Which supporting documents, if any, must be filed with the authority?
Merger Control (4th 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.
In addition to the Notification Form or Simplified Notification Form itself, the following documents must be filed:
- the identity proof or registration certificate of each notifying party, and corresponding notarization and attestation documents if the notifying party is a foreign person or entity;
- a power of attorney signed by each notifying party, where an agent is entrusted for the notification;
- the concentration agreement, such as shares or assets purchase agreement, joint venture agreement, etc.;
- the audited financial statements of each of the business operators participating in the concentration for the previous accounting year; and
- the statement of the authentic of the materials submitted by the parties participating in the concentration.
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.
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.
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 con-trolling 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 following documents shall be attached to the notification of concentration:
- Copy of the documents related to the proposed legal act which will give rise to the concentration operation.
- Financial statements for the last financial year of each of the economic operators involved in the concentration.
- Analysis, reports and studies considered relevant.
- Request for confidentiality with respect to the information provided or part of it. The SCPM, after the corresponding analysis, shall decide on the request.
- Sworn statement that the information provided in the notification and its annexed documents are true and that the opinions, calculations and estimates have been made in good faith.
The notification and its annexed documents must be submitted in two copies, one physical and the other digital. The respective translation of the documents drawn up in a foreign language must be submitted, and which are delivered as part of the notification of the economic concentration.
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. In larger and more complicated transactions, this can result in the production of millions of documents.
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 list of financial information to be provided is likely to be downsized pursuant to the FCA's wish to simplify the merger control process
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 following supporting documents are required to be filed along/post a notification:
- Ancillary Documents - Company authorization letter to be signed by an authorized signatory of the acquirer; Declaration signed by an authorized signatory of the acquirer attesting to the fact that all details contained in the notice are true and bona fide to the best of the authorized signatory’s knowledge and belief, and that all estimates are identified as such and are its best estimates based on the underlying facts; Authorization letter in favor of the filing counsel representing the acquirer; Auditor’s certificate and certificate of authenticity for unaudited financials (if audited financial statements are not ready) for the financial year preceding the date of transaction; Demand draft of INR 15,00,000/- (about USD 21,000) for notification in Form I and of INR 50,00,000/- (about USD 70,000) for notification in Form II. Confidentiality affidavit certifying that the information/documents over which confidentiality is being claimed is not available in the public domain.
- Formal Documents - Board resolution from the parties approving the transaction; All transaction documents; and financial statements of the parties for the financial year preceding the date of transaction.
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 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.
The reporting party must submit supporting documents such as transaction agreements (e.g., share acquisition agreement, merger agreement), the interlocking directorate plan, a copy of corporate registration and the annual audit report (or equivalent) of the merging parties.
The following information and documents are required to file the notice of concentration, keeping in mind that the authority may request additional information: (i) corporate name of the entities directly or indirectly involved; (ii) name of the legal and common representative; (iii) a description of the transaction and a draft of the corresponding agreement, (with the non-compete clauses if these exist, and the reasons for their inclusion); (iv) the documents and information that explain the purpose and rationale of the concentration; (v) articles of incorporation and financial statements of the entities involved; (vi) a description of the involved entities’ capital structure (before and after the transaction); (vii) participation in entities that produce or market equal, similar or substantially related goods or services to those provided by the entities participating in the concentration; (viii) market share; (ix) facilities location; (x) goods or services produced or offered by each entity involved; and (xi) payment of fees mentioned in question 25.
See Q 23.
PCC Mergers and Acquisition Revised Notification Form 09 July 2019-1 provides a list of supporting documents for the Notification, as follows:
- A copy of the signed binding preliminary agreement or definitive agreement. Should no signed definitive agreement be available as of the date of filing, submit a copy of the most recent draft of the definitive agreement. If a draft definitive agreement was submitted, provide an undertaking to submit the signed definitive agreement within two (2) days from signing, identifying changes made to the draft agreement that were implemented in the signed agreement, if any.
- Copies of all non-compete agreements.
- The Articles of Incorporation, By-laws, and the General Information Sheet or equivalent document in its jurisdiction, of the filing UPE and the Acquiring or Acquired Entity.
- Secretary’s Certificate that the proposed transaction has been approved by (majority) shareholders of the Notifying Entity.
- Studies, surveys, analyses and reports that were prepared or received by an officer or director of any of the entities in the Notifying Group—or in the case of an unincorporated entity, an individual who serves in a similar capacity—for the purpose of evaluating or analyzing the proposed transaction with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into new products/services or geographic regions. For each document, provide the date on which the document was prepared.
- Confidential information memoranda, bankers’ books and other third-party consultant materials and synergy documents related to the sale of the target or assets. For each document, provide the date on which the document was prepared.
- Ordinary course documents (e.g. board presentations, memorandum to the board or key officers, email correspondences, and other similar documents) relating to or discussing market position, competition, competitors, potential for sales or revenue growth or expansion, in the identified markets in Section 7, in the most recent year.
- 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.
- Where applicable, an 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).
A copy of the most recent annual report for the filing UPE, the Acquired or Acquired entity (if different from UPE), and each entity identified in 7.1 and 7.2 (or, if the annual report is not available or if the financial statements are different from those contained in the report, audited financial statements relating to the principal businesses of the entity for its most recently completed fiscal year).
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 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;
- copies 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 prepa-ration 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, howev-er, not disclosed if part of the filing is marked as commercial secret.
The parties’ annual accounts, the purchase agreement or share purchase agreement (including potential shareholders’ agreement), and potential market research reports or similar shall be attached to the notification. Furthermore, a non-confidential version of the notification shall be submitted (please see section 27).
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.
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.
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 merger application should include also the following:
- details of the parties with disclosure of their relevant group of business undertakings connected by control relations, and details of the ultimate beneficiaries thereof;
- the transaction detailed description, together with the originals or copies of the transactional documents;
- sources of the transaction financing for the AMCU to make certain that the participants are acting in their own interest;
- details of the party groups’ volume of assets and the amount of sales proceeds;
- economic justification of the transaction;
- power of attorneys which should include specific wordings;
- a documentary confirmation of the application fee payment
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 documents related to synergies and/or efficiencies (per item 4(d)).
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 deemed useful to support their assessment of the proposed transaction (e.g., market reports, economic studies, surveys, etc.).
The notification must be in Italian. The supporting documents can be submitted also in English.
According to the Notification Form Guidelines, the notification should be accompanied by all the relevant documents proving the concentration or a copy of the offer document in case of a public bid, copies of the most recent annual reports and financial statements of all the undertakings participating in the concentration. Also, copies of all relevant market studies on the structure of the affected markets (such as market shares, competition conditions, existing and potential competitors, the purpose of the concentration, potential sales increase or expansion to other markets and the relevant market conditions), a copy of the notification announcement as published in the newspaper, required legalization documents of the persons signing the notification form and the filing fee should be submitted to the HCC along with the notification.
Lastly, a notarized power of attorney for representation by legal counsel and an official translation of the aforementioned documents, in case they are not in Greek, should also be submitted . As a practical matter, the HCC accepts submission of documents in English with translation only of the specific sections or clauses, to the extent necessary.