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 (4th edition)
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.
For a decision of SAMR to prohibit concentration or to impose restrictive conditions on concentration, the business operators may first apply for administrative reconsideration, and if dissatisfied with the administrative reconsideration decision, they may bring an administrative lawsuit before a court. For other decisions, including those imposing penalties on failure to notify or late notification, one may apply for administrative reconsiderations or directly appeal to courts.
The decisions of the CPC are administrative executive acts issued by a public authority. An aggrieved party having legitimate interest and seeking to annul a CPC decision has the right to pursue an administrative recourse.
The DCCA’s decisions on mergers can be appealed to the Danish Competi-tion 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.
Yes, administrative resolutions can be appealed at the judicial level before the Administrative Litigation Jurisdiction, if a third party demonstrates a legitimate interest.
Yes. The Parties can appeal the final clearance or blocking decision to the General Court of the European Union within two months after the decision. Third parties can also lodge an appeal if they can show that the decision has a direct and individual impact on them.
Yes, decisions of the FCA may be appealed by the notifying parties (or by interested third parties) before the French supreme administrative court (Conseil d’Etat) on grounds of misuse of authority or for breach of a procedural rule.
Appeals do not suspend the enforcement of the decisions. However, the notifying parties (or by interested third parties) may request, pursuant to a specific interim proceeding before the Conseil d'Etat , the suspension of the decision (the "référé suspension"). Such request can be granted subject to the claimant being able to evidence an urgent situation and a serious doubt as to the legality of the decision.
If a clearance decision issued by the FCA is reversed by the Conseil d'Etat, the parties concerned have to re-notify an updated version of the proposed concentration to the FCA.
Yes, a phase two decision can be appealed to a court. Decisions in phase 1 cannot be challenged at all.
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.
As a general rule, decisions of the CCI which conclusively determine the rights and obligations of the parties, can be contested before the appellate tribunal.
The CCI’s final decisions with respect to a combination can be appealed before the National Company Law Appellate Tribunal (NCLAT) either by the notifying party(ies) or by any third party which can demonstrate that it has been harmed by any direction, decision or order of the CCI.
In an appeal filed in the case of the CCI’s order in Jet/Etihad, the erstwhile appellate tribunal (i.e., the Competition Appellate Tribunal) dismissed the appeal ruling that the complainant was not an ‘aggrieved party ‘within the meaning of the Competition Act and hence had no locus standi to challenge the order of the CCI.
A similar appeal filed by a third party against the approval of the merger of Royal Dutch Shell Plc and BG Group Plc, alleging that the parties had not submitted complete information on the relevant markets involved in the combination and failure on CCI’s part to follow the procedure in relation to issuance of a show cause notice, was recently dismissed by the NCLAT on the grounds that (i) the complainant failed to prove that the combination resulted in any AAEC; and (ii) the appeal was not ‘maintainable’ on account of not being under any of the ‘appealable provisions’ under the Competition Act.
Further, appeals against any decision or order of the NCLAT can be filed before the Supreme Court of India.
An appeal may be taken by the notifying parties to the High Court in respect of a Phase 2 determination prohibiting a transaction or allowing it subject to conditions. Any issue of fact or law concerning the determination may be the subject of an appeal, but, with respect to an issue of fact, the High Court, on the hearing of the appeal, may not receive evidence by way of testimony of any witness and shall presume, unless it considers it unreasonable to do so, that any matters accepted or found to be fact by the CCPC in exercising its relevant powers were correctly so accepted or found. Such an appeal must be brought before the High Court within 40 working days of the relevant determination. The High Court may, at its discretion, extend this period. A further appeal may be taken from a decision of the High Court on a point of law only.
Third parties do not have any rights of appeal in respect of merger determinations.
Appeals on the Commissioner’s decisions regarding mergers are filed with the specialist Competition Tribunal in the Jerusalem District Court.
A decision to object a merger or approve it under conditions may be appealed by the parties.
Third parties may appeal the Commissioner’s decision to object or approve a merger (including the conditions for approval) if injured by the merger. Tribunal precedent states that injury must be an “antitrust injury” (i.e., where the source of injury harms competition, and the appellants are the injured party).
The parties may file an appeal within 30 days of receiving the Commissioner's decision. Third party appeals must be filed within 30 days of the publication of the Commissioner's decision in two daily newspapers. Appeal proceedings may last anywhere between several months to over a year. Competition Tribunal decisions may be appealed to the Israeli Supreme Court.
In practice, few appeals are filed and even fewer reach a decision. This is due to the limited lifespan of many transactions, which become obsolete due to the length of Competition Tribunal proceedings.
Any party subject to the KFTC decision can file an appeal with the Seoul High Court within 30 days of receiving the decision being challenged if dissatisfied with the KFTC decision. If the party is dissatisfied with the result of the Seoul High Court’s decision, the party can file an appeal to the Supreme Court.
A decision can be appealed in the Antitrust Specialized Courts, however, only the final resolution can be challenged, not intra-process acts or decisions of the agency during the clearance procedure.
Yes. However, after the Competition Appeals Board (administrative body) was established with effect from 1 April 2017, appeals against the NCA's decisions must first be brought before the Appeals Board. Only if the Appeals Board does not render a decision within 6 months after the appeal was lodged may the parties choose between waiting for the Appeals Board's decision or bring the case before the courts directly without waiting for the decision.
The decision of the Appeals Board itself may also be appealed to the court by the parties to the transaction. Note that this is only an option for the parties, and not for the NCA.
Section 39 of the PCA provides for a direct appeal to the Court of Appeals from any decision of the PCC. However, parties have procedural recourses (by way of a petition for certiorari to the Court of Appeals) from any order or directive rendered by the PCC during the course of the review process.
All merger control decisions, either clearing or prohibiting a merger, as well as those imposing fines on undertakings, are appealable to the Competition, Supervision and Regulation Court (CSRC), which is a specialized court with competence to hear appeals based on decisions from the PCA (and some sectoral regulators). The authors of the notification, as well as any interested third parties (this includes parties that have been previously involved in the proceedings before the PCA, as well as other third parties that were not previously involved), are entitled to challenge these decisions, 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 a suspensive effect over the PCA’s decision.
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 directly with the Supreme Court.
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 potential subsequent decision authorizing the concentration is taken by the Council of Ministers and must be grounded in “fundamental strategic decisions of the national economy”.
In recent years, there have been no relevant appeals of final decisions, other than those on a few interlocutory decisions based on confidentiality concerns.
Yes, the decision of FAS can be appealed to a court within 3 months from the date of issue.
Yes. A decision to prohibit or clear a concentration by the SCA may be appealed to the Patent and Market Court, and further to the Parent and Market Court of Appeal provided that leave to appeal is granted.
Judgments and decisions by the Patent and Market Court of Appeal can also be further appealed to the Supreme Court in very special cases provided leave to appeal is granted. Leave to appeal to the Supreme Court is granted only in cases which are considered important for setting a precedent. The Patent and Market Court of Appeal is therefore the final instance for most cases in practice.
A decision by the SCA to prohibit or clear a concentration may be appealed by anyone who is affected by the decision. This phrasing means that no third parties who are not involved in the transaction can appeal the SCA’s decision. The same rule applies to further appeals to the Patent and Market Court of Appeal as well as to the Supreme Court.
The ComCo's decision not to allow a merger may be appealed to the Federal Administrative Court within 30 days. Its judgment may then be referred to the Federal Supreme Court.
In addition, the participating undertakings can apply to the Federal Department of Economic Affairs, Education and Research (Eidgenössisches Departement für Wirtschaft, Bildung und Forschung) within 30 days for exceptional approval by the Federal Council if there are overriding public interests.
The decision is taken in the first instance by the Commission for the Defense of Free Competition of INDECOPI, which can authorize the operation, condition its authorization to the adoption of certain remedies or deny it. This can be appealed before the Special Court for the Defense of Competition of the INDECOPI Tribunal, this is part of the administrative procedure.
The decision issued by the Court, when it is final, may be challenged before the judiciary, following a contentious administrative process, this institution may annul the ruling in administrative headquarters by INDECOPI.
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.
Administrative litigation cases will be subject to judicial review before the 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.
If the AMCU prohibits the concentration, the Cabinet of Ministers of Ukraine (the CMU, the Government) may still grant a clearance if its positive effects for the public interest outweigh the negative impact of the competition restriction unless that restriction is not necessary for achieving the purpose of the concentration or jeopardizes the market economy system. Yet, there are no publicly available cases of the CMU granting clearance for the concentration that was prohibited by the AMCU.
The AMCU’s decisions can also be challenged in commercial courts. The relevant statement of claim indicating the grounds for the AMCU’s decision invalidation should be filed to a commercial court within two months from the date of the decision receipt.
Courts’ decisions may be further appealed to the competent appellate instance within a 20-day period. Further, if the appeal is unsuccessful, the claimant may go to higher cassation court – the Supreme Court of Ukraine (the cassation commercial court).
As there have been very few AMCU’s prohibition decisions and in each of these cases the authority has thoroughly and deliberately assessed the facts and the potential impact of the transaction on the relevant markets, there have been no instances of successful appeals in merger cases (although not all court decisions are publicly available). Further, there is no public record of successful appeals against the AMCU clearance decisions.
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 and that initial decision can be appealed and is subject to review by the full FTC. The parties can then appeal to any court of appeals within whose jurisdiction they conduct business.
ICA’s merger control decisions can be challenged within 60 calendar days from notification or publication, before the Rome Regional Administrative Court (TAR Lazio – Roma) by the merging parties or by any third parties claiming to be harmed by the decision. The judgment of first instance can be further appealed before the Italian Supreme Administrative Court (Consiglio di Stato).
The decisions of the HCC may be appealed before the Athens Administrative Court of Appeal within sixty (60) days from their publication or, in the absence thereof, of their notification to the parties. Any party proving direct, personal and present legitimate interest may appeal the HCC decision before the Athens Administrative Court of Appeal.
Moreover, the decisions of the Athens Administrative Court of Appeal may be further appealed before the Council of State within sixty (60) days of its notification to the parties. However, to our knowledge, no successful appeals against an HCC decision on Merger Control Legislation have been filed yet.