Under what circumstances the basic timetable may be extended, reset or frozen?
Merger Control (4th edition)
Under any of the following circumstances, SAMR may extend the period of further review for a maximum of 60 calendar days on condition that it informs the business operators of the extension in writing:
- The business operators agree to the extension;
- The documents or materials submitted by business operators are inaccurate and therefore need further verification; or
- major changes have taken place after the business operators made the notification.
Where a notifying parties withdraw a notification and then refile a new notification, the timetable shall be reset. This has taken place in several cases to date.
The timetable may not be frozen. That said, it should be noted:
- There is no time limit for SAMR to examine whether notification documents or materials are in compliance with the statutory formality requirements; and
- Where SAMR’s concerns about the impact of the proposed transaction on competition have not been fully addressed by the notifying parties at the end of Phase III, the notifying parties may apply to withdraw the original notification and refile a new one.
The Service is entitled to inform the notifying undertaking of an extension by 14 calendar days, of 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. The CPC may at its discretion extent the timetable in the context of a phase II investigation, where any omission on behalf of one or more of the undertakings concerned causes any delay in the discharge by the Service or the CPC of their respective obligations under the Law.
A request for additional information necessary for the notification to be considered complete, whether in the context of a phase I assessment or a phase II full investigation, has the effect of stopping the clock. When the Service sends such a request, the date on which a response is provided is deemed to reset the timetable (to the extend such request concerned dditional information necessary for the notification to be considered complete). 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.
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, in-cluding 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.
The 60-day deadline for deciding may be extended once, up to an additional sixty (60) day term, if the SCPM needs to gather information for the market. Meeting with local actors, requests to private and public entities, etc.
If the authorization has been subordinated to the fulfillment of conditions, these must be adopted within a maximum term of ninety (90) days of the notification of the resolution that establishes them.
The Superintendency may grant an additional term for compliance with the following conditions where the economic operator on whom such conditions were imposed demonstrates that, having mediated all the necessary efforts, it has been impossible for him to fulfill them in the proposed term.
If the conditions have not been met within ninety (90) days or within the additional term granted by the Superintendency of Control of Market Power, the latter shall deny the merger operation.
The time table may be frozen in the following cases:
a. When any interested party is requested to provide documents and other necessary elements of judgment, for the time between the notification of the request and its effective performance by the addressee, or, failing that, the expiry of the period granted.
b. When reports or acts of simple administration that are mandatory and determine the content of the resolution must be requested from a body of the same or a different administration, for the time between the request, which must be communicated to the interested parties, and the receipt of the report, which must also be communicated to them.
This suspension period may in no case exceed sixty (60) days.
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.
See question 19.
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.
As explained in the response to question 18, the CCI timelines to review a combination may get extended if the combination is being investigated under a Phase II review. The CCI review timelines of a combination may also get reset if a notification gets invalidated by the CCI on the grounds of lack of complete information provided by the parties in relation to the combination or lack of conformity of the notice with the Combination Regulations.
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.
- 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.
- 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 30-day period may be extended by the Commissioner for two additional 30-day periods, and then, after consulting with the Exemptions and Mergers Advisory Committee, 60 more days, up to a total of 120 days beyond the initial 30-day period. Further extensions may only be granted for special reasons by the specialist Competition Tribunal in Jerusalem. Requests for information do not stop the clock for the review period, regardless of whether they are answered fully or correctly, nor do negotiations with the parties for remedies or interventions by third parties. Such procedures, if exceeding the 30-day period, will normally be conducted using voluntary extensions from the parties.
If the merger notifications are incomplete, the clock is reset until full merger notifications are submitted.
If deemed to be necessary, the KFTC has discretion to extend the review period up to an additional 90 calendar days following the expiration of the initial 30-day period. If the KFTC requests additional information or materials during its review, the time period between the date when such request is made and the date when a response to such request is submitted will not be counted in calculating the review period.
The periods mentioned in sections (ii) and (iii) of question 19 above can be extended by the agency for an additional 40 business days if it considers the complexity of the transaction merits extending the review.
There are no specific circumstances where a reset would apply other than rejection of the transaction, either by rejecting the clearance, or failing to comply with the corresponding requirements. In the event that the agency requires remedies to clear the transaction, the basic timetable may be frozen until such remedies are submitted.
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, 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 abovementioned 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.
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 condi-tions which have to be met within this 9-month period.
In accordance with the above, the timetable may be extended with 10 working days during Phase I if the SCA has received an offer regarding commitments from the parties. During Phase II, the SCA may extend the timeline with 1 month at a time if the parties consent thereto or if there are special reasons for such an extension.
During Phase I and II the SCA has the authority to freeze the timetable for the investigation, i.e. “stop the clock”, if the parties for example fail to provide requested information of essence to the SCA’s review. The SCA may also “stop the clock” during Phase I upon request by the parties.
There are no possibilities for the SCA to reset the timetable.
Extensions are only possible in the second phase, which lasts four months and only for reasons at-tributable 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.
According to Law N° 26876, the basic timetable shall be extended in cases in which the 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.
According to the Bill, the term to resolve may be suspended for 10 business days, extendable for 5 more, when a public entity must provide information that is essential for the resolution of the procedure.
The Bill also states that, in the event that the parties submit a proposal for commitments to avoid or mitigate anti-competitive effects, the procedure is suspended until the authority decides on the proposal, for a period of up to 15 business days. This period may be extended by mutual agreement for up to 15 additional business days in the first phase of the procedure and 30 in the second.
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 day one.
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.
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.
If any grounds prohibiting the concentration become known, or if a more thorough investigation or expert appraisal is required, the AMCU may initiate a more detailed review of the application called a ‘concentration case’. If this occurs, the applicant will be notified.
The period for consideration of the concentration case shall not exceed three months. Such consideration period starts at the date when the applicant submitted required information in full and obtained an expert opinion. The law does not limit the amount of time for collection of additional documents or information. Therefore, there can be delays between the opening of a case by the AMCU, the resulting request for additional documents, information or expert opinions and the actual start of the procedure of consideration of the concentration case.
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 refiling results in a new initial waiting period. The acquiring company may only take advantage of the withdraw-and-refile process without paying a new filing fee 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.
Phase I can be interrupted when the parties do not provide ICA with a complete notification or fail to adequately respond to a request for information from ICA.
The in-depth investigation can be extended up to 30 (additional) calendar days, if the parties fail to provide available data/information requested by the ICA.
The aforementioned deadlines may be extended if the undertakings participating in the concentration consent to such extension, or the notification is incorrect or misleading so that the HCC is unable to assess the notified concentration. Furthermore, in case the notification form is incomplete, the HCC is obliged to request from the notifying parties within seven (7) business days from the date of notification the correction of the initial filing. Hence, the one (1) month notification deadline mentioned above is deemed to commence only upon submission of the complete and accurate data. Therefore, the HCC may continue requesting information from the parties, which practically extends the deadlines set out in the law, as is usually the case.
Exceptionally, the deadlines provided shall be suspended, in cases where the undertakings concerned fail to comply with their obligation to provide information in accordance with the respective provisions of the Greek Competition Law and provided that the undertakings concerned are advised accordingly within no more than two (2) days from the expiration of the deadline set out for the submission of the information requested. In such cases, the Phase I and Phase II investigation periods re-commence from the date on which the undertakings concerned provide the requested full and accurate information.