What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)? Are there different thresholds that apply to particular sectors?

Merger Control (3rd edition)

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.

A special rule applies with regard to media concentrations. In case of a media concentration, the turnover of the media companies and media services (Mediendienste) is multiplied by 200 and the turnover of companies providing auxiliary services for media companies (Medienhilfsunternehmen) is to be multiplied by 20. However, these multipliers are not applied with regard to the two EUR 5 million thresholds mentioned above.

The thresholds refer to net turnover. All undertakings which are linked to each other in a way that would constitute a concentration if newly established are deemed as one single undertaking and, therefore, the turnover of the entire group(s) has to be taken into account. There is a limit in case of indirect shareholdings (participation via stages) according to jurisprudence: The turnover is only to be considered if on each stage subsequent to an indirect participation a controlling influence exists.

Turnover within the meaning of Austrian merger control is, as under the EUMR, generally understood as turnover resulting from the ordinary activities of all undertakings involved during the last completed business year. In the banking sector, turnover refers to interest and similar income, income from shares and other equity interests, income from non-fixed income securities, commission revenues, net earnings from financial transactions and other operating revenues. In the case of insurance companies, the premium incomes have to be used.

The seller group is, in general, not regarded as an undertaking involved. The turnover of the seller must only be included if the seller also post transaction will be connected (typically) to the target company in a way as described above.
In addition to the above mentioned “classic” turnover thresholds, a concentration has to be notified to the BWB, where

  • the aggregate worldwide turnover exceeds EUR 300 million (same as first part of the mentioned classic turnover based threshold),
  • the aggregate Austrian turnover exceeds EUR 15 million (half what is required under the classic turnover threshold),
  • the value of the consideration for the transaction exceeds EUR 200 million, and
  • the target is active in Austria “to a significant extent”.

As with the existing thresholds, all four conditions have to be met cumulatively. The new threshold applies to transactions implemented as of November 1, 2017.

As both, the term “consideration” and the condition “significant activity in Austria”, are not defined in the Cartel Act, the BWB has together with the German Federal Cartel Office (Bundeskartellamt) issued a guidance paper (available at the homepages of the authorities) and there is also some additional explanation to be found in the official explanatory remarks to the amendment (travaux preparatoires) in Austria. It may be particularly noted here that

  • The term “consideration” covers all assets and other services of monetary value (purchase price) which the seller receives from the purchaser in connection with the transaction plus the value of possible liabilities which the purchaser takes over.
  • The “significant activity in Austria” criterion is essentially taken to be fulfilled where a site of the undertaking to be acquired is situated in Austria. However, this criterion can also be met in cases where there is no such presence but the “recognised key measures used in the respective industry” indicate a relevant Austrian connection. As regards the digital industry, for example, the number of monthly active users (from Austria) or the number of unique visits can be taken into account for ascertaining an Austrian nexus.

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 (“UF”, approximately EUR $65.6 million and USD $74.3 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 $10.6 million and USD $12 million).

It is irrelevant whether the parties to the concentration have a presence in Chile since 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 $3.4 million and USD $4 million).

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

These thresholds are applicable to all sectors.

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 €24.3 million or $27.4 million) and the Turkish turnover of at least two of the transaction parties each exceeding TL 30 million (approximately €7.2 million or $8.2 million); or
  • the Turkish turnover of the transferred assets or businesses in acquisitions exceeding TL 30 million (approximately €7.2 million or $8.2 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 500 million (approximately €121.6 million or $137.3 million), or (ii) the Turkish turnover of any of the parties in mergers exceeding TL 30 million (approximately €7.2 million or $8.2 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 500 million (approximately €121.6 million or $137.3 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 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.

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.

Ireland Small Flag Ireland

A merger or acquisition as defined in the Competition Act will be notifiable if the following thresholds are met in the most recent financial year of each undertaking involved:

  • The aggregate turnover in the State of the undertakings involved is not less than €50 million; and
  • The turnover in the State of each of two or more of the undertakings involved is not less than €3 million.

For the purposes of the Competition Act thresholds, on the acquirer side, the turnover of the entire group to which the acquiring entity belongs is taken into account. On the target business side, only the turnover of the target business is taken into account, i.e. the turnover of the remainder of the vendor's group is not taken into account. For example, in an acquisition of sole control, the turnover to be taken into account is the turnover of the entire group to which the acquiring entity belongs and the turnover of the target business alone. In acquisitions of joint control, the undertakings involved are each of the parties (on a group basis) acquiring (and, where relevant, maintaining) joint control and, if the target is a pre-existing company, the target company.

The current thresholds were introduced as part of the 2014 reform of merger control, and now more clearly relate to transactions that have a direct connection to activities in the State. They replaced the previous thresholds which contained both a worldwide turnover test and a reference to undertakings carrying on business on the island of Ireland. The current thresholds can be triggered in respect of relatively small transactions, given the lower threshold is just €3 million. The 2014 Act also revised the concept of asset acquisitions that come within the scope of Irish merger control jurisdiction and the CCPC has interpreted the revised concept relatively broadly to include, for example, acquisitions of buildings with a rent roll.

With the exception of media mergers, which fall to be assessed under the Competition Act regardless of whether the turnover-based thresholds are met or not, the thresholds do not vary depending on industry sector. The thresholds in the Competition Act, but can be increased by Ministerial Order. The Department for Business, Enterprise and Innovation has issued a consultation on whether to increase the thresholds.

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.

Other than the special turnover calculation rules for credit institutions and insurance undertakings, there are no sector-specific rules.

Norway Small Flag Norway

A concentration must be notified when the following turnover thresholds are met:

(i) the undertakings concerned have a combined annual turnover in Norway above NOK 1 billion; and

(ii) each of at least two of the undertakings concerned has an annual turnover in Norway of NOK 100 million or more.

Please note that the NCA may order the parties to file transactions below the thresholds, and also minority shareholdings, up to three months after the agreement was entered into or the transaction became public. Such orders are relatively rare, but happen from time to time.

Philippines Small Flag Philippines

The thresholds for compulsory notification are based on revenue or asset value of the ultimate parent entity and the value of the transaction. Under Rule 4, Section 3 of the PCA IRR, as amended by PCC Policy Statement No. 18-01, parties to a merger or acquisition are required to provide notification to the PCC when:

  1. The aggregate annual gross revenues in, into or from the Philippines, or value of the assets in the Philippines of the ultimate parent entity of at least one of the acquiring or acquired entities, including that of all entities that the ultimate parent entity controls, directly or indirectly, exceeds Five Billion Pesos (PhP5,000,000,000.00) (the “Size of Party Threshold”); and
  2. The value of the transaction exceeds Two Billion Pesos (PhP2,000,000,000.00) as determined by the following factors (the “Size of Transaction Threshold”):


    a. The aggregate assets in the Philippines owned by the corporation whose voting shares are to be acquired or by entities it controls (the “Target Corporation”) exceed Two Billion Pesos (PhP2,000,000,000.00); or

    b. The Target Corporation’s gross revenues from sales in, into, or from the Philippines exceed Two Billion Pesos (PhP2,000,000,000.00); and

    c. As a result of the proposed acquisition of the voting shares, the acquiring entity would own Thirty Five Percent (35%) or more of the Target Corporation’s outstanding shares.

    In this regard, Section 3(f) of the PCA IRR provides that for purposes of calculating notification thresholds:

    (1) The aggregate value of assets in the Philippines shall be as stated in the last regularly prepared balance sheet or the most recent audited financial statements in which those assets are accounted for.

    (2) The gross revenues from sales of an entity shall be the amount stated in the last regularly prepared annual statement of income and expense of that entity.

Transactions falling below the foregoing thresholds which constitute an anti-competitive agreement or an abuse of market dominance may be investigated by the PCC in a motu proprio investigation. An anti-competitive agreement may be an agreement which is prohibited per se (e.g. price fixing, bid rigging) or an agreement with the object or effect of substantially preventing, restricting or lessening competition (e.g. limiting supply, sharing markets). An ‘abuse of market dominance’, on the other hand, is the act of engaging in conduct that would substantially prevent, restrict or lessen competition, such as predatory pricing, price discrimination, and refusal to deal.

Russia Small Flag Russia

The Competition Law sets general economic thresholds that apply to most transactions. Pre-transaction filing for approval is required if:

  • (i) the aggregate book value of the total assets of the acquirer with its group of entities and the target with its group of entities exceeds RUB 7,000,000,000; or (ii) the aggregate turnover of the acquirer with its group of entities and the target with its group of entities exceeds RUB 10,000,000,000;
    and
  • the aggregate book value of the total assets of the target with its group of entities exceeds RUB 400,000,000.

There are other economic thresholds for mergers between companies. Further thresholds apply to joint venture agreements (see question 9) and for acquisitions of non-Russian entities (see question 11).

There are also different economic thresholds for transactions involving financial entities (banks, insurance companies, etc.) which are changed from time to time by acts of the Russian government.

Upon calculation of the target-related asset and turnover values one should take into account that the Competition Law provides for an exemption according to which the total assets of the group of persons of the target may not be taken into account if, as a result of the transaction, the group of persons of the target will no longer have rights to determine the conditions for carrying out business activity of the target. As a matter of practice this exemption is also being applied to the calculation of the turnover of the target’s group.

France Small Flag France

The French merger control regime provides three alternative sets of turnover-based thresholds: in addition to general turnover thresholds, lower thresholds apply specifically (i) to transactions in the retail sector in France and (ii) to transactions in the French overseas territories.

General thresholds (Article L.430-2 I of the Code) applying to all transactions

Firstly, a concentration must be notified to the FCA if the following cumulative thresholds are met:

  • the combined worldwide turnover of all the undertakings concerned exceeds €150 million; and
  • the turnover achieved in France by each of at least two of the undertakings concerned exceeds €50 million; and
  • the operation is not caught by the thresholds of the EUMR.

Specific thresholds for transactions in the retail sector (Article L.430-2 II of the Code)

Secondly, a concentration involving at least two undertakings operating retail premises in France must be notified to the FCA if the following cumulative thresholds are met:

  • the combined worldwide turnover of all the undertakings concerned exceeds €75 million; and
  • the turnover achieved in the retail trade sector in France by each of at least two of the undertakings concerned exceeds €15 million; and
  • the operation is not caught by the thresholds of the EUMR.

Article L.430-2 III of the Code provides specific (lower) thresholds for transactions in the French overseas territories (Mayotte, Wallis-et-Futuna, Saint-Pierre-et-Miquelon, Saint-Martin and Saint-Barthélemy).

South Africa Small Flag South Africa

Notification and approval of intermediate and large mergers to the competition authorities 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 (see response to question 2 above).

An intermediate merger is one that meets both a combined threshold as well as a target firm threshold as follows:

  • the combined turnover in, into or from South Africa of the acquiring and target firms is between 600 million rand and 6.6 billion rand;
  • the combined assets in South Africa of the acquiring and target firms is between 600 million rand and 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 is between 600 million rand and 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 600 million rand but below 6.6 billion rand; and either:
  • the annual turnover in, into or from South Africa of the target firm exceeds 100 million rand; or
  • the value of the assets in South Africa of the target firm exceeds 100 million rand.

A large merger is one that meets both a combined threshold as well as a target firm threshold as follows:

  • 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.

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. 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 Supreme Court of Appeal 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.

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’ do not vary based on the particular sector in which the parties participate and 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 2018.

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 $84.4 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 $84.4 million and $337.6 million, the parties must also meet the ‘size-of-person test.’ When a transaction’s size is greater than $337.6 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 $168.8 million or more and the other has annual net sales or total assets of $16.9 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 US.

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.

Switzerland Small Flag Switzerland

A planned concentration of undertakings has to be notified to the ComCo, if in the financial year preceding the concentration the following two turnover thresholds are reached:

  • the undertakings concerned together reported a turnover of at least 2 billion Swiss francs, or a turnover in Switzerland of at least 500 million Swiss francs, and
  • at least two of the undertakings concerned each reported a turnover in Switzerland of at least 100 million Swiss francs.

Even when the thresholds are not reached, a planned concentration has to be notified to the ComCo if one of the undertakings concerned has in proceedings under the Cartel Act in a final and non-appealable decision been held to be dominant in a market in Switzerland, and if the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof.

Germany Small Flag Germany

The 9th amendment of the ARC recently introduced a new threshold to catch transactions in the digital economy in particular (Test 2 below). The FCO assumes that only a very small number of transactions will meet this new threshold test. The FCO has published a guideline on its website containing examples and further information on how it will interpret the new law in future decisions.

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

Test 1:

  • all undertakings concerned 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 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 is, in all cases, 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 (ii) or 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 for the assessment. The same applies for all shareholders whose shareholding in the target amounts to 25 % or more post-transaction.

The situation, in which the direct acquirer of control is itself jointly controlled by two or more undertakings 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 have to be considered individually as undertakings concerned or if only the turnover of the direct acquirer (including the turnover of its controlling companies) has to be included. 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, in any event, 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) did 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).

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:

i) Income from interest or similar sources;
ii) income from securities, namely from shares and other variable yield securities, from holdings as well as from shares in affiliated undertakings;
iii) commissions;
iv) net profit on financial operations;
v) 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.

Peru Small Flag Peru

Under the Electrical Sector Antitrust Law and Regulation, an authorization from INDECOPI (the Peruvian competition agency) is required prior to the acquisition of direct or indirect control of an electrical company, provided that the following conditions are met:

a) the purchaser and its affiliates or group companies hold – or will hold after the transaction – a concession or authorization for power generation, transmission and/or distribution;

b) the local market share of the companies involved in the operation (including all affiliates and subsidiaries) amounts to, or exceeds, individually or in the aggregate, either before or after the operation, 15% (for horizontal integration) or 5% (for vertical integration).

c) the condition is considered fulfilled even if only one of the thresholds set above is met. Market share is determined on the basis of the ratio between total annual revenue of the companies involved in the operation for the year preceding the filing and total annual revenue of all companies engaged in the same electrical activity within the Peruvian Interconnected System. When calculating the ratio, the shares issued outside of Peru by that the companies involved are not considered;

d) the shares or interest to be purchased i) represent at least 10% of the outstanding capital stock of the relevant company, or ii) provides control over the relevant company; and,

e) the operation under assessment, either within one of its individual acts or taken as a whole, involves the acquisition, directly or indirectly, by the acquirer of productive assets, amounting to 5% or more of the acquirer's total assets (on the basis of market value at the time of notification).

According to Bill No. 2634, aimed at establishing ex ante control of business concentrations in all sectors of the economy, the thresholds depend on sales (it is required that at least one of the companies involved register a level of annual sales above 20,000 Tax Imposition Units or "UIT", approximately US$ 26,000,000, or together they exceed 50,000 UIT, approximately US$ 65,000,000); or, they depend on the market share, in this case, when as a consequence of the concentration they obtain more than 30%.

On the side of Bill No. 2604, aimed at establishing ex ante control of business concentrations in all sectors of the economy, the concentration acts must be notified when, concurrently, the sum of the value of the gross sales of the companies involved is equal to or greater than 120,000 UIT (approximately US $ 160,000,000) and the total gross sales of at least two of the companies involved equals or exceeds 20,000 UIT (approximately US $ 26,000,000).

Finally, according to Bill No. 2654, aimed at establishing ex ante control of business concentrations in all sectors of the economy, when the operation has the effect that the resulting group obtains at least 51% of the participation quota in one or more markets; or, if one of the participating agents registers in the balance of the previous fiscal year annual gross sales or total business volume in the country equal to or greater than 100 000 UIT (approximately US $ 130,000,000), it must notify the concentration act.

Portugal Small Flag Portugal

The Competition Act establishes three alternative thresholds for mandatory filing. The jurisdictional thresholds do not vary according to the sector. Moreover, purely foreign-to-foreign transactions can be covered by the Competition Act in the event that they have effects in Portugal, even if none of the parties is established, has facilities or is represented in Portugal.

The PCA must be notified of concentrations if they trigger one of the three alternative jurisdictional thresholds:

a) Turnover threshold: concentrations are subject to notification if, in the preceding financial year, the aggregate combined turnover of the undertakings concerned, in Portugal, exceeded €100 million, after deduction of taxes directly related to turnover, provided that the individual turnover achieved in Portugal in the same period, by at least two of the undertakings concerned, exceeded €5 million.

b) Market share threshold: a notification is mandatory if the implementation of the concentration results in the acquisition, creation or reinforcement of a share equal to or exceeding 50% in the “national market” for a certain product or service, or in a substantial part of it.

c) Market share + turnover threshold: a notification is mandatory if there is an acquisition, creation or reinforcement of a share between 30% and 50% in the national market for a certain product or service, and if at least two of the undertakings concerned achieved an individual turnover, in Portugal, of at least €5 million in the previous financial year.

Two or more concentrations between the same natural or legal persons, within a period of two years, even when individually considered as not being subject to prior notification, is deemed to constitute a single concentration subject to prior notification where the two or more concentrations assessed in conjunction satisfy the relevant jurisdictional thresholds.

The following operations are excluded:

a) The acquisition of shareholdings or assets by an insolvency administrator within insolvency legal proceedings;

b) The acquisition of shareholdings merely to serve as collateral;

c) The temporary acquisition, by financial institutions or insurance companies, of securities with a view to reselling them (subject to certain conditions);

d) The acquisition by the Portuguese state of a controlling shareholding in a credit institution, or the transfer of its business to a transition bank in situations of bank recapitalization and resolution failing.

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.

There are no sector specific thresholds.

India Small Flag India

The Jurisdictional Thresholds in India involve an analysis of the worldwide and Indian assets and turnover of both (a) the directly transacting parties (Parties test); and (b) the acquiring group and the target (Group test).

Direct Parties Test: India
Acquisitions: Direct acquirer/Target
Competitor Acquisitions: Target/Competing enterprise in acquirer group
Mergers & Amalgamations: Direct transacting parties

Assets

Or

Turnover

Combined Indian assets > INR 2,000 crore
(approx. USD 310.13 million)

Combined Indian turnover > INR 6,000 crore
(approx. USD 930.38 million)

Direct Parties Test: Worldwide & India
Acquisitions: Direct acquirer/Target
Competitor Acquisitions: Target/Competing enterprise in acquirer group
Mergers & Amalgamations: Direct transacting parties

Assets

Or

Turnover

Combined worldwide assets > USD 1 billion
and
Combined Indian assets > INR 1,000 crore
(approx. USD 155.6 million)

Combined worldwide turnover > USD 3 billion
and
Combined Indian turnover > INR 3,000 crore
(approx. USD 465.19 million)

Acquiring Group Test: India
Acquisitions (including competitor acquisitions): Acquiring Group/Target
Mergers & Amalgamations: Group to which transacting parties will belong

Assets

Or

Turnover

Combined Indian assets > INR 8,000 crore
(approx. USD 1.24 billion)

Combined Indian turnover > INR 24,000 crore
(approx. USD 3.72 billion)

Acquiring Group Test: Worldwide & India
Acquisitions (including competitor acquisitions): Acquiring Group/Target
Mergers & Amalgamations: Group to which transacting parties will belong

Assets

Or

Turnover

Combined worldwide assets > USD 4 billion
and
Combined Indian assets > INR 1,000 crore
(approx. USD 155.06 million)

Combined worldwide turnover > USD 12 billion
and
Combined Indian turnover > INR 3,000 crore
(approx. USD 465.19 million)

Note: All calculations performed basis conversion rate of 1 USD = 72.91 INR on 2 October 2018.

For the purposes of conducting the Direct Parties Test and the Acquiring Group Test, the parties need to consider the assets and turnover figures for the financial year immediately preceding the financial year in which (a) the merger/amalgamation was approved by the Board of Directors of the transacting enterprises, or (b) the acquisition agreement or any other document for acquisition was executed. The form of the transaction combination is important, as the Jurisdictional Thresholds test could differ if the transaction combination is (a) an acquisition of a non-competitor, (b) an acquisition of an actual or potential competitor, or (c) a merger or amalgamation. The Jurisdictional Thresholds apply uniformly across all sectors.

The Indian competition regime does not provide for any specific Jurisdictional Thresholds for any specific sectors. However, the Government of India through the MCA have exempted certain transactions in some specific sectors which do not require a pre-clearance from the CCI (discussed below in query 34).

United Kingdom Small Flag United Kingdom

A merger that satisfies the control test described in section 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.

Lower jurisdictional thresholds apply to qualifying transactions involving targets with any of the following activities:

  • Military / dual use: (i) developing or producing "restricted goods", i.e. goods, software or information specified in Schedules 2 and 3 to the Export Control Order 2008, the Schedule to the Export of Radioactive Sources (Control) Order 2006 or Annex I to Regulation (EC) 428/2009, but excluding items which are prohibited from being exported or transferred to one country only; or (ii) holding information (e.g. in software, blueprints, manuals, diagrams and designs) that can be used in connection with the development or production of restricted goods and is responsible for achieving or exceeding the performance levels, characteristics or functions of the restricted goods that are specified in the legislation referred to above.
  • CPUs: (i) owning, creating or supplying IP (including know how) relating to the functional capability of CPUs, the instruction set architecture for such units or computer code that provides low level control for such units; or (ii) designing, maintaining or providing support for the secure provisioning or management of roots of trust of CPUs, or computer code that provides low level control for such units. “Roots of trust” means hardware, firmware, or software components that are inherently trusted to perform critical security functions (e.g. cryptographic key material that can identify a "bound" device or verify a digital signature to authenticate a remote entity).
  • Quantum technologies: research into the following technologies: quantum computing, simulation, imaging, sensing, timing, navigation, communications or resistant cryptography (the legislation includes definitions of each of these technologies), as well as developing or producing anything designed for use in such technologies or supplying services employing such technologies.

For these transactions, the thresholds for CMA jurisdiction are met if the target has:

  • a share of the supply in the UK of the relevant products or services of 25% or more. Unlike the generally-applicable thresholds, this test will be met even if the purchaser has no overlapping activities in the UK; or
  • turnover in the UK of £1 million or more - in any products or services, not just those listed below.

These lower thresholds are intended to allow the Government to review transactions involving targets with the relevant activities on national security grounds (see Section 14 below). While the CMA will also have jurisdiction to review such transactions on competition grounds, it has stated that it is unlikely to review transactions that meet the above thresholds but do not meet the generally-applicable thresholds.

Finally, the following 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 generally-applicable turnover and market share thresholds:

  • 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.

The investigation will be into a public interest consideration specified by the Secretary of State (see section 14 below), with whom the final decision on those considerations rests. The CMA has no jurisdiction to investigate these mergers on competition grounds unless the 'normal' jurisdictional thresholds are met.

EU Small Flag EU

A concentration is notifiable to the Commission if it has “a Community dimension”, which exists where:

(a) the combined aggregate worldwide turnover of all the undertakings concerned is more than EUR 5 billion; and

(b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than EUR 250 million,

unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same Member State.

OR

(a) the combined aggregate worldwide turnover of all the undertakings concerned is more than EUR 2.5 billion;

(b) in each of at least three Member States, the combined aggregate turnover of all the undertakings concerned is more than EUR 100 million;

(c) in each of at least three Member States included for the purpose of point (b), the aggregate turnover of each of at least two of the undertakings concerned is more than EUR 25 million; and

(d) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than EUR 100 million,

unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same Member State.

Israel Small Flag Israel

Nexus to Israel

When non-Israeli entities are involved in a transaction, the "merger of companies" definition will only apply to the transaction if at least two of the parties involved in the transaction are each deemed a "company" under the Israeli Antitrust Law; i.e. corporate entities with sufficient nexus to Israel (the "Nexus Test").

As explained in the Guidelines, the Nexus Test is satisfied if the party is:

  • An Israeli company;
  • A non-Israeli company registered in Israel as a "foreign company";
  • A non-Israeli company not registered in Israel, but with a "merger affiliation" with an Israeli company. A "merger affiliation" includes, inter alia, a situation where the non-Israeli company, an entity who controls it, an entity controlled by it or an entity controlled by any of them: (a) holds more than one quarter of an Israeli company’s issued capital stock; (b) holds more than one quarter of an Israeli company’s voting power; (c) has the right to appoint more than one quarter of the Israeli company’s directors; or (d) has the right to receive more than one quarter of the Israeli company’s profits; or
  • A non-Israeli company neither registered in Israel nor affiliated with an Israeli company, but maintaining a “place of business” in Israel (by way of a distributor or otherwise), which is reflected by holding a significant influence over the conduct of a local representative (local representative prices, presentation, positioning, identity of customers etc.).

As mentioned, the Nexus Test must be satisfied by at least two parties in order for the transaction to be considered a "merger of companies".

Filing Thresholds

If the transaction is a "merger of companies", and has satisfied the Nexus Test, the transaction must be reported to the Commissioner and receive the Commissioner's approval prior to consummation, if one or more of the following applies:

  • Turnover threshold: the combined turnovers in Israel of the parties to the merger in the balance year prior to the transaction were over NIS 150 million, and at least two parties each had a turnover in Israel of at least NIS 10 million in the same year;
  • Combined market share threshold: the parties' combined market shares will exceed 50% of a product/service market as a result of the merger; or
  • Individual market share threshold: one/both of the parties in the transaction has a "monopoly" (defined by the Israeli Antitrust Law as having over 50% market share) in any market in Israel.

All the thresholds take a “group” view; namely, they refer to the parties to the transaction, as well as to every company controlled by the same ultimate controlling owners. "Control" is defined in the Israeli Antitrust Law as the possession of more than half of either (i) the right to vote at a company's general meeting or the parallel body of another corporation, or (ii) the right to appoint the directors of a corporation. Turnover thresholds refer to all company activities, not just the activities in the market relevant to the transaction.

Note that the Israeli Antitrust Law and the Restrictive Trade Practices Regulations (Registry, Publication and Transaction Reporting), 2004 (the "Regulations") do not set an asset threshold to filing in Israel, and whether or not a company has assets in Israel is irrelevant to the thresholds. For example, a hi-tech company may have a development centre in Israel employing several engineers, and still not meet the filing thresholds due to the fact that it has no sales in Israel.

All thresholds refer to activity in Israel only.

In this regard, sellers' market share and turnovers will not be taken into account if all connections to the acquired company or assets are severed. If some connections remain between the parties once the transaction has been consummated, the sellers' turnover or market share will be taken into account when assessing the turnovers.

China Small Flag China

The jurisdictional thresholds are only related to turnovers of the relevant business operators. Where a concentration of business operators reaches any of the following thresholds, the business operators shall file a notification to SAMR:

(1) The total amount of the global turnover realized by all the business operators participating in the concentration during the previous accounting year exceeds RMB10 billion with at least two business operators each achieving a turnover of more than RMB 400 million within China during the previous accounting year; or

(2) The total amount of the turnover within China realized by all business operators participating in the concentration during the previous accounting year exceeds RMB 2 billion with at least two business operators each achieving a turnover of more than RMB 400 million within China during the previous accounting year.

The above thresholds apply to all sectors, although special methodologies of calculation of turnovers apply for business operators in financial sectors, including banking financial institutions, securities companies, futures companies, fund management companies and insurance companies.

Updated: October 25, 2018