Can the authority’s decision be appealed to a court?

Merger Control (3rd edition)

Austria Small Flag Austria

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.

Chile Small Flag Chile

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.

Turkey Small Flag Turkey

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.

Denmark Small Flag Denmark

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.

Ireland Small Flag Ireland

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.

Cyprus Small Flag Cyprus

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.

Italy Small Flag Italy

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).

Norway Small Flag Norway

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.

Philippines Small Flag Philippines

Yes, 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.

Russia Small Flag Russia

Yes, the decision of FAS can be appealed to a court within 3 months from the date of issue.

France Small Flag France

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.

South Africa Small Flag South Africa

A decision of the Commission (in the case of small and intermediate mergers) may be considered by the Tribunal. The Tribunal’s consideration is understood as a hybrid of an appeal and review process. Parties may appeal a decision of the Tribunal to the CAC, the Supreme Court of Appeal or the Constitutional Court.

United States Small Flag United States

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.

Switzerland Small Flag Switzerland

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.

Germany Small Flag Germany

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.

Greece Small Flag Greece

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.

Peru Small Flag Peru

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.

Portugal Small Flag Portugal

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 (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), 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 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”.

Japan Small Flag Japan

The parties can appeal the JFTC’s order to the Tokyo District Court within 6 months from the date when the order is issued.

India Small Flag India

In case of rejection, the parties have a right of appeal to the National Company Law Appellate Tribunal. The final appellate authority on points of law is the Supreme Court of India.

United Kingdom Small Flag United Kingdom

Decisions of the CMA (or, in 'public interest' cases, the Secretary of State for Business, Energy and Industrial Strategy – see Section 14 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.

EU Small Flag EU

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.

Israel Small Flag Israel

Appeals on the Commissioner’s decisions regarding mergers are filed with the specialist Antitrust 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. Antitrust 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 Antitrust Tribunal proceedings.

China Small Flag China

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 they are dissatisfied with the administrative reconsideration decision, they may bring an administrative action before a court. Other decisions, such as one to impose penalties for failure to notify or late notification, may be directly appealed to a court.

Mexico Small Flag Mexico

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.

Updated: March 18, 2019