will replace the existing dominance test.
- In accordance with EU competition law, the draft law will adopt the term
‘concentration’ as an umbrella term for mergers and acquisitions.
- The draft law will eliminate the exemption for acquisition by inheritance.
- The draft law will abandon the Phase II procedure (which was similar to the
investigation procedure) and provide a four-month extension for cases requiring in-depth assessments. During in-depth assessments, parties can
deliver written opinions to the Competition Board, which will be akin to written defences.
- The draft law will extend the appraisal period for concentrations from the
existing period of 30 calendar days to 30 business days, which equates to
approximately 40 days in total. As a result, the period in which to obtain a decision on a preliminary review is expected to be extended.
Further, the draft law proposes to abandon the fixed turnover rates for certain procedural violations, including failing to notify a concentration and hindering onsite inspections; and to cap the monetary fines imposed for these violations. This new arrangement gives the board discretion to set fines by conducting case-by-case assessments.
Another significant anticipated development is the Draft Regulation on Administrative Monetary Fines for the Infringement of Law on the Protection of Competition, which will replace the Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance.
The draft regulation is heavily inspired by the European Commission’s guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation 1/2003. Thus, the introduction of the draft regulation clearly demonstrates the authority’s intention to bring the secondary legislation into line with EU competition law during the harmonisation process.
The draft regulation was sent to the Turkish Parliament on January 17 2014, but as yet no enactment date has been announced.
On 1 January 2018, a number of amendments to the Competition Act concerning, inter alia, merger control entered into force. The amendments introduced a “stop the clock” provision, under which the DCCA may suspend the time limit for a merger review if the participating undertakings fail to disclose information requested by the DCCA within the set time limit. This amendment corresponds to the EU merger regime.
Further, the amendments brings along changes and clarification to the regulation of merger commitments. According to the current wording of the Competition Act, the undertakings involved can propose commitments during the merger review and by doing so affect the time limits for the review. By altering the wording in the relevant provisions, the proposal seeks to ensure that only binding commitments, as opposed to non-committal suggestions, will obtain procedural effect.
In September 2017, the Department of Business, Enterprise and Innovation launched a public consultation on a review of certain provisions under the Competition Act relating to mergers and acquisitions. The consultation closed in November 2017. While the consultation focused on specific aspects of the merger control regime, in particular the financial thresholds, respondents were also invited to comment on any other aspects of the merger control provisions of the Competition Act that they wished to raise. The outcome of this consultation could generate proposals for further reform of the Irish merger control regime.
No planned reforms are on the horizon.
As noted, and despite the expectations, the 2017 amendment of the jurisdictional thresholds only led to a slight increase of the number of merger notifications. This is probably due to the fact that the first cumulative threshold is still set at a quite high level (i.e., the parties’ combined Italian turnover should be greater than € 495 million). For this reason, some practitioners are arguing that the Italian legislator should further intervene by reducing the value of the first threshold. That said, however, no reforms have been announced for the near future.
No major changes are expected for the time being.
Yes, the PCC is taking a proactive role in ensuring competition policies are upheld in the Philippines. The PCC recently invited stakeholders to submit comments in a current pending merger review. The PCC has also published its comments to the Philippine Government’s Terms of Reference for the selection of a private entity that will serve as the Third Telecommunications Company in the Philippines. These measures are not yet institutional and time will tell if the PCC will decide to formalize these measures as part of its rules of procedure.
Currently, FAS is developing a so-called “fifth antimonopoly package” which provides for certain amendments to the merger control regime. In particular, it is envisaged that a new economic threshold will be established as a requirement for merger control clearance –transaction value of RUB 7 billion.
In October 2017, the FCA launched a reflective process aimed at modernizing and simplifying French merger control law and review processes. On 7 June 2018, following a public consultation, the FCA presented its preliminary conclusions , including:
- The introduction of a new targeted case of "ex-post" merger control review is being examined;
- Simplification of the current notification form and supporting document requirements;
- Extension of the scope of the simplified procedure and creation of a new "ultra-simplified" online notification procedure; and
- Announcement of a revision of the Guidelines, which should be updated around mid-2019.
Yes, the Competition Amendment Bill (Amendment Bill) was introduced in Parliament by the Minister on 11 July 2018. Key provisions of the Amendment Bill relate to restrictive horizontal and vertical practices, the abuse of a dominant position, increasing the scope for exemptions, merger proceedings involving foreign acquiring firms, bolstering the public interest provisions relating to mergers, impact studies, ministerial powers, administrative penalties and market inquiries.
In relation to mergers, the competition authorities are currently required to consider whether an otherwise anticompetitive merger could be saved on the basis of a substantial positive public interest impact. The Amendment Bill elevates the public interest inquiry to be on equal footing with the competition inquiry. Further, in relation to mergers involving foreign acquiring firms, a new national security provision has been introduced, which contemplates an assessment in respect of the impact of a transaction on national security by an executive body set up by the President, in a process that is prior to, and separate from, the merger control regime under the Act.
In May 2018, the Standard Merger and Acquisition Reviews through Equal Rules (‘SMARTER’) Act passed the House of Representatives and the Senate introduced its own version of the bill. The SMARTER Act seeks to amend the Clayton Act and Federal Trade Commission Act to standardise the FTC and DOJ’s review of proposed transactions. Currently, both the FTC and DOJ are notified about a proposed transaction, with certain industries generally assigned for review to the FTC and others to the DOJ. At the FTC, merger challenges are reviewed under the FTC Act and can be adjudicated administratively, whereas at the DOJ, challenges are only adjudicated in federal court under the Clayton Act. Under the proposed SMARTER Act, the FTC would be required to litigate in federal court, eliminating the option for a challenge in the FTC’s administrative court. The SMARTER Act would also create the same preliminary injunction standards—currently, the DOJ must make a showing of a substantial likelihood that the transaction violates Section 7 of the Clayton Act and the FTC must meet the injunction standard of Section 13(b) of the FTC Act (arguably a lower standard).
Although not focused on antitrust, the Committee on Foreign Investment in the United States (CFIUS), a US governmental interagency committee, has jurisdiction to conduct national security reviews of mergers, acquisitions, or investments that could result in foreign control over a US business. In August 2018, President Trump signed into law the Foreign Investment Risk Review Modernization Act (FIRRMA), which enacts significant changes to the current CFIUS review process. Notably, the new law expands CFIUS’s jurisdiction to cover certain additional types of transactions, including non-controlling (but non-passive) investments, certain sensitive US businesses by foreign persons, as well as certain real estate transactions (including leases) in close proximity to sensitive US government installations. FIRRMA also mandates filings for certain types of transactions, whereas the CFIUS process is currently an ostensibly voluntary process (though CFIUS may request or initiate reviews of non-notified transactions). The major changes under the new law will not take effect until implementing regulations are promulgated, which may take up to a year or longer. It is anticipated, however, that CFIUS will implement certain provisions—including with respect to the jurisdictional expansions—earlier, via ‘pilot programs’ authorized under FIRRMA.
In an effort to address concerns about the increased duration and scope of DOJ merger investigations, in September 2018, the DOJ announced a series of reforms to modernize the merger review process. These reforms are intended to shorten and make the merger review process more efficient.
Since the barriers to intervention for the review of mergers are high in Switzerland, there is a debate about introducing the SIEC test, which is the dominant merger control test in the EU. In the SIEC test, "simple market dominance" is sufficient, according to which a merger leads to the creation or strengthening of a dominant position. In contrast, Swiss merger control today requires the existence of "qualified market dominance" in order to be able to prohibit a merger. This means, that it is necessary that not only market dominance exists, but that it is also suitable for eliminating effective competition.
The ministry of economics is currently working on reforms aimed at adapting competition law to the challenges of digitalization. The goal is to speed up procedures and to enhance the ability of competition law to work in a fast moving environment. It is likely that such changes will affect procedures and interim measures available to the FCO and possibly the courts. It is, due to the early stage of the process, unclear how exactly the changes would affect the merger control regime.
There are no – at least widely known - planned future reforms of the merger control regime in Greece.
There are currently 11 bills that are being discussed in the Congress of the Republic, which seek to establish an ex ante (prior) authorization procedure for concentration operations for all economic sectors, as is the case in most of the countries of the region and the world. The most important aspects of the main bills have been outlined in each of the previous answers.
With regards to merger control rules, and the Competition Act as a whole, there are no current proposals or discussions being held for a possible revision of the regime. However, as regards the aforementioned binding opinion of the sector media regulator, on the grounds of the freedom and plurality of media considerations, it has been heavily criticized and is therefore weakened, so this situation may lead to a possible change.
Finally, it is worth mentioning that works for the review of the PCA’s guidelines on remedies are expected at any time.
The Japanese congress passed an amendment bill of the Antimonopoly Act implementing the commitment procedure which has some similarities to the EU commitment procedure. The amendment will be effective from the date when the TPP 11 becomes effective. The commitment procedure can potentially be used in every kind of antitrust matters, except hard-core cartel, including mergers. It is uncertain if the commitment procedure will be used in merger control.
The CCI has published the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2018, and invited comments from stakeholders. The key points of the proposed changes are as follows:
- The proposed insertion provides flexibility to parties to either "withdraw a filed merger notification form and refile a fresh merger notification form or simply notify the CCI of any change to the filed merger notification form.
- Parties to a proposed combination will now have the liberty to propose a modification which is in line with the scheme and intent of the proposed combination, instead of navigating a modification proposed by the CCI. It may be noted that this amendment will save time as the parties will not have to wait for the CCI to order modifications after a long-drawn Phase II review process, before the parties can offer their counter/ modification proposal.
- Reducing the scope of the exemption provided in Item 1 of Schedule I to the combinations pertaining to minority acquisitions (“Item 1 Exemption”). The Item 1 Exemption will not be applicable to parties to a combination who have a horizontal or a vertical overlap. Further, for pooled vehicles and alike, only an acquisition of shares below 5% will be deemed to be made solely as an investment.
- Introducing the concept of clock stops in the calculation of the 210-day period based on time taken by parties with respect to information requests from the CCI, etc.
The government recently published proposals to allow the Government to intervene in a wide range of transactions on national security grounds, even if they do not meet the thresholds for review under the UK merger control regime. The national security screening regime would be standalone, with decisions taken by a senior Government minister and no formal role for the CMA.
While the regime will remain voluntary, the Government would have jurisdiction to "call-in" for review a very wide range of transactions in any sector, with no minimum size of transaction. Any transaction called in for review by the Government would become subject to an automatic prohibition on closing (unless already closed) and potential interim measures. The Government expects around 200 transactions per year will be notified, with around 100 becoming subject to review on national security grounds, compared to only one or two at present. Legislation implementing the proposed reforms is unlikely to come into force until 2020.
The exit of the UK from the European Union (Brexit) will also have a significant impact on the UK merger control regime. After the date of Brexit and the end of any applicable transitional period within which EU law will continue to apply in the UK, the EU Merger Regulation will, in all likelihood cease to apply under UK law. This will mean that:
- Large mergers involving UK businesses that raise competition concerns will face having two, parallel, reviews by each of the EU and UK authorities, instead of the present 'one-stop-shop' review by the European Commission. The CMA has estimates that it will review around 30 to 50 more cases per year, compared with around 60 in its most recent financial year.
- The exclusion of UK turnover when calculating whether the thresholds for an EUMR filing are met will push some transactions below those thresholds, and would likely mean fewer filings are required for joint ventures – including acquisitions of joint control over businesses – with activities in the UK, but not the EEA region.
- Finally, the UK government will have greater freedom to block or impose conditions on mergers on grounds that are unrelated to competition, such as the impact on employment, or a desire to limit foreign ownership of UK businesses. At present, the EU Merger Regulation restricts the circumstances in which the UK government can prohibit or impose remedies on mergers that are notifiable to the European Commission. Given the recent announcement of proposals for greater political scrutiny of acquisitionson national security grounds, it seems likely that the present government would seek to make use of this greater freedom.
There are currently no planned reforms of the EUMR. As mentioned above, the Commission is reviewing the issues raised by common ownership of minority shareholdings in companies active in the same industry.
The Israeli Antitrust Authority has announced its intention to advocate legislation to reform the merger control regime. Among other things, the following changes were suggested:
- Increase in turnover-filing thresholds, so as to include fewer transactions. The market share threshold will not change. This may require entities falling below the new threshold to be more careful.
- The introduction of a "phase II" investigation period, to allow the Israeli Antitrust Authority to extend the 30-day review term without needing to rely on the Antitrust Tribunal decision or voluntary extensions from the merger parties.
- Reduction of the maximum jail sentence for an unreported merger from five years to three years, abolishing an ‘aggravating circumstances offence’ which currently exists for mergers and which has never been applied.
The reform recently passed the first legislation stage in the Knesset (Israeli parliament) and the IAA continues to promote it.
PLEASE NOTE THAT THE ANSWERS TO THE ABOVE QUESTIONS ARE LIMITED TO A REVIEW OF MERGER CONTROL IN ISRAEL, AS REGULATED BY THE ISRAELI ANTITRUST AUTHORITY
In 2013, the Israeli Parliament enacted the Law for Promotion of Competition and Reduction of Concentration 2013 (the “Concentration Law”). As the name of the Law indicates, the Concentration Law was aimed at increasing competition in the marketplace. One of the main provisions of the Law prevents the same entity controlling a significant financial entity and a significant non-financial (real) entity. The Concentration Law also requires Israeli regulators to have regard to overall market concentration issues when privatising state-owned companies, granting licences and so on.
The provisions of the Concentration Law may affect the viability of a potential merger transaction, quite apart from the provisions of the Israeli Antitrust Law. A detailed analysis of the rules set out in the Concentration Law is beyond the scope of the questions in this Comparative Guide.
MOFCOM planned to amend the Measures for Review of Concentration of Business Operators and published a draft to solicit public comments in September 2017. The amendment was proposed to clarify the concept of control, the calculation of turnovers and some other issues. It is expected that SAMR will proceed with the amendment process.
Further, the amendment of the AML has been put into the Legislative Plan of the Standing Committee of the 13th National People’s Congress. The amendment may cover several issues concerning merger control, such as the notification thresholds and the penalties for failure to notify or late notification.