Are there different tests that apply to particular sectors?

Merger Control (2nd Edition)

Portugal Small Flag Portugal

The only situation in which sector specific tests are applied is that referred to in the previous paragraph, regarding the media sector.

Greece Small Flag Greece

In assessing concentrations, the HCC focuses on competition factors, adjusted to the needs of each sector involved in the concentration. However, as a rule (with the possible exception of Media Law 3592/2007, safeguarding the plurality of media) no sector-specific tests are explicitly prescribed in the law. Besides, consideration as the preservation of employment positions, the protection of the environment and the safeguarding of businesses against the crisis play only an ancillary role in the HCC analyses, and are certainly not decisive for the substantive assessment set out in its decisions.

United Kingdom Small Flag United Kingdom

Sector-specific tests apply in certain 'public interest' cases. Currently, the following constitute relevant 'public interests':

  • national and public security (these considerations are typically applied to transactions in the defence sector);
  • certain interests linked to the media, including the need for accurate presentation of the news and free expression of opinion, the need for (so far as reasonable and practicable) sufficient plurality of views in newspapers, the need for sufficient plurality of control of the media, the need for a wide variety of high quality broadcasting and the maintenance of broadcasting standards; and
  • the maintenance of the stability of the UK financial system.

Further public interest considerations can be introduced by the Secretary of State.

In 'public interest' cases, the Secretary of State has the power to intervene and, if he or she chooses to do so, will then have the final decision as to whether to block a transaction, clear it, or clear it subject to conditions. In particular, the Secretary of State can decide:

  • that the transaction gives rise to actual or potential competition concerns but that the relevant public interest nonetheless justifies clearing the merger (this happened in 2008 with the merger between the financial institutions Lloyds and HBOS); or
  • that the relevant public interest necessitates the imposition of remedies beyond those (if any) that are required to address the transaction's competition concerns.

In addition, the CMA is required to open a second-phase investigation into any transaction involving certain enterprises operating in the water sector, unless the turnover of either the target water enterprise or any water enterprise already controlled by the purchaser is GBP 10 million or less. Exceptions to this duty exist where (i) the merger is not likely to prejudice the ability of the water regulator (Ofwat) to make comparisons between water enterprises for the purpose of setting appropriate price controls, or where any such prejudice is outweighed by relevant customer benefits; and (ii) the CMA accepts undertakings-in-lieu of a reference for the purpose of remedying or mitigating the prejudicial impact of losing a comparator. If there is a second-phase investigation, the substantive question considered by the CMA is the same, i.e. whether the merger may be expected to prejudice the ability of the water regulator (Ofwat) to make comparisons between different water enterprises.

Italy Small Flag Italy

No. However, concentrations affecting the banking, insurance and media, telecommunication and broadcasting sectors need to be filed also with the competent regulatory authority (Banca d’Italia, IVASS, and AgCom, respectively), and be cleared according to the specific criteria set forth by the applicable regulatory provisions.

Notably, in case of concentrations affecting the insurance and media, telecommunication and broadcasting sectors, the competent regulatory authorities (IVASS and AgCom, respectively) need to both: (i) issue the mandatory non-binding opinion in the context of the ICA’s review process (see question 18); and (ii) adopt their own clearance decisions.

United States Small Flag United States

Regardless of the industry sector involved in a proposed transaction, the FTC or DOJ will conduct a fact-specific inquiry concerning the effects of the specific transaction on that industry. Across all industries, the FTC and DOJ apply the same test: Section 7 of the Clayton Act and the Horizontal Merger Guidelines.

Germany Small Flag Germany

There is no sector-specific test.

Japan Small Flag Japan

There are no sector specific substantive tests.

Austria Small Flag Austria

Not applicable.

Canada Small Flag Canada

Not applicable. While there are sectoral regulatory agencies that have the jurisdiction to review a transaction that is also notifiable to the Bureau, the Bureau does not apply a different substantive test to any sector.

Chile Small Flag Chile

No.

In certain sectors such as banking and electricity, concentrations require additional regulatory approval by other regulatory or supervisory agencies. These authorities do not consider the effect of the operation on the competitive structure of the markets in question in their assessment.

Cyprus Small Flag Cyprus

No substantive tests are applicable to particular sectors.

Denmark Small Flag Denmark

In general, the same substantive test applies to all sectors. However, it should be noted that 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 parties have a combined turnover in Denmark of at least DKK 900 mil-lion and the merger includes a public telecommunications network. The Danish Business Authority will consider whether such merger cases should be referred to the DCCA for further assessment. If a merger is referred to the DCCA, the DCCA will apply its usual substantive test applicable to all mergers.

EU Small Flag EU

There are no different substantive competition tests applying to particular sectors. However, the Member States have the power to intervene in concentrations with an EU dimension in order to protect their legitimate interests, such as public security, plurality of the media or prudential rules.

France Small Flag France

There are no specific tests for particular sectors. However, the FCA takes into account sector specific rules which may impact the competitive assessment for example in the energy, TV, press sectors.

Malta Small Flag Malta

There are no additional sector-specific tests which are applied.

Norway Small Flag Norway

No. The test applied remains the same regardless of the types of business sector concerned. However, in certain sectors such as the financial sectors, specific agencies have regulatory powers over concentrations in order to ensure goals such as financial solidity. These powers apply in parallel to the NCA’s powers under the Norwegian Competition Act.

Romania Small Flag Romania

An additional test applies in the audiovisual media sector. As a general rule, ownership concentration and the size of the audience share in the audiovisual media services market are limited to dimensions which ensure economic efficiency, however without generating any preponderant positions in forming the public opinion.

It is deemed that a natural or legal person holds a preponderant position in forming the public opinion if the audience share of the program services assigned to it exceeds 30% of the significant market.

In order to assess the preponderant position in forming the public opinion of a natural or legal person, one must take into account the program services having a significant proportion in forming the public opinion (i.e. general, news, analysis, political/economical debating programs) which are provided by that person as licensed operator or by another licensed company where that person, directly or indirectly, holds more than 20% of the share capital or of the voting rights.

Serbia Small Flag Serbia

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. For instance, the Law on Electronic Media governs the protection of media pluralism specifically in relation to electronic media.

So called “disruption of media pluralism” would exist if one party has ownership or managing rights in more than one broadcasters of electronic media in Serbia. Furthermore, the Law on Electronic Media prescribes that the Regulatory Authority for Electronic Media is obliged to review whether an acquisition represents a consolidation of ownership/control between broadcasters of electronic media causing prohibited disruptions to media pluralism.

Should a “disruption to media pluralism” arise, the Regulatory Authority for Electronic Media will refuse to issue a broadcasting license or will nullify an existing broadcasting license if the parties do not remedy it within a given deadline.

South Africa Small Flag South Africa

Not applicable.

Turkey Small Flag Turkey

Banking Law No. 5411 (“Banking Law”) provides that the provisions of Articles 7, 10 and 11 of the Law No.4054 shall not be applicable on the condition that the sectoral share of the total assets of the banks subject to merger or acquisition does not exceed 20 per cent.

The Board distinguishes between transactions involving foreign acquiring banks with no operations in Turkey and those foreign acquiring banks already operating in Turkey while applying the exception rule in Banking Law.

Therefore, while the Board applies Law No.4054 to mergers and acquisitions where the foreign acquiring bank does not have any operations in Turkey, it does not apply Law No.4054 if the foreign acquiring bank already has operations in Turkey under the exception rule in the Banking Law.

The competition legislation provides no special regulation applicable to foreign investments. However, some special restrictions exist on foreign investment in other legislations, such as media.

Ukraine Small Flag Ukraine

There are no sector specific tests.

Brazil Small Flag Brazil

No, the tests are basically the same. However, CADE will ponder the relevant market in its analysis, so, for example, the analysis of the relevant market of homogenous products will not be the same as products with different qualities.

Updated: October 31, 2017