Is mandatory notification compulsory or voluntary?
Merger filing is compulsory in China. Pursuant to Article 21 of the AML, a concentration transaction meeting the relevant revenue thresholds shall be filed for a merger review.
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 Jobs, Enterprise and Innovation (the “Minister”) for the purposes of the Competition Act.
To date, the Minister has specified that all media mergers (as described in more detail in Section 4.3 below) are notifiable to the CCPC, regardless of the turnover of the undertakings involved.
For a transaction which falls under the definition of a "merger of companies" according to the Restrictive Trade Practices Law, 1988 (the "Israeli Antitrust Law") (see "Jurisdictional Test" below) and meets the relevant thresholds (see "Summary of Jurisdictional Thresholds" below), filing is mandatory. The Commissioner's consent is required before proceeding with the transaction. Gun-jumping is enforceable by various measures, including criminal charges and administrative fines.
Notification is mandatory for any transaction that meets the thresholds.
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.
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.
Notification under the HSR Act is compulsory for transactions that meet the filing thresholds and are not subject to an exemption. The FTC and DOJ do not accept voluntary filings for transactions that do not meet the filing thresholds.
Filing is mandatory in Russia. Violation of the merger control regime may entail imposition of fines, disqualification of officials (in certain cases) and also invalidation of the transaction.
Notification is voluntary in the UK. There are no circumstances in which a merger filing is compulsory.
Filing is mandatory for all concentrations that meet the jurisdictional thresholds. The only exception is if the transaction also meets the jurisdictional thresholds for notifying the European Commission.
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.
Notification is mandatory.
The parties to a merger which has an effect in South Africa and which exceeds certain combined asset and/or turnover thresholds (see below) must notify the Commission of that merger, in a prescribed manner and form.
For mergers that do not meet the prescribed thresholds, the Commission may call for a notification within 6 months of implementation of the merger if it is of the opinion that the merger may substantially prevent or lessen competition or if it raises public interest concerns.
Filing is mandatory for all concentrations that meet the jurisdictional thresholds. There is an exception to this principle if the transaction also meets the jurisdictional thresholds to notify the concentration to the European Commission.
Merger control notifications can either be voluntary or compulsory. Voluntary notifications are the exception, so the core of the merger control regimen in Mexico relies on certain statutory thresholds which has made it mandatory if any of these thresholds are reached.
The FECL contemplates specific thresholds, which on practice, can be interpreted or analysed based on several factors such as calculations of turnover, assets, and exchange rates, among many others as explained below.
Notification is mandatory to the extent that the German merger control thresholds are satisfied and the transaction is likely to have market effects in Germany.
Pre-merger filing is mandatory.
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.
Pre-merger notification is mandatory when a transaction exceeds the applicable financial thresholds (described in more detail below).
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.