What is the basic timetable for the authority’s review?
Merger Control (3rd edition)
The Austrian review process is divided into three phases: Phase I which is performed by the official parties; Phase II which takes place before the Cartel Court, and – in rare cases – Phase III before the Cartel Court of Appeals:
Phase I: Phase I takes typically four weeks. Within this period, the BWB and the FCP can apply for an in-depth examination to the Cartel Court. It starts to run with the receipt of the notification by the BWB. In Phase I, third party undertakings that consider their legal or economic interests affected by the concentration can submit written statements within two weeks as of the publication of a short notice on the concentration at the website of the BWB.
If the official parties waive their right to apply for Phase II proceedings or if they do not apply for such a proceeding within the four weeks’ deadline, the concentration is deemed cleared and the merger can be implemented. The official parties inform the notifying parties that no application for Phase II was filed (or indeed if they waive their right to request such proceedings). Besides, the BWB publishes a short notice on its website.
The vast majority of notified mergers are cleared that way without there being a reasoned clearance decisions.
The four week deadline in Phase I can be extended by two additional weeks upon request by the notifying parties.
Phase II: Phase II is initiated by the request of the BWB and/or the FCP. The opening of such in-depth examination is published on the website of the BWB. In practice, the official parties also apply for Phase II proceedings if concerns cannot be removed within the time period of Phase I or if they consider that the notification should be rejected all together (for lack of a notifiable merger). It may also be noted in this context that there is no ‘stop the clock’ mechanism for notifications regarded incomplete by the official parties.
Also in Phase II, third parties have the right to submit written statements to the Cartel Court.
Generally within five months after the receipt of the (first) application for an in-depth examination, the Cartel Court is to decide on the merits or to reject the notification. Upon request by the notifying party, the deadline within which the Cartel Court has to decide can be extended by one month to in total six months. Besides, the Cartel Court can issue an instruction to improve the notification within an appropriate deadline.
Phase III: A decision by the Cartel Court can be appealed to the Cartel Court of Appeals which triggers Phase III. This hardly ever occurs in practice. The Cartel Court of Appeals has to decide within two months after receiving the files.
The FNE has to analyze within 10 working days from the date of notification whether the notification submitted contains all the information required. Where the notification is deemed complete, the FNE will issue a notice declaring the notification complete.
In case the notification is declared incomplete, the notifying parties have 10 working days to amend the mistakes or omissions indicated by the FNE. If the notifying parties amend their presentation correctly within that term, such submission shall be considered as a new notification. On the contrary case, the notification shall be considered as not filed.
Once the notice of completion is issued by the FNE, or the 10 working days period has passed without any notice being issued, the FNE initiates phase I, which may take 30 working days, subject to extensions. Within that period, the FNE can: (i) approve the concentration purely and simply; (ii) approve the concentration subject to the commitments offered by the notifying parties; or (iii) initiate phase II, in case the FNE considers that the notified transaction, whether perfected purely and simply or subject to the remedies offered by the notifying parties, has the ability to substantially reduce competition.
Phase II may take an additional 90 working days period, subject to extensions, at the end of which the FNE can: (i) approve the concentration purely and simply; (ii) approve the concentration subject to the commitments offered by the notifying parties; or (iii) prohibit the operation.
If the FNE does not render a decision within the terms granted for phase I or phase II, the operation shall be considered approved in the terms offered by the notifying parties, including eventual remedies proposed by them.
The Competition Board, upon its preliminary review (Phase I) of the notification will decide either to approve, or to investigate the transaction further (Phase II). It notifies the parties of the outcome within 30 calendar days following a complete filing. There is an implied approval mechanism introduced with Article 10(2) of Law No. 4054 where a tacit approval is deemed if the Turkish Competition Board (Board) does not react within 30 calendar days upon a complete filing.
While the timing in the Law No.4054 gives the impression that the decision to proceed with Phase II should be formed within 15 calendar days, the Competition Board generally uses more than 15 calendar days to form their opinion concerning the substance of a notification, and it is more sensitive about the 30 calendar days deadline on announcement.
If a notification leads to an investigation (Phase II), it changes into a fully-fledged investigation. Under Turkish law, the investigation takes about six months. In practice, only exceptional cases require a Phase II review, and most notifications obtain a decision within 40 to 45 calendar days from the original date of notification.
The DCCA’s review is divided into a Phase I and a Phase II. Phase I begins once the notification has been deemed complete by the DCCA which includes, among other things, the receipt of the filling fee. See further about filling fees in Question 25.
If the parties submit a simplified notification form, the DCCA will have 10 business days to determine whether the merger meets the requirements for a simplified notification. If this is the case, the merger will be deemed complete at the expiry of the 10-day time limit at the latest. If necessary, the DCCA may request further information from the parties within the 10-day time limit. If the DCCA finds that the merger does not meet the requirements, the parties must submit a full notification.
The DCCA will also have 10 business days to determine whether a full notification is complete. If necessary, the DCCA may request the parties to submit further information within the 10-day time limit, in which case the merger will not be deemed complete until the DCCA receives this information (and perhaps further information as well).
Once the notification is deemed complete and Phase I commences, the DCCA will have 25 business days to determine whether the merger can be approved. Phase II begins if the DCCA decides to initiate further investigations of the merger. In Phase II, the DCCA will have 90 business days from the time of the decision to initiate further investigations to determine whether the merger should be approved or prohibited.
If the DCCA does not make a decision within the relevant time limit, this will be considered to be a decision to approve the merger.
In an initial Phase 1 investigation, the CCPC has 30 working days from the “appropriate date” as defined under the Competition Act to either clear the transaction or open a Phase 2 investigation. The “appropriate date” is the date of notification or, where the CCPC makes a formal request for information in writing (“RFI”) during Phase 1, the date on which the RFI is complied with.
In a full Phase 2 investigation, the CCPC has 120 working days from the “appropriate date” to make a Phase 2 determination. For example, provided the “appropriate date” is the date of notification (and is not reset by an RFI during Phase 1) and the CCPC takes the full 30 working days in Phase 1, a further 90 working days in Phase 2. If the CCPC makes an RFI during the first 30 working days of the Phase 2 process, the running of the clock is suspended until the request is complied with.
In its Phase 2 determination, the CCPC may clear the transaction unconditionally, clear it subject to conditions being complied with, or prohibit the transaction.
Within one calendar month from the date of receipt of the notification and the filing fees or the date of receipt of additional information necessary towards achieving conformity of the notification to the requirements of the Law, the Service is required to inform the notifying undertakings of whether the concentration is cleared or whether it will proceed to a full investigation of the concentration.
If, owing to the volume of work or the complexity of the information contained in the notification, the Service is unable to comply with this time frame, it shall, within seven calendar days prior to the lapse of the one-month notice period, inform the notifying undertaking of an extension of fourteen calendar days.
In a Phase II investigation, the Service is required to prepare a report of findings to the CPC within three months as of the date of receipt the notification, provided that the fees payable towards a full investigation are settled.
In the case of full investigation, the notifying party or parties must be informed of the CPC’s decision no later than four months from the date of receipt by the Service of the original notification application. Where additional information is requested by the Service, the period is extended to four months from receipt of the additional information.
The ICA has 30 calendar days (15 calendar days in case of public bids) from filing to decide to: (i) clear the concentration, if it does not raise competition concerns (Phase I); or (ii) open an in-depth investigation, if it deems that the concentration raises serious doubts as to its compatibility with the Law (Phase II). Phase II has a 45 calendar-day duration (which can be extended by additional 30 calendar days if the parties fail to provide available information).
Concentrations affecting the media, telecommunication and broadcasting sector, as well as those affecting the insurance sector, typically have a longer clearance process, as the competent regulatory authorities (AgCom and IVASS, respectively) shall issue a specific (non-binding) opinion. The regulatory authorities have 30 calendar days to issue their mandatory opinion. Meanwhile, the ICA’s review period is suspended. Typically, the opinion is requested by the ICA before the adoption of the final decision (Phase I or Phase II).
Concentrations affecting the banking sector shall be assessed within 60 calendar days upon the receipt of a complete notification, with no distinction between Phase I and Phase II. In practice, when the ICA intends to open a Phase II investigation in connection with a concentration affecting the banking sector, it typically concludes Phase I within 15 calendar days from filing, so that a 45-day period is left to carry out the in-depth investigation.
Twenty-five business days after the filing of a complete notification is the lapse of phase I. Phase II shall be concluded within 70 business days after notification. The more detailed timeline is as follows:
- twenty-five working days after receipt of the notification, the NCA must clear the transaction or issue a Phase II notice (extended to 35 days if the parties offer remedies in phase I within the first 20 working days, which opens for phase I conditional clearance).
- seventy working days after receipt of the notification, the NCA must issue a draft notice of intervention (‘statement of objections’) against the transaction to the notifying party (extended correspondingly if the parties offer remedies between the 55th and 70th working days after receipt of the notification; e.g. the deadline is 71 working days if remedies are first offered on day 56 and so on). If it becomes clear that no such intervention is considered necessary, the NCA is under an obligation to clear the transaction as early as possible.
- fifteen working days (ninety-five days from notification) after receipt of the draft notice of intervention, the parties must issue their own comments on the draft to the NCA.
- fifteen working days (110 days from notification) after having received the parties’ comments to the draft notice, the NCA must make its final decision in the matter.
The procedure for review of M&A detailed in the PCA IRR is best understood by noting that there may be two phases of review with corresponding waiting periods:
(1) a Phase I review that lasts for a maximum period of thirty (30) days; and
(2) a Phase II review that lasts for a maximum period of sixty (60) days.
Both phases involve the same review of the subject M&A. A Phase 1 review involves an assessment to determine if the notified merger raises any competition concerns under the PCA that would warrant a more detailed review. A Phase II review is essentially an extension of the original thirty (30)-day period for the Phase I review, and is conducted when the PCC deems it necessary to obtain more information from the parties.
The significance of these waiting periods is that Section 17, Paragraph 4, of the PCA explicitly provides that the expiration of the “waiting periods,” in the absence of any decision, results in constructive approval of the M&A involved. The said provision is likewise reiterated in Section 5(n), Rule 4 of the PCA IRR:
“(n) When the above periods have expired and no decision has been promulgated for whatever reason, the merger or acquisition shall be deemed approved and the parties may proceed to implement or consummate it.” [Emphasis supplied]
The law requires the PCC to inform the parties, within the thirty (30)-day period of the Phase I review if it needs “further information that are reasonably necessary and directly relevant” to determine whether the transaction shall “substantially prevent, restrict or lessen competition in the relevant market or in the market for goods or services as may be determined by the Commission”.
Phase II commences on the day after the PCC’s request for information is received by the parties. Section 5(i), Rule 4 of the IRR sets forth the effects of the issuance by the PCC of the request for more information during the Phase I review, and these are outlined below:
(1) The issuance by the PCC of the request for more information or documents relevant to its review has the effect of extending the period within which the agreement may not be consummated for an additional sixty (60) days. The additional sixty (60) day period shall begin on the day after the request for information is received by the parties;
(2) In no case shall the total period for review by the PCC of the subject agreement exceed ninety (90) days from the time the initial notification by the parties is deemed complete;
(3) Should the parties fail to provide the requested information within fifteen (15) days from receipt of the said request, the notification shall be deemed expired and the parties must refile their notification; and
(4) Alternatively, should the parties wish to submit the requested information beyond the fifteen (15) day period, the parties may request for an extension of time within which to comply with the request for additional information, in which case, the period for review shall be correspondingly extended.
It must be emphasized that the PCC’s approval of a transaction is dependent on the actual contents of the submission. Parties to a proposed transaction under review are required to inform the PCC of any substantial modifications to the transaction. On the basis of the information provided, the PCC will determine if a new notification is required. The PCC, in its discretion, may terminate a waiting period prior to its expiration.
The general term for review of the merger control application is 30 calendar days.
The basic clearance timetable for the FCA’s review is as follows:
Phase I (Article L.430-5 of the Code)
Within 25 working days from the date of receipt of a notification form considered complete (as assessed by the FCA ), the FCA may:
- Issue a reasoned decision that the transaction does not fall within the scope of French merger control;
- Issue a reasoned decision clearing the transaction, with or without remedies; or
- Initiate an in-depth review of the transaction if serious doubts remain as to the anticompetitive effects thereof.
This period of 25 business days may be extended during Phase I for an additional 15 working days if the notifying parties submit commitments to remedy potential competition issues.
The FCA can also suspend the time limits of the phase I review, in two different cases:
- At the parties' justified request, for a maximum of 15 business days, if needed for instance to finalize their proposed commitments; and/or
- upon its own initiative ("stop-the-clock") if the notifying parties (i) fail to promptly inform the FCA of a new relevant and material fact, or (ii) fail to provide requested information within the allocated deadline. The time limits resume only when the cause for the suspension has been removed.
At the end of Phase I, the French Ministry has five business days to request the opening of a Phase II investigation (in-depth review).
A simplified procedure allows the parties to obtain clearance within a shorter time period if no competition issues are anticipated (see question 21).
Phase II (Articles L.430-6 and L.430-7 of the Code)
If, further to the Phase I review, the transaction still raises serious doubts as to potential anticompetitive effects, the FCA can initiate an in-depth review of the concentration.
Within 65 working days from the opening of the Phase II, the FCA may:
- Authorize the concentration, with or without remedies; or
- Prohibit the concentration.
Phase II can also be extended by 20 working days by the FCA if the parties submit or modify commitments fewer than 20 working days from the expiry of the 65-working-day deadline.
As is the case in Phase I, the FCA can also suspend the time limits of the Phase II review, in the same two cases. However, the maximum suspension period at the parties' request is then 20 working days.
Once a Phase II decision is issued, the Ministry of Economy has twenty-five working days to exert his power to review the case and issue a decision on the contemplated transaction.
The review period for intermediate mergers comprises an initial review period of 20 business days (excluding the first day, but including the last). This period may be extended by a single period not exceeding 40 business days. If upon the expiry of the initial period of 20 business days the Commission has not extended the period or issued a decision, the intermediate merger will be regarded as having been approved. If upon the expiry of the extended period of 40 business days the Commission has not issued a decision in relation to an intermediate merger, the merger will be regarded as having been approved. In practice, the Commission often makes use of the extension period to complete its investigations and unlike in certain other jurisdictions, the Commission need not have competition or public interest concerns to make use of the extension period. The Commission is also not required to justify the use of the extension period.
In the case of large mergers, the Commission must within 40 business days of receipt of a complete notification forward to the Tribunal a written recommendation, with reasons, regarding the merger. This period is extendable with the consent of the Tribunal by periods of no more than 15 business days at a time. If upon the expiry of the period of 40 business days (or any extended period of time granted by the Tribunal), the Commission has neither applied for a further extension nor forwarded a recommendation to the Tribunal, any party to the merger may apply to the Tribunal to begin the consideration of the merger without a recommendation from the Commission. Once the Commission has referred its recommendation to the Tribunal, a date for a hearing must be set within ten (10) business. There is no prescribed period in which a hearing must be held and there is no deemed approval if the hearing does not take place. A certificate of approval or prohibition must be issued within ten (10) business days of the end of the hearing and reasons must be provided within twenty (20) business days of the issue of the certificate.
In practice, the Tribunal has proved efficient, and disposes of matters in a reasonably short time.
Under the HSR Act, parties that meet the filing thresholds must file premerger notification forms and wait for the FTC or DOJ to review the transaction.
Once the parties have submitted their filings, FTC and DOJ staff consult on the filing and determine if the transaction warrants an initial review. If so, the matter is ‘cleared’ to the agency with more expertise in the relevant industry. The assigned agency then conducts a review of the transaction during the initial waiting period (30 calendar days following submission of the premerger notification filing or 15 calendar days for cash tender offers or certain bankruptcy transactions). The vast majority of reviewed transactions are allowed to proceed after the initial waiting period expires or is terminated. If, however, at the end of the initial waiting period, the reviewing agency believes the transaction raises competition issues that merit further review, the reviewing agency may extend the waiting period by issuing a Second Request. On average, the FTC and DOJ issue a Second Request in less than five percent of filed transactions. When a Second Request is issued, the HSR waiting period is extended until 30 calendar days (10 days for cash tender offers and certain bankruptcies) following both parties’ certification of substantial compliance with the Second Request.
As a practical matter, parties typically require several months to be in a position to substantially comply with a Second Request, due to production of potentially hundreds of thousands of internal documents and extensive sales, marketing, and production data. While the parties are complying with the Second Request or shortly after substantial compliance with the Second Request, the agencies may also notice depositions (known as investigational hearings at the FTC) of company executives and third party customers, competitors, and suppliers.
The agencies encourage the parties to negotiate the scope of a Second Request and the timing of substantial compliance, as well as the reviewing agency’s timing to reach a decision. In August 2018 the FTC announced a new model timing agreement, and indicated an expectation that all future timing agreements will need to conform or substantially conform to the framework set out in the new model.
In practice, the agency’s review is usually negotiated between the parties and the reviewing agency to extend beyond the second 30-calendar-day period after substantial compliance. At the end of the second waiting period, the reviewing agency must decide whether to close the investigation and allow the transaction to proceed, enter into a negotiated settlement with the parties, or challenge the transaction in federal district court (and, if the FTC is reviewing the transaction, through its administrative process). Depending on the complexity of the industry and the proposed transaction, it can take approximately 12 months from premerger notification to an agency filing in district court to block a transaction.
As mentioned above, the merger control procedure can be divided into two phases.
The first phase (initial review), in which the ComCo examines whether there are indications that the merger creates or strengthens a dominant position has to be completed within one month after receipt of the notification. The period begins on the day following receipt of the complete notification and expires the following month at the end of the same numerical day as the day upon which the period commences or – if this day does not exist in the following months – on the last day of such month. If the undertakings concerned do not receive notification within this one month period, the merger can be implemented without reservation.
The second phase (extended review), in which the ComCo verifies whether the concentration creates or strengthens a dominant position has then to be completed within four months.
Most merger proceedings at the FCO are completed in phase one. Phase one can last a maximum of one month starting with the date of the submission of the complete notification. If the transaction does not raise competitive concerns, the FCO will clear it within phase one. This decision can’t be challenged by third parties. If the FCO doesn’t decide within this period, the merger is automatically presumed cleared. After phase one, the FCO may inform the parties that it has entered into phase two (“Hauptprüfungsverfahren”). In phase two, the FCO will investigate and assess the transaction in greater detail. Phase one and two may take up to four months total, starting with the day of the filing of the complete documentation. This timetable is binding, as after four months without any decision, the merger is presumed cleared.
If the parties missed to notify the transaction prior to closing, the transaction can be subject to a post-closing notice which contains the same information as the usual merger notification. The FCO will then examine the case at hand and either clear the transaction afterwards or order a de-merger. There is no statutory timetable for the review of such post-closing notices. In addition, the FCO may impose fines for disregarding duties to notify the transaction prior to closing.
a) if the HCC decides that the notified transaction does not fall under the afore-mentioned turnover thresholds raise serious concerns, it issues a clearance decision within thirty (30) calendar days from the point of time that the submitted merger notification is considered “complete” (“Phase A”)
b) if the HCC considers that the notified transaction raises serious concerns that require further investigation it issues a decision for a full-fledged scrutiny procedure within thirty (30) calendar days from the point of time that the submitted merger notification is considered “complete” (“Phase B”). Upon service of the mentioned decision to the participating parties commitments and amendments to the concentration plan may be proposed. In a phase B context the HCC has a statutory deadline of ninety (90) calendar days to issue a resolution. If the HCC fails to issue a resolution within such time frame, there is a statutory presumption of clearance.
The evaluation period of the merger or acquisition shall not exceed 30 working days. The Commission will likely extend the evaluation term for 30 more days if there is additional information to be requested to the Energy Sector Supervising Organism (OSINERGMIN) and/or the petitioner. Recently filed operations were finally decided in a range of 3 to 5 months.
The Bills provide for a similar procedure and terms. Bill No. 2604 establishes a fast track procedure, which allows operations that do not generate doubts about their impact on effective competition to be approved within 30 working days of notification. If it raised serious concerns, a second phase of 90 working days, renewable for 30 more days, will start.
After receiving a notification and the respective proof of payment of the filing fee, the PCA has up to 7 business days to declare the notification as complete. After this declaration, there is a deadline of up to 5 business days to carry out the publication of the notice in 2 major newspapers (and on the PCA’s website), for third parties’ observations. Third parties will have up to 10 business days to submit any observations (although in the vast majority of notifications there are no such observations).
In Phase I, the PCA concludes proceedings within 30 business days from the date that the notification becomes effective.
In Phase II (in-depth investigation), the PCA concludes the investigation within no more than 90 business days starting from the date the notification became effective.
Where a decision has not reached within the time limit, a tacit non-opposition decision is deemed to have been adopted.
Any transaction that is subject to prior notification cannot be closed during the 30-day waiting period (Phase I), though the period may be shortened by the JFTC. The JFTC clears most transactions at Phase I. In FY 2017, the JFTC cleared 299 cases out of 306 cases at Phase I.
If the JFTC wishes to have a further review, the transaction goes to the Phase II review. At the beginning of Phase II, the JFTC requests the parties to provide further information. The clock does not start running until the JFTC receives all requested information from the parties. The JFTC must reach the final conclusion within either 120 calendar days from the initial notification or 90 calendar days from the date when the JFTC receives all requested information from the parties, whichever is longer.
If the parties wish to conduct a pre-notification consultation with the JFTC, the period for such consultation should also be considered.
An indicative Timeline for first stage (commonly referred to as Phase I) combinations is as follows:
Execution of transaction documents:
Submission of notification with the CCI:
Any time after Day 0 prior to consummation of the transaction in part or full (“X”)
Approval from CCI
Any time before the expiry of 30 working days from X
Initiation of a Phase II review after CCI is of the prima facie opinion that the combination will cause an AAEC
Any time before the expiry of 210 calendar days from X.
For more details on the timelines, please see the response to Question 20 below.
The CMA is required to complete its first-phase investigation within 40 working days. This runs from:
- in the case of notified mergers, the date on which the CMA confirms that the filing form is complete (which it will typically do within five working days of the date on which the notice is submitted); or
- in the case of unnotified mergers (i.e., where the CMA decides to review a transaction on its own initiative), the date on which the CMA informs the parties that it has sufficient information to commence its first-phase investigation.
This 40 day period can be extended in the circumstances described in section 20 below. In particular, if the parties offer remedies during the first-phase investigation, an additional period for negotiation and finalisation of those remedies will apply.
Where a second-phase investigation is opened, the CMA must publish its report within 24 weeks from the date of reference, subject to the possible extensions described in section 20 below. If it proposes to impose remedies as a condition of clearance, it will have an additional period of 12 weeks (which can be extended by 6 weeks) to implement those remedies.
Phase I: 25 working days from receipt of complete notification, which can be extended to 35 working days if remedies are offered or a referral request is received from national competition authorities.
Phase II: 90 working days from the day that follows the decision to carry out an in-depth inquiry (6(1)(c) decision). This period is extended by 15 working days if the companies offered remedies after the 54th working day following the initiation of the in-depth inquiry.
The Phase II review period can be extended by a further 20 working days if requested by the notifying parties within 15 days of the opening of the in-depth investigation. Likewise, the Commission may extend the review period with the agreement of the notifying parties at any time following the initiation of proceedings, but the total combined duration of all extensions should not exceed 20 working days.