What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)?

Merger Control (2nd Edition)

Portugal Small Flag Portugal

Please see section 2.1 on the three alternative thresholds for mandatory filing. All these criteria apply even in the absence of a substantive overlap; and in the case of the market share jurisdictional threshold - regarding the acquisition of a share equal to or exceeding 50% -, it can be met by the target alone. The jurisdictional thresholds do not vary according to the sector.

Greece Small Flag Greece

According to the Greek Competition Act, the parties taken into account when examining a concentration are the participating parties. In particular, in the case of a merger the participating parties are the merging entities whereas in the rest of the cases the criterion used for the identification of the participating parties is that of “the acquisition of power”. More specifically, in the case of an acquisition the participating undertakings would be on one side the acquiring undertaking(s) and on the other side the Target.

Pursuant to the Greek Competition Act both the global and national turnover of the parties participating to the concentration are taken into account as regards the triggering of the relevant thresholds. More specifically, pursuant to Art 6 of the Greek Competition Act, the worldwide turnover of all parties to the concentration is taken into account for it should amount to at least Euro one hundred fifty million (150,000,000) whereas each of at least two of the participating parties should have an aggregate Greek turnover exceeding Euro fifteen million (15,000,000).

It is, therefore, understood that in order for the afore-mentioned thresholds to be triggered at least two of the participating parties should have an aggregate Greek turnover exceeding Euro fifteen million (15,000,000). It is hence, implied, that the mentioned thresholds cannot be satisfied by one party only, as the fifteen million turnover should be exceeded by at least two participating parties which operate in the Greek market.

It is, therefore, understood that in order for the aforementioned thresholds to be triggered at least two of the participating parties should have an aggregate Greek turnover exceeding Euro fifteen million (15,000,000). A Greek turnover, that is turnover generated in the Greek market, does not necessitate local establishment or presence in Greece.

Pursuant to Article 6 para. 7 of the Greek Competition Act the afore-mentioned turnover thresholds may be updated following a proposal of the HCC and a respective joint decision of the Ministers of the Ministry of Finance and the Ministry of Development, Competitiveness and Shipping. The HCC’s proposal is based on statistical data collected on a three-year basis.

Pursuant to Article 10 para. 3 of the Greek Competition Act, as far as credit institutions, financial organisations and insurance companies are concerned different criteria are taken into account instead of the mentioned turnovers.

a) As regards credit institutions and other financial institutions including the cases where they operate in Greece using a branch office or a division, the sum of the following income items is taken into account, without taking into account the VAT as well as any other taxes directly related to the goods and services provided:

  1. income from interest or similar sources;
  2. income from securities, namely from shares and other variable yield securities, from holdings as well as from shares in affiliated undertakings;
  3. commissions;
  4. net profit on financial operations;
  5. other operating income.

b) As regards insurance companies, the value of gross premiums are taken into consideration, comprising all received and receivable amounts by virtue of any concluded insurance contracts, as well as any assigned reinsurance premiums, decreased by the amount of taxes and levies charged based on the individual premiums value or the total volume of the premiums. Pursuant to the Greek Competition Act, in order for the turnover of an insurance company to be calculated the gross premiums incurred by parties residing or established in Greece should be taken into account.

United Kingdom Small Flag United Kingdom

A merger that satisfies the control test described insection 4 above can be reviewed by the CMA (and thus may be notified) if it: (i) is not notifiable under the EU Merger Regulation; and (ii) meets either of the following jurisdictional thresholds:

  • The target's UK turnover exceeds GBP 70 million (approximately EUR 85.4 million). This is known as the 'turnover test'. In principle, this test can be met even if the purchaser has no sales or presence in the UK (although it is highly unlikely that the CMA would seek to investigate a transaction in those circumstances).
  • The businesses which cease to be distinct will together supply or acquire at least 25% of a particular category or type of goods or services of any kind in the UK, or in a substantial part of the UK. This test is known as the 'share of supply' test. To qualify, the merger must result in an increment to the share of supply or consumption and the resulting share must be at least 25%. In practice, therefore, the share of supply test can only be met where the enterprises concerned both supply or acquire goods or services of a similar kind in the UK (i.e. a horizontal merger). The CMA has a broad discretion as to the category of goods or services that it uses as the frame of reference for assessing whether the share of supply test is met, and that category may be wider than the relevant economic product market to which the goods or services belong.

The CMA's jurisdiction to review a completed merger also has a temporal element. The CMA can open a second-phase investigation at any time up to four months from the date of completion of the transaction, or from the date on which facts about the transaction became public (e.g. when it is announced, or when it receives significant press coverage in the national or trade press), whichever is the later.

Different jurisdictional thresholds apply to qualifying transactions involving:

  • government defence contractors; and
  • newspaper publishers or broadcasters, where one of the parties to the transaction supplies or provides at least 25% of the newspapers of a particular type, or 25% of the broadcasting of any description (as the case may be), in the UK or a substantial part of the UK.

These transactions can be subject to an investigation by the CMA at the request of a government minister – the Secretary of State for Business, Energy and Industrial Strategy – even if they fall below the turnover and market share thresholds that apply to all other transactions. The investigation will be into public interest consideration specified by the Secretary of State (see section 15 below), with whom the final decision on those considerations rests. If the 'normal' jurisdictional thresholds are met, the CMA may also investigate and decide upon the competitive effects of the transaction.

Italy Small Flag Italy

Italian Law No. 124/2017, which entered into force on August 29, 2017, amended the jurisdictional thresholds. Under the revised thresholds, a concentration needs to be filed with the ICA (provided that it has no Community dimension) if, in the last financial year:

  1. The combined aggregate Italian turnover of all the undertakings concerned is more than EUR 492 million; and
  2. The Italian turnover of each of at least two of the undertakings concerned is more than EUR 30 million.

The above turnover thresholds are adjusted on annual basis, taking into account increases in the GDP deflator index.

As clarified by the ICA, the revised thresholds apply to all transactions closed on or after August 29, 2017, even if the relevant agreements have been signed before the new regime entered into force.

Finally, even if the above thresholds are not met, pursuant to Art. 26 of Legislative Decree No. 28/2004, concentrations affecting the film distribution sector need to be filed with the ICA if they lead to a combined share exceeding 25% (both in terms of theatres and turnover) in any of the following cities: Rome, Milan, Turin, Genoa, Padua, Bologna, Florence, Naples, Bari, Catania, Cagliari or Ancona.

United States Small Flag United States

A proposed transaction is potentially reportable under the HSR Act if both the ‘size-of-person test’ and the ‘size-of-transaction test’ are satisfied and no exemption applies. In addition, the transaction must meet the commerce test, which is satisfied if either party to the transaction is engaged in commerce or in any activity affecting commerce. In practice, the commerce test is met for almost every transaction so the reportability analysis turns on whether the other monetary thresholds are met. The threshold values for the ‘size-of-person test’ and the ‘size-of-transaction test’ are adjusted each February based on the change in the US GDP from the previous year. The threshold values listed below are as of February 2017.

Size-of-Transaction Test
The size-of-transaction test is satisfied if, as a result of the transaction, the acquiring person will hold voting securities, non-corporate interests, or assets of the acquired person with a total value of at least $80.8 million. In the case of an acquisition of non-corporate interests, the transaction must also result in the acquiring person gaining control of the entity (described in response to question 4 above). For transactions valued between $80.8 million and $323 million, the parties must also meet the size-of-person test. When a transaction’s size is greater than $323 million, the transaction is subject to the HSR Act regardless of whether the size-of-person test is met.

Generally, the size-of-person test is satisfied if one party has annual net sales or total assets of $161.5 million or more and the other has annual net sales or total assets of $16.2 million or more. To determine the size-of-person, the ‘ultimate parent entity’ (UPE) of each party to the transaction must be determined together with all entities ‘controlled’ by each UPE. A UPE is an entity that is not controlled by any other entity or individual.

Typically, a party’s annual net sales are determined by looking at the last regularly prepared annual income statement and a party’s total assets are determined by looking at the last regularly prepared balance sheet. If the party or any of its controlled entities have unconsolidated financials, the nonduplicative annual net sales and total assets must be aggregated from each entity’s financials. A party may not rely on financials that are dated more than 15 months before the premerger notification or the transaction’s closing date.

Certain types of acquisitions are exempt from the requirements of the HSR Act even if they would otherwise meet the filing threshold requirements. The most common exemptions include (1) acquisitions of goods and realty in the ordinary course of business, (2) acquisitions of certain types of real property, (3) acquisitions of no more than ten percent of the voting securities of an issuer solely for the purpose of investment, (4) intra-person transactions, (5) acquisitions of non-voting securities, and (6) acquisitions of foreign entities or assets lacking a sufficient economic nexus to the United States.

In addition, the HSR Act requires the aggregation of the value of certain past acquisitions with current acquisitions. The determination of whether aggregation is required varies based on whether assets, voting securities, non-corporate interests, or a combination of the three were previously acquired and which are going to be acquired in the proposed transaction. Sometimes earlier acquisitions do not need to be aggregated if the acquisition qualified for certain exemptions under the HSR Act.

Germany Small Flag Germany

There are global and national/domestic thresholds. An obligation to file is triggered in two different cases:

Test 1:

  • all undertakings concerned in the transaction exceed, added together, a total (global) turnover of EUR 500 million;
  • one of the undertakings concerned exceeds a domestic turnover of EUR 25 million and
  • another undertaking concerned exceeds a domestic turnover of EUR 5 million.

Test 2:

  • all undertakings concerned in the transaction exceed, added together, a total (global) turnover of EUR 500 million;
  • domestic turnover of one undertaking concerned in the prior fiscal year exceeded EUR 25 million;
  • neither the target nor another undertaking concerned (undertaking from bullet 2 is excluded) have exceeded a turnover of EUR 5 million in Germany;
  • the value of total compensation for the transaction exceeds EUR 400 million and
  • the target has significant business activities in Germany.

In general, undertakings concerned (i.e. the companies whose turnover has to be taken into account for the assessment of the duty to notify) are the acquirer and the target (or the turnover attributable to the target). Relevant for the calculation in all cases is the consolidated group turnover (without intracompany sales or VAT). The turnover of the seller is usually not relevant for the calculation, unless (i) the seller remains a controlling or jointly controlling shareholder of the target or (ii) maintains a shareholding of 25 % or more in the target after transaction. In such cases, the turnover of the seller has also be taken into account as well for the assessment. The same applies for all shareholders whose shareholding in the target amounts to 25 % or more post-transaction.

In cases in which the direct acquirer of control is itself jointly controlled by two or more undertakings the situation is unclear to some extent. In such cases it has to be analysed in greater detail whether all jointly controlling companies which acquire indirect joint control in the target have to be considered individually as undertakings concerned or whether the turnover of the direct acquirer (including the turnover of its controlling companies) has to be taken into account only. This may have a practical impact if the target’s domestic turnover is less than EUR 5 million and the thresholds may only be met in case of an individual consideration of the turnovers of the indirect shareholders. Such situations require a detailed analysis.

Further, the ARC provides for an exemption of the duty to notify if the worldwide consolidated turnover of the seller (including the target) does not exceed EUR 10 million in the last fiscal year.

The thresholds can be exceeded, even if the parties involved do not have overlapping or competing activities in Germany. Insofar, German merger control regards overlaps as a factor when assessing the potential harmful effects of a transaction only after checking whether the thresholds are exceeded. For this first assessment, it does not matter which parties’ turnover exceeds the threshold as long as all parties involved in the transaction exceed all relevant thresholds. When assessing turnover, the total value includes all business activities. It is not limited to the industries affected by a transaction.

The thresholds may be influenced indirectly, as there are multipliers for certain industries which are applied to the turnover before assessing whether the turnover exceeds the threshold (see the following section).

Japan Small Flag Japan

Japanese rules provide the jurisdictional thresholds for each category of the qualifying transactions as follows:

(a) Share acquisitions

  • Turnover in Japan of the acquirer and its group companies exceeds JPY 20 billion; AND
  • Turnover in Japan of the target and its subsidiaries exceeds JPY 5 billion.

(b) Mergers

  • Turnover in Japan of one party and its group companies exceeds JPY 20 billion; AND
  • Turnover in Japan of the other party and its group companies exceeds JPY 5 billion.

(c) Business/asset transfers

  • Turnover in Japan of the acquirer and its group companies exceeds JPY 20 billion; AND
  • Turnover in Japan of the target business/asset exceeds JPY 3 billion.

(d) Company splits
Type 1: cases where two undertakings (X and Y) de-merge their businesses and jointly transfer those businesses to a new company

  • If both X and Y de-merge the whole of their businesses:
    • Turnover in Japan of one party and its group companies exceeds JPY 20 billion; AND
    • Turnover in Japan of the other party and its group companies exceeds JPY 5 billion.
  • If X de-merges its whole business and Y de-merges not the whole but an important portion of its business:
    • Turnover in Japan of X and its group companies exceeds JPY 20 billion; AND
    • Turnover in Japan of the de-merged business of Y exceeds JPY 3 billion. OR
    • Turnover in Japan of X and its group companies exceeds JPY 5 billion; AND
    • Turnover in Japan of the de-merged business of Y exceeds JPY 10 billion.
  • If both X and Y de-merge not the whole but an important portion of their businesses:
    • Turnover in Japan of one party and its group companies exceeds JPY 10 billion; AND
    • Turnover in Japan of the other party and its group companies exceeds JPY 3 billion.

Type 2: cases where one undertaking (X) de-merges its business and transfer it to another undertaking (Y)

  • If X de-merges the whole of its business:
    • Turnover in Japan of one party and its group companies exceeds JPY 20 billion; AND
    • Turnover in Japan of the other party and its group companies exceeds JPY 5 billion.
  • If X de-merges not the whole but an important portion of its business:
    • Turnover in Japan of the de-merged business of X exceeds JPY 10 billion; AND
    • Turnover in Japan of Y and its group companies exceeds JPY 5 billion. OR
    • Turnover in Japan of the de-merged business of X exceeds JPY 3 billion; AND
    • Turnover in Japan of Y and its group companies exceeds JPY 20 billion.

(e) Joint share transfers

  • Turnover in Japan of one party and its group companies exceeds JPY 20 billion; AND
  • Turnover in Japan of the other party and its group companies exceeds JPY 5 billion.

Austria Small Flag Austria

There is no market share threshold in Austria.

The relevant turnover thresholds are both global and national in scope and they apply uniformly. There is no distinction between different sectors or industries save for a special rule when it comes to media concentrations.

A concentration has, in principle, to be filed for clearance with the BWB, if the undertakings involved achieved all of the following in the last business year:

  • a combined aggregate worldwide turnover of more than EUR 300 million; and
  • a combined aggregate turnover in Austrian of more than EUR 30 million; and
  • at least two of the undertakings involved had a worldwide turnover of more than EUR 5 million each.

A concentration is exempted from the notification obligation if the two following conditions are met:

  • only one of the undertakings involved achieved a turnover of more than EUR 5 million in Austria;
  • the combined aggregate worldwide turnover of the other undertakings involved was not more than EUR 30 million.

Canada Small Flag Canada

In all cases, the “size of parties” threshold must be exceeded to trigger a mandatory notification. The “size of parties” test is met if the parties, together with their respective affiliates, have aggregate assets in Canada, or aggregate annual gross revenues from sales in, from, or into Canada, in excess of CAD $400 million. This means that the seller’s turnover and assets, as well as both parties’ exports, are included for the purpose of calculating whether the parties exceed this threshold.

If the “size of parties” threshold is exceeded, the transaction will be subject to the pre-merger notification provisions if the following thresholds are exceeded, which vary depending on the type of transaction as follows (financial thresholds subject to annual adjustment for inflation):

Acquisition of Assets.

  • “Size of transaction” threshold is satisfied if the aggregate value of the assets in Canada to be acquired, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, is greater than CAD $88 million (for 2017).

Acquisition of Shares.

  • “Size of transaction” threshold is satisfied if the aggregate value of the assets in Canada, or the aggregate annual gross revenue from sales in or from Canada generated from Canadian assets, of the target operating business and its subsidiaries, is greater than CAD $88 million (for 2017); AND
  • “Size of equity” threshold described above is met.

Amalgamation.

  • “Size of transaction” threshold is satisfied if the aggregate value of the assets in Canada that will be owned by the continuing corporation and any corporations that it controls, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, is greater than CAD $88 million (for 2017); AND
  • Each of at least two of the corporations that are parties to the transaction, along with their affiliates, must have assets in Canada that exceed an aggregate value of, or aggregate annual gross revenues from sales in, from, or into Canada that exceed CAD $88 million (for 2017).

A Combination or Acquisition of an Interest in a Combination.

  • “Size of transaction” threshold is satisfied if the aggregate value of the assets in Canada that are the subject matter of the combination, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, is greater than CAD $88 million (for 2017).

All of the notification thresholds are national in scope. They refer to all revenues / assets as opposed to only those related to the relevant product market and are assessed at the group level to include the parties and their affiliates.

While the “size of parties” threshold takes into account both the purchaser and the target, in every case apart from amalgamations, the applicable thresholds can be satisfied by the target party only. As mentioned above, the ‘size of transaction’ threshold is updated annually to account for inflation and the changes are posted in the Canada Gazette. The thresholds do not vary based on industry or sector and are the same across the country.

To be captured by Canada’s merger control regime a transaction must have some form of local presence or connection to Canada. Hence, the merger control regime only applies to “operating businesses” which are defined in the Act as “a business undertaking in Canada to which employees employed in connection with the undertaking ordinarily report for work”.

Chile Small Flag Chile

Ex- ante notification:

An operation of concentration must be notified to the FNE prior to its materialization where:

(i) the combined turnover in Chile of the parties to the operation in the financial year preceding the transaction is at least 1,800,000 Unidades de Fomento (approximately EUR $63 million and USD $74 million); and

(ii) the turnover in Chile of each of at least two of the parties to the operation in the financial year preceding the transaction is at least 290,000 UF (approximately EUR $10 million and USD $12 million).

It is irrelevant whether the parties to the concentration have a presence in Chile, the jurisdiction of the FNE is established by the sales in Chile. Consequently, foreign-to-foreign transactions are subject to review where the turnover thresholds are met.

Ex-post information:

The obligation to inform the FNE ex-post on acquisitions of a non-controlling interest of more than 10% in a competitor applies where both the turnover of the acquiring company (including its corporate group) and the target company in Chile in the financial year preceding the transaction is at least 100,000 UF (approximately EUR $3.5 million and USD $4.1 million).

This obligation applies only to acquisitions of such non-controlling interest in Chilean companies.

Cyprus Small Flag Cyprus

A concentration of undertakings is deemed to be of major importance and therefore meet the jurisdictional thresholds where:

  • the aggregate turnover achieved by at least two of the undertakings concerned exceeds, in relation to each one of them, €3.5 million;
  • at least two of the undertakings concerned achieve a turnover in Cyprus; and
  • at least €3.5 million of the aggregate turnover of all undertakings concerned is achieved in Cyprus.

In cases of acquisition of sole control, the turnovers of the acquiring undertaking and the target are respectively taken into account in determining whether the jurisdictional thresholds are met. The turnover of undertakings acquiring joint control over a target undertaking (together with the target) are taken into account in cases of acquisition of joint control.

One party could satisfy the thresholds by itself, provided that at least two of the undertakings concerned achieve a turnover in Cyprus.

Turnovers comprise the amounts derived from the sale of products and the provision of services by the undertakings concerned during the preceding financial year and corresponding to the ordinary activities of the undertakings, after deduction of sales rebates, of value added tax and other taxes directly related to turnover.

Denmark Small Flag Denmark

A merger must be notified to the DCCA where:

  • the combined aggregate turnover in Denmark of all the undertakings concerned is at least DKK 900 million and the aggregate turnover in Denmark of each of at least two undertakings concerned is at least DKK 100 million; or
  • the aggregate turnover in Denmark of at least one of the undertakings concerned is at least DKK 3.8 billion and the aggregate world-wide turnover of at least one of the other undertakings concerned is at least DKK 3.8 billion.

No form of local presence is required in order for a transaction to be subject to Danish merger rules as long as the jurisdictional turnover thresholds in Denmark are met.

The aggregate turnover of an undertaking is assessed at group level, i.e. it consists of the turnover of the parent company, subsidiaries, and affiliated companies. Intra-group turnover, however, is excluded. For central authorities, according to the Executive Order on calculation of turnover in the Competition Act, turnover shall be replaced by the aggregate gross operational expenditure in the preceding accounting year of the ministerial province concerned.

The turnover thresholds refer to revenue from all lines of business and not just revenue from the product markets directly influenced by the merger. However, if the transaction consists in acquiring control over part of one or more undertakings, the turnover threshold of the target company refers only to the parts which are the subject of the transaction.

As a main rule, the same jurisdictional thresholds apply to all sectors. However, mergers between providers of telecommunications (which are not, as such, subject to scrutiny under the Danish Competition Act) must be notified to the Danish Business Authority if the participating undertakings have a combined turnover in Denmark of at least DKK 900 million and the merger includes a public telecommunications network. The individual DKK 100 million turnover threshold does not have to be met in such cases.

EU Small Flag EU

The EUMR provides two alternative jurisdictional tests.

The first alternative test is satisfied if the combined worldwide turnover of the parties to the concentration exceeds €5bn and the EU-wide turnover of each of at least two of the parties to exceeds €250m.

The second alternative test is satisfied if the combined worldwide turnover of the parties to the concentration exceeds €2.5bn, the EU-wide turnover of each of at least two parties to exceeds €100m, the combined turnover of the parties in each of at least three Member States exceeds €100m and at least two of the parties have a turnover in each of those three Member States of at least €25m.

Even if either of these tests are met, a concentration will not have an EU dimension if each of the parties to the concentration achieves more than two thirds of its EU-wide turnover within one and the same Member State.

France Small Flag France

French merger control thresholds are expressed in terms of turnover.

A merger is reportable if:

  • the parties’ combined worldwide pre-tax turnover exceeded €150 million in the last financial year;
  • at least two of the parties each achieved pre-tax turnovers of €50 million in France; and
  • the concentration does not have an EU dimension.

There is a specific provision applicable to the retail sector with the following lower thresholds:

  • the parties’ combined worldwide pre-tax turnover exceeded €75 million in the previous financial year;
  • at least two of the parties each achieved pre-tax turnover of €15 million in France in the retail trade industry; and
  • the concentration does not have an EU dimension.

Finally, there is a specific threshold applicable to French overseas if at least one party to the transaction has activities in one or more French overseas departments (Guadeloupe and La Réunion), the Mayotte department or in the French overseas communities of Saint-Pierre-et-Miquelon, Saint-Martin and Saint-Barthélémy and

  • the parties’ combined worldwide pre-tax turnover exceeded €75 million;
  • at least two of the parties each achieved pre-tax turnover of €15 million (or €5 million if in the retail sector) in at least one French overseas department or overseas community (Saint-Pierre-et-Miquelon, Wallis and Futuna islands, French Polynesia, Saint-Barthélémy, and Saint-Martin); and
  • the concentration does not have an EU dimension.

Malta Small Flag Malta

The undertakings considered for the purposes of calculating aggregate thresholds are those participating directly in the transaction, i.e. the acquiring entity and target, or each of the merging companies or those involved in the joint venture. The Regulations also require the turnover of the following undertakings to be taken into account:

- Undertakings in which the participating undertaking concerned, directly or indirectly:

  • owns more than half the capital or business assets, or
  • has the power to exercise more than half the voting rights, or
  • has the power to appoint more than half the members of the board of directors or other body or bodies legally representing the undertakings; or
  • has the right to manage the undertakings’ affairs;
  • - Parent undertakings of the participating undertaking which exercise any of the rights or powers mentioned above;

    - Subsidiary undertakings which share a parent undertaking with the participating undertaking (i.e. ‘sister companies’), and which parent undertaking exercises over said subsidiary any of the rights or powers mentioned above;

    - Undertakings in which any two or more of the abovementioned undertakings exercise any of the rights or powers mentioned above;

    The thresholds affect all parties concerned, as evidenced by the fact that each of the undertakings concerned must have a turnover in Malta of at least 10% of the combined aggregate turnover. If such turnover threshold is not reached, the transaction would fall outside the scope of the Regulations.

    These threshold requirements apply irrespective of the product/service markets which they relate to. It can thus be assumed that all turnover is taken into account for notification purposes, although the DG will then consider the relevant product/service market when determining if the concentration substantially lessens competition in Malta. If the companies, although meeting the thresholds, are deemed to operate in different markets and thus do not substantially lessen competition in Malta, then the concentration will be accepted.

    Aggregate turnover comprises the amount derived by each of the undertakings concerned in the financial year preceding the transaction, taking into account the sale of products and the provision of services to any other undertaking not being a group entity. The turnover of each undertaking is then added to establish the combined aggregate turnover.

    The Regulations do not provide for periodical updating of the thresholds. Nor do they stipulate different thresholds according to industry or sector.

Norway Small Flag Norway

The jurisdictional thresholds under the Norwegian regime are exclusively based on turnover. Under the applicable threshold test, all concentrations amounting to change of control are subject to mandatory notification UNLESS one of the following conditions is met:

  • The parties collectively had operational revenues of less than NOK 1 billion in Norway during the preceding fiscal year; or
  • Only one of the parties involved had operational revenues of more than NOK 100 million in Norway during the preceding fiscal year.

Please note that the NCA may order a notification to be filed and have full jurisdiction even if the turnover thresholds are not met.

Romania Small Flag Romania

Economic concentrations subject to merger control are those involving undertakings whose turnovers fulfil the following cumulative thresholds:

(i) the combined turnover of the concerned parties exceeded EUR ten (10) million in the previous financial year (the “worldwide threshold”); and

(ii) at least two of the concerned parties each achieved on the territory of Romania an individual turnover exceeding EUR four (4) million in the previous financial year (the “national threshold”).

For the purpose of the abovementioned thresholds, the turnover of the concerned undertaking is assessed at the group level. Thus, in case of acquisition of sole control, the turnovers to be taken into account are: the turnover achieved by the purchaser (including its group) and the turnover achieved by the target company (including its subsidiaries). In case of acquisition of joint control, the turnovers to be taken into account are: the turnover achieved by each undertaking which will exercise joint control (including their respective groups) and the turnover achieved by the joint venture itself (including its subsidiaries), if applicable.

In any case, given the complexity of the situations that may arise in practice, it is important that the fulfilment of thresholds be checked on a case-by-case basis.

The thresholds refer to all revenues of the concerned parties in the previous financial year, and not only to those related to the relevant product market. A local presence is not necessary in order for the abovementioned turnover-based thresholds to be applicable.

The Competition Council may modify the thresholds after obtaining the opinion of the Ministry of Economy. The modification decision enters into force after 6 months from its publication in the Official Journal of Romania.

Serbia Small Flag Serbia

KN: Merger filings are mandatory in Serbia if one of the two alternative thresholds are met:

  • if the combined annual turnover of all the parties to the concentration in the global market in the previous financial year exceeded EUR 100 million, where at least one of the parties to the concentration had an annual turnover in excess of EUR 10 million in the Republic of Serbia; or
  • the combined annual turnover of at least two parties to the concentration in the Republic of Serbia exceeded EUR 20 million in the previous financial year, where at least two of the parties to the concentration had an annual turnover in excess of EUR one million each in the Republic of Serbia.

Intra-group turnover is not taken into account. Furthermore, a transaction which takes place pursuant to the Law on Takeover of Joint Stock Companies must be notified, even if the relevant thresholds have not been met. Although the law is not completely precise in this regard, this provision should pertain to local public companies only. Furthermore, the jurisdictional thresholds do not vary according to the industry or sector involved, however additional rules may apply to certain sectors (i.e. banking, insurance, telecommunications and media).

Exceptionally, the Competition Commission has the authority to institute an ex officio merger control procedure if an un-notified concentration results in 40% or higher market share of the merged undertaking. The market share (40%) threshold is not a jurisdictional threshold, i.e., the parties are not obliged to file a notification with the Competition Commission if their combined market share in any relevant market exceeds 40%. However, to avoid a situation of ex post analysis, it may be advisable to notify the Competition Commission of the intended merger, if the parties’ market shares do exceed this threshold (in Serbia). Since the enactment of the Competition Law, we are not aware of any such ex officio proceedings.

Foreign-to-foreign mergers are reviewed under Serbian competition rules if the parties fulfil the jurisdictional thresholds, which are no different for such transactions.

The acquirer is reviewed on the group level while the target company is reviewed individually including its subsidiaries. The seller is normally not taken into account with the exception of a situation where the seller retains control in which case he is considered to be as one of the acquirers. In the case of the acquisition of joint control or joint ventures, both jointly-controlling parent companies are viewed individually as the undertakings concerned and, if joint control is acquired over an existing company, then the joint venture itself is also relevant.

The thresholds can be met by turnover of just one party to the transaction, either the acquirer or the target. In practice, the vast number of filings related to cases where the acquiring group has met the thresholds while the target has little or no turnover or presence in Serbia. Both national and global turnover is taken into account.

The relevant turnover thresholds refer to all revenues / assets and are not related to the relevant market.

The jurisdictional thresholds do not vary according to the industry or sector involved.

South Africa Small Flag South Africa

Notification and approval of intermediate and large mergers is compulsory. Small mergers are those that fall below the thresholds prescribed for an intermediate merger and do not have to be notified in the ordinary course.

An intermediate merger is one where:

  • the combined turnover in, into or from South Africa of the acquiring and target firms is valued at or above 560 million rand but below 6.6 billion rand;
  • the combined assets in South Africa of the acquiring and target firms are valued at or above 560 million rand but below 6.6 billion rand;
  • the turnover in, into or from South Africa of the acquiring firm plus assets in South Africa of the target firm are valued at or above 560 million rand but below 6.6 billion rand; or
  • the assets in South Africa of the acquiring firm plus the turnover in, into or from South Africa of the target firm are valued at or above 560 million rand but below 6.6 billion rand; and either:
  • the annual turnover in, into or from South Africa of the target firm exceeds 80 million rand; or
  • the value of the assets in South Africa of the target firm exceeds 80 million rand.
    A large merger is one where:
  • the combined turnover in, into or from South Africa of the acquiring and target firms is valued at or above 6.6 billion rand;
  • the combined assets in South Africa of the acquiring and target firms are valued at or above 6.6 billion rand;
  • the turnover in, into or from South Africa of the acquiring firm plus the assets in South Africa of the target firm are valued at or above 6.6 billion rand; or
  • the assets in South Africa of the acquiring firm plus the turnover in, into or from the target are valued at or above 6.6 billion rand; and either:
  • the turnover in, into or from South Africa of the target firm exceeds 190 million rand; or
  • the value of the target firm’s assets in South Africa exceeds 190 million rand.

Effective 1 October 2017, the intermediate merger combined threshold of 560 million rand referred to in each of the bullet points above will be increased to 600 million rand and the target firm threshold of 80 million rand referred to above will be increased to 100 million rand.

With regard to a local presence requirement, the Act applies to all economic activity having an effect within South Africa. However, insofar as the notification of mergers is concerned, the thresholds are calculated in relation to combined turnover or assets in relation to South Africa only. Accordingly, the Act is applicable to foreign-to-foreign mergers to the extent that the parties have assets in South Africa or turnover generated in, into or from South Africa.

The informal view of the Commission is that neither party requires a presence in South Africa and that it is sufficient that the parties generate turnover in South Africa so as to meet the thresholds. Arguably this goes too far and goes against the general legal principle that statutes are not extraterritorial in application. No final case law exists on this point, although in the context of restrictive practices analysis the CAC has ruled that South African authorities have jurisdiction in relation to agreements entered into outside South Africa, as long as they have an effect in South Africa. These effects are not limited to anticompetitive or deleterious effects (this was confirmed by the SCA in Ansac/Botash).

Since the Act came into effect in 1999, the Tribunal has considered and approved many foreign-to-foreign transactions and, as a matter of general practice, foreign-to-foreign mergers, where the target has a subsidiary or business activities in South Africa, are notified to the authorities if the relevant thresholds are met.

Turkey Small Flag Turkey

Under Article 7 of the Communiqué No.2010/4, the transaction would be notifiable in case one of the below turnover thresholds are triggered:

  • the aggregate Turkish turnover of the transaction parties exceeding TL 100 million (approximately €29.9 million or $33 million) and the Turkish turnover of at least two of the transaction parties each exceeding TL 30 million (approximately €8.9 million or $9.9 million); or
  • the Turkish turnover of the transferred assets or businesses in acquisitions exceeding TL 30 million (approximately €8.9 million or $9.9 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 500 million (approximately €149.7 million or $165.5 million), or (ii) the Turkish turnover of any of the parties in mergers exceeding TL 30 million (approximately €8.9 million or $9.9 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 500 million (approximately €149.7 million or $165.5 million).

The thresholds do not differ according to the sector. There is however certain other special merger control rules to be considered in respect of a number of specific sectors.

Furthermore, the recently introduced Communique No. 2017/2 on the Amendment of Communique No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board (“Communique No. 2017/2”) which has been published on the Official Gazette on February 24 2017 and entered into force on the same day abolished Article 7(2) of Communique No. 2010/4 which stated that “The thresholds set out in the first clause of this article are re-determined by the Board biannually”. With the abolishment of the relevant clause, the Board is no longer rested with the duty to re-establish turnover thresholds for concentrations every two years. To that end, there is no specific timeline for the review of the relevant turnover thresholds set forth by Article 7(1) of Communiqué No. 2010/4.

In addition, it should be also noted that Article 2 of Communiqué No. 2017/2 modified Article 8(5) of Communiqué No. 2010/4. Together with this amendment, the Board would now be in a position to evaluate the transactions realised by the same undertaking concerned in the same relevant product market within three years as a single transaction, as well as two transactions carried out between the same persons or parties within a three year period.

There is no market share threshold in Turkey. If the parties meet the turnover thresholds, the transaction would be notifiable, regardless of the parties’ market shares. In addition, sellers’ turnover is not relevant while determining the filing obligations however it is only relevant in joint venture transactions i.e. where the buyer and the seller form a joint venture, both the seller and the buyer would be considered as buyers pursuant to Article 5 of Communiqué No. 2010/4.

Regardless of the parties’ physical presence in Turkey, sales in Turkey may trigger the notification requirement to the extent that the turnover thresholds are met. Article 2 of Law 4054 sets out the effects criterion – that is, whether the undertakings concerned affect the goods and services markets in Turkey. Even if the undertakings concerned have no local subsidiaries, branches or sales outlets in Turkey, the transaction could still be subject to Turkish competition legislation if the goods or services of the participating undertakings are sold in Turkey and the transaction would thus affect the relevant Turkish market.

Ukraine Small Flag Ukraine

Ukrainian competition law provides for a “double-decker” thresholds system – two alternative thresholds. The merger control clearance is required, if:

  • the aggregate worldwide value of assets or turnover of the parties to concentration exceeds EUR30 mln, and the value of Ukrainian assets or turnover of at least two parties to the concentration exceeds EUR4 mln each; or
  • the aggregate value of Ukrainian assets or turnover of the target or at least one of the founders of a joint venture exceeds EUR8 mln, and the worldwide turnover of at least one other party to the concentration exceeds EUR150 mln.

There is no market share threshold.

All thresholds are calculated on a group-level basis (taking into account the relations of control). All entities, which are directly or indirectly controlled by the parent company, form a group of entities and constitute a single undertaking from a merger control standpoint. The thresholds test is applied for the acquirer group and the target group including the seller group.
The thresholds refer to the whole turnover and assets of the parties (not only those related to the relevant product/service market). The thresholds are the same for all industries and sectors involved.

Brazil Small Flag Brazil

Article 88 of the Brazilian Antitrust Act establishes that acts of concentration will be judged based on annual gross sales or turn over, in the terms described in the answer to question 2. Market share will also be analyzed, through a Herfindahl-Hirschman test.

Updated: October 31, 2017