Which supporting documents, if any, must be filed with the authority?
Merger Control (3rd edition)
According to the form provided by the BWB, the following documents should be submitted: (i) annual reports of the undertakings involved, (ii) organizational charts and/or graphs illustrating the ownership structure before and after the merger, (iii) copies of all analysis, reports etc and other documents, on which the market definition(s) are based, (iv) documents proving reasons for justification, (v) documents supporting market information provided, (vi) relevant business plan(s), (vii) brochure(s) with product descriptions and price list(s).
In practice, often very few such supporting documents are enclosed with notifications.
In particular, there is also no need to present written powers of attorney, articles of associations and transaction documents or the like. Of course, the authorities may in the course of their investigation ask for the provision of such and additional documents.
Austrian merger control law also does not contain explicit “age restrictions” for documents. However, typically the last business year before the concentrations is of particular interest. In the case of affected markets (see on the definition above), it is the three ultimate business years. There are also no strict provisions as to the form of documents to be submitted. Hence, typically copies are sufficient.
The Regulation requires the following supporting documents to be filed:
(i) Powers of attorney of the notifying parties;
(ii) A certificate signed by the legal representative of each party, identifying the company’s administrators;
(iii) Corporate charts or diagrams of the notifying parties’ business group, prior and post operation;
(iv) Annual report, balance sheet and financial statements of the parties or of the entities of its business group which participate in the affected market(s), for the last three financial years;
(v) Any document related to the operation and/or its effects in Chile, such as: (i) ordinary and extraordinary board meetings minutes and shareholders meetings minutes of the parties or of the equivalent decision-making body held during the last three years; (ii) minutes, presentations and/or internal or external reports that have been prepared for the purpose of evaluating or analyzing the operation; (iii) analysis, studies, presentations and/or internal or external reports prepared for the purpose of evaluating or analyzing the operation, or alternative concentration operations; and (iv) commercial programs and/or general business plans that have been issued, commissioned and/or discussed by the parties or the entities of its business group in the last three years for the affected market(s) in Chile;
(vi) Databases, sources and criteria used by the notifying parties to estimate market shares;
(vii) Copies of studies, reports, analysis, surveys and any comparable document prepared in the last three years to analyze the affected market(s), conditions of competition, actual or potential competitors, consumer preferences, brand strength and potential growth or expansion to new products or geographic areas, among others;
(viii) List and copy of collaboration agreements, whether horizontal, vertical or otherwise, between the parties and/or between them and other players operating in the affected markets;
(ix) Statements of the parties whereby they declare that: (i) their intention is to, in good faith, materialize the notified operation; and (ii) the information provided is true, sufficient and complete, and that they understand the administrative and criminal sanctions that may be applied in case of providing false information or hiding information.
All these documents must be submitted in Spanish. However, the FNE may grant a special authorization to submit certain information in English.
The notification requires a signature, which can be made by an attorney designated by the notifying parties. In such case, a power of attorney must be submitted, which needs to be legalized.
In terms of formalities/supporting documents, the parties need to submit the signed or latest version of the transaction document that brings about the concentration along with its sworn Turkish translation. Moreover, a signed, notarized and apostilled power of attorney(s) would be required to be able to represent the notifying party(ies) before the Competition Authority. The signed, notarized and apostilled power of attorney will require local legalization that needs to be performed by the notary public in Turkey (which concerns the notarization of the sworn Turkish translation of the executed, notarized and apostilled power of attorney).
The transaction parties will also need to submit officially approved documents (i.e. approved balance sheets) that show their latest accounts. In addition, where applicable, for the Turkish subsidiaries and/or affiliated entities of the parties, the latest certified balance sheets and/or profit and loss statements (as approved by the relevant Tax Office in Turkey) should be submitted along with the merger control filing.
Finally the parties will need to submit organizational (corporate structure) charts or list of subsidiaries demonstrating each person or economic entity directly or indirectly controlled by the Parties. There is no formal requirement applicable for organizational (corporate structure) chart or list of subsidiaries for the parties.
For the sake of completeness, it is not required to submit certification of incorporation and articles of association as annexes to the merger control filing.
All of the required supporting documents should be submitted together with the notification form, otherwise notification form would be incomplete and the notification is deemed filed only on the date when such information is completed upon the Competition Board’s subsequent request for further data. Furthermore any written request by the Competition Board for missing information and documents resets the clock and the review period starts again from day one once the responses and documents are provided.
The parties will have to enclose the following documents when submitting the notification:
- the most recent audited annual financial statements and annual reports for each of the parties to the merger;
- copies of the final or most recent versions of all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
- analyses, reports, minutes of board meetings and similar documents related to the merger;
- flowcharts and similar overviews for each of the parties to the merger;
- a non-confidential version of the notification;
- documentation of payment of the merger fee; and
- a signed declaration in which the notifying party declares that the
information stated in the notification is correct.
The documents may usually be provided by both parties to the transaction, and must be submitted in Danish, or in English if permitted by the DCCA.
The Merger Notification Form sets out the documents that must accompany the notification. The requirements are similar to those for Form CO under the EUMR and include the latest annual reports and accounts of the undertakings involved, along with copies of all surveys, reports, analyses, studies, presentations and comparable documents assessing or analysing the notified transaction. The parties are also required to provide a copy of the agreement bringing about the merger or acquisition. There is no obligation on the parties to notarise these documents.
The Merger Notification Form must be signed by an individual that is authorised to act for and on behalf of each undertaking making the notification (for example, a director or officer). Alternatively, a legal representative may sign on behalf of an undertaking if given the power of attorney to do so. The signatory must declare that the information provided in the notification is, to the best of their knowledge and belief, accurate and complete and that all opinions and estimates provided in the notification are sincere.
The notification must be accompanied by various supporting documents and other information which may be in Greek or English, including but not limited to the following:
- a copy of all final or most recent documents that brought about the concentration either by agreement or following a public bid;
- in the case of a public bid, a copy of the public bid document;
- copies of the most recent annual reports and audited financial statements of all the undertakings participating in the concentration;
- copies of reports or analyses prepared for the purposes of the concentration;
- a list and short description of the contents of all analyses, reports, studies and surveys that were prepared by or for any of persons responsible for notification for the purpose of evaluating or analysing the proposed concentration in relation to the market and competition conditions;
- details of the concentration (including the nature and scope of the concentration, the financial and structural details of the concentration, and details regarding the turnover in Cyprus and worldwide of each undertaking);
- details of relationships of ownership and control as between each participant in the concentration and the undertakings connected with it;
- personal and economic ties as between each group of undertakings and any other undertaking operating within the affected market in which such group holds, inter alia, at least 10 per cent of the voting rights or shares;
- a description and analysis of the relevant markets; and
- a description and analysis of the affected relevant markets.
Notifying parties are required to produce all the transaction documents, the annual reports of the parties of the last three years, and a power of attorney for the representative signing the notification. Parties can also enclose any documents (economic studies, surveys, etc.) useful to support their views.
The notification must be in Italian. The supporting documents can be submitted also in English.
See Q 23.
Supporting documents for the Notification are, as follows:
- Executed or draft legal document to be used to implement the transaction
- All studies, surveys, analyses and reports that were prepared or received by an officer or director of any of the entities in the Filing Entity/UPE
- Confidential information memoranda, bankers’ books and other third party consultant materials and synergy documents related to the sale of the acquired entity or assets
- Most recent Annual Report of the Filing UPE
- Original affidavit attesting to the fact that a definitive agreement has been signed and that each party has an intention of completing the proposed transaction in good faith (for transactions with signed definitive agreements)
- Certification signed by authorized signatory stating that the contents of the Notification are true and accurate of their own personal knowledge and/or based on authentic records
The application must be accompanied by several supporting documents, including:
- constitutional documents of the companies;
- extract from the trade register regarding the companies;
- balance sheet statements of the companies;
- tables of economic activities of the companies;
- copy of licenses of the companies;
- copy (or draft) of the main transaction document (e.g. share purchase agreement)
as well as some other documents depending on the type of transaction. All non-Russian documents must be notarized and apostilled and accompanied by a notarized translation into Russian.
Due to the formal requirements and the scope of information to be provided, the preparation of a filing often takes 1-2 months. FAS can refuse to accept a filing for review if they consider the filing to be incomplete. FAS can also request additional information that it considers necessary to assess the filing. It is therefore generally advisable to contact the case handler at the authority once appointed. The identity of the case handler is, however, not disclosed if part of the filing is marked as commercial secret.
In addition to the filing form, the FCA requires the notifying parties to provide the contractual documentation which materialize the change of control (such as the SPA, the shareholders agreement, etc.) and the minutes of board meetings pertaining to the transaction, a power of attorney, copies of the most recent annual reports and accounts, as well as a summary table of financial figures for the last three audited financial years.
Supporting documents must be provided in French, or along with their French translation. The FCA may nevertheless accept, upon request, that only the translation of relevant excerpts of supporting documents be provided.
The following supporting documentation, in addition to the prescribed forms, are required to be filed by each of the merging parties:
- The most recent audited annual financial statements and/or management accounts (to the extent that financial statements are not available);
- The most recent draft of all documents constituting the merger agreements;
- Each report or other document assessing the transaction with respect to competitive conditions;
- Strategic documents (including, but not limited, marketing documents, minutes, reports, presentations and summaries) prepared for the Boards of Directors of the respective parties regarding the transaction and the affected markets;
- The firm’s most recent business plan and budget;
- Affidavit / attestation to the extent that any of the abovementioned documents are not available, confirming the reason why such document/s are unavailable.
No formalisation of documentation is required.
In respect of signing the prescribed forms, these need to be signed by an authorized person who is able to confirm the accuracy of the information provided as part of the filing (this person may be the party’s legal representative, if authorised to do so).
Several supporting documents must be submitted as part of the premerger notification filing. These include a copy of the documents that constitute the agreement along with any ancillary non-compete agreements (per item 3(b)), and certain annual reports and annual audit reports (per item 4(b)). In addition, parties are required to submit all final documents prepared by or for an officer or director for the purpose of evaluating the transaction to the extent the analysis relates to markets, market shares, competition, competitors, opportunities for sales growth or product or geographic expansion (per item 4(c)). These items also require the parties to provide certain information memoranda, documents prepared by investment bankers or other consultants, and certain documents related to synergies (per item 4(d)).
The notification shall be accompanied by the following documents:
- copies of the most recent annual accounts and annual reports of the undertakings concerned;
- copies of the agreements that effect the concentration or that are otherwise connected with it;
- in the case of a public offer, copies of the offer documentation;
- copies of the reports, analyses and business plans made with regard to the concentration insofar as they contain information relevant to the assessment of the concentration.
Accompanying documents may be filed in English.
There are no requirements to file any supporting documents. It is customary to sign the notification, which can be done by a legal representative. Usually, the FCO does not require the provision of a power of attorney, unless the FCO enters into Phase 2 of the review.
The supporting documentation accompanying the notification filing is explicitly outlined in the HCC Decision 558/2013. In particular, the legal representative of the notifying party must submit the Power of Attorney (together with any relevant legalization documentation) pursuant to which is entitled to submit the notification form, either in its original, notarized and apostilled form (accompanied by its Greek translation, as the case may be) or a certified copy. Moreover, according to the information required in the notification form (as set forth in question 23), each of the parties to the concentration shall provide a list (or chart or diagram) of all undertakings belonging to the same group. This list shall include (i) all undertakings or persons controlling these parties, directly or indirectly; (ii) all undertakings active in any of the affected markets that are controlled, directly or indirectly either by these parties and/or by any other undertaking identified under (i) above. In addition, the notifying parties must submit (a) copies of the final or most recent versions of all documents bringing about the concentration, whether by agreement between the parties to the concentration, or acquisition of a controlling interest or a public bid; (b) for public bids, a copy of the offer prospectus. If such document is not available at the time of the notification, it is submitted as soon as possible and not later than when it is posted to the shareholders; (c) copies of the most recent annual reports and financial statements of all the parties to the concentration; (d) copies of all the analyses, reports, studies, researches and other relevant documents that have been submitted or drafted by or for any member(s) of the board of directors or the supervisory board or any other person(s) exercising similar functions or charged with similar duties or to the assembly of the shareholders, in order for the concentration with regards to market shares, competition conditions, the competitors (either actual or potential), the scope of the concentration, the potential for increase of sales or expansion to other product or geographic markets or/and the general market conditions to be analysed or assessed.
All the supporting documentation shall be submitted either in its original form or/and in certified copies, in the official language in which it has been drafted, otherwise officially translated in Greek. In general, there is not an explicit requirement or restriction regarding the time of issuance of each of the supporting documents, but it is a common practice facilitating the accuracy and the completeness of the filing, for the documents to have been issued as recent as possible, evidencing the current situation of the information depicted therein.
The notification filing must be signed by the parties as per what set forth in question 22 or their legal representatives or their authorized attorneys by means of a Power of Attorney. The legal representatives and the authorized attorneys must accompany the notification filing with their legalization documentation as specified above. In case the joint notification must be filed by a common representative authorized to deliver and collect any document in the name of the notifying parties.
INDECOPI requires a copy of the documents related to the closing of the operation, as well as a copy of the analysis or studies of the conditions of competition, the competitors and the market situation.
Notwithstanding this, all the information presented by the parties constitutes a declaration under oath.
The following supporting documents must be filed with the notification:
- Evidence of payment of the filing fee;
- Power of attorney;
- Copy of:
- Articles of association of the parties;
- Annual reports of the parties;
- Transaction documents;
- Relevant market reports and studies.
Filing is submitted in Portuguese, but the PCA has been accepting documents drafted in English. No notarization or other certification is usually required.
The notifying party(ies) must submit certain supporting documents. While the necessary supporting documents are slightly different depending on the types of transactions, they include a copy of the signed transaction agreement, a copy of the resolution approving the transaction, a financial statement, a list of shareholders and a power of attorney. They need not be notarised or otherwise authenticated.
The filing form must be written in Japanese. Some accompanying documents need to be translated into Japanese, but the translation may be limited to relevant sections only.
Notifying Parties typically need to provide the following supporting documents while filing a Form I:
- Copies of the transaction documents;
- Copies of the most recent annual reports;
- Copies of the financial statements of the parties to the combination;
- Copies of all presentations prepared by or for or received by any members of the board of management, or the board of directors, or the supervisory board, as applicable in the light of the corporate governance structure, or the other person(s) exercising similar functions (or to whom such functions have been delegated or entrusted), or the shareholders meeting, analyzing the combination. (This is required only where the parties to the combination are engaged in the production of vertically or horizontally overlapping products or services);
- Declaration by the notifying party verifying the contents of the Form;
- Affidavit by the notifying party(ies) claiming confidentiality over the confidential information provided in the merger notification form;
- A Letter of authorisation from the notifying party granting authority to any individual to sign all documents relating to the merger notification form and to receive communication(s) on behalf of the notifying party(ies);
- Certified copy of the authorisation in favour of the legal representative filing the merger notification form;
- Certified copy(ies) of the order(s)/decision(s) passed in other jurisdictions where the proposed combination has been filed and approved;
- Copy of the proof of payment of the filing fee for the merger notification form;
- Certificate of accounts from the for any unaudited financial statement or figures certified by the Managing Director, Director, CEO or the CFO duly authorized by the board of directors accompanies by a certificate of the auditor of the enterprise.
Please note that the above mentioned is an indicative list and depending on the transaction, other documents may also be required to be furnished.
Certain additional documents required to be filed along with a Form II are provided in query 7 to the Form II. The Form II is embedded in the response to the above question.
The merger filing form requires submission of the following supporting documents:
- press releases and details of any notifications to listing authorities;
- transaction documents (including any heads of terms, memorandum of understanding and sale and purchase agreement) or drafts of such documents, if not finalised;
- if the offer is subject to the UK takeover code (for acquisitions and mergers of listed companies), copies of the offer document and listing particulars, or drafts of such documents;
- the most recent annual report and accounts and last set of monthly management accounts for each of the parties;
- copies of the most recent business plan for each of the parties, and for any specific division or brand of the parties that is relevant to horizontal or vertical overlaps between them;
- copies of any documents (e.g. minutes of meetings, studies, reports, presentations, surveys, analyses etc.), prepared by, or for, or received by, any member of the board of directors (or equivalent body) or senior management or shareholders of either party, which either set out the rationale for the merger; or analyse the merger with respect to various factors of competition (e.g. competitors, market conditions, pricing, potential for sales growth or expansion into new product or geographic areas etc.); this includes information memoranda relating to the transaction and post-merger business plans (including integration plans and financial forecasts); and
- copies of recently-prepared documents (e.g. reports, presentations, studies, analysis, marketing and advertising strategies, industry/market reports, including customer research and pricing studies) which set out the competitive conditions, market conditions, market shares, or competitors in the industry or business areas where the merger parties have a horizontal overlap.
In some cases, it is possible to agree a narrower scope of required supporting documents, during pre-notification discussions with the CMA.
The CMA can also – and usually does – request these documents (or a sub-set of them) where there has been no notification and it has commenced a review of the transaction on its own initiative.
Documents that are submitted do not need to be legalised, certified or apostilled in any way. Where supporting documentation is in a foreign language, the parties are encouraged to provide a translation (if translations are not supplied, the CMA can ask for them).
A statutory merger notice must be signed by an 'authorised person', being a person with authority to bind the notifying party (or each notifying party, if the notification is submitted jointly).
This depends largely on the complexity of the transaction. The EUMR requires submitting all documents which relate to the transaction and which have been prepared for or by senior management--typically, the deal documentation and various reports supporting the market estimates. A full Form CO needs to provide the contact details of competitors, customers and trade associations so that the Commission may reach out to them and ask for their views.
In the last few years, it has become standard practice in Phase II cases to require the production of all internal documents (including emails) for a large number of businesspeople. This can result in the production of millions of documents.
The following supporting documents must be filed with the merger notifications:
- Annual reports for two years preceding the merger for each party.
- A full set of the transaction documents, including annexes.
- Any prospectuses issued by the parties in the five years preceding the mergers.
- The parties are allowed to file additional documents and information to the extent these are relevant to the competitive analysis of the merger.
The merger notification forms include a statement of accuracy which must be signed by an officer of the company, whose name and role in the company are indicated on the form. Since the merger notification form itself will normally include the details of the outside attorney as the point of contact for the filing party, no additional power of attorney is required.
In addition to the Notification Form or Simplified Notification Form itself, the following documents must be filed:
(1) the identity proof or registration certificate of each notifying party, and corresponding notarization and attestation documents if the notifying party is a foreign person;
(2) a power of attorney signed by each notifying party, where an agent is entrusted for the notification;
(3) the concentration agreement, such as shares or assets purchase agreement, joint venture agreement, and etc.; and
(4) the audited financial statements of each of the business operators participating in the concentration for the previous accounting year.
The notifying parties may also provide research or analysis reports on the transaction and/or the relevant sectors to assist SAMR to review the notification.