Is it usual practice to engage in pre-notification discussions with the authority? If so, how long do these typically take?
Merger Control (3rd edition)
Particularly in difficult cases, the official parties are generally open to pre-notification talks. They can also be approached, for example, with questions regarding the above discussed effects doctrine.
Yes, it is usual to engage in pre-notification discussions with the FNE. The length of these discussions depends mainly on the complexity and/or urgency of the analyzed operation of concentration. On average, this pre-notification process may take one to four weeks before notification is filed.
The Turkish merger control rules do not provide a pre-notification mechanism. Therefore, there are no pre-notification discussions with the authority.
It is usual practice – and recommended by the DCCA – to engage in pre-notification discussions prior to submitting a notification. The length of the pre-notification discussions varies and depends on the complexity of the merger, cf. Q17.
Parties to a merger or acquisition can request a pre-notification meeting with the CCPC to discuss jurisdictional and other legal issues that may arise. The CCPC has stated that it welcomes the opportunity to have pre-notification discussions with parties who have expressed a good faith intention to proceed with a transaction, either in the form of a meeting or conference call. However, unlike the practice of the European Commission, the CCPC does not generally require the parties to engage in detailed pre-notification discussions prior to submission of the notification, and in practice, parties tend not to engage in pre-notification discussions with the CCPC in the majority of cases.
The Law does not provide for any pre-notification discussions, nor are any such discussions binding on the CPC. It is generally not typical to engage in such discussions with the CPC.
Typically, parties engage in pre-notification discussions with the ICA when the proposed concentration might raise competitive concerns. In particular, parties can send to the ICA a briefing memorandum or a draft notification and discuss, on a strictly confidential basis, the main terms of the concentration and its possible competitive impact.
The pre-notification aims at (i) speeding up the formal review process; and (ii) reducing the risk that further information be requested at a later stage of the proceeding (see question 20).
Even though there is no deadline to start the pre-notification, according to a specific ICA’s notice, the latter should start at least 15 days before the formal filing. The duration of the pre-notification typically takes approximately 15 calendar days, but it can last longer, when the case is particularly complex.
Yes. Pre-notification discussions are common in more complex matters, but not in the more 'straightforward' matters. Pre-notification discussions in more complex matters are generally encouraged as it enables the notifying party to address specific topics that the NCA might want to focus on (e.g. complex factual matter, areas/markets where there are potential issues etc.), thus ensuring a more stringent and efficient procedure when the "clock starts".
Yes, pre-notification consultation is a usual practice encouraged by the PCC to incentivize compliance. Rule 4, Sec. 4 of the PCA IRR provides:
(a) Prior to filing a notification pursuant to this Rule, parties to a proposed merger or acquisition that are required to notify may inform the Commission of their proposed merger or acquisition and request a pre- notification consultation with the staff of the Commission.
To request a meeting, the parties must provide the following information in writing:
- the names and business contact information of the entities concerned;
- the type of transaction; and
- the markets covered or lines of businesses by the proposed merger or acquisition.
(b) During such pre-notification consultations, the parties may seek non- binding advice on the specific information that is required to be in the notification.
There is no fixed time limit for a pre-notification consultation and it can take as long as necessary to resolve the issues or obtain a non-binding advice consistent with the size, complexity and other peculiar factors surrounding the proposed transaction.
Pre-notification discussions occur but are not common. Intense cooperation with the authority usually takes place after the merger control filing has been made.
It is customary in France to engage in pre-notification discussions with the FCA, generally on the basis of a draft notification form. Such pre-fillings allow the appointed case-handler to ensure that the file is complete, and if needed, to request further information or clarifications from the parties. Such process is recommended to troubleshoot issues that may arise during the formal review process.
Such informal phase, which is strictly confidential, has no binding timetable but in practice it often lasts 2/3 weeks for "simple" cases (i.e. which do not raise any competition issues) and up to several months for more complex cases.
Merging parties do not typically engage in pre-notification discussions with the Commission. While pre-notification meetings are rare, it is possible to request a pre-notification meeting if there are deal complexities which the parties require guidance on from the Commission.
Parties may engage the antitrust agencies in discussions prior to making an HSR filing. This is most common in transactions that are high-profile, present potentially complex antitrust considerations, or if an agency has a history of recent enforcement activity in the same or a similar industry. By engaging early in the process, parties hope to identify and quickly resolve any concerns in a timely manner. Because pre-notification discussions may risk added antitrust agency scrutiny, parties should consider whether to engage in pre-notification discussions on a case-by-case basis.
Undertakings may hand in a draft of the notification to the Secretariat of the ComCo. Based on the information and documents the undertakings handed in, the Secretariat evaluates the draft of the notification and in particular assesses whether the documents are complete. There is no time limit for this evaluation.
Especially in the case of extensive and complex merger projects it is recommended to contact the ComCo prior to notification. In regard to the short time available to the ComCo for the preliminary (phase I, initial review, one month) and extended (phase II, extended review, four months) examination of a merger project, such a pre-notification discussion is appreciated by the ComCo.
The necessity and duration of pre-notification discussions is determined by the relevant merger. As will be further elaborated below, it is the obligation of the parties to offer remedies, should remedies be necessary. It is certainly possible to contact the FCA pre-merger if the situation requires, however it is not usual practice. In less complex cases, proceedings are started by filing the necessary documents.
It is not usual to engage in pre-notification discussions with INDECOPI.
The parties are encouraged to contact the PCA prior to submitting the notification (pre-notification). During this stage, the PCA may give its preliminary view on the transaction, the completeness of the information, and express potential concerns, thereby enabling the parties to address such concerns in advance. Pre-notification discussions, which are confidential, may also reduce the number of questions asked by the PCA after filing, thus increasing the likelihood of a quick approval. In practice, the pre-notification stage may last up to 2 weeks in straightforward transactions. Recently, we have seen cases where the pre-notification phase has lasted less than five business days.
Though it is not mandatory, it is a common practice that parties seek pre-notification consultation with the JFTC before formal filing to clarify the contents of the notification (e.g., definition of relevant market). By doing pre-notification consultation, the parties can expect that the JFTC’s review process upon formal filing will go smoothly. Further, pre-notification consultation is often used to learn the JFTC’s preliminary view on certain issues and in a case which is expected to move to second phase review, to narrower the scope of questionnaire to be issued by the JFTC upon opening of second phase review. The length of the pre-notification consultation depends on size and complexity of the case, it usually takes a few weeks or even longer. The parties can quit the pre-notification consultation at any time, and there is no adverse effect on the JFTC’s review upon formal notification even if the parties quit the pre-notification consultation in the middle.
The Combination Division of the CCI can be approached for non-binding, informal verbal consultations prior to notifying a proposed combination for substantive and/or procedural issues. Once a request for a pre-filing consultation has been made, the CCI usually replies within a week with the details of the meeting. Further, this facility is being increasingly undertaken for substantive pre-merger discussions with the CCI prior to formal filing to enable parties to file a merger notification complete in all respects and pre-empt/minimize further information requests from the CCI.
Yes. The CMA's guidance is that notifying parties should allow a minimum of two weeks of pre-notification discussions even for straightforward cases. However, given the voluntary nature of the UK merger control regime, notified transactions tend to be more likely to give rise to competition issues than under a mandatory filing regime, so a period of between four and eight weeks is more common, and pre-notification for very complex cases can often last for a number of months.
The CMA also operates a mechanism that allows parties to seek some informal, non-binding comfort that the CMA will not 'call in' a merger for review.
While pre-notification is not required by the EUMR, pre-notification takes place in almost all cases. Notifying without pre-notification runs the risk of being declared incomplete by the Commission, in particular if the notification does not address all “plausible” market segments, even though the notifying party does not believe that such segments are separate product markets.
For simple cases with no overlaps, the Commission’s case-team will typically take no longer than a week to review and comment on the draft Form CO submitted in the pre-notification process, and usually not more than two or three rounds of comments are to be expected. Pre-notification for more substantive cases can take several months.