Under what circumstances the basic timetable may be extended, reset or frozen?
Merger Control (2nd Edition)
The above mentioned periods may be suspended by the PCA: following requests for information or clarifications addressed to the undertakings concerned or third parties; for 20 business days in the case that the notifying party(ies) offers commitments; or whenever a prior hearing of the notifying party(ies), and of interested third parties that have submitted observations, takes place. Finally, under Phase II the mentioned period may be suspended for up to 20 business days upon request of the notifying party(ies) or with its consent.
It should also be noted that the PCA may authorize the introduction of substantial changes to the notification that has been submitted, following a well-substantiated request from the notifying party(ies). In this case, the time limit for conclusion of proceedings shall be adjusted so as that the new timeline starts from the date when the changes were received.
Finally, and although there are no specific guidelines on this matter, the PCA has been flexible whenever the parties reasonably request an extension of the deadline for submitting the requested information.
The aforementioned deadlines may be extended in the following cases:
a) The notifying parties consent to such extension;
b) In case the notification form is not fully completed by the notifying parties or, according to the case handler, substantial information is missing and, as a result, the HCC cannot proceed to its assessment;
c) In case the notification is inaccurate or misleading and, as a result, the HCC cannot proceed to its assessment.
In the last two cases, the deadline for the initiation of the procedure before the HCC does not commence until the latter receives the complete and accurate data that it needs for its assessment, provided that it has informed accordingly the notifying parties within seven (7) working days of the receipt of the notification form.
The afore-mentioned deadlines are exceptionally suspended in case the participating parties do not comply with their obligation to provide information to the HCC provided that they have been notified accordingly within two (2) working days of the expiration of the set deadline for the provision of the mentioned information.
Consequently, incomplete notification stops the clock until the supply of full and accurate information by the parties, provided that the HCC informs on such issue the notifying parties within seven days of the receipt of the notification form. It must be stressed that it is a common practice for the HCC to request for the provision of additional data/documentation before the lapse of the seven days deadline each time. It is also frequent that the HCC places numerous requests for additional information, which suspend the progress of the procedure for a significant period.
At the end of the 40 working day first-phase period the CMA must decide whether the transaction risks giving rise to a substantial lessening of competition and should therefore be subject to a second-phase investigation, unless remedies are agreed. This 40 day period may be extended in the following circumstances:
- Where the parties fail to provide information to the CMA by the deadline specified in a request for information.
- If the Secretary of State serves notice that a relevant public interest should be considered (see section 15), the CMA can extend the period for its investigation by 20 working days. (The Secretary of State, however, is not subject to any specified binding deadline for his or her decision as to whether a second-phase investigation should be opened on public interest grounds.)
- If the CMA asks the European Commission to review the merger under the EU Merger Regulation (see section 12 above).
In addition, if the parties offer remedies during the first-phase, an additional period for negotiation and finalisation of those remedies will apply – see section 31.
The CMA can extend the 24-week period by a further eight weeks for special reasons. It can also 'stop the clock' from running if one of the parties to the merger has failed to comply with a formal notice requiring the provision of information and documents or the appearance of witnesses.
For uncompleted mergers, the CMA can also extend the 24 week period for up to three weeks if the parties indicate that they are considering abandoning the transaction, in order to give the parties time to decide whether or not to do so.
In addition, in cases where the CMA proposes to impose remedies on the parties, or to clear the transaction on condition that remedies are implemented, it will have a period of 12 weeks from the date of its second-phase report within which to negotiate and finalise those remedies. That period can be extended by six weeks in certain circumstances.
Phase I can be interrupted by the ICA when parties fail to provide a complete notification or when, following a formal request for information, the parties fail to reply within the assigned deadline. However, most of the times, the ICA tries to obtain the missing information, without interrupting Phase I.
In case of interruption, the Phase I review period starts running again when the parties provide the requested information/documents.
Phase II can be extended up to 30 (additional) calendar days, if the parties fail to provide available data/information requested by the ICA.
Finally, the ICA’s review period is suspended (up to a maximum of 30 days) until the adoption of the mandatory non-binding opinion by the telecommunication and insurance regulatory authorities (see question 18).
The initial HSR waiting period also may be extended without paying a new filing fee if the acquiring person elects to ‘withdraw and refile’ its HSR filing. Under this process, at the end of the initial 30-day waiting period (or 15-day waiting period for cash tender offers and certain bankruptcy acquisitions), the acquiring person withdraws its filing, and submits the filing again within two business days (the acquired person is not required to withdraw). The refile results in a new initial waiting period. The acquiring company may only take advantage of the withdraw-and-refile process once and only if the proposed acquisition does not change in a material way. As described above, if at the end of the initial waiting period, the reviewing agency believes the transaction raises competition concerns that merit further review, the reviewing agency may extend the waiting period by issuing a Second Request.
Occasionally, the reviewing agency may discover that one of the parties failed to submit all required documents with its HSR filing. In such circumstances, the agency may restart the initial waiting period by requiring the party to resubmit its HSR filing with the requisite responsive documents.
Law does not provide regulations or specify circumstances under which the review timetable may be shortened by the FCO in advance leading to any kind of “fast-track” review. A decision may, of course, be issued before the time runs out if the workload of the FCO permits.
In a normal situation, there is no extension, reset or freeze of the basic timetable of the JFTC’s review. The review period runs even though the JFTC requests further information during the review or the parties offer remedies.
However, the JFTC is not bound by the time restraint in issuing an order for necessary action if it finds that the notification made by the parties includes a false statement on any important issue. Also, the JFTC can extend the time limitation to issue an order for necessary action if a proposed remedy is not completed within the deadline for completion. In such a case, the new deadline for the JFTC is one year from the deadline of the remedy.
If the Bureau determines that the information provided in a notification is incomplete, it will notify the relevant party of the deficiency and the applicable statutory waiting period will not commence until such information as is required to complete the notification is received. The Bureau will notify the parties shortly after receiving their initial notification forms whether it has certified the notifications as complete.
During the initial 30-calendar-day period the Bureau may issue a subsequent information request (“SIR”). In practice if the Bureau issues a SIR, it does so on the last day of the initial 30-day period. The issuance of a SIR extends the time period during which the parties are statutorily prohibited from closing their transaction until 30 calendar days after both parties have complied with the SIR.
The Bureau and parties may also enter into to a timing agreement that contractually extends the time period during which the parties cannot close their transaction. Such an agreement may set out alternative deadlines for the completion of various steps of the information-gathering and review process, including specifying the earliest date on which the transaction can close. Timing agreements have become less common in recent years.
The terms granted for phase I and phase II above-mentioned can be extended, upon mutual agreement between the notifying parties and the FNE, with a maximum of 30 working days for phase I and 60 working days for phase II.
Moreover, when the notifying parties offer remedies, these terms are extended with a maximum of 10 working days for phase I and 15 working days for phase II.
The Service is entitled to inform the notifying undertaking of an extension of 14 calendar days over the one month period within which the notifying undertaking must be informed of a decision of the CPC. Such extension must be communicated to the notifying undertaking seven calendar days prior to the lapse of the one-month notice period.
A request for further information, whether in the context of a Phase I assessment or a Phase II full investigation, has the effect of stopping the clock. In the said context, the CPC may, if it considers it expedient to do so, carry out negotiations, hearings or discussions with any of the interested parties or other persons, which would also have the effect of stopping the clock, depending on the circumstances.
The time limit under Phase I may be extended from 25 to 35 business days if one or more of the participating undertakings propose commitments, including revised commitments.
The 90-day time limit under Phase II may be extended by up to 20 business days if one or more of the participating undertakings propose commitments, including revised commitments. The time limit may only be extended if, at the time when the commitments are proposed, less than 20 business days remain until a decision should have been made under Phase II.
The time limit under Phase II may also be extended upon a decision from the DCCA if one or more of the parties request or consent to the extension, which may not exceed 20 business days.
The period described above for Phase I may be extended up to 35 working days if the Commission receives a referral request from a Member State or the parties submit commitments (remedies) to resolve possible competition issues.
The period described above for Phase II may be extended up to 105 working days if the parties offer commitments after the 55th day of the Phase II proceedings. Furthermore, the investigation period may be extended if the parties request a one-off extension (which they must do within 15 working days after the initiation of the Phase II proceedings) or if the Commission decides to extend the Phase II investigation period with the consent of the parties. In both cases, the cumulative extension cannot exceed 20 working days.
There are certain events that can impact the timetable:
- In cases where the Commission has to issue a decision to request information or to order an inspection, the time period may be suspended (”stop the clock”).
- In cases where the parties submit commitments (remedies) to resolve competition issues, the time period may be increased up to 35 working days (for Phase I), or up to 105 working days (for Phase II) if the parties offer commitments after the 55th day of the Phase II proceedings.
- In cases where the Commission finds that the notification or a response to an information request is incomplete, incorrect or misleading, the Commission may suspend the time periods (“stop the clock”) and either issue a decision to request information or order an inspection.
Possible submissions or other types of interventions by third parties do not extend the Commission’s timetable for clearance.
Triggering events for extension are mainly the submission of remedies and failure to answer request for information in due time by the notifying party.
The notifying party may also request extension based on specific needs.
Timetable is reset in case of re-notification.
The Regulations provide that, where information submitted with the notification is incomplete, the 6 week period mentioned in Point 5.3 shall commence upon receipt of the complete information.
In addition to the extensions and suspension which may be requested as discussed in Point 5.3, undertakings may, where asked to provide commitments, request by no later than 3 months from initiation of proceedings that the period be suspended for up to 1 month so as to allow the undertaking to duly consider the commitments.
The DG also has to right to suspend the periods discussed above where:
- Information requested by the DG from the notifying party has not been supplied in full within the time limit fixed by the DG;
- Information requested by the DG from a third party has not been supplied in full within the time limit fixed by the DG due to some reason pertaining to the notifying party;
- The notifying party or another involved party has refused to submit to an investigation deemed necessary by the DG or to cooperate in the carrying out of such an investigation;
- the notifying parties have failed to inform the DG of material changes in the facts contained in the notification.
Suspensions in terms of the above shall be made from the period of a request for information to the receipt of complete information, from the period between the unsuccessful attempt to carry out the investigation and the completion of the investigation ordered by decision, or the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information requested by decision, whichever applicable.
The deadlines will be suspended if the parties, after having received a written request from the NCA or the CAT to supply information within a specified deadline, have not complied with this request.
If the parties have proposed remedies, the NCA deadlines are extended as described above.
Where notifications are rendered incomplete, the clock does not start; meaning that the relevant deadline is not triggered before a complete notification is provided.
In case the Competition Council considers that a notification is incomplete, it shall require, within 20 calendar days as of the filing of the notification form, that the notification be supplemented with the missing information or documents. The time-limit for providing the requested information or documents may not exceed 15 calendar days. In duly justified cases, this 15 calendar day time-limit may be extended, upon request of the notifying party.
In practice, especially for complex cases, the initial request for additional information may be followed by further requests.
Special rules are set forth for the economic concentrations which may present risks for the national security. The Competition Council must inform the Supreme Council of National Defence with respect to the notified concentrations which may be analysed from a national security standpoint. In case the Supreme Council of National Defence communicates to the Competition Council that a notified concentration may present risks for the national security, the time-limits for the Competition Council’s obligation to adopt a decision are suspended as of the date of such communication. The suspension shall cease on the date when the Competition Council is informed by the Supreme Council of National Defence that the concentration is to be forbidden or does not present risks for the national security, as the case may be. In case the Supreme Council of National Defence decides to forbid the concentration, the proceedings before the Competition Council cease and, within 15 calendar days as of the communication of such decision, the Competition Council will inform the notifying party.
KN: If the Competition Commission finds that a notification is incomplete, incorrect or misleading, it will issue an information request seeking further information/documents or clarifications. Request for further information restart the review clock as the deadlines run from filing of a complete notification (all information and documents including translations into Serbian language have to be submitted). In practice, however, the Competition Commission usually does not abuse this power and clears the transaction within a deadline from the initial filing event with subsequent information requests, however this largely depends of a particular case handler working on the filing.
Interventions of third parties may be taken into account in the Competition Commission’s analysis, but do not normally delay prescribed review periods.
Please see above.
Any written information request by the Competition Board resets the clock and the review period starts again from day one once the responses are provided. As explained more fully in the previous section under Turkish law, the investigation takes about six months but if it deemed necessary, this period may be extended only once, for an additional period of up to six months, by the Competition Board.
If the information requested in the notification form is incorrect or incomplete, the notification is deemed filed only on the date when such information is completed upon the Competition Board’s subsequent request for further data.
Pursuant to article 15 of Communiqué No. 2010/4, the Competition Board may request information from third parties including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. According to article 11(2) of Communiqué No. 2010/4, if the Competition Authority is required by legislation to ask for another public authority’s opinion, this would cut the review period and restart it anew from day one.
While not common practice, it is possible for the third parties to submit complaints about a transaction during the review period.
In addition, in terms of Phase II review, if deemed necessary, it may be extended only once, for an additional period of up to six months by the Competition Board.
In exceptional circumstances, if the proposed transaction may lead to the monopolisation and the detailed analysis of the transaction is required, the AMC may initiate a merger investigation (Phase II). In such case, the total period from the start date of Phase II until the date of a decision may not exceed 135 calendar days.
In case the General Superintendence understands that the operation submitted is of a complex nature, it may request CADE to extend the 120 days term to finish the analysis (according to articles 56 and 88 paragraph 2 of the Brazilian Antitrust Law).
However, the terms determined for the procedure shall not be suspended or interrupted for any reason, except in case of waiver, death or forfeiture of the Counselor’s term of office, or, upon the conclusion of the Counselor’s term of office, the number of members comprising the Court of CADE is reduced to less than four members. In those cases, the deadlines, as well as the processing of cases, shall be automatically suspended, and terms shall immediately be resumed upon reestablishment of the quorum. (article 63 and article 6 paragraph 5, of the Brazilian Antitrust Act).