Is mandatory notification compulsory or voluntary?
Merger Control (2nd Edition)
The PCA must be notified of concentrations if they trigger one of the three alternative jurisdictional thresholds:
a) Turnover threshold: concentrations are subject to notification if, in the preceding financial year, the aggregate combined turnover of the undertakings concerned in Portugal exceeded €100 million, after deduction of taxes directly related to turnover, provided that the individual turnover achieved in Portugal in the same period, by at least two of the undertakings concerned, exceeded €5 million.
b) Market share threshold: a notification is mandatory if the implementation of the concentration results in the acquisition, creation or reinforcement of a share equal to or exceeding 50% in the “national market” for a certain product, or in a substantial part of it.
c) De minimis market share threshold: a notification is mandatory if there is an acquisition, creation or reinforcement of a share between 30% and 50% in the national market of a certain product or service, and if at least two of the undertakings concerned achieved an individual turnover in Portugal of at least €5 million in the previous financial year.
Two or more concentrations between the same natural or legal persons within a period of two years, even when individually considered as not being subject to prior notification, is deemed to constitute a single concentration subject to prior notification where the two or more concentrations assessed in conjunction satisfy the relevant jurisdictional thresholds.
The following operations are excluded:
a) The acquisition of shareholdings or assets by an insolvency administrator within insolvency legal proceedings;
b) The acquisition of shareholdings merely to serve as collateral;
c) The temporary acquisition, by financial institutions or insurance companies, of securities with a view to reselling them (subject to certain conditions);
d) The acquisition by the Portuguese state of a controlling shareholding in a credit institution, or the transfer of its business to a transition bank in situations of bank recapitalization and resolution failing.
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.
Notification is voluntary in the UK. There are no circumstances in which a merger filing is compulsory.
Pre-merger filing is compulsory, if the concentration has no Community dimension and the relevant turnover thresholds are met.
Under the HSR Act notification is compulsory for transactions that meet the filing thresholds and are not subject to an exemption.
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 exceed the statutory thresholds, (iii) no exception applies and (iv) the transaction is not subject to EU Merger Control.
Notification is mandatory for any transaction that meets the thresholds.
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.
Pre-merger notification is mandatory when a transaction exceeds the applicable financial thresholds (described in more detail below).
(i) Ex- ante notification:
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.
(ii) Ex-post information:
There is in addition 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.
Filing of concentrations of major importance 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; or
- it is a concentration between two or more undertakings, each of which is a subsidiary undertaking of the same entity.
Prior notification to the DCCA is mandatory if the jurisdictional thresholds are met.
The EUMR applies turnover thresholds as a bright-line jurisdictional test to determine whether or not a concentration has an EU dimension. If the jurisdictional test is satisfied, a notification to the Commission is mandatory.
Filing is compulsory if merger control thresholds are met.
Where the thresholds discussed in the overview are exceeded, a concentration is deemed to exist and notification is mandatory. Notification must be made prior to implementation and within 15 working days of conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest.
A simplified, yet still mandatory, notification procedure is available in the following cases:
- Where the turnover thresholds mentioned in Point 1.1 in relation to the short form notification exist;
- In case of mergers or acquisitions that do not involve horizontal overlap or vertical links between the parties to the concentration;
- In case of mergers or acquisitions that involve horizontal overlaps or vertical links but their combined market share does not exceed 15% or 25% respectively.
Notification is mandatory for concentrations where the turnover thresholds are fulfilled (see question 7 below).
The NCA may order a notification even when the turnover thresholds are not met, as well as in cases relating to acquisition of non-controlling minority interest. In these cases, the NCA may order a notification no later than three months after the binding transaction agreement was concluded or control assumed (whatever occurred first).
The parties to a transaction are also allowed to notify voluntarily. This will trigger the NCA's deadlines when the turnover thresholds are not met or in a case relating to the acquisition of a minority interest, cf. question 5 below.
Please also note that certain undertakings are required, pursuant to decisions by the NCA, to notify the NCA of all of transactions which they undertake within a given market, even if they are below the notification thresholds.
Notification to the Competition Council is compulsory for the economic concentrations involving undertakings the turnovers of which fulfil certain thresholds. An exception to this rule applies when economic concentrations also meet the jurisdictional thresholds for notification to the European Commission.
KN: Notification is mandatory provided merger control thresholds have been met.
Acquisition of a joint stock company established in Serbia (being implemented through public offer pursuant to the relevant laws governing the takeovers of joint stock companies) trigger mandatory merger notification irrespective of the merger control thresholds.
The Act applies a mandatory system, requiring notification to the Commission of large and intermediate 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 that the merger may substantially prevent or lessen competition or cannot be justified on public interest grounds.
Furthermore, in terms of a 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 by the Commission of a prohibited practice or are respondents to pending proceedings in respect of a prohibited practice referred by the Commission to the Tribunal.
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.
Notification is mandatory.
The following acts shall be considered concentration acts: I - two or more previously independent companies merge; II – one or more companies acquire, directly or indirectly, by purchase or exchange of stocks, shares, bonds or securities convertible into stocks or assets, whether tangible or intangible, by contract or by any other means or way, the control or parts of one or more companies; III – one or more companies incorporate one or more companies, or IV - two or more companies enter into an associative contract, consortium or joint venture.
Those concentration acts must be submitted to CADE if they have both of the following characteristics:
- at least one of the groups involved in the transaction has registered, in the last balance sheet, annual gross sales or total turnover in the country, in the year preceding the transaction, equivalent or superior to four hundred million reais (R$ 400,000,000.00); and
- II - at least one other group involved in the transaction has registered, in the last balance sheet, gross annual sales or total turnover in the country, in the year preceding the transaction, equivalent to or greater than thirty million reais (R$ 30,000,000.00).
If the act of concentration falls under these requirements, the parties involved must notify CADE of the act, before its conclusion. The initiative to do so falls over the parties, however, failure to notify will bring about penalties to the parties who omitted the act from the authority, as we will see below.
Merger notification is voluntary under the CCA. The ACCC encourages merger parties to seek clearance where the Notification Threshold (see section 1) is met.
The Notification Threshold is indicative only and a merger which does not meet the Notification Threshold (for example, a vertical merger) may still raise competition concerns.