Does the authority seek or invite the views of third parties?
Merger Control (4th 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.
Under non-simplified procedures, SAMR may solicit opinions from relevant government agencies such as the Ministry of Industry and Information Technology (“MIIT”), industry associations, other 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. SAMR will review and assess the foresaid comments.
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 assessment of a concentration or they may be asked by the Service of the CPC to provide information.
The undertakings concerned or any third parties that may be affected directly by the decision of the CPC may request to be head before the CPC in the context of a hearing during which they will develop their arguments.
During the assessment of the merger, the DCCA will generally invite any one 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.
Yes, it does. In its analysis, the SCPM reviews the information provided by the notifying party with regard to its competitors and providers, as well as the supply and demand structure at the market in question. Furthermore, when analyzing an economic concentration, the SCPM will repeatedly require information from competitors of the economic operators involved. Clients or competitors with a legitimate interest are entitled to file a special review appeal against the economic concentration resolution issued by the SCPM.
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.
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.
 The notifying party(ies) are required, in relation or affected markets, to provide the names and contact details of the undertakings concerned's main customers and suppliers
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.
Where the CCI deems it necessary, it may call for information from any other enterprise while inquiring as to whether a combination has caused or is likely to cause an AAEC in India. In an event where an acquisition or a merger is being reviewed under a Phase II investigation by the CCI, the parties are directed to publish non-confidential details of the transaction in four leading national daily newspapers and their own websites within ten working days of the CCI’s decision to investigate the transaction further. Third parties are then invited to provide their views on the likely impact of the transaction within the relevant market within 15 days of publication.
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 publication of the notice. The CCPC may however change this time limit by notice on its website in individual cases, if circumstances so require. 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. Submissions from third parties should clearly indicate any information that should be treated as confidential. The CCPC refers to whether any third party submissions were received in its determination.
Separately, 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 relevant trade associations. 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. According to the Procedural Guidelines, 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 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.
During its merger review process, the Israeli Competition Authority approaches third parties, such as customers, suppliers and competitors.
Such third parties will normally be initially contacted by phone. The Israeli Competition 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 Competition 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 Competition 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 Competition Authority's review time framework.
If the KFTC deems necessary, it can consider the opinions of third parties such as competitors or interested parties. Competitors or interested parties may submit their opinions or related information/data to the KFTC. In addition, as part of the review, the KFTC may allow third parties to attend a hearing and present their opinions at the hearing.
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.
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 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 or not.
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 that 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 during both Phases I and II investigations. However, typically market tests are carried out during Phase II investigations, and the PCA does not usually request information from third parties in concentrations that clearly do not raise competition law concerns.
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 infor-mation 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 parties to the concentration are obliged to include contact details for customers and competitors on each market that is affected by the concentration which the SCA may contact during its review.
Furthermore, publication of the summary on the SCA’s website aims to give customers and competitors a chance to comment on the concentration. Anyone can thus submit comments and views regarding the concentration to the SCA.
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.
INDECOPI may request from third parties the information it deems necessary to analyze the authorization request, as well as its opinions on the merits when dealing with public entities specialized in the regulation of the markets that are being evaluated.
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.
The CMA invariably 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.
Engaging third parties is possible in the way of submission of the information required by the AMCU.
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.
Third interested parties (including customers, consumer associations and competitors), may submit observations within 5 calendar days from the publication of the notice of notification submission.
In case of in-depth investigation, third interested parties may request to intervene within 10 calendar days. If admitted, they can access the file, submit written comments and documents, request a formal hearing and participate in the final hearing before the ICA.
Additionally, especially in case of in-depth investigation, the ICA usually sends requests for information to the main customers and competitors, on its own initiative, in order to better assess the potential effects of a notified concentration.
Third parties are entitled, within fifteen (15) days from the publication of the announcement of the concentration as per the above, to submit comments and provide information regarding the notified transaction. The HCC may also, when considered necessary, while evaluating a notified concentration, send written questionnaires to any undertaking, public or other authorities, and request certain information within a specific deadline (“market testing”). Such questionnaires may be addressed to competitors, customers, consumer organizations and/or other administrative authorities. The HCC follows this practice in many cases, especially when it needs to define a previously uninvestigated market.
Although third parties do not have access to the case file which is treated as confidential, they may be invited to the hearing before the HCC, provided that the authority considers their participation essential for the examination of the case. In addition, third parties may submit written pleadings at least fifteen (15) days before the oral hearing, which must be notified to the undertakings concerned at least five (5) days before the hearing.