What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?
Merger Control (3rd edition)
Concentrations which exceed the above mentioned thresholds have to be notified to the BWB and cleared before being implemented. In case of failure to notify or late notification that is after implementation, the prohibition on closing (also ban on implementation or standstill obligation) is violated.
If the concentration was only cleared by imposing certain restrictions or commitments, the concentration must not be implemented in a way differing from those restrictions or commitments.
Upon application by the official parties, the Cartel Court is to impose fines amounting to up to 10% of the concerned group’s turnover in the preceding business year in so called gun jumping cases (violations of the ban on implementation). The imposition of a fine largely is a discretionary decision. When assessing the fine, the gravity and duration of the infringement, level of fault involved and economic performance of the infringing undertaking(s) is (are) considered.
According to Austrian jurisprudence, violations of the prohibition on closing before clearance are generally regarded as a serious infringement. So far, fines in the range of some thousand Euros (following later notification in the undertakings’ own initiative) to EUR 1.5 million have been imposed.
Other sanctions such as cease orders do not play a significant role in practice. However, it should be noted that the law also foresees a nullity sanction in cases of infringements of the ban on implementations. This does not concern agreements preparing the concentration, but legal acts implementing the concentration or taken after an illegal implementation.
The Competition Act establishes that the general sanctions for infringement to DL 211, as well as those preventive, corrective or prohibitive measures that may be necessary, may be applied to those who:
(i) violate the obligation to notify;
(ii) implement an operation that has been notified to the FNE and whose materialization is suspended;
(iii) fail to comply with the remedies under which an operation has been approved;
(iv) implement an operation against the resolution or judgment that has prohibited the same; and,
(v) notify a concentration providing false information.
General sanctions for infringement to Competition Law, which may be applied by the TDLC, are the following:
(i) Modify or terminate acts, contracts, covenants systems or agreements contrary to the provisions of DL 211.
(ii) Order the modification or dissolution of partnerships, corporations and other legal entities that could have intervened in the acts, contracts, covenants, systems or agreements referred to in the previous letter.
(iii) Fines of up to 30% of the sales of the offender corresponding to the line of products or services associated with the infringement, during the term of the infringement or up to the double of the economic benefit gained by the infringement. If this amount cannot be determined, a fine of up to 60,000 Unidades Tributarias Anuales is the maximum (“UTA”, which is equivalent to CLP $575,040 as of September, 2018. Therefore, it is approximately equivalent to EUR $45 million and USD $52 million).
Moreover, the Competition Act establishes that failure to notify can be sanctioned with a daily fine up to 20 UTA (approximately USD $17,000 and EUR $15,000) for each day of delay, starting from the materialization of the transaction.
It is uncertain whether or not the daily fine for failure to notify is complementary to the general sanctions described above.
Monetary fines for failure to notify or close before the Board’s approval
In the event that the parties to a merger or an acquisition which requires the approval of the Board realise the transaction without the approval of the Board, a turnover-based monetary fine of 0.1 per cent of the turnover generated in the financial year preceding the date of the fining decision would be imposed on the incumbent firms, regardless of the outcome of the Board’s review of the transaction.
In December 2017, the minimum amount of the monetary fine to be imposed as a result of a violation of a suspension requirement has been amended. In the case of the violation of the suspension requirement, a turnover-based monetary fine (based on the local turnover generated in the financial year preceding the date of the fining decision at a rate of 0.1%) will be imposed on the incumbent firms (acquirer(s) in the case of an acquisition; both merging parties in the case of a merger). A monetary fine imposed as a result of a violation of suspension requirement shall in any event not be less than TL 21.036 – approximately EUR 5,118 or USD 5,779 - (rather than the former minimum amount of 18.377 - approximately EUR 5,500 or USD 6,058) as amended by the Communiqué No: 2018/1 on the Increase of the Lower Threshold for Administrative Fines Specified in Paragraph 1, Article 16 of the Law No 4054 on the Protection of Competition, to be Valid until December 31, 2018. It should also be noted that the wording of Article 16 of Law No. 4054 does not give the Board discretion on whether to impose a monetary fine in case of a violation of suspension requirement (i.e. once the violation of the suspension requirement is detected, the monetary fine will be imposed automatically). On a side note, the legal consequences of the violation of a suspension requirement are also applicable for foreign-to-foreign transactions since there is no exemption for foreign-to-foreign transactions.
Invalidity of the transaction
A notifiable merger or acquisition which is not notified to (and approved by) the Board would be deemed as legally invalid with all of its legal consequences.
Termination of infringement and interim measures
Pursuant to Article 9(1) of the Law No.4054, should the Board find any infringement of Article 7, it shall order the parties concerned, by a resolution, to take the necessary actions to restore the same status as before the completion of the transaction, and thereby restore the pre-transaction level of competition. Similarly, the Law No.4054 authorises the Board to take interim measures until the final resolution on the matter in cases where there is a possibility for serious and irreparable damages to occur.
Termination of the transaction and turnover-based monetary fines
If, at the end of its review of a notifiable transaction that was not notified, the Board decides that the transaction falls within the prohibition of Article 7, the undertakings could be subject to fines of up to 10 per cent of their turnover generated in the financial year preceding the date of the fining decision. Employees and managers (of the undertakings concerned) that had a determining effect on the creation of the violation may also be fined up to five per cent of the fine imposed on the undertakings as a result of implementing a problematic transaction without the Board’s approval.
In addition to the monetary sanction, the Board is authorised to take all necessary measures to terminate the transaction, remove all de facto legal consequences of every action that has been taken unlawfully, return all shares and assets (if possible) to the places or persons where or who owned these shares or assets before the transaction or, if such measure is not possible, assign these to third parties; and meanwhile to forbid participation in control of
these undertakings until this assignment takes place and to take all other necessary measures. Under Turkish merger control regime there is no criminal liability and/or imprisonment for failure to notify and implementation ahead of Board’s approval decision.
If the parties to a notifiable transaction violate the suspension requirement, the statute of limitation regarding the sanctions for infringements is eight years pursuant to Article 20(3) of Law on Misdemeanours No. 5326.
As explained above in detail, foreign-to-foreign mergers are covered by Law 4054 on Protection of Competition to the extent that they affect the relevant markets within the territory of Turkey. 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. To that end, penalties for failure to notify, late notification and breaches of a prohibition on closing do not differ in terms of foreign-to-foreign mergers.
The foreign-to-foreign nature of the transaction does not prevent imposition of any administrative monetary fine (either for suspension requirement or for violation of article 7) in and of itself. In case of violation of suspension requirement (i.e. closing before clearance or not notifying the transaction at all), foreign-to-foreign mergers are caught under Law No. 4054 so long as one of the alternate thresholds is exceeded (which is the case for our transaction at hand.)
There have been many cases where companies have been fined for failing to file a notifiable transaction (Tekno İnşaat, 12-08/224-55, 23.02.2012; Zhejiang/Kiri, 11-33/723-226, 02.06.2011; Ajans Press Medya Takip A.Ş.-İnterpress Medya Hizmetleri Ticaret A.Ş./Mustafa Emrah Fandaklı/ Ziya Açıkça, 10-66/1402-523, 21.10.2010, etc). In a very few of these cases, the notifiable transaction also raised substantive competition law concerns as it was viewed as being problematic under the dominance test applicable in Turkey (Ro-Ro, 05-69/959-260, 19.10.2005 – the seller incurred a fine of 5% of its annual Turkish turnover.).
For the sake of completeness, in the Simsmetal/Fairless decision (09-42/1057-269, 16.09.2009), where both parties were only exporters into Turkey, the Board imposed an administrative monetary fine on Simsmetal East LLC (i.e., the acquirer) subsequent to first paragraph of article 16 of Law No. 4054, totalling 0.1 per cent of Simsmetal East LLC’s gross revenue generated in the fiscal year 2009, because of closing the transaction before obtaining the approval of the Competition Board. Similarly, the Competition Board’s Longsheng (11-33/723- 226, 02.06.2011), Flir Systems Holding/Raymarine PLC (10-44/762-246, 17.06.2010) and CVRD Canada Inc. (10-49/949-332, 08.07.2010, ) decisions are examples whereby the Board imposed a turnover based monetary fine based on the violation of the suspension requirement in a foreign-to-foreign transaction.
Irrespective of the national scope of transaction (whether foreign-to-foreign, Turkish to Turkish or foreign to Turkish – vice versa), pursuant to Article 16 of Law No. 4054, if the parties to a notifiable transaction violate the suspension requirement (i.e., close a notifiable transaction without the approval of the Board or do not notify the notifiable transaction at all), a turnover based monetary fine (based on the local turnover generated in the financial year preceding the date of the fining decision at a rate of 0.1 per cent) will be imposed on the acquirer in straight forward acquisitions. The wording of Article 16 of Law No. 4054 does not give the Board discretion on whether to impose a monetary fine in case of a violation of suspension requirement. In other words, once the violation of the suspension requirement is detected, the monetary fine will be imposed automatically.
The parties will be punished with fines if they;
- fail to notify a merger/implement a merger prior to clearance;
- fail to submit a full-form notification within ten business days upon request from the DCCA in a situation where the DCCA has first approved a merger under the simplified procedure, but the approval was based on the parties’ submission of incorrect or misleading information;
- implement a merger despite a prohibition against implementation;
- fail to comply with a condition imposed or order issued by the DCCA as a precondition for approving the merger; or
- fail to comply with a requirement to separate undertakings or assets that have been taken over or merged or a requirement of cessation of joint control or any other measure capable of restoring competition when the DCCA has decided to prohibit a merger which has already been implemented.
On 20 June 2018, two Danish energy suppliers were fined DKK 4 million each for failure to notify a joint acquisition of a third undertaking back in 2012. In setting the fine, it was considered a mitigating circumstance that the undertakings informed the DCCA themselves of the breach of the obligation to notify the merger.
Failure to notify a notifiable merger or acquisition (and failure to supply information required under an RFI within the time period specified by the CCPC) is an offence under the Competition Act. An undertaking, or the person in control of an undertaking, convicted of such an offence may be liable on summary conviction to a fine not exceeding €3,000 or, on conviction on indictment, to a fine not exceeding €250,000.
In addition, if the failure continues one or more days after the date of its first occurrence, the undertaking or person concerned is guilty of a separate offence for each day that the breach occurs and may be liable on summary conviction to a fine not exceeding €300 or, on conviction on indictment, to a fine not exceeding €25,000.
For the purposes of these offences, the person in control of the undertaking is:
- In the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the offence to occur;
- In the case of a partnership, each partner who knowingly and wilfully authorises or permits the offence to occur; and
- In the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the offence to occur.
Once a transaction is notified to the CCPC, there are no criminal sanctions for closing prior to receipt of clearance from the CCPC. However, if a transaction is put into effect prior to clearance it is void as a matter of Irish law, meaning it is legally unenforceable and ineffectual.
While closing prior to clearance does not attract criminal sanction, any person who fails to observe a determination of the CCPC or commitment decision (or any person who aids, abets or assists another person, or conspires with another person to contravene such determination or commitment decision) is guilty of an offence and may be liable:
- On summary conviction, to a fine not exceeding €3,000 or to a term of imprisonment not exceeding 6 months, or both; and
- On conviction on indictment, to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 2 years, or both.
In addition, if the breach continues for one or more days after the date of its first occurrence, the person is guilty of a separate offence and may be liable on summary conviction to a fine not exceeding €300 and, on conviction on indictment, to a fine not exceeding €25,000.
The CCPC’s predecessor, the Competition Authority, published a notice on “gun jumping”, i.e. failing to notify a notifiable transaction and implementing the transaction prior to clearance, in which it outlined that it takes “gun jumping” very seriously.
The CCPC has investigated a number of “gun-jumping” cases in recent years. In those cases, the parties agreed to notify the transaction in question and, in those circumstances, the CCPC did not pursue the imposition of fines for failure to notify. The CCPC will typically publish a press release when it becomes aware of a “gun jumping” incident. Most recently, the CCPC confirmed in February 2018 that it is currently investigating suspected gun-jumping in respect of the acquisition by Armalou Holdings Limited (through its wholly-owned subsidiary, Spirit Ford Limited) of Lillis O'Donnell Motor Company Limited in December 2015. The transaction was subsequently notified and cleared by the CCPC, but the CCPC's gun-jumping investigation is still ongoing.
Where a concentration is either partially or entirely implemented prior to clearance by the CPC or prior to the lapse of the timeframe within which the Service ought to inform the notifying undertaking of whether the concentration is cleared or is to be fully investigated, administrative sanctions may be imposed by the CPC.
An administrative fine of up to 10 per cent of the aggregate turnover achieved by the notifying undertaking during the immediately preceding financial year may be imposed on the notifying undertaking for the aforementioned infringement, which may be followed by additional administrative fines of €8,000 for each day the infringement persists.
The CPC also has the power to order the partial or total dissolution of a concentration that has been implemented prior to obtaining clearance by the CPC.
If an undertaking fails to notify a concentration, the ICA can impose a fine up to 1% of the undertaking’s turnover achieved in the previous financial year.
In principle, the same sanction applies in case of late notification. Thus far, however, the ICA has imposed symbolic fines (generally between EUR 5,000 and EUR 20,000) if the concentration did not raise any competition concerns and the late notification was submitted on a voluntary basis.
A concentration executed in breach of a prohibition on closing, results in a sanction between 1% and 10% of the turnover of the business activities which form the scope of the concentration (i.e., in case of acquisition of an undertaking, of the target’s turnover).
Administrative fines. The range depends on the specific circumstances.
If the thresholds for compulsory notification are satisfied and the parties implement closing before clearance from the PCC is obtained, the transaction shall be considered void, and the parties shall be subject to an administrative fine of 1% to 5% of the transaction value.
In the case of In Re: Udenna Corporation, PCC Case No. M-2017-001, the PCC voided a Philippine conglomerate’s acquisition of shares in a foreign corporation which has Philippine subsidiaries that hold substantial assets for non-compliance with the compulsory notification requirement under the PCA. The PCC also imposed a fine of around Twenty Million Pesos (PhP20,000,000.00). The PCC held for the purposes of the Value of the Transaction Test that the Target Corporation’s shares in “entities it controls are excluded” but the “assets of the controlled corporations are still included in the valuation”.
The following negative consequences are provided for failure to notify, late notification and breaches of a prohibition on closing:
- fine imposed on the company which is responsible for the filing in the amount of up to RUB 500,000;
- fine imposed on the general director (CEO) in the amount of up to RUB 20,000;
- potential challenge of the transaction by FAS in court if the transaction could lead to the restriction of competition.
The Code provides several sanctions for failure to notify (Article L.430-8-I of the Code) or breaches of the standstill obligation (Article 430-8-II of the Code).
Penalties for failure to notify
If a notifiable concentration is completed or closed without having been notified, the FCA may:
- compel the parties to notify the transaction, subject to a daily penalty payment of a maximum of 5% of their average daily turnover, unless they return to the situation which existed prior to the concentration; and/or
- impose on the parties responsible for the notification a fine of up to 5% of their pre-tax turnover achieved in France during the last financial year (increased, where applicable, by the turnover achieved in France by the target during the same period). For natural persons, the fine is up to €1.5 million.
There are various examples of sanctions by the FCA for failure to notify a transaction. As an example, the FCA imposed a fine of €4 million to Castel Group for default of notification (the fine was then reduced by the French supreme administrative court (Conseil d’Etat) in 2016 to €3 million).
Penalties for anticipated implementation (gun-jumping)
The implementation of a concentration, not benefiting from a derogation, prior to its clearance triggers the same sanctions and fines as those incurred in cases of failure to notify (see above).
As an example, in its decision dated 8 November 2016 (case n°16-D-24), the FCA imposed a fine of €80 million on Altice Group for having prematurely completed two transactions under on-going merger control review.
Proceeding to implement a merger without obtaining the requisite approval is a contravention of the Act and exposes the parties to administrative penalties of up to 10% of their annual turnover in or from South Africa. The Commission may refer the matter to the Tribunal or conclude a settlement agreement, which must be approved by the Tribunal.
The Tribunal may also impose an administrative penalty (not exceeding 10% of the firms’ annual turnover in South Africa in the preceding financial year) where firms implement a merger in a manner contrary to a condition imposed by the Commission or the Tribunal. As such, parties generally may not proceed to implement a merger without having complied with the conditions to the approval.
Penalties for a failure to file a premerger notification, filing an incomplete premerger notification, or closing a reported transaction prior to expiration of the waiting period may result in civil penalties of up to $41,484 each day the person is in violation of the HSR Act. In practice, the agencies typically do not seek penalties for the first offense if parties inadvertently fail to file, but will seek penalties for a second mistake or for other types of violations. While $41,484 is the maximum daily civil penalty, the actual penalty will depend on the fact-specific circumstances of the case.
Failure to provide required item 4(c) and 4(d) documents as part of an HSR filing is taken very seriously by the FTC and DOJ. Substantial fines have been assessed for parties failing to provide these responsive documents. In some instances, if the omissions impacted the reviewing agency’s investigation, the parties have had their filings “bounced” and have been forced to restart the HSR waiting period.
Parties may not begin to consummate a transaction until the waiting period expires or is terminated by the agencies. If an acquiring person begins to exercise control over the operations or assets to be acquired before the expiration of the waiting period (referred to as gun-jumping) that person may face a civil penalty of up to $41,484 per day for a violation of the HSR Act. The FTC and DOJ have initiated several multi-million dollar civil penalty actions for gun-jumping violations.
The penalties for an undertaking that implements a notifiable concentration without filing a notification, fails to comply with a temporary prohibition on its execution, violates a condition imposed with the approval or implements a prohibited concentration can amount to up to one million Swiss francs.
If an undertaking repeatedly violates a condition imposed with the approval, a penalty of up to 10 percent of the total turnover in Switzerland achieved by all the undertakings concerned may be imposed.
In addition to undertakings, a natural person who implements a concentration subject to notification without notification or violates dispositions in connection with concentrations can also be fined up to 20'000.- Swiss francs.
By law, a late notification and failure to notify at all are not treated differently. As explained above, it depends on the situation in the case at hand what consequences may result from breach of an applicable prohibition on closing. A case of closing without valid clearance will be treated similarly to closing with no clearance at all.
Violations of prohibitions that may be enforced separately will result in fines. Undertakings implementing a transaction before clearance or without valid clearance may be fined up to 10% of the group turnover (relevant period is the last fiscal year). The fact that an attempt to acquire valid clearance was made may be taken into consideration when calculating possible fines as well as in court proceedings in civil courts, should such proceedings take place.
In practice, the FCO usually does not impose a fine for a first time violation if there is a negligent disregard of the duty to notify and the parties are not familiar with the German merger control regime.
Failure to notify/late notification: Where the notification thresholds are triggered, any party who intentionally or negligently fails to notify within the thirty (30) day deadline, may be fined with at least Euro 30,000 up to 10% of its turnover. Parameters, such as the economic power of the undertakings participating in the concentration, the number of the affected markets and the level of competition in those, as well as the estimated impact of the concentration on competition shall be assessed when defining the exact height of the fine to be imposed.
Early consummation: In case of implementation of a concentration that has been notified but not cleared yet by the HCC (pre-mature consummation), the parties obliged to notify may be fined with at least Euro 30,000 up to 10% of their aggregate turnover. The HCC may also order the unwinding / divestiture of the concentration. More particularly, the HCC may issue a decision: a) ordering the dissolution of the concentration, in particular through the dissolution of the merger or the disposal of all the shares or assets acquired, so as to restore the situation prevailing prior to the implementation of the concentration; or b) ordering any other appropriate measure to ensure that the undertakings concerned dissolve the concentration or take other restorative measures. The HCC may impose a fine of up to 10% of the aggregate turnover of the concentration on undertakings that fail to comply with the above decision, plus a fine of 10,000 EUR for every day on which they fail to comply with the decision in question.
The same fines are also imposed in foreign-to-foreign transactions for failing to notify, subject to the provision that the concentration has an effect in Greece (Art. 46 of Law 3959/2011 – “effects doctrine”).
In terms of criminal sanctions, late or non-filing as well as early consummation of a notified transaction might trigger in addition the imposition of monetary fines to the natural persons being assigned with the administration of the infirming entity, ranging between Euro 15,000 and Euro 150,000.
The provision of incomplete information within the context of a notification process suspends the deadlines set for the HCC by law for the issuance of a respective decision 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.
Furthermore, in terms of sanctioning, the provision of incomplete or misleading information may lead to the imposition of administrative fines ranging between Euro 15,000 up to 1% of the turnover of the liable undertaking or the initiation of disciplinary measures in case of civil servants or employees of public-law entities.
Law No. 26876 sanctions with a fine up to 500 UIT (approx. USS 700,000) for failure to notify. There is also a fine up to 10% of the sales or gross income of the previous year when a concentration operation is carried out without notifying INDECOPI, when it has not been approved, or without adopting the proposed remedies.
According to Bill No. 2604, the fine is up to 1% of sales or gross income of the previous year for failure to notify. If there is a breach of a prohibition the fine can be up to 10% of sales or gross income of the previous year
In case of Bill No. 2634, the fine for late notification is up to 500 UIT (approx. USS 700,000), provided that the fine does not exceed 8% of sales or gross income of the previous year. The fine for failure to notify is up to 1000 UIT (approx. USS 1 200,000), provided that the fine does not exceed 10% of sales or gross income of the previous year. The fine for breaches of a prohibition is not less than 1000 UIT, provided that the fine does not exceed 12% of sales or gross income of the previous year.
Finally, Bill No. 2654 sanctions the failure to notify and the breaches of a prohibition with a fine not less than 1000 UIT, provided that the fine does not exceed 12% of sales or gross income of the previous year.
Breach of merger control rules may pose serious negative consequences.
The PCA may initiate infringement proceedings and impose fines to the notifying party(ies) of up to 10% of its group turnover in the previous financial year. The Competition Act is not clear as to whether the turnover concerned is national or worldwide, leaving this decision at the discretion of the PCA according to the features of the case at stake.
So far, there have been no infringement procedures, or fines applied, as regards foreign-to-foreign transactions, but at the national level there has been a significant increase in ex officio investigations for the aforementioned breach of the Competition Act. As a matter of fact, in 2017, the PCA fined Group Vallis for a failure to notify for €38,500. The PCA may initiate such proceedings in reference to infringements that took place within the previous five years.
Without the relevant clearance from the PCA, the implementation of the transaction will also lack effects, which may have relevant contractual consequences. This effect may be declared as such, and at any time, by a court and, when necessary, the PCA may revoke the concentration and/or order divestment where the transaction has already been closed.
The PCA may also apply a periodic penalty payment, of up to a maximum of 5% of the average turnover in the preceding year, upon the notifying party(ies) until filing.
Furthermore, there may be personal liability regarding the persons holding managing, senior or supervision positions in the notifying party(ies), in particular if there is evidence that they had, or should have had, knowledge of the infringement. Therefore e.g. board members, directors or managers may also be held liable for the aforementioned infringements, and fines up to 10% of their annual income may apply.
Private enforcement is also a tool available to possible third parties to claim damages arising from the mentioned infringements.
Please also note that the initiation of infringement procedures, and the imposition of fines, are published on the PCA's website, and usually followed by notes in the general and specialized written press, and media.
Failure to notify, late notification and implementation of the transaction during the waiting period can trigger a criminal fine of up to JPY 2 million. It can be imposed on the party and its representative, director, and/or employee who implemented the transaction on behalf of the party. The fine may be imposed regardless of the fact that a transaction has not brought a substantial restraint of competition in any relevant market.
If the parties implement the transaction without obtaining necessary clearance, the JFTC may file a suit with the court to nullify any relevant merger, corporate split or joint share transfer.
The CCI can impose penalties under Section 43A of the Competition Act if a party fails to file a merger notification as per the Competition Act. As such, a penalty under Section 43A may be imposed for failure to notify a notifiable transaction, for notification post part or full consummation of the combination and/or for gun jumping.
The maximum penalty that the CCI can impose under Section 43A of the Competition Act is 1% of the total turnover or assets, whichever is higher, of such a combination. To date, a maximum penalty of INR 50 million (Indian Rupees Fifty million) has been imposed for gun-jumping.
Regarding failure to notify and late notification, no such penalties apply, as there is no obligation to notify and no notification deadline. There is no prohibition on closing unless the CMA has either issued an order to that effect (in which case failure to comply with the order would give rise to penalties of up to 10% of the worldwide group turnover of the party in breach), or has initiated a second phase investigation (in which case a breach of the automatic prohibition on share dealing may result in injunctions and damages claims).
The Commission has powers to impose fines up to 10% of aggregate worldwide turnover on the parties if they intentionally or negligently fail to notify a merger with an EU dimension, irrespective of whether clearance is ultimately obtained.
Administrative fines are considered the "primary enforcement measure" for failure to notify of the execution of a non-horizontal merger. The maximum fine set by the Israeli Antitrust Law is 8% of a company's total sales turnover in the year prior to the violation, but not more than NIS 24,564,360 (USD ~6 million, EUR ~6 million) in total. For individuals and for companies that in the year prior to the violation had a sales turnover of less than NIS 10,000,000 (USD ~2.7 million, EUR ~2.4 million) the maximum fine is NIS 1,023,510 (USD ~283,000, EUR ~252,000).
The Commissioner may also issue an Administrative Declaration of Breach. This Declaration serves as prima facie evidence in any legal proceedings, and may be used for civil lawsuits (including class actions), against the merging companies.
Failing to file a merger notification, or taking action that is tantamount to a full or partial merger contrary to the Israeli Antitrust Law, is a criminal offence. The maximum penalty is a three-year jail sentence, in addition to fines. In practice, criminal sanctions for mergers are rare.
The Israeli Antitrust Authority may approach the Antitrust Tribunal requesting (i) a consent decree that provides, inter alia, for a specified sum of money to be paid by the parties to the state treasury in lieu of administrative fines, criminal procedures or an administrative declaration. The consent decree may include operative measures, such as the disgorgement of acquired assets. The consent decree may include a provision which provides that the parties do not admit that the "merger of companies" is considered a notifiable merger. The Israeli Antitrust Authority may also approach the Tribunal to request (ii) unconsented divestiture of the merged companies. This is a rare practice: to the best of our knowledge, the antitrust tribunal has considered the separation of merged companies in only two cases in Israel, both cases referring to local companies.
Last but not least, illegal agreements, including merger agreements, are generally unenforceable (this is also relevant to restraints ancillary to the merger which have not been cleared under the Israeli Antitrust Law). In addition, the consummation of an illegal merger is a civil tort and is subject, even without administrative declaration, to civil law suits, including class actions.
Where business operators implement concentration in violation of the requirements of the AML, including failure to notify, late notification and breaches of a prohibition on closing, SAMR may:
(1) require them to discontinue such concentration;
(2) require them to dispose of relevant shares or assets, transfer the business and adopt other necessary measures to return to the state prior to the concentration within a specified time limit; and
(3) impose on them a fine of not more than RMB 500,000.
In determining which of the above penalties shall be imposed, SAMR takes into factors such as the nature, extent and duration of the violation as well as the assessment results on the impact of the concentration on competition.