Which party is responsible for submitting the filing?
Merger Control (3rd 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.
The obligation to notify rests jointly upon the parties taking part of the concentration; i.e. the parties to the agreement or the act constituting an operation of concentration.
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.
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 responsibility of preparing and submitting the notification to the DCCA.
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.
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.
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.
The party or parties acquiring control are responsible for the filing.
Under Rule 4, Sec. 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 (‘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.
In the formation of a joint venture (other than in connection with a merger or consolidation), the contributing entities shall be deemed acquiring entities, and the joint venture shall be deemed the acquired entity.
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 conclusion of a joint venture agreement, both parties are responsible.
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.
In the ordinary course, both parties to a merger are responsible for filing.
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 a merger, the notification of a planned concentration must be made jointly by the undertakings concerned. In the case of an acquisition of control, the notification must be made by the undertaking(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 address in Switzerland for service of documents.
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 the event of a merger or any other agreement pertaining to the acquisition of joint control, the parties obliged to proceed with the notification are all undertakings participating therein. In all other cases of control acquisition, the parties obliged to notify the HCC of such acquisition are all individuals, undertakings or groups acquiring such control.
Under Law No. 26876, for mergers, creation of common corporations or joint ventures, 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.
The Bills also state the same.
a) In the case of a merger: by all the undertakings involved;
b) In the case of an acquisition of exclusive control: by the person or undertaking acquiring control;
c) In the case of the creation of a joint venture: by the persons or undertakings that will exercise joint control over the relevant entity;
d) In the case of an acquisition of joint control: by the persons or undertakings that will exercise the joint control.
Joint notifications must be submitted by a common authorized representative.
In stock acquisitions and business/asset transfers, the acquiring party is responsible for filing. In other types of transactions, both parties are responsible for filing.
Where the proposed combination is structured as an acquisition, the acquirer is obligated to file the merger notification with the CCI.
Where the proposed combination is structured as a merger or amalgamation, all the merging or amalgamating parties are required to submit the merger notification notice jointly to the CCI.
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.
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.
Both the acquiring party and acquired party must file their own merger notification, describing their own activities, market shares and the like. The Israeli Antitrust 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.
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.