Click here to download the Merger control 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 72 jurisdictions are covered in this report:

Albania; Algeria; Argentina; Australia; Austria; Belgium; Bolivia; Bosnia and Herzegovina; Brazil; Bulgaria; Canada; Chile; China; Colombia; COMESA; Croatia; Cyprus; Czech Republic; Denmark; Ecuador; European Union; Faroe Islands; Finland; France; Germany; Greece; Greenland; Hong Kong; Hungary; Iceland; India; Indonesia; Ireland; Israel; Italy; Japan; Kenya; Korea; Liechtenstein; Macedonia; Malta; Mexico; Morocco; Mozambique; Netherlands; New Zealand; Nigeria; Norway; Pakistan; Philippines; Poland; Portugal; Romania; Russia; Saudi Arabia; Serbia; Singapore; Slovakia; Slovenia; South Africa; Spain; Sweden; Switzerland; Taiwan; Thailand; Turkey; Ukraine; United Arab Emirates; United Kingdom; United States; Uzbekistan; Zambia.

Questions

The set of questions relating to the topic of merger control and answered by the guide for each jurisdiction covered include:

Legislation and jurisdiction

• • What is the relevant legislation and who enforces it?
• • What kinds of mergers are caught?
• • What types of joint ventures are caught?
• • Is there a definition of “control” and are minority and other interests less than control (including board or management representation, or contractual arrangements) caught?
• • What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
• • Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
• • Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
• • Are there also rules on foreign investment, special sectors or other relevant approvals? (If so, deal with these in outline only.)

Notification and clearance timetable

• • What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
• • Which parties are responsible for filing and are filing fees required?
• • What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
• • What are the possible sanctions involved in closing or integrating the activities of the merging businesses (even partly) before clearance and are they applied in practice? (Provide details of any recent cases that illustrate the types of sanctions that are applied.)
• • Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
• • What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
• • Are there any special merger control rules applicable to public takeover bids?
• • What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information? (Give examples and explain what documentation relating to the deal must be filed.)
• • What are the typical steps and different phases of the investigation?
• • What is the statutory timetable for clearance? Can it be speeded up? (Mention the authorities’ practice in respect of prolongations, and say how long it typically takes to obtain a decision.)

Substantive assessment

• • What is the substantive test for clearance? (Explain if this is affected by special circumstances, eg, use of a “failing firm” defence.)
• • Is there a special substantive test for joint ventures?
• • What are the ‘theories of harm’ that the authorities will investigate (eg, market dominance, unilateral effects, coordinated effects, conglomerate effects, vertical foreclosure, harm to innovation, common ownership concerns)?
• • To what extent are non-competition issues (such as industrial policy or public interest issues) relevant in the review process (either formally or informally)? (If so, explain how these are assessed in practice.)
• • To what extent does the authority take into account economic efficiencies in the review process? (Give examples.)

Remedies and ancillary restraints

• • What powers do the authorities have to prohibit or otherwise interfere with a transaction?
• • Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
• • What are the basic conditions and timing issues applicable to a divestment or other remedy?
• • What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
• • In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?

Involvement of other parties or authorities

• • Are customers and competitors involved in the review process and what rights do complainants have?
• • What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
• • Do the authorities cooperate with antitrust authorities in other jurisdictions?

Judicial review

• • What are the opportunities for appeal or judicial review? (Mention any important recent examples and outcomes.)
• • What is the usual time frame for appeal or judicial review?

Enforcement practice and future developments

• • What is the recent enforcement record and what are the current enforcement concerns of the authorities?
• • Are there current proposals to change the legislation?