Is mandatory notification compulsory or voluntary?
Merger Control (3rd edition)
In general, all concentrations exceeding the thresholds contained in the Cartel Act have to be filed for clearance prior to implementation.
Intra group concentrations do not have to be notified.
Operations of concentration that will have effects in Chile must be notified to the FNE prior to materialization when the turnover thresholds indicated in answer number 6 are met.
There is also an obligation to inform ex-post on acquisitions of a non-controlling interest of 10% or more in a competitor where the turnover thresholds indicated in answer number 6 are met.
Turkey is a jurisdiction with a pre-merger notification and approval requirement, much like the EU regime. Concentrations that result in a change of control are subject to the Competition Board’s approval, provided they exceed the applicable turnover thresholds.
‘Control’ is defined as the right to exercise decisive influence over day-to-day management or on long-term strategic business decisions of a company, and can be exercised de jure or de facto. Once the thresholds are exceeded, there is no exception for filing a notification. There is no de minimis exception or other exceptions under the Turkish merger control regime, except for a certain type of merger in the banking sector.
Prior notification to the DCCA is mandatory if the jurisdictional thresholds are met.
A merger or acquisition within the meaning of the Competition Act is notifiable to the CCPC on a mandatory basis if either:
- It satisfies the turnover-based thresholds under the Competition Act; or
- It falls within a class of merger or acquisition that has been specified in an Order by the Minister for Business, Enterprise and Innovation (the “Minister”) for the purposes of the Competition Act.
To date, the Minister has specified that all media mergers are notifiable to the CCPC, regardless of the turnover of the undertakings involved.
The implementation of concentrations of major importance can only take place following their clearance by the CPC. As such, their notification to the CPC is mandatory.
However, notification is not required in the following cases, where a concentration between undertakings is not deemed to arise:
- a credit or financial institution or an insurance company, the normal activities of which include transactions and dealing in securities on its own account or for the account of third parties, holds on a temporary basis securities that it has acquired in an undertaking with a view to reselling them, provided that the institution does not exercise voting rights in respect of those securities with a view to determining the competitive behaviour of that undertaking or provided that it exercises such voting rights only with a view to facilitating the disposal of all or part of that undertaking or of its assets or the disposal of those securities, and that any such disposal takes place within one year of the date of acquisition – a period which can be extended by the CPC on request, where it can be shown that the disposal was not reasonably possible within the period set;
- control is exercised by a person authorised under the legislation relating to liquidation, bankruptcy or any other similar procedure;
- the concentration of undertakings between one or more persons already controlling at least one or more undertakings is carried out by investment companies;
- property is transferred due to death by a will or by intestate devolution;
- it is a concentration between two or more undertakings, each of which is a subsidiary undertaking of the same entity.
Pre-merger filing is compulsory, if the concentration has no Community dimension and the relevant turnover thresholds are met.
Notification is mandatory if the turnover thresholds are fulfilled.
Under the PCC Rules of Merger Procedure, firms involved in mergers or acquisitions that breach the Size of Party and Size of Transaction Thresholds must notify the PCC within thirty (30) days from executing a definitive agreement. The PCA and its implementing rules do not contain exceptions to the compulsory notification requirement.
Recently, the PCC has imposed a multi-million peso fine on a Philippine conglomerate that did not comply with the compulsory notification requirement (see In Re: Udenna Corporation, PCC Case No. M-2017-001). Even the late filing of a compulsory notification is penalized. In the case of In re: AXA SA, Camelot Holdings Ltd., and XL Group Ltd., PCC Case No. M-2018-004, Decision No. 30-M-03/2018, 30 August 2018, the PCC imposed a fine of “1/2 of 1% of 1% of the value of the Subject Transaction” for the filing of compulsory notification one hundred and twelve (112) days after the execution of the definitive agreement. The fine was imposed even though the merger was later on approved by the PCC.
Merger clearance is compulsory in case the relevant criteria, in particular turnover and balance sheet – related thresholds, are fulfilled. Filings for approval of agreements on joint activities of competitors can be made voluntarily in case the thresholds are not reached.
Pursuant to Article L.430-3 of the Code, notification is compulsory if the conditions for a notification to the FCA are met i.e. if the relevant turnover thresholds are met.
Filing is mandatory and no exceptions are provided for by the law.
The Act applies a mandatory system, requiring notification to the Commission of intermediate and large mergers. Provision is made for voluntary notification of small mergers. The Commission may also require notification of a small merger if the Commission considers that a small merger may substantially prevent or lessen competition or cannot be justified on public interest grounds. Furthermore, in terms of a non-binding Guideline issued by the Commission in April 2009, notification of a small merger will be required if, at the time of entering into the transaction, any of the firms, or firms within their group, are subject to an investigation of a prohibited practice by the Commission or are respondents to pending proceedings in respect of a prohibited practice referred by the Commission to the Tribunal.
Under the HSR Act, notification is compulsory for transactions that meet the filing thresholds and are not subject to an exemption.
The notification is compulsory, if a concentration exceeds the thresholds contained in the Cartel Act.
Intra-group transactions are exempt from merger control and are therefore not subject to notification.
Filing is mandatory if the following prerequisites are met: (i) the transaction qualifies as concentration in the meaning of the ARC, (ii) the turnover of the undertakings concerned exceeds the statutory thresholds, (iii) no exception applies and (iv) the transaction is not subject to EU Merger Control.
A compulsory notification must be submitted to the HCC by the parties acquiring control, thirty days from the execution of an agreement giving rise to such change of control, or from the publication of a binding offer or the assumption of an obligation for the acquisition of a participation conferring such control. The Greek Competition Act does not provide for legal exemptions from the need to obtain merger control clearance.
In all cases, the notification is compulsory if the firms have exceeded the thresholds.
The PCA must be notified of concentrations if they trigger one or more of the three alternative jurisdictional thresholds.
Notification is mandatory for any transaction that meets the thresholds.
India is a suspensory, compulsory merger control regime. Under the Indian merger control regime, a combination must be notified to the Indian competition authority i.e., the CCI, if it satisfies any of the prescribed asset or turnover thresholds (“Jurisdictional Thresholds”) under Section 5 of the Competition Act and does not qualify for any exemption provided in the Combination Regulations or the various notifications issued by the Government of India. There is no concept of a voluntary notification to the CCI. If the Jurisdictional Thresholds are not met, no notice can be filed with the CCI.
Notification is voluntary in the UK. There are no circumstances in which a merger filing is compulsory.
A notification is mandatory if two conditions are met: (1) the transaction leads to a change of control (e.g. by acquisition of sole or joint control) or a change in the quality of control (e.g. from joint to sole control), and (2) the turnover thresholds set out in the European merger control regulation (“EUMR”) are met.