What information is required in the filing form?
Merger Control (4th edition)
According to the Cartel Act, the notification must contain exact and exhaustive information on all circumstances which are relevant to the creation or strengthening of a dominant position. The Cartel Act indicates some circumstances such as the structure of each undertaking involved (in particular the ownership structure including corporate links, the relevant turnover separated into specific goods and services of the last years before the concentration), the market shares for each undertaking and the general structure of the market.
Further, the BWB has published a form which gives good indication of the essential information to be provided. This form can be downloaded from the website of the BWB.
The notification form foresees the provision of information such as a brief description of the notification, information about the undertakings involved, market definition(s) and data, reasons for justifications, special information on joint ventures and media concentrations.
A shorter version of the form may be filled-out in case there are no affected markets. This term is defined in the form itself. An affected market is given in case of (i) horizontal overlaps where two or more undertakings involved are active on the same product market and the concentrations leads to a common market share of 15% or more; or (ii) vertical overlaps, ie the undertakings involved are active on different markets, of which one is upstream or downstream with regard to the other and their market shares amount to 25% or more.
The provided information has to be correct and complete. In the case of incorrect or misleading statements, the Cartel Court can impose a fine amounting to 1% of the total group turnover achieved in the preceding business year.
The notification has to be filed in German. As regards exhibits, the official parties generally accept English documents as well; the Cartel Court may well require translations.
The actual notification has to be submitted to the BWB in quadruplicate. If relevant information cannot be provided or documents cannot be submitted, the applicants have to give detailed reasons.
SAMR publishes templates of Notification Form of Anti-monopoly Review of Concentration of Business Operators (“Notification Form”) and Notification Form of Anti-monopoly Review of Simple Cases of Concentration of Business Operators (“Simplified Notification Form”).
In the Simplified Notification Form, the parties are required to provide SAMR with detailed information regarding the business operators participating in the concentration, the transaction, the definition of the relevant markets, the market shares of the main competitors in each relevant market, the competition analysis of each relevant market, etc.
In the Notification Form, additional information is required in respect of the supply and demand structure of the relevant markets, the information of the main customers and suppliers, the entry into the relevant markets, the possible efficiency gains arising from the transaction, etc.
The notification of a concentration should include the information prescribed in Appendix III to the Law. The notification must be made in Greek and must be accompanied by various supporting documents.
There is no “short form” filing prescribed under the Law. The Service is entitled to request additional information where it deems the notification does not satisfy the statutory requirements
The parties generally have to submit information about the companies involved in the transaction and provide a comprehensive description of the merger, including an assessment of the merger’s impact on the relevant market(s). Furthermore, the parties are required to submit information regarding the competition on and access to the relevant market(s).
The DCCA can generally require additional information about the transaction if the notification proves to be unsatisfactory.
In some cases, the parties may use the simplified procedure (short-form filling) instead of a full form notification (standard filing). The simplified procedure requires less information to be provided to the DCCA.
If the simplified procedure is applicable, the parties are not required to provide an extensive and thorough assessment of the general terms of the merger or the general market conditions. However, the DCCA enjoys a wide margin of discretion when deciding whether a merger can be submitted under the simplified procedure or not.
Moreover, under both the simplified and the full-form procedure, the DCCA enjoys a wide margin of discretion when deciding which specific information is required. Finally, even if the requirements for submitting a simplified notification are fulfilled, the DCCA may, e.g. due to the mere size of the parties, still require a full-form notification, which will trigger an enhanced filling fee. See further about filling fees in Question 25.
- The names or corporate names of the economic operators or companies involved.
- The address of the economic operators or companies involved.
- Nature of the activities carried out by the economic operators or companies involved, indicating specifically the goods or services marketed by each of them.
- Relevant market or markets in which those involved in the concentration operate. In this respect, there will be considered at least the market for the product or service, the geographic market and the relevant characteristics of the specific groups of sellers and buyers participating in that market.
- Calculated attendees' turnover. The calculation must be broken down, indicating the turnover corresponding to each of the economic operators established in the Law.
- Shares in the relevant market of each of the participants in the concentration.
- A detailed description of the relationship of each of the operators with companies belonging to the same group operating in any of the markets affected by the economic concentration, indicating their address and specifying the nature and means of control with respect to those companies or economic operators belonging to the group.
- Description of the structure of the offer in the relevant market in which each of the parties is involved.
- Description of the structure of demand in the relevant market in which each of those involved intervene.
- Description of the operation containing:
- The contribution that the operation may make in accordance with the Law.
a. Description of the act through which the economic concentration operation will be carried out.
b. Where applicable, a list of the assets, securities or other effects being transferred, their amount and their method of payment if this information is not included in the draft legal act giving rise to the concentration.
c. The structure of ownership and control of the participating economic operators after the completion of the operation.
d. The goods or services expected to be marketed after the merger.
Transactions must be notified using the standard Form CO or, in the case of transactions with less potential for any competition concerns, the Short Form CO. Their content is set out in Implementing Regulation 802/2004. Both forms require the provision of information on the transaction and the parties’ activities, definitions of the relevant markets, and a detailed description of the parties’ presence in any overlapping or vertically-related markets.
If the overlaps between the parties have a combined market share of 20% or above, a standard Form CO will have to be submitted. The additional information that needs to be submitted with this form relates to the competitive situation in relation to each of the affected markets, including information on the structure of demand, product differentiations, closeness of competition, market entry and exits, R&D, cooperative agreements, etc.
The list of the information required in the notification form is provided by Article R.430-2 of the Code. The content of this notification form notably includes:
- A presentation of the transaction (notably legal and financial aspects thereof);
- A presentation of the undertakings concerned and the groups which they belong to (corporate structure, business activities,…);
- A reasoned description of the relevant concerned and/or affected markets (extensive information is required regarding affected markets), the parties' business therein (market shares in value and volume) and information on their main competitors ; and
- A declaration of the completeness and accuracy of the notification.
 A standard filing form is available on the Competition Authority’s website, see http://www.autoritedelaconcurrence.fr/doc/formulaire_notification_concentration.pdf.
 A market is deemed "affected" when two or more of the parties to the concentration are engaged in business activities in the same relevant market and where their combined market share post transaction reaches at least 25 % or when one or more parties to the concentration are engaged in business activities in a market which is upstream or downstream of a relevant market in which any other party to the concentration is engaged, and any of their individual or combined market shares reaches at least 25 %.
The FCO does not provide a standard form for filings. Practitioners have, however, developed standardized layouts used for most filings that are very similar and based on the layout the FCO uses for its decisions. A standard notification must include at least information about the undertakings concerned, the industries these undertakings are active in, turnover (national, Europe, worldwide) or other data replacing turnover, information about market shares including relevant information about the approach taken to calculate or estimate them, in case of a share deal the percentage of shares acquired and contact information. The scope of information required is – in particular compared to other authorities – rather limited.
The requirement of substantive information depends on the choice of form, i.e. Form I (short form) or Form II (long form), which depends on the extent of overlaps and the combined market shares of the parties in the relevant market(s).
The parties to a combination may choose to file the notification in Form II if combined market shares exceed 15% (horizontally) or 25% (in vertical markets). In case the combined market shares are less than 15% (horizontally) and 25% (in vertical markets), the parties may notify the transaction to the CCI in Form I.
A typical Form I requires the following information (non-exhaustive list): (1) description of the transaction; (2) corporate and financial information of the parties; and (3) market facing information, including (a) overlapping products and/or services of the parties; (b) market size and market shares of the parties; (c) market shares of top 5 competitors, and (d) details of top 5 suppliers and customers of the parties.
Form II, on the other hand, requires additional information over a typical Form I, including additional corporate information from the parties and certain additional market facing information like characteristics/ end use of the overlapping products/ services, presence of specialized producers, in-house consumption, government procurement policies, licensing/ registration requirements etc. Form II also requires the parties to provide estimates of concentration levels (Herfindahl-Hirschman Index), entrants/ exits in the market, demand conditions, information on imports and exports, etc.
Notifications to the CCPC must be made on the standard Merger Notification Form, which is available on the CCPC’s website at: https://www.ccpc.ie/business/wp-content/uploads/sites/3/2017/02/CCPC-Merger-Notification-Form.pdf.
The Merger Notification Form sets out the scope of information required from the parties, which includes a detailed description of the undertakings involved and the rationale for the proposed transaction, an analysis of the horizontal overlaps and vertical relationships arising, definitions of the relevant product and geographic markets, the market shares of the parties and their competitors in relevant markets, and the views of the parties as to the effect of the transaction on competition in the State.
There is no “short form” version of the Merger Notification Form. However, in cases where no material overlaps or competition issues arise, the notifying parties may request waivers from the CCPC in respect of certain detailed information required in the Notification. In June 2019, the CCPC, following a public consultation, announced that it plans to introduce a simplified merger review procedure. It stated that the next step for the CCPC is to draft the simplified procedure guidelines – the draft guidelines will be published to allow for a period of consultation. The CCPC anticipates that this consultation will take place before the end of 2019.
The Regulations set a specific merger notification form which must be filed. The extent and kind of information required will depend on the type of merger (horizontal, vertical or "conglomerate", which is a residual definition which applies to mergers that are neither horizontal nor vertical) and on the parties' estimated market shares.
All mergers will normally require a basic description of the transaction, the filing party's activities and its market shares. Horizontal or vertical mergers, where the parties have over 25% market share, will require some detailed sales information regarding quantities and revenues, as well as further information about the market, such as a description of entry and the switching of barriers. Conglomerate mergers will sometimes require very detailed information about each party's holdings, to ensure that no horizontal or vertical overlaps exist between the parties.
An abbreviated form may be filed if the parties' combined market shares are less than 30% of the market in which the merger transaction occurs (the "transaction market"); neither party is a monopoly (defined by the Israeli Competition Law as having over 50% market share) in a market adjacent to the transaction market, and no party has arrangements or agreements with its competitors in the transaction market. The abbreviated form requires only the most basic information about the parties and their activities, though it requires certain information which is not required by the longer forms, such as identifying the filing party's ultimate controlling owner.
There is currently a revision of the regulations in progress, which aims, inter alia, at streamlining the filing and review process. The revision will change the forms, and, as currently drafted, may abolish the abbreviated form, and will require more information from the parties to almost all merger.
The forms indicate which parts of the notification will remain confidential. Parts that are not marked as confidential will be published on the Israeli Competition Authority's website once the review is concluded and the Commissioner's decision is made public.
The KFTC provides notification forms for 5 different types of transactions in its Guidelines for M&A Notification (acquisition of shares of a company, participation in the establishment of a new company, statutory merger, acquisition of the target company’s business or fixed assets, interlocking directorate). A business entity subject to the notification requirement must submit the relevant notification form along with the supplementary documents which are required by the form.
Information required includes key corporate and financial information for the merging parties, such as the name, establishment date, shareholders, affiliates, main business lines, as well as the details of the business combination, the status of the relevant market, and an opinion on anticompetitive effects.
In Mexico there is no specific filing form, however a written document explaining the transactions along with a description of the parties, their activities, the relevant market, among other information should be filed. The documents listed in question 24 below should be enclosed as exhibits to said written document.
The notification must include the following information:
(a) names and addresses of the parties to the merger or the party or parties who acquire control;
(b) information on the nature of the concentration;
(c) descriptions of the undertakings concerned and of undertakings in the same corporate group;
(d) names of the five most important competitors, customers, and suppliers in markets in Norway, or of which Norway is a part, in which the undertakings concerned and undertakings in the same corporate group have overlapping activities;
(e) descriptions of horizontally and vertically affected markets. A market is deemed horizontally affected if at least two of the involved parties are active on the same relevant market and their combined market share exceed 20%. Vertically affected markets are those markets where the parties’ individual or combined market share exceed 30% on each of the respective vertically related markets. The description shall include information on the market structures of the relevant markets, the most important competitors of the undertakings concerned and of customers and suppliers in the relevant markets as well as information on potential barriers to entry;
(f) brief description of vertically related markets where the parties' individual or combined market share on at least one of the vertically related markets exceeds 30%, which at least shall cover the parties' most important competitors, customers and suppliers.
(g) description of possible efficiency-gains;
(h) information on whether the transaction is subject to the jurisdiction of other competition authorities;
(i) a copy of the latest version of the agreement, including appendices;
(j) annual reports and annual accounts of the undertakings concerned.
In addition to the list above, the notifying party must also include a reasoned proposal for a non-confidential version of the notification insofar as the notification contains business secrets. Since this is almost always the case, this is in practice an additional requirement.
The PCC’s Notification Form requires the following particulars:
- Details of the Ultimate Parent Entity (“UPE”)
b. Mailing address of head office
d. Telephone and Fax Number
- Details of Entity filing for UPE, if applicable (“Filing Entity”)
- Contact Information of Persons representing Filing Entity/UPE
- Details of Parties to Transaction
- Details of Other Entities directly or indirectly controlled by UPE
- Description of worldwide operations of Filing Entity/UPE
- Diagram/Chart showing relationship between Filing Entity/UPE, the Acquiring Entity and Acquired Entity
- The Proposed Transaction Subject to the Notification – Summary of Proposed Transaction
1. Nature of Transaction
2. Size of Parties to Proposed Transaction
3. Value of Proposed Transaction
4. Details of Operations of Parties in the Philippines
i. List all domestic and foreign entities within the Notifying Group that have assets in the Philippines or generate revenues from sales in, from or into the Philippines
ii. List of entities that hold ten percent (10%) or more of the outstanding voting shares or non-corporate interests of the entities listed
iii. Diagram or chart describing the relationships between the Filing Entity/UPE, the Acquiring Entity, Acquired Entity, and each entity listed above
- Horizontal or Vertical Relationships
In essence, the notification form requires the provision of information on: the identification of the parties; details of the transaction; control structure; relevant market definition; possible related markets; supply and demand structure of the relevant and related markets; suppliers and customers; and on any ancillary restraints. The submission of certain information may be waived by the PCA, particularly in the context of pre-notification contacts.
In the case of concentrations that do not pose significant impediments to competition, the notification may be submitted in a simplified form, although this must be subject to the PCA’s validation. In this case, the level of detail of the information required is much less, thus reducing costs and time in the search for information.
The criteria for the use of the simplified form are the following:
a) When there are no horizontal overlaps, no vertical effects, and an absence of conglomerate relations, between the activities of the parties.
b) When there is horizontal overlap, provided that: (i) the combined market share (within the geographical scope defined by the notifying party(ies), and in the national territory) does not exceed 15%; or (ii) the combined market share is above 15% but below or equal to 25%, as long as the increase in market share does not exceed 2%.
c) When there are vertical or conglomerate relations, provided that the individual or combined market shares (within the geographical scope defined by the notifying party(ies), and in the national territory), does not exceed 25%.
Nevertheless, the PCA can always ask for more detailed information and may even end up requiring the submission of the regular form.
The filing form must contain certain information, in particular:
- information regarding the entities involved in the transaction and their groups, in par-ticular, general information, information on their direct shareholders and ultimate beneficiaries, their shareholdings, balance sheet value;
- information on the structure of the transaction;
- information on the impact of the transaction on the markets concerned.
The filing form requires basic information about the parties to the concentration, details regarding the structure of the concentration, the parties’ ownership and control, economic and personal ties, market definition, affected markets, and reasoning regarding the potential efficiency gains of the concentration.
The content of the notification is regulated in detail in the MCO. Pursuant to the latter, the notification shall contain at least the following information:
- name, domicile and a brief description of the business activities of the undertakings and of the seller of the shares;
- a description of the planned concentration, of the relevant facts and circumstances, and of the goals that are being pursued by the planned concentration;
- the turnover, balance sheet totals or gross premium income of the undertakings (see question 7) and the amounts apportioned to Switzerland;
- information on the relevant product and geographic markets that are affected by the concentra-tion, such as regarding the market shares of the undertakings, a description of these markets (distribution and demand structures, importance of research and development), undertakings that have newly entered the market in the preceding five years and how might enter these markets within the next three years:
- The product market comprises all those goods or services that are regarded as inter-changeable by consumers on the one hand and by suppliers on the other hand with regard to their characteristics and intended use;
- The geographic market comprises the area in which on the one hand consumers pur-chase and on the other hand suppliers sell the goods or services that constitute the product market.
Notifications have to be made in one of the official languages, i.e. in French, German, Italian or Ro-mansh. The procedure will then be conducted in that language, unless otherwise agreed.
Prior to the notification, the Parties and the Secretariat of the ComCo may mutually agree on the de-tails of the content of the notification. The Secretariat may waive the obligation to submit particular in-formation or documents if it considers that they are not necessary for the examination of the case (simplified notification).
INDECOPI requires the following information to the undertakings, under Law N° 26876:
a) Identification of the persons or companies that make the notification and of others that also intervene in the operation.
b) Description of the ownership and control structure, as well as the kinship and management links of each of the participants and between these and third parties that also operate in the electricity sector, including that of the companies that belong to the same economic group.
c) Information regarding the affected markets: geographical scope, existing degree of competition, ease or difficulty of access to the market, among others.
d) Description of the details of the operation and its effects on the market, as well as the economic efficiencies generated.
Additionally, INDECOPI may request the information it deems pertinent.
According to the Bill, the authorization request must be accompanied by the necessary background to identify the operation, the participating companies and their economic group. A preliminary analysis of the possible effects on competition must also be presented. The regulation issued after the approval of the Bill may add additional requirements. Additionally, INDECOPI may request the information it deems pertinent.
Communiqué No. 2010/4 provides a complex notification form, which is similar to the Form CO of the European Commission. One hard copy and one electronic copy of the merger notification form shall be submitted to the Competition Board. In parallel with the notion that only transactions with a relevant nexus to the Turkish jurisdiction will be notified, a wide range of information is requested by the Turkish Competition Board, including data with respect to supply and demand structure, imports, potential competition, expected efficiencies, etc.
Some additional documents such as the executed or current copies and sworn Turkish translations of some of the transaction documents, annual reports including balance sheets of the parties, and, if available, market research reports for the relevant market are also required. Bearing in mind that each subsequent request by the Competition Board for incorrect or incomplete information will prolong the waiting period, detailed and justified answers and information to be provided in the notification form is to the advantage of the parties.
There is a short-form notification (without a fast-track procedure) if: (i) one of the transaction parties will be acquiring the sole control of an undertaking over which it has joint control; or (ii) the total of the parties’ respective market shares is less than 20 per cent in horizontally affected markets and each party’s market share is less than 25 per cent in vertically affected markets. There are no informal ways to speed up the procedure.
The following information is required: information on the transaction parties, the transaction detailed description, the corporate structure, preferably in the form of diagrams, details of the party group’s volume of assets and amount of sales, etc. The full list of documents can be found in Regulation of the Antimonopoly Committee of Ukraine on Concentration as of 2002.
If a proposed transaction is reportable under the HSR Act and no exemptions apply, each party must submit a premerger notification to the FTC and DOJ. The HSR form and accompanying attachments provide information about, among other things, the structure and value of the transaction, the parties involved, certain financial information about each party, and each party’s structure and holdings.
The introductory section and item 1 of the HSR form require certain preliminary information including how the filing fee will be paid, whether the party will request early termination, and certain basic information about the filing party. Items 2-3 require information regarding the transaction including the names and addresses of the transacting parties, a description of the transaction, the type and value of the transaction, and copies of the documents that constitute the agreement. Item 4 requires a registration number for certain entities that file annual reports with the US Securities and Exchange Commission (SEC), annual reports or annual financial statements, and certain competition-related documents. Item 5 requires the reporting of revenues from US operations from the last completed fiscal year. After September 25, 2019, parties submitting data in response to item 5 will be required to use 6-digit North American Industry Classification System (NAICS) codes for non-manufacturing revenue. Manufacturing revenue must be reported using both 6-digit NAICS codes and 10-digit North American Product Classification System (NAPCS) codes. Item 6 requires, among other things, information regarding certain subsidiaries, and five percent or greater shareholders as well as minority shareholdings in entities that may compete with the target. Items 6(c) and 7 require certain information to be submitted if both filing persons in a transaction report revenues in the same item 5 code (or codes). Finally, item 8 requires the acquiring person to disclose certain prior acquisitions within the past five years in any overlapping codes.
A certification signed by an officer of the filing party or one of its controlled entities must accompany a notification under the HSR Act stating that the filing is, to the best of his or her knowledge, ‘true, correct, and complete.’ In a negotiated transaction, each party’s notification must also include a sworn affidavit (or declaration under penalty of perjury) affirming that an agreement has been executed and the filing person has the good-faith intent to complete the transaction that is the subject of the notification. In open-market purchases and certain acquisitions of shares from third parties, only the acquiring person must submit an affidavit with its notification that states, among other things, that the acquiring person has the good faith intention to make the acquisition reported and has provided certain information about the proposed acquisition in a written notice to the acquired person.
Notifications are filed using either a short form or a long form. Both forms require detailed information on the parties, the transaction, and its competitive impact.
The full-form notification, which includes in-depth information on the relevant markets, is required when:
(i) Two or more undertakings concerned are active on the same affected market and the concentration results in a combined market share of 25% or more; and/or
(ii) Any party to the concentration, following the transaction, will hold a market share of 40% or more, and at least another party is active on an upstream or downstream market.
The full-form notification is not required, however, when the market share of the target or merged company is less than 1%.
Pursuant to the Notification Form Guidelines issued by the HCC (HCC Decision 558/VII/2013) which are almost identical to the EU Form CO (long + short-form), information typically required to complete the pre-merger notification includes: a description of the transaction, information about the parties, detailed information concerning the concentration, the structure of the parties’ ownership and control, market definition (geographic / product markets, relevant / affected markets), information on the affected markets, general terms on the affected market (information on the supply and demand side, barriers to entry, R&D, Cooperation Agreements, Commercial Associations) and the overall market context and efficiencies expected to result from the proposed transaction.
In addition, with respect to concentrations on the mass media sector, the Guidelines provide for specific filing requirements. In particular, the parties of the media-related concentration must provide a list of a) all undertakings or persons that directly or indirectly exert in any way substantially influence the decision-making process of the parties b) all undertakings operating in any market falling within the scope of application of Law 3592/2007, which are directly or indirectly controlled by the parties.