For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?
Merger Control (3rd edition)
While notification to the CCPC is mandatory for transactions that meet the turnover-based thresholds, the Competition Act also provides for voluntary notifications that fall below the jurisdictional thresholds. The CCPC's policy is to seek to prevent the implementation of mergers or acquisitions that would substantially lessen competition in any market in the State and this applies equally to transactions that do not meet the financial thresholds for mandatory notification. In practice, where the CCPC becomes aware of a non-notifiable transaction that raises potential concerns, it will contact the parties to the transaction to request further information and, if necessary, request the parties to voluntarily notify the transaction to the CCPC under the merger control regime. If the parties refuse to do so and the CCPC's concerns have not been allayed, the CCPC can proceed to open an investigation into whether the transaction would breach the prohibitions in the Competition Act on anti-competitive arrangements between undertakings and/or abuse of dominance. It has the option of issuing civil proceedings seeking declaratory and/or injunctive relief in this regard.
Not applicable. The Philippines follows a compulsory filing regime.
Provided that the jurisdictional thresholds are met, the filing is mandatory. The Greek Competition Act does not provide for legal exemptions from the need to obtain merger control clearance.
Since there is not a voluntary filing regime in Peruvian regulation, this does not apply.
Not applicable. According to the Competition Act, prior notification is mandatory whenever any of the relevant thresholds are met. Due to the market share threshold, there have historically been many multijurisdictional transactions that trigger mandatory prior notification in Portugal.
Whether or not to notify voluntarily a merger to the CMA is a question to be determined by a commercial risk assessment. The parties are likely to view the risks differently, but the following points can be made.
On the one hand there is the question whether the merger raises any competition concerns, and if so whether they are likely to elicit complaints from customers/competitors and/or are of sufficient magnitude that a second-phase investigation is a realistic prospect. The CMA can open such an investigation at any time up to four months from the date of completion of the transaction, or from the date on which facts about the transaction became public (e.g. when it is announced, or when it receives significant press coverage in the national or trade press), whichever is the later. Acquirers effectively face the risk of the CMA opening an investigation on its own initiative if transactions are not made 'sufficiently public'; this was underlined by a case involving Tesco's acquisition, through a nominee company, of a single grocery store operated under the Brian Ford fascia, which resulted in a first-phase review being commenced almost five years after the transaction completed.
On the other hand, there is the desire for legal certainty. If the parties and their advisers consider that the risk of a reference is low, the parties may decide not to notify. Equally, the parties may take the view that the transaction is low-profile enough to escape the CMA's attention (notwithstanding the CMA's dedicated mergers intelligence unit that monitors various sources of information). Or the parties may take the risk that, even if the CMA hears about it, a second-phase investigation is unlikely. However, the interests of the purchaser may be better served by insisting upon a notification being made, backed up by clearance being a condition of closing. The potential consequences for a purchaser of completing a transaction without having obtained prior clearance are set out in Section 1 above.
Finally, for takeovers of publicly listed companies, the UK City Code on Takeovers and Mergers requires that any offer for a public company must lapse in the event of a second-phase investigation by the CMA, or the initiation of in-depth proceedings by the European Commission under the EU Merger Regulation. Consequently, if the CMA has jurisdiction to review an offer, the bidder will often opt to notify it to the CMA for clearance.