Which party is responsible for submitting the filing? Who is responsible for filing in cases of acquisitions of joint control and the creation of new joint ventures?
Merger Control (4th edition)
According to the Cartel Act, each undertaking involved in the concentration is entitled to file the notification. However, this entitlement rather can be classified as an obligation to notify because the Cartel Act also contains the ban on implementation whose infringement is penalised.
In the absence of any special provisions with regard to joint ventures, the same principles apply.
Concentration of business operators by way of a merger shall be notified by all the business operators participating in the merger. Concentration of business operators by other means shall be notified by the business operators who will obtain the controlling power, with the other business operators providing cooperation.
When there are more than two parties having the obligations to make notifications, they may agree that one of them will be responsible for making the notification. However, if the party responsible for making the notification fails to do so, the other parties having the obligations may not be exempted from relevant liabilities (please refer to Question 32) notwithstanding the aforesaid agreement.
Concentrations of major importance must be notified to the Service in writing, either jointly or separately by the undertakings participating in a merger, in the joint acquisition of control of another undertaking or the establishment of a joint venture.
In all other cases, the party responsible for notification is the undertaking acquiring control.
Both parties to the merger are responsible for submitting the notification in the sense that both parties can be penalised for failure to file a merger. However, in practice, one of the parties will usually assume the responsibil-ity of preparing and submitting the notification to the DCCA.
The following parties are responsible for submitting the notification:
- The absorber, in the event of a merger between companies or economic operators.
- The economic operator to whom the entire bill of exchange of a trader will be transferred.
- The economic operator who is going to acquire the property or any right over shares or capital participations or debt securities
- The economic operator whose members of the administrative organ, either one or all of them, will also become part of the administrative organs of another economic operator.
- The economic operator to whom the assets of another economic operator will be transferred or who will acquire control over the adoption of ordinary or extraordinary administrative decisions.
When several economic operators are acquiring control over another economic operator or intend to carry out the concentration, notification shall be made jointly. To this end, a general attorney will be appointed to represent them throughout the procedure for the authorization of the economic concentration.
In the case of acquisition of sole control, the acquirer alone must notify the transaction. In the case of acquisition of joint control, the notification must be jointly submitted by the undertakings acquiring joint control.
The party(ies) acquiring or retaining control of all or part of an undertaking is (are) responsible for submitting the notification form.
In the case of a joint venture, each parent company is a notifying party.
All undertakings concerned, as specified above, are responsible for filing. This includes the seller in cases where the seller is also legally considered a undertaking concerned. In practice, the acquirer usually notifies the transaction to the FCO.
In an acquisition or creation of JVs, the acquirer(s)/ parent companies of the JV must file the notification. In a merger or amalgamation, it is the joint responsibility of all the parties to the merger to file the notification.
Under the Competition Act, each of the undertakings involved in a merger or acquisition has an obligation to notify. For example, in an acquisition of a company by one acquirer, the obligation to notify falls on both the acquirer and the target company. In an asset acquisition, the vendor has no obligation to notify, i.e. the obligation to notify falls on the acquirer only. Similarly, in circumstances where the proposed acquisition of a public company has been notified before the bid has been accepted, only the acquiring party is required to notify.
It is usual practice for the parties to notify the transaction jointly, although this is not a requirement under the Competition Act.
The acquiring party and acquired party must each file their own merger notification, describing their own activities, market shares and the like. The Israeli Competition Authority will only start its review when both parties have filed their merger notifications. A rare exception may be made when one party refuses to cooperate in the process, such as in the case of a hostile takeover.
The acquiring company is responsible for submitting the filing. In the case of an establishment of a new company, the party which participates in establishing a company and becomes the largest shareholder is responsible for submitting the filing.
Under competition law, the parties who directly participate in the transaction are responsible for filling it, provided the authority considers those entering the corresponding agreements to be the direct participants.
The party or parties acquiring control are responsible for the filing.
Under Rule 4, Section 2 of the PCA IRR, if notice to the PCC is required for a merger or acquisition, then all acquiring and acquired pre-acquisition ultimate parent entities or any entity authorized by the ultimate parent entity to file notification on its behalf must each submit a Notification Form and comply with the procedure set forth in the PCA IRR. The parties shall not consummate the transaction before the expiration of the relevant periods provided in the PCA IRR.
a) In the case of a merger: all the undertakings involved;
b) In the case of an acquisition of exclusive control: the person or undertaking acquiring control;
c) In the case of the creation of a joint venture: the persons or undertakings that will exercise joint control over the relevant entity;
d) In the case of an acquisition of joint control: the persons or undertakings that will exercise the joint control.
Joint notifications must be submitted by a common authorized representative.
This depends on the kind of transaction to be approved. In the case of an acquisition of shares/assets, the acquirer is the responsible party. In the case of a merger or a conclu-sion of a joint venture agreement, both parties are responsible.
The party acquiring control over a target undertaking or a part thereof shall submit the filing. In case the concentration means that two or more undertakings are merged, the concentration shall be submitted by one of the two undertakings.
In cases of joint control and the creation of new joint ventures, the concentration shall be submitted by one of the parties who are acquiring control over the joint venture.
In case of a merger, the notification of a planned concentration must be made jointly by the undertak-ings concerned. In the case of an acquisition of control, the notification must be made by the under-taking(s) acquiring control.
In case of joint notification, the notifying undertakings shall designate at least one joint representative.
Notifying undertakings or their representatives domiciled or residing abroad shall designate an ad-dress in Switzerland for service of documents.
Under Law N° 26876 and the Bill, for mergers, creation of common corporations or joint ventures, the notification must be made by both parties. However, if one corporation acquires the totality of another corporation or part of one or more companies, responsibility for the filing rests with the buyer.
Under the Turkish merger control regime, persons or undertakings that are parties to the transaction or their authorized representatives can make the filing, jointly or severally. In case of filing by one of the parties, the filing party should notify the other party of the fact of filing. In practice, the majority of notifications are “buyer only”. Joint notifications are not uncommon,but “seller only” notifications are relatively rare.
However, it should also be noted that, the acquirer(s) in case of an acquisition and both merging parties in case of a merger are also responsible to ensure that a filing has been made with respect to notifiable transactions. Pursuant to Article 16 of Competition Law, if the parties to a notifiable transaction violate the suspension requirement, a turnover-based monetary fine (based on the local turnover generated in the financial year preceding the date of the fining decision at a rate of 0.1%) will be imposed on the incumbent firms (acquirer(s) in the case of an acquisition; both merging parties in the case of a merger).
As there is no penalty for not filing, no party has a legal responsibility to file. However, the usual practice is for the acquiring party to file, as it will be responsible for paying the filing fee. Where two parties are merging or forming a joint venture, it is usually the case that both file jointly.
The notification can be filed either jointly by the participants or by the successor.
For reportable transactions, each filing person is required to submit its own HSR filing. In practice, counsel for the filing parties usually coordinate on certain portions of the filing that contain common information including the description of the transaction and confirming which documents are responsive to item 4(c) and 4(d) of the HSR form for both filing parties. The HSR initial waiting period begins when both agencies have received complete HSR filings from both parties to the transaction, with the exception of § 801.30 transactions (tender offers and acquisitions of voting securities from third parties), where the acquiring party must notify the acquired party of the transaction, and the HSR waiting period begins upon the submission of the acquiring party’s HSR filing. The HSR filing fee must also be paid before the waiting period will start.
In case of acquisition of sole control over an undertaking, the duty to notify rests upon the acquiring undertaking. The notification may be filed directly by the company acquiring control, or by any of its controlling entities.
In case of mergers, the duty to notify rests upon the merging parties.
In case of acquisition of joint control by several undertakings, or creation of a concentrative joint venture, each undertaking acquiring control is responsible for filing.
When the duty to notify rests upon more undertakings, they can jointly submit a single notification and appoint a common representative.
All the parties participating in a merger or a joint venture are responsible to file; in an acquisition of control, the party or parties acquiring control shall notify the concentration.