Under what circumstances may the basic timetable be extended, reset or frozen?
Merger Control (3rd edition)
The terms granted for phase I and phase II above-mentioned can be extended, upon mutual agreement between the notifying parties and the FNE, with a maximum of 30 working days for phase I and 60 working days for phase II.
Moreover, when the notifying parties offer remedies, these terms are extended with a maximum of 10 working days for phase I and 15 working days for phase II.
Any written information request by the Competition Board resets the clock and the review period starts again from day one once the responses are provided. As explained more fully in the previous section under Turkish law, the investigation takes about six months but if it deemed necessary, this period may be extended only once, for an additional period of up to six months, by the Competition Board.
If the information requested in the notification form is incorrect or incomplete, the notification is deemed filed only on the date when such information is completed upon the Competition Board’s subsequent request for further data.
Pursuant to article 15 of Communiqué No. 2010/4, the Competition Board may request information from third parties including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. According to article 11(2) of Communiqué No. 2010/4, if the Competition Authority is required by legislation to ask for another public authority’s opinion, this would cut the review period and restart it anew from
While not common practice, it is possible for the third parties to submit complaints about a transaction during the review period.
In addition, in terms of Phase II review, if deemed necessary, it may be extended only once, for an additional period of up to six months by the Competition Board.
The time limit under Phase I may be extended from 25 to 35 business days if one or more of the participating undertakings propose commitments, including revised commitments.
The 90-day time limit under Phase II may be extended by to 20 business days if one or more of the participating undertakings propose commitments, including revised commitments. The time limit may only be extended if, at the time when the commitments are proposed, less than 20 business days remain until a decision should have been made under Phase II.
The time limit under Phase II may also be extended upon a decision from the DCCA if one or more of the parties request or consent to the extension, which may not exceed 20 business days.
The time limits may be suspended if one of the participating undertakings files a complaint to the Danish Competition Appeals Tribunal concerning the administrative procedure, until the Appeals Tribunal has rendered a decision on the complaint.
There are two circumstances in which the CCPC’s initial Phase 1 investigation period may be extended:
- The CCPC may issue an RFI at any point during Phase 1, which has the effect of resetting the process timetable to start from the date on which a complete response to the RFI is received. An extension of this type can only occur once.
- The Phase 1 period is automatically extended to 45 working days where remedy proposals are made by the notifying parties to overcome competition concerns.
There are two circumstances in which the CCPC’s Phase 2 investigation period may be extended:
- If the CCPC issues an RFI within 30 working days of the opening of Phase 2, the running of the clock is suspended until a complete response to the RFI is received. A suspension of this type can only occur once.
- The deadline by which the CCPC must issue a Phase 2 determination may be extended from 120 to 135 working days from the “appropriate date” where proposals are made by the parties.
The Service is entitled to inform the notifying undertaking of an extension of 14 calendar days over the one month period within which the notifying undertaking must be informed of a decision of the CPC. Such extension must be communicated to the notifying undertaking seven calendar days prior to the lapse of the one-month notice period.
A request for further information, whether in the context of a Phase I assessment or a Phase II full investigation, has the effect of stopping the clock. In the said context, the CPC may, if it considers it expedient to do so, carry out negotiations, hearings or discussions with any of the interested parties or other persons, which would also have the effect of stopping the clock, depending on the circumstances.
Phase I can be interrupted by the ICA when parties fail to provide a complete notification or when, following a formal request for information, the parties fail to reply within the assigned deadline. However, most of the times, the ICA tries to obtain the missing information, without interrupting Phase I.
In case of interruption, the Phase I review period starts running again when the parties provide the requested information/documents.
Phase II can be extended up to 30 (additional) calendar days, if the parties fail to provide available data/information requested by the ICA.
Finally, the ICA’s review period is suspended (up to a maximum of 30 days) until the adoption of the mandatory non-binding opinion by the telecommunication and insurance regulatory authorities (see question 19).
The "clock" may be stopped until a filing is deemed complete. Lack of replying to the NCA's information requests in a timely manner will also stop the clock. The timetable may only be extended if the NCA decides to open phase II proceedings. Finally, in phase II proceedings where the parties have offered new (or amended) remedies after the NCA's 'statement of objections', the basic timetable may be extended with up to 30 days (15 + 15 working days).
Under Rule 4, Sec. 5(n) of the PCA IRR, the foregoing timetable is fixed such that if the periods for PCC action expire and no decision has been promulgated for whatever reason, the merger or acquisition shall be deemed approved and the parties may proceed to implement or consummate it. Nonetheless, as stated above, if the parties wish to submit the requested information beyond the fifteen (15) day period during the Phase 2 review, the parties may request for an extension of time within which to comply with the request for additional information, in which case, the period for review shall be correspondingly extended.
The general term can be extended by up to another 2 months if FAS requires additional information for making a decision regarding the transaction.
This general term can also be prolonged by another 9 months if FAS issues certain conditions which have to be met within this 9-month period.
See question 19.
In ordinary circumstances, the Commission may not suspend the applicable review periods discussed above. However, if the Commission considers that the contents of a merger filing contain false or misleading information, it may issue a demand for corrected information which, if uncontested, has the effect of resetting the review timetable to the date on which the corrected information is supplied to the Commission.
The initial HSR waiting period also may be extended without paying a new filing fee if the acquiring person elects to ‘withdraw and refile’ its HSR filing. Under this process, at the end of the initial 30-day waiting period (or 15-day waiting period for cash tender offers and certain bankruptcy acquisitions), the acquiring person withdraws its filing, and submits the filing again within two business days (the acquired person is not required to withdraw). The refile results in a new initial waiting period. The acquiring company may only take advantage of the withdraw-and-refile process once and only if the proposed acquisition does not change in a material way. As described above, if at the end of the initial waiting period, the reviewing agency believes the transaction raises competition concerns that merit further review, the reviewing agency may extend the waiting period by issuing a Second Request.
Occasionally, the reviewing agency may discover that one of the parties failed to submit all required documents with its HSR filing. In such circumstances, the agency may restart the initial waiting period by requiring the party to resubmit its HSR filing with the requisite responsive documents.
Extensions are only possible in the second phase, which lasts four months and only for reasons attributable to the undertakings concerned. This includes, for example, an extension of the examination phase with the consent of the parties, e.g. in order to find possible remedies.
The clock for completion of phase one and phase two starts only if all necessary information has been made available to the FCO. After this point, there is no basis for an extension in written law. However, parties to the merger and the FCO may agree to extend the decision period beyond four months. An extension may also be given in cases where the transaction is cleared only with remedies. In these cases, the total duration of the proceedings may take an additional month if an undertaking involved does submit proposals for remedies. Finally, the time stops running (“stop the clock”-clause) if a company did, without blame or negligence, not answer a formal request for information completely and correctly and the FCO is forced to inquire again for missing information.
A merger that has been cleared based on incorrect or misleading information may be re-examined at any time. The FCO may decide, as a result of re-examination proceedings to either request additional concessions from the parties or enter into de-merger proceedings. A decision of a court which finds the clearance or parts of it to be based on error in law or in fact also resets the timetable for clearance proceedings.
The aforementioned deadlines may be extended in the following cases:
a) The notifying parties consent to such extension;
b) In case the notification form is not fully completed by the notifying parties or, according to the case handler, substantial information is missing and, as a result, the HCC cannot proceed to its assessment;
c) In case the notification is inaccurate or misleading and, as a result, the HCC cannot proceed to its assessment.
In the last two cases, the deadline for the initiation of the procedure before the HCC does not commence until the latter receives the complete and accurate data that it needs for its assessment, provided that it has informed accordingly the notifying parties within seven (7) working days of the receipt of the notification form.
The afore-mentioned deadlines are exceptionally suspended in case the participating parties do not comply with their obligation to provide information to the HCC provided that they have been notified accordingly within two (2) working days of the expiration of the set deadline for the provision of the mentioned information.
Consequently, incomplete notification stops the clock until the supply of full and accurate information by the parties, provided that the HCC informs on such issue the notifying parties within seven days of the receipt of the notification form. It must be stressed that it is a common practice for the HCC to request for the provision of additional data/documentation before the lapse of the seven days deadline each time. It is also frequent that the HCC places numerous requests for additional information, which suspend the progress of the procedure for a significant period.
According to Law No. 26876, the basic timetable shall be extended in cases in which authority needs more information to analyze the possible effects in competition. In these cases, INDECOPI usually requires to the Energy Sector Supervising Organism (OSINERGMIN) and/or the petitioner the needed information.
The above mentioned periods may be suspended by the PCA: following requests for information or clarifications addressing the undertakings concerned or third parties; for 20 business days, in the event that the notifying party(ies) offers commitments; or whenever a prior hearing of the notifying party(ies), and of interested third parties that have submitted observations, takes place. Finally, under Phase II the stated period may be suspended for up to 20 business days upon request of the notifying party(ies) or with its/their consent.
It should also be noted that the PCA may authorize the introduction of substantial changes to the notification that has been submitted, following a well-substantiated request from the notifying party(ies). In this case, the time limit for conclusion of proceedings shall be adjusted so that the new timeline begins from the date when the changes were received.
Although there are no specific guidelines on this matter, the PCA has been flexible whenever the parties reasonably request an extension of the deadline for submitting the requested information.
In a normal situation, there is no extension, reset or freeze of the basic timetable of the JFTC’s review. The review period runs even though the JFTC requests further information during the review or the parties offer remedies.
However, the JFTC is not bound by the time restraint in issuing an order for necessary action if it finds that the notification made by the parties includes a false statement on any important issue. Also, the JFTC can extend the time limitation to issue an order for necessary action if a proposed remedy is not completed within the deadline for completion. In such a case, the new deadline for the JFTC is one year from the deadline of the remedy.
In the course of a Phase I review, the CCI may seek additional information from the parties to determine as to whether or not the combination causes an AAEC in the relevant market. The calculation of the 30 working days period may be suspended (referred to as a “Clock Stop”) during the time taken by the parties to respond to any such information requests from the CCI.
For example, if the CCI issues a request for additional information 20 working days after the notice is filed and the parties respond after 7 working days, for the purposes of calculating the 30 working-day period, the 28th working day shall be considered as the 21st working day for the purposes of the Competition Act. Consequently, where the CCI seeks additional information, a typical Phase I investigation lasts considerably longer than strict 30 working days.
Pursuant to the amendment to the Combination Regulations in July 2015, A Clock Stop is permitted for a maximum of 15 working days, when the CCI seeks information from third parties while assessing a combination.
If the CCI does not pass an order within 210 calendar days from the date of filing the notice, the notified transaction is deemed approved. There is no mechanism for extending the 210 day period. In this regard, as provided above in response to query 19, the Counter Proposal Period and the Post Proposal Period of total 60 working days is excluded from the calculation of the 210 days from the date of filing the merger notification form with the CCI.
At the end of the 40 working day first-phase period the CMA must decide whether the transaction risks giving rise to a substantial lessening of competition and should therefore be subject to a second-phase investigation, unless remedies are agreed. This 40 day period may be extended in the following circumstances:
- Where the parties fail to provide information to the CMA by the deadline specified in a request for information.
- If the Secretary of State serves notice that a relevant public interest should be considered (see section 14), the CMA can extend the period for its investigation by 20 working days. (The Secretary of State, however, is not subject to any specified binding deadline for his or her decision as to whether a second-phase investigation should be opened on public interest grounds.)
- If the CMA asks the European Commission to review the merger under the EU Merger Regulation (see section 1 above).
In addition, if the parties offer remedies during the first-phase, an additional period for negotiation and finalisation of those remedies will apply – see section 31.
The CMA can extend the 24-week period by a further eight weeks for special reasons. It can also 'stop the clock' from running if one of the parties to the merger has failed to comply with a formal notice requiring the provision of information and documents or the appearance of witnesses.
For uncompleted mergers, the CMA can also extend the 24 week period for up to three weeks if the parties indicate that they are considering abandoning the transaction, in order to give the parties time to decide whether or not to do so.
In addition, in cases where the CMA proposes to impose remedies on the parties, or to clear the transaction on condition that remedies are implemented, it will have a period of 12 weeks from the date of its second-phase report within which to negotiate and finalise those remedies. That period can be extended by six weeks in certain circumstances.
In addition to the extensions described above, the Commission can also “stop the clock” and effectively freeze the timetable for the review of the transaction. The Commission can do so if it requested the provision of information from the parties with a formal decision and the parties failed to provide it. The Commission can also stop the clock “owing to circumstances for which one of the undertakings involved in the concentration is responsible” or to order an inspection pursuant to Article 13 EUMR.
The parties can informally suggest “stop the clock” provisions if they would like to give the Commission more time to review a particular aspect of the transaction (e.g. proposed remedies package) without any time pressure. The parties would do that if they believed that granting the Commission more time in the short term would result in a shorter review (or less burdensome remedies) in the long term.