Additional information: Jurisdictional Test
Merger Control (2nd Edition)
Please note that due to the market share threshold, there have historically been many multijurisdictional transactions that trigger mandatory notification in Portugal.
In accordance with the referral system under the EU Merger Regulation, a transaction that is notifiable to the European Commission may, if certain criteria are met, be referred – in whole or in part – for review by the CMA, either at the request of the parties or at the request of the CMA.
In addition, a transaction (or the UK aspects of it) may be referred for review by the European Commission even if the parties do not meet the jurisdictional thresholds for review under the EU Merger Regulation or the UK merger control regime. Again, this can happen at the request of the parties or of the CMA.
German merger control differs from other regimes insofar as there is no compulsory or common pre-notification phase. In practice, the vast majority of transactions are filed without any pre-notification at all. Nevertheless, it is possible at all times to contact the FCO informally prior to a formal filing of a notification. This may be advisable if the concentration at hand may raise serious concerns, the market definition is unclear or there are doubts whether the concentration is subject to merger control at all. Further, the (limited) scope of information requested by the FCO differs largely from other jurisdictions which tend to follow a more formalistic approach for the merger control notification, regardless of the scope of competitive concerns of the transaction.
Under Japanese merger regulation, a single transaction may trigger multiple filings depending on the structure of the transaction. For example, if a transaction is composed of a share transfer and an asset transfer, the parties have to file two separate notifications for both the share transfer and the asset transfer, respectively, if they meet the thresholds designed for a share acquisition and an asset transfer, respectively. The parties should carefully analyse if multiple filings are necessary by looking into transactions composing the whole transaction. In particular, the establishment of a joint venture often triggers multiple filings.
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.
Under the new merger control regime, the substantive test applied is the “substantial lessening of competition” test. Therefore, the FNE shall authorize a concentration in case the operation, purely and simply or subject to remedies, is not suitable to substantially reduce competition.
Neither DL 211 not the FNE’s Guidelines indicate how this test will be applied in practice. However, the FNE’s Guidelines on Jurisdiction expressly states that for horizontal mergers the FNE will use as a reference the substantive criteria set out in the FNE’s Guide on Horizontal Concentration Operations Analysis, dated October 2012. The above, until the issuance of new substantive guidelines by the FNE.
The FNE considers in general the horizontal, vertical, conglomerate, unilateral and coordinated effects arising from the operation, whereby it may use the doctrine and decision practice of especially the European Commission and the US authorities as guidance.
KN: There are no sector-specific thresholds under Serbian merger control rules. However, under industry-specific regulations, certain additional filings have to be made with the relevant sectoral regulators e.g. banking sector, insurance, media, telecommunications etc.
Third parties are not formally considered to be parties to a concentration according to the Competition Law.
There are certain other special merger control rules to be considered in respect of a number of specific sectors.
First, similarly to the EU, there are specific rules regarding turnover calculation for specific sectors such as banks, financial institutions, leasing companies, factoring companies, securities agents, insurance companies, etc. See Article 9 of Communiqué No. 2010/4.
Second, there are specific merger control provisions for banks and privatisation tenders.
(i) Banks: Banking Law No. 5411 provides that Articles 7, 10 and 11 of the Law No.4054 are not applicable if the sectoral share of the total assets of the banks subject to the transaction does not exceed 20%. In practice, the Competition Board distinguishes between: (i) transactions involving foreign acquiring banks with no operations in Turkey, to which the Law No.4054 is fully applied; and (ii) foreign acquiring banks already operating in Turkey, to which the Law No.4054 is not applied if the conditions for the application of the Banking Law exception are fulfilled.
(ii) Privatisation tenders: Communiqué No. 2013/2 prescribes an additional pre-notification process. This only applies to privatisations in which the turnover of the undertaking or asset or unit intended for production of goods or services to be privatised exceeds TL 30 million (approximately EUR 8.9 million, USD 9.9 million). For this calculation, sales to public institutions and organisations including local governments made on the basis of a legislative provision should not be taken into account. If the threshold is met, a pre-notification should be filed with the Competition Authority before the public announcement of the tender specifications. The Competition Board will issue an opinion that will serve as the basis for the preparation of the tender specifications. This opinion does not mean that the transaction is cleared. Following the tender, the winning bidder will still have to make a merger filing and obtain clearance before the Privatisation Administration’s decision on the final acquisition.
Third, there are various sector-specific rules alongside the merger control rules for sectors such as media, telecommunications, energy and petrochemicals. For example:
(i) Energy: regarding electricity and natural gas, approval is required for share transfers of more than 10% (5% in case of publicly traded company shares) following the Electricity Market License Regulation the Natural Gas Market License Regulation.
(ii) Broadcasting: under Law No. 6112, the transfer of the shares of a joint stock company holding a broadcasting licence should be notified to the Turkish Radio and Television Supreme Council.
In addition, it should also be noted that Article 3 of Communique No. 2017/2 introduced a new paragraph to be included to Article 10 of Communique No. 2010/4. This new paragraph reads as follows:
“If the control is acquired from various sellers by way of series of transactions in terms of securities within the stock exchange, the concentration could be notified to the Turkish Competition Board after the realization of the transaction provided that the following conditions are satisfied: (a) the concentration should be notified to the Turkish Competition Board without delay, (b) the voting rights attached to the acquired securities are not exercised or exercised solely to maintain the full value of its investments based on a derogation granted by the Turkish Competition Board. The Turkish Competition Board may impose conditions and obligations in terms of such derogation in order to ensure conditions of effective competition.”
This newly introduced provision by Article 3 of Communique No. 2017/2 is similar to Article 7(2) of European Commission Merger Regulation. At any rate, although there was no similar specific statutory rule in Turkey on this matter until the promulgation of Communique No. 2017/2, the case law of the Board were shedding light on this matter.
N/A, as Brazil imposes mandatory filing.
The typical approach under Australian law to assessing whether a transaction raises material competition concerns involves two limbs. First, each relevant market(s) in which the parties to the transaction compete is defined. Secondly, the potential impact on competition in that market(s) in the foreseeable future is assessed 'with' and 'without' the proposed transaction.
The CCA prohibition applies to both horizontal and vertical concentrations, and the ACCC will consider both unilateral and coordinated effects that may weaken or remove competitive pressure in the relevant market.
Certain factors, listed in the CCA and the ACCC's Merger Guidelines, are considered when assessing the potential impact on competition, including:
- the actual and potential level of import competition;
- the height of barriers to entry (considered particularly important);
- the level of concentration;
- the degree of countervailing power; and
- the nature and extent of vertical integration.
Australian courts, in contemplating the meaning of a 'substantial lessening of competition', in both merger and non-merger cases, have drawn on US and European anti-trust precedents.
The Regulation RLORCPM has set a relevant limit to the turnover threshold. Intragroup operations are not added in the calculation. Additionally, Article 14 of the Regulation RLORCPM provides that in case of carve outs, meaning that only a line of business is acquired, then the turnover threshold will only be calculated considering the total sales of such business unit and not the entire undertakings turnover.