Does the authority seek or invite the views of third parties?
Merger Control (3rd edition)
The rights which are granted to third parties are rather limited.
The notification of a concentration is disclosed to the public immediately after the receipt of the application. The BWB essentially publishes the names of the undertakings involved, the nature of the concentration, the affected business branch(es).
Within two weeks as of such publication third parties are allowed to submit statements. The consideration of such statements is at the discretion of the official parties, however. The same applies to any statements by third parties in Phase II proceedings before the Cartel Court. In particular, third parties do not formally become parties to the proceedings and have no standing to lodge an appeal.
It may also be noted in this context that, if considered necessary, the BWB may also upon its own initiative contact market participants for further information; inter alia, they may market test remedies offered.
The Competition Act establishes that when the FNE decides to initiate phase II, it shall communicate its decision to the authorities directly concerned and to the economic agents who may have an interest in the operation. Those who receive such communication, as well as any third party interested in the concentration (including suppliers, competitors, customers or consumers), may provide information to the investigation within 20 working days following the publication of the resolution ordering the initiation of phase II.
Anyway, it is common practice that the FNE seeks the view of third parties in phase I as well.
Pursuant to article 15 of Communiqué No. 2010/4, the Competition Board may request information from third parties including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. According to article 11(2) of Communiqué No. 2010/4, if the Competition Authority is required by legislation to ask for another public authority’s opinion, this would cut the review period and restart it anew from
day one. Third parties, including the customers and competitors of the parties, and other persons related to the merger or acquisition may participate in a hearing held by the Competition Board during the investigation, provided that they prove their legitimate interest.
Although it is not a common practice; Competition Authority may even invite the views of third parties for a transaction that clearly does not raise competition issues. There is no specific provision that a market testing is carried out in the merger control filing process.
During the assessment of the merger, the DCCA will generally invite anyone interested (primarily customers, suppliers and competitors) to comment on the proposed merger. However, when the simplified procedure is applied, the DCCA will usually depend solely on the information submitted by the parties.
The notice of the transaction on the CCPC website invites third parties wishing to make submissions about the merger to do so within 10 working days of the publication of the notice. This invitation is open in all cases; the CCPC will not differentiate between cases that raise prima facie competition issues and those that do not. However, the CCPC may change the time limit for third party submissions by notice on its website in individual cases if required.
Submissions from third parties should clearly indicate any information that should be treated as confidential. The CCPC will make reference to whether any third party submissions were received in its determination.
In addition to inviting submissions from third parties when posting notice of the transaction on its website, the CCPC merger notification form requires notifying parties to provide contact details for their top 5 customers, competitors and suppliers (worldwide and in Ireland), as well as any trade associations of which the notifying parties are members. It is open to the CCPC to contact these parties in the course of its investigation and to send them requests for information concerning the notified transaction, although it is under no obligation to do so. The CCPC’s market testing will generally be carried out within the first 10 working days of receipt of the notification.
If a Phase 2 investigation is initiated, any third party is entitled to make submissions and the CCPC must consider all submissions received. Submissions from third parties must be received in writing within 15 working days of the date of the opening of the Phase 2 investigation. The CCPC may change this time limit by notice on its website in individual cases, if required.
The CCPC is not required to hear third parties in the context of a merger investigation. During Phase 2, third parties that have made submissions to the CCPC may be requested to make oral submissions, but this is at the discretion of the CCPC.
Third parties having a legitimate interest may be invited to comment, but only in the event of a full investigation. Parties having a legitimate interest may on a voluntary basis submit views at any phase of the evaluation of a concentration or they may be asked to supply information by the Service of the CPC. In the case of a full investigation, the Service is required to provide any person having a legitimate interest, but which is not a participant in the concentration, with an appropriate opportunity to submit their views.
In Phase I, any interested parties, including customers and competitors, may submit observations within 5 days from the publication of the notice of notification submission.
If Phase II is opened, within 10 days, third parties may formally intervene by submitting an application, if their interests might be directly harmed by the final decision. If admitted to the procedure, third parties can access the file, submit written comments and documents, request a formal hearing and participate in the final hearing before the ICA.
Additionally, the ICA may contact customers and competitors, on its own initiative, and request information useful to better assess the potential effects of a notified concentration. Market tests are generally carried out in Phase II proceedings.
Yes, market testing is common.
Yes, Section 17 of the PCA provides that the PCC may seek a favorable recommendation by a governmental agency with a competition mandate which shall give rise to a disputable presumption that the proposed merger or acquisition is not violative of the PCA. Moreover, the PCC may seek amicus curiae or equivalent measures consistent with Philippine legal principles that the PCC is authorized to utilize all reasonable means in fulfilling its regulatory and enforcement mandate provided it does not gravely abuse its discretion.
The information regarding submission of the application which is published on the website of FAS often contains such an invitation for third parties to share their views on the impact of the transaction on the markets concerned. In addition, FAS may request certain information or opinions from third parties during the review process. However, in practice such collection of the views of third parties is quite rare.
Yes, the FCA invites third parties to intervene in the review process in several ways:
- Further to the public announcement of the transaction (see question 26), third parties are invited to submit comments and observations within a given timeframe;
- By answering the "market test" that may be carried out during Phase I or II of the merger control review ;
- By submitting comments concerning the remedies proposed as the case may be by the notifying parties.
As part of the investigation, case handlers generally contact competitors and customers, particularly where competition concerns are raised.
Parties to a merger are required to serve a non-confidential version of the merger notification on any registered trade union that represents a substantial number of its employees, or the employees concerned or representatives of such employees, in the absence of a registered trade union. Proof of service on the trade unions and/or employee representatives must be submitted as part of the notification, failing which the notification will not be regarded as complete.
A trade union or employee representative, upon whom a non-confidential version of the merger filing is required to be served, may notify the Commission of its intention to participate in merger proceedings within five (5) business days after receiving notice of the merger. As such, trade unions and / or employee representatives are afforded a more prominent role in the merger review process than other third parties and they are entitled by law to participate in merger proceedings.
In addition to the rights of trade unions and employee representatives to intervene, any person who has a material interest in a merger may apply to intervene in Tribunal proceedings by filing a Notice of Motion. The Notice of Motion must include a concise statement of the nature of the person’s interest in the proceedings. An application to intervene must be served on all parties to the proceedings and the Tribunal is required to determine whether or not the person asserting a material interest is permitted to intervene. The government and other interested parties have intervened in certain significant merger cases on the basis of this provision.
It should be noted, however, that the authorities have issued a clear warning to potential interveners not be obstructive. For example, in 2008 and 2009, technology firm Altech attempted to intervene in the MTN/Verizon merger hearing. The Tribunal dismissed Altech’s application with costs, stating that it would have ‘considered this an appropriate case to award punitive costs’ against Altech, had its jurisdictional scope allowed for it.
Finally, any person may voluntarily submit information to the Commission in relation to a merger.
When investigating a transaction that raises competitive issues, the reviewing agency will conduct interviews with the parties’ competitors, customers, suppliers, and other relevant industry participants. As part of its investigation, the reviewing agency may also issue subpoenas to third party industry participants for documents, data, and even deposition testimony. The reviewing agency uses the information from this outreach effort to gain a better understanding of how the affected markets operate, to assess the facts and arguments advanced by the parties, to gather evidence about the industry and the potential impacts of the transaction, and to identify supportive third-party witnesses for trial.
The ComCo may require information from interested third parties which may be relevant for the assessment of the proposed concentration. In this context, the third parties may be informed of the proposed merger while maintaining the business secrets of the participating companies. Affected third parties are obliged to provide the ComCo with all information necessary for its clarifications and to submit the necessary documents.
In addition, third parties may also express their views on the proposed merger on a voluntary basis. For this purpose, the ComCo announces, on the occasion of the publication of the decision to carry out an extended examination, a time limit within which third parties may submit written comments on the notified concentration.
Yes, the FCO decides about formal and informal third party participation on a case-to-case basis.
In German merger control procedure, formal and informal participation of third parties in proceedings is possible. Third party participation is not limited to a specific phase or state of the proceedings as long as they are ongoing.
Informal participation usually means that the FCO contacts selected companies or industry or trade associations, usually by telephone or email and makes certain inquires. The role of these informal participants is merely passive. Naturally the FCO will also accept voluntary information offered actively. The FCO decides about informal participation on a case-to-case basis.
Inquiries may also be made formally. When it finds this to be necessary, the FCO will issue a formal request for information (Auskunftsverlangen). Formal requests for information may ultimately be enforced by the FCO.
If another undertaking decides to take part formally, it may be formally summoned as an interested party. To be summoned to ongoing proceedings, a formal request is required which should outline the specific interest of the applicant to be party to the proceedings. Parties to the proceedings (Verfahrensbeteiligte) receive more information about the proceedings and may make certain formal requests. In addition, the decisions of the FCO may only be challenged by parties that were formally party to the proceedings. For formal participation, legal representation is usually advisable.
Following the publication of the summary as referred in question 26, any interested person may submit its comments or provide information in connection with the notified concentration. In addition, in the context of the assessment of a notified concentration, the HCC is entitled by virtue of the Greek Competition Act, when it deems it is necessary, to address written questionnaires to any enterprises, natural persons and legal entities, public or other authorities and invite them to provide certain information within a set deadline (“market testing”). In practice, the addressees of such questionnaires may be customers, competitors, trade associations, consumer organisations or other public and administrative authorities.
INDECOPI may request from third parties the information it deems pertinent to analyze the request for authorization, as well as its opinions on the merits.
The public announcement by the PCA will establish a deadline of at least 10 business days for any interested third parties to submit observations. This will happen in all concentrations notified to the PCA, regardless of whether they raise competition law concerns.
The PCA may also, during the course of the assessment procedure, request information from third parties, public or private entities, that it considers relevant to the evaluation of the concentration.
In the event that the concentration concerns a market which is subject to sectoral regulation, the PCA will request an opinion regarding the concentration from the respective regulator, before a final decision is adopted. To this effect, the PCA will set a reasonable deadline.
The PCA may conduct a market test at any time and in both Phases I and II. However, typically market tests are carried out during Phase II, and the PCA does not usually request information from third parties in concentrations that clearly do not raise competition law concerns.
Third parties such as customers and competitors may submit their opinions to the JFTC at any time. Also, the JFTC seeks public comments when it decides to initiate a Phase II review. Any person may submit their opinions to the JFTC. The JFTC does not have to respond to such third party opinions, but normally takes them into account in its substantive review.
According to Regulation 19(3) of the Combination Regulations, during the period of Phase I review, the CCI, where it deems necessary, may call for information from any third party to determine whether a combination causes or is likely to cause an AAEC.
In the course of a Phase II review, where the CCI forms a prima facie opinion that the combination causes or is likely to cause an AAEC, the CCI under Section 29(2) of the Competition Act directs the parties to publish details of the combination to bring it to the knowledge of the public and persons affected or likely to be affected (“Public Disclosure”). Furthermore, the CCI may invite any third party to file written objections; within 15 working days of the Public Disclosure.
The CMAinvariably invites third parties to comment on transactions that it is reviewing. In addition, within a few days of commencing its investigation, the CMA will usually directly contact relevant customers, suppliers and competitors of the parties, based on details supplied by the parties.
The CMA may also, where appropriate, solicit views on merger cases from other governmental departments, sectoral regulators, industry associations and consumer bodies.
The Commission will proactively contact the Parties’ competitors, customers and trade associations. In Phase II proceedings, the Commission will publicly invite third parties to submit their comments on the transaction.
During its merger review process, the Israeli Antitrust Authority approaches third parties, such as customers, suppliers and competitors.
Such third parties will normally be initially contacted by phone. The Israeli Antitrust Authority will ask them to provide information about the relevant markets, including their input regarding the merger. To the extent required – normally only for more complex mergers – written requests for information will be issued. Under the Israeli Antitrust Law, third parties are obliged to respond to requests for information, and are subject to penalties if they fail to do so in a timely manner.
The Israeli Antitrust Authority normally does not ask third parties for an opinion in writing, but will accept third parties' written submissions in objection or in support of a merger if filed promptly and within the Israeli Antitrust Authority's review time framework.
Under non-simplified procedures, SAMR may solicit opinions from relevant government agencies such as the Ministry of Industry and Information Technology (“MIIT”), industry associations, business operators and consumers when necessary.
Under the simplified procedures, SAMR normally seek views only from the relevant industry association or government agencies when necessary, but not from other business operators or consumers. However, given that a public announcement is published, any third party may submit comments to SAMR on the concentration.
The agency seeks and is allowed to request information and documents from third parties of any type (either private or public entities); provided that third parties are not considered to be involved in the process and are not granted access to the file.