Is notification compulsory or voluntary?
Merger Control (4th 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.
Notification is compulsory in China if the notification threshold determined by the State Council is met.
The notification of concentrations of major importance 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.
The exemption relating to investment companies, refers to those companies the sole objective of which is to acquire holdings in other undertakings, and to manage such holdings and turn them to profit, without involving themselves directly or indirectly in the management of those undertakings.
Prior notification to the DCCA is mandatory if the jurisdictional thresholds are met.
An economic concentration is subject to mandatory filing and needs to obtain the authorization from the Authority prior the conclusion of the transaction, provided that the proposed transaction has effects in the Ecuadorian market and complies with one of the following thresholds:
(a) That the total “volume of business” of the participants’ organization in Ecuador exceeds the amount established in current Basic Unified Remunerations by the Regulation Council.
(b) Concentrations involving economic operators who are dedicated to the same economic activity and who as a consequence of the concentration acquire or increase a quota equal to or greater than 30% of the relevant national market of the product or service, or of a geographic market within the same market.
The Antitrust Law also establishes that when an economic concentration exceeds the thresholds but involves the acquisition of shares, bonds, obligations or other convertible bonds without voting rights, as well as acquisitions of economic operators liquidated or that have not reported any activities in the country in the last three years, it is exempt from the mandatory notification to the SCPM.
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.
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.
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.
The requirement to file a notice with the CCI is mandatory as long as the prescribed jurisdictional thresholds are breached and no statutory exemption is applicable. As such, the suspensory regime (i.e., requirement to receive CCI’s approval prior to closing) applies. Accordingly, any breach of these requirements leads to penalties for ‘gun-jumping’ under the provisions of the Competition Act. The CCI is empowered to impose a penalty of up to 1% of the total turnover or value of assets of the combination, whichever is higher, for ‘gun-jumping’.
A merger or acquisition within the meaning of the Competition Act requires notification to the CCPC 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.
Notification is compulsory: a transaction which falls under the definition of a "merger of companies" according to the Economic Competition Law, 1988, (the "Israeli Competition Law"), and meets the relevant thresholds, must be reported. The Commissioner's consent is required before consummating 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.
The authority should be notified of transactions that surpass the thresholds listed in question 6 below so it can clear them. However, operations that do not trigger the obligation to obtain a merger control clearance, can be voluntary notified.
Notification is mandatory if the turnover thresholds are fulfilled.
Filing is mandatory once a transaction breaches the Size of the Party and Value of the Transaction Tests. The PCA and its implementing rules do not contain exceptions to the compulsory notification requirement. If parties to M&A transactions requiring compulsory notification fail to notify the PCC, the said transactions shall be considered void and the parties shall be sanctioned with an administrative fine.
The PCC has imposed a multimillion 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).
The PCA must be notified of concentrations if they trigger one or more of the three alternative jurisdictional thresholds.
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.
Notification is mandatory if 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 the undertakings concerned meet applicable turnover thresholds.
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.
In all cases, the notification is compulsory if the firms have exceeded the thresholds.
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.
Pursuant to the presumption regulated under article 5(2) of Communiqué No. 2010/4, control shall be deemed acquired by persons or undertakings that are the holders of the rights, or entitled to the rights under the agreements concerned, or while not being the holders of the said rights or entitled to rights under such agreements, have de facto power to exercise these rights. 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 voluntary in the UK. There are no circumstances in which a merger filing is compulsory.
Concentrations exceeding the thresholds stipulated by the Competition Law must be cleared with the Antimonopoly Committee of Ukraine before their implementation.
Under the HSR Act, notification is compulsory for transactions that meet the filing thresholds and are not subject to an exemption.
Pre-merger filing before closing is compulsory, if the turnover thresholds as specified in Section 6 below are met and the transaction does not have Community dimension.
When the relevant thresholds are met a notification to the HCC prior to the implementation of a concentration is compulsory. The notification shall be submitted within 30 days after the entry by the parties into a binding agreement for a merger or the acquisition of controlling interest, or the announcement of a public bid.