In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?

Merger Control (3rd edition)

Austria Small Flag Austria

According to the effects doctrine, all concentrations having effects on the Austrian market are subject to the Austrian merger control regime. As the relevant criterion is the effect on the Austrian market, no local presence and not even sales into Austria are required. Therefore, in principle, also foreign-to-foreign mergers have to be notified if they exceed the mentioned thresholds and have an effect on the Austrian market.

However, particularly where the target has no turnover in Austria and the market(s) it is active on do not comprise Austria, there are arguments that there is no relevant effect and hence no notification obligation.

According to jurisprudence, there was no obligation to notify a merger where a foreign target company did not offer and in the foreseeable future would not offer any services in Austria. Furthermore, no other resources such as know-how, patents and so on, which could contribute to a noticeable increase in the market share of the acquirer, were part of the transaction. Also, the financial strength alone was found to constitute a rather indirect effect, which (as such) does not constitute a sufficient effect on the Austrian market. In one leading case, an Austrian bank was not obliged to notify the acquisition of a Czech and Slovak credit institute. The target companies were neither actual nor potential players on the Austrian market. On the other hand, in a different case, it was held that the acquirer was gun-jumping where the target company did not generate any turnover in Austria due to an increase in the financial strength in combination with the (increased) access possibilities to sales markets, the distribution network and the trade mark of the target company.

It may also be noted that the BWB essentially has a very strict view regarding the effects doctrine, which it has also published on its website (www.bwb.gv.at).

Chile Small Flag Chile

Jurisdictional thresholds do not vary in relation to “foreign-to-foreign” operations of concentration.

Turkey Small Flag Turkey

Foreign-to-foreign mergers are covered by Law 4054 on Protection of Competition to the extent that they affect the relevant markets within the territory of Turkey. Regardless of the parties’ physical presence in Turkey, sales in Turkey may trigger the notification requirement to the extent that the turnover thresholds are met. Article 2 of Law 4054 sets out the effects criterion – that is, whether the undertakings concerned affect the goods and services markets in Turkey. Even if the undertakings concerned have no local subsidiaries, branches or sales outlets in Turkey, the transaction could still be subject to Turkish competition legislation if the goods or services of the participating undertakings are sold in Turkey and the transaction would thus affect the relevant Turkish market. In 2017, 83 of a total of 168 transactions notified to the Board were foreign-to-foreign transactions.

The likelihood that the Board learns about a transaction is high as the Board vigorously follows mergers and acquisitions in the local and international press and also closely follows the case practice of the European Commission and other important competition authorities. It may also examine the notifiability of past transactions in the context of a new notification. The Board has imposed a fine of 0.1% of the undertaking’s turnover, for either closing the transaction prior to clearance or not notifying the transaction at all.

  • The highest gun jumping fine so far was approx. 1 million USD
    (Simsmetal/Fairless, 16.09.2009, 09-42/1057-269). This concerned a foreign to-
    foreign transaction. It was not discovered by the Authority but was
    notified by the parties after closing.
  • There are several other foreign-to-foreign transactions where fines were imposed. See e.g. Longsheng 02.06.2011, 11-33/723-226; CVRD Canada Inc., 08.07.2010, 10-49/949-332; Flir Systems Holding/Raymarine PLC, 17.06.2010, 10-44/762-246; Georgia Pacific Corporation, Fort James Corporation, 29.12.2005, 05-88/1219-352.
  • There is to the knowledge of local counsel no fining decision concerning a foreign-to-foreign transaction involving a joint venture/target without activities or turnover in Turkey.

Denmark Small Flag Denmark

“Foreign-to-foreign” transactions, i.e. where the legal entities acquiring and being acquired are all located outside Denmark, are equally caught by Danish merger control rules in so far as the merging parties meet the Danish turnover thresholds in Denmark.

Ireland Small Flag Ireland

The relevant jurisdictional thresholds apply irrespective of whether or not the transaction concerns undertakings incorporated in Ireland. However, the relevant turnover to be taken into account is the turnover in Ireland of the undertakings involved. As this effectively means turnover derived from sales to customers located in Ireland, jurisdiction of merger control rules under the Competition Act is directly linked with the impact of the transaction on competition in Ireland.

Cyprus Small Flag Cyprus

‘Foreign-to-foreign’ mergers are caught by the Cypriot merger control regime, where these are concentrations of major importance, namely where they satisfy the jurisdictional thresholds.

Cyprus law does not distinguish between concentrations which have an impact on the market locally and those which do not, nor are the thresholds satisfied in a different manner. From a local nexus perspective, it suffices that the undertakings concerned achieve a turnover in Cyprus (provided the turnover thresholds are met). It is thus often the case that transactions that are not directly related to the competitive market in Cyprus, are caught by Cypriot merger control.

As is the case with all concentrations caught under Cyprus merger control, where a “foreign-to-foreign” is either partially or entirely implemented prior to the clearance of the CPC, administrative sanctions may be imposed by the CPC.

An administrative fine of up to ten per cent (10%) of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed on the notifying undertaking for the discussed infringement, which may be followed by additional administrative fines of €8,000 for each day the infringement persists.

Italy Small Flag Italy

No, the same jurisdictional thresholds apply.

Furthermore, in light of the jurisdictional thresholds currently in force (and consistently with the EU Commission Consolidated Jurisdictional Notice), the creation of a concentrative joint venture, which will not operate in Italy, by parent companies that meet the cumulative thresholds, appears to be reportable to the ICA, despite the (potential) lack of local nexus.

Norway Small Flag Norway

No.

Philippines Small Flag Philippines

The PCA also contemplates foreign-to-foreign mergers with assets in the Philippines or gross revenues generated in or into the Philippines by assets acquired outside the Philippines that satisfy the Size of Party and Size of Transaction Thresholds (PhP5 billion and PhP2 billion, respectively).

Russia Small Flag Russia

For foreign-to-foreign transactions, a specific economic threshold applies in addition to the general thresholds as set out in question 6. Transactions leading to the acquisition of control over a company registered outside Russia require approval only if the target company registered outside Russia (including all of its subsidiaries) had supplies of goods (services) into Russia amounting to more than RUB 1,000,000,000 in the year preceding the year when the respective transaction is intended to take place.

France Small Flag France

No, any “foreign-to-foreign” merger which meets the applicable turnover thresholds has to be notified to the FCA, even if the transaction has no impact on the French territory, and it can only be completed after a clearance decision is issued.

South Africa Small Flag South Africa

The jurisdictional thresholds do not vary according to whether the transaction is "foreign-to-foreign" (i.e. where the legal entities acquiring and being acquired are all located outside South Africa). Please refer to the “local presence” discussion at question 6 above.

United States Small Flag United States

Under the HSR Act, an entity is deemed to be foreign if it is not incorporated in the US, is not organized under the laws of the US, and does not have its principal offices in the US.

Foreign-to-foreign transactions can trigger an HSR filing if they exceed the filing threshold and are not exempt. There are certain exemptions that are specifically applicable to ‘foreign-to-foreign’ transactions.

The threshold values listed below are as of February 2018 and are adjusted annually.

Assets

The acquisition of foreign assets is exempt, unless the assets to be held as a result of the acquisition generated sales in or into the US greater than US$84.4 million during the acquired person’s most recent fiscal year. If both the acquiring person and acquired person are foreign, an asset acquisition that exceeds the $84.4 million threshold may still be exempt if (1) the aggregate sales in or into the US of the acquiring person and acquired person are less than US$185.7 million in their respective most recent fiscal years, (2) the aggregate total US assets of the acquiring and acquired persons are less than US$185.7 million and (3) the acquiring person will not hold assets or voting securities of the acquired person that exceed US$337.6 million as a result of the transaction.

Voting Securities

An acquisition of voting securities of a foreign issuer by a foreign person is exempt unless (1) the transaction confers control of the foreign issuer by the foreign person (i.e., if, as a result of the acquisition, the acquiring person will hold 50% or more of the voting securities of that issuer or will have the contractual right to designate 50% or more of the board of directors), and (2) the foreign issuer, along with any entity it controls, hold US assets with a fair market value of more than US$84.4 million, or made aggregate sales in or into the US of over US$84.4 million in its most recent fiscal year. Even if the US sales or assets thresholds are met, the acquisition of control of a foreign issuer by a foreign person may still be exempt if (1) the aggregate sales in or into the US of the acquiring person and acquired person are less than US$185.7 million in their respective most recent fiscal years, (2) the aggregate total US assets of the acquiring and acquired persons are less than US$185.7 million and (3) the acquiring person will not hold assets or voting securities of the acquired person that exceed US$337.6 million as a result of the transaction.

Switzerland Small Flag Switzerland

In principle, the sales thresholds also apply to "foreign-to-foreign" mergers. However, according to the practice of the ComCo, in exceptional cases there is no reporting obligation because of the absence of effects in Switzerland. This concerns cases in which joint ventures have neither activities nor sales in Switzerland (e.g. no deliveries are made to Switzerland) and such activities are neither planned nor expected in the future.

Germany Small Flag Germany

A transaction that is initiated outside of the geographical area of the Federal Republic of Germany and that does not affect competition in the country (reiner Auslandszusammenschluss) will not trigger an obligation to file.

German merger control applies to foreign-to-foreign mergers if the merger has an appreciable (spürbar) impact on domestic competition. While the basic criteria, the impact on the market in Germany, is written law, its interpretation is still not completely clear. Furthermore, German courts determine the significance of a specific impact on a case-to-case basis. Based on the decisional practice of the Federal Court of Justice, market shares as low as an addition of 4.4 and 0.14% and 3.5 and 0.23% may constitute sufficient impact. The necessary level of domestic activities to be appreciable is, therefore, very low.

If a foreign-to-foreign merger is caught, the thresholds are the same. From a commercial point of view, the risks of not filing usually outweigh the costs (by far) when in doubt. Not only may implementing a merger without proper clearance (“gun jumping”) lead to significant fines. Under German civil law, the transaction and all agreements made aiming at implementing the merger will very likely be found legally void. This causes significant legal uncertainty, especially as, different from penal law, there is no statute of limitation for this consequence.

Greece Small Flag Greece

Merger control requirements apply to all transactions meeting the notification jurisdictional thresholds (as outlined in question 6), thus foreign-to-foreign transactions may be also captured by the merger control regime. Accordingly, the same fines are also imposed in foreign-to-foreign transactions for failing to notify, subject to the provision that the concentration has an effect in Greece.

Peru Small Flag Peru

No. According to Law No. 26876, the thresholds are the same for all kinds and forms of mergers and acquisitions.

Under the Bills, thresholds are also the same.

Portugal Small Flag Portugal

The Competition Act does not distinguish between national and foreign-to-foreign mergers (with connection to the Portuguese territory, e.g. with direct or indirect sales to the Portuguese territory), nor does the decisional practice of the PCA. Therefore, foreign-to-foreign mergers that are covered by the Competition Act are subject to the same obligations and consequences (e.g. fines may apply and the relevant agreements may be declared null and void).

Japan Small Flag Japan

There are no special thresholds or treatments for foreign-to-foreign transactions. Even if all relevant parties of a transaction are located outside Japan, the same standard of thresholds for domestic parties will apply to the transaction.

India Small Flag India

The Jurisdictional Thresholds are uniform and do not vary in case of “foreign-to-foreign” mergers.

Foreign-to-foreign transactions are notifiable to the CCI if any of the Jurisdictional Thresholds are satisfied by the transacting parties. Given that the Competition Act contemplates a suspensory regime, the global transaction cannot be consummated in part or full, prior to receiving approval from the CCI.

United Kingdom Small Flag United Kingdom

The jurisdictional thresholds do not vary according to whether the transaction is 'foreign-to-foreign' (i.e. whether the legal entities acquiring and being acquired are all located outside the UK).

EU Small Flag EU

Companies meeting the EU thresholds for aggregate worldwide turnover must notify their merger transactions to the Commission whether or not the parties have direct connections to the EU.

Israel Small Flag Israel

The nexus tests are the same irrespective of whether the legal entities acquired reside in Israel. If the nexus test and the filing thresholds apply to a group of companies under the same ultimate controlling entity, the nationality of the specific legal entities carrying out the transaction within the group is immaterial.

Nonetheless, due to various legal constraints, enforcement against non-Israeli entities has been far less vigorous than against local entities.

China Small Flag China

The same jurisdictional thresholds apply. That said, “foreign-to-foreign” mergers, e.g. two foreign companies establish a joint venture which will not engage in any economic activity within the territory of China, may qualify as simple cases subject to simplified procedures.

Updated: October 25, 2018