What information is required in the filing form?
Merger Control (3rd 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.
DL 211 establishes that the notification must be submitted with the necessary background information in order to identify the operation and the economic agents that will take part in it and its business group; the relevant information for the preliminary assessment on possible competition risks that the notified operation may entail; the declaration of the parties indicating that, in good faith, they intend to carry out the notified transaction; and the rest of the information and documents required under the Regulation on Notification of a Concentration Operation, issued by the Ministry of Economy, Promotion and Tourism on March 1st, 2017 (the “Regulation”).
The Regulation requires an extensive set of information, including but not limited to: (i) a brief description of the projected operation and ownership structure post-operation; (ii) descriptions of the economic activities of the notifying parties and of the entity subject to the operation; (iii) definition of the relevant market(s); (iv) certain market data regarding the eventual affected market(s); and (v) a description of the productive and/or dynamic efficiencies expected from the operation.
The Regulation establishes moreover a simplified notification procedure. A simplified notification can be made if:
(i) There is no horizontal or vertical overlap between the parties to the operation or between the entities of their respective business group.
(ii) The market participation of the parties and of the entities belonging to their respective business groups are not capable to substantially reduce competition because of its little significance. Participations of little significance are:
- joint market shares below 20%; and
- individual or joint market share below 30% in a relevant market vertically related to a relevant market in which any other party of the concentration, or any entity of their business group, operates.
(iii) The following requirements are met, except in the case of the establishment of a new joint venture:
- the joint market share of all the parties and the members of their respective business groups is lower than 50%; and
- the increase (“delta”) of the Herfindahl-Hirschman Index resulting from the operation is below 150.
It is relevant to clarify that the simplified notification only means that there is no need to submit certain information. It does not provide for shorter time schedules.
The FNE has published Forms for both the ordinary and simplified notification.
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 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 filing) 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.
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.
The notification of a concentration of major importance 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.
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%.
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
- Nature of Transaction
- Size of Parties to Proposed Transaction
- Value of Proposed Transaction
- Details of Operations of Parties in the Philippines
a. 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
b. List of entities that hold ten percent (10%) or more of the outstanding voting shares or non-corporate interests of the entities listed
c. 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
The filing form must contain certain information, in particular:
- information regarding the companies involved in the transaction, in particular, general information, information on their shareholders, their shareholdings, balance sheet value;
- information on the structure of the transaction;
- information on the impact of the transaction on the markets concerned.
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.
Prescribed forms and declarations need to be submitted, but are generally not as detailed as those required under the US or EU systems. Filings have become more sophisticated and parties often file expert economic reports in support of their merger filings in highly complex matters, or where the parties anticipate significant competition concerns (for example, where a merger takes place in a highly concentrated market). Generally, merging parties submit a joint competitiveness report as part of the notification which typically includes a description of the transaction, the relevant competition markets, the merging parties’ customers and competitors, and the competitive and public interest outcomes. Various documents relating to the transaction are required to be submitted. In 2010, the Commission also published a practice note setting out requirements for ‘complete’ merger notifications.
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, allocated according to the industry in which the revenues were derived as provided by North American Industry Classification System (NAICS) codes, which are used by the US Census Bureau to classify business revenues. 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. Item 7 requires certain information to be submitted if both filing persons in a transaction report revenues in the same item 5 NAICS code (or codes). Finally, item 8 requires the acquiring person to disclose certain prior acquisitions within the past five years in any overlapping NAICS 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.
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 concentration, 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 interchangeable 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 purchase 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 Romansh. 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 details of the content of the notification. The Secretariat may waive the obligation to submit particular information or documents if it considers that they are not necessary for the examination of the case (simplified notification).
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 form and the content of the filing (either in the full or short form) are determined by HCC as per article 6 para. 5 of the Greek Competition Act; the HCC has indeed issued Decision 558/2013 where the content of both full and short notification forms are set out. In a nutshell, the information required in a full notification form comprises, indicatively, the following: (a) brief description of the concentration; (b) information on the parties involved; (c) detailed elements of the concentration (including, among others, value of the notified action, world-wide turn-over and turnover in the Greek market, economic rationale of the concentration for each of the undertakings involved etc.); (d) ownership and control status of each of the parties involved; (e) supporting documentation related to the concentration and the parties (agreements, offer prospectus – if applicable, annual reports and financial statements etc.); (f) information regarding the relevant product, geographic and affected markets; (g) general terms on the affected markets (information on suppliers, distribution networks, customers, cooperation agreements etc.); (h) description of the general context of the market and efficiency gains; (i) assessment of the potential coordination effects of a joint venture; (j) additional information (application of the two third rule (if applicable) and any notified concentrations to other Member States). In case the notification concerns a concentration in the media sector to the HCC, additional filing requirements, enlisted in section 12 of the filing form, shall be submitted with the HCC.
In cases where (a) there is no horizontal or vertical product and geographical market overlap between the parties to the concentration, or (b) there is horizontal product and geographical market overlap among at least two the parties to the concentration, however their combined market shares do not exceed 15% or there is vertical product and geographical market overlap among at least two the parties to the concentration, however either the individual or their combined market shares do not exceed 25% on both levels, or (c) one of the parties to the concentration is to gain sole control of an undertaking of which already possesses joint control, the parties may proceed with the short form notification which requires less information that the full form while no information is requested relating to sections (g) and (h) above.The HCC has the discretion however to request from the parties to submit the full form. In all other cases, the submission of the full notification form is required.
Decision 558/2013, where the content of both the short and the full notification forms are set out, can be found at https://www.epant.gr/Pages/Complaints (available only in Greek though).
INDECOPI requires the following information to the undertakings, under Law No. 26876:
a) Identification of the persons or companies that make the notification and of the 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.
The information required according to the Bills is essentially the same.
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; and possible related markets; supply and demand structure of the relevant and related markets; information on 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 simpler, 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 even end up requiring the submission of the regular form.
The parties have to fill out the specific format prescribed by the JFTC. While the formats vary depending on the types of the transactions (such as share acquisitions, mergers, etc.), they require, among other information, descriptions of the parties to the transactions, financial information for the last fiscal year, the purpose of and background to the transaction, the corporate group profile, market share information for each of the relevant markets. There is no simplified notification, so no simplified filing format exists.
The JFTC may request further information at any time during the review period.
The merger notification for prior approval can be filed in short form; however, where there is a horizontal overlap of more than 15 per cent or a vertical overlap of more than 25 per cent, the merger notification is usually filed in the long form.
Because the UK filing regime is voluntary, transactions that are notified tend to be ones that raise at least potential or conceivable competition concerns. Consequently, the Merger Notice requires relatively extensive information. This includes information on the transaction itself, the parties' respective businesses, market definition, the nature of competitive constraints posed by the parties and their competitors, substitutability of their products (including any available bidding data), contact details for customers and competitors, the buying power of the parties and their customers, potential competition, the existence of horizontal, coordinated, conglomerate or vertical effects arising from the transaction, and barriers to entry and expansion in the relevant markets.
Where the parties' combined market share on a relevant market is below certain thresholds (15% for horizontally affected markets and 25% for vertically affected markets), the information to be provided is less extensive.
Transactions must be notified using the Form CO or, in the case of less problematic transactions, 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, the more demanding (long) 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 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 Antitrust 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.
The forms indicate which parts of the notification will remain confidential. Parts which are not marked as confidential will be published on the Israeli Antitrust Authority's website once the review is concluded and the Commissioner's decision is made public.
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, and 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 of the relevant markets, the possible efficiency gains arising from the transaction, and etc.
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.