European Union: The International Comparative Legal GuideTo: Merger Control - Identifying Filing Obligations And Beyond: Merger Control In Cross Border Transactions

1. Introduction

Multi-jurisdictional merger control filings have gained in complexity in the recent past. For once, more and more countries around the world have introduced merger control regimes. On the other hand, many merger control regimes are still ill equipped to deal with the needs of businesses to have a short and streamlined review process. For instance, the transaction timetable may be at risk, if competition authorities take a (too) formalistic approach and require information which is both irrelevant for the competitive assessment and difficult to collect for the parties. In the below we aim to provide some guidance how best to manoeuvre around potential pitfalls in cross-border transactions in order to obtain approvals in an efficient and timely manner.

At the beginning of each multi-jurisdictional merger control analysis it is necessary to bear in mind that the merger control process is only one of many legal "work streams" in an M& A transaction. In most cases, the merger control stream cannot be simply detached from other work-flows, which may conflict in some respects. In particular, time is often of the essence. For example, in restructuring transactions the target will often be in dire need to obtain fresh capital, while the investor will inject capital only in return for control rights. However, applicable merger review regimes may provide for standstill periods during which such control cannot be exercised. In those circumstances, it is essential that the merger control lawyers interface with the transactional lawyers to come up with a realistic plan to structure and implement the transaction.

Carrying out multi-jurisdictional assessments at an early stage of the transaction will often save expenses and stress. In particular, compiling the "most important" information (for example, a country-by-country revenue split, a description of the parties' activities and market data) will allow to anticipate if and at what time notifications need to be submitted. These matters can then be factored into the transaction as a whole. In complex cases, a (merger control) feasibility assessment should be carried out in advance before the technicalities of the transaction are actually planned.

There are a number of issues that should be considered at the various procedural stages and efficient project management is essential. Setting up a merger control team, including designated members at the client and legal advisers, is often (in particular in larger and more complex transaction) essential to allow a smooth execution of the merger control process.

The chapter is divided into three sections along the main stages in the multi jurisdictional filing process, namely: i) identifying filing obligations (dealing with the concepts of control, thresholds and exceptions); ii) preparation of a filing (bearing in mind, for instance, deadlines to file); and iii) handling various (parallel) merger control proceedings.

2. Identifying Filing Obligations

2.1. Pre-selection of the jurisdictions to be reviewed

The initial step in a multi-jurisdictional assessment is to select those jurisdictions that will be reviewed. Obviously it is costly and time consuming to review all world jurisdictions considering that globally there are more than 100 merger control regimes in force. Thus, practitioners often tend to select only those jurisdictions in which the target is currently active (or will become active in the foreseeable future), as it is only in these jurisdictions that the transaction will have a direct impact.

However, it should be borne in mind that certain jurisdictions adopt a catch-all approach. This means that the applicable jurisdictional thresholds can be met by one party only, i.e., irrespective of the target's activities (see below). Therefore, it is prudent not to rule out too many jurisdictions at this first step, but also to have an eye on those jurisdictions where the target is not (presently) active.

2.2. Relevant transactions – What constitutes a "Concentration"?

In most countries, merger control rules apply to transactions that lead to a change of control. Therefore, the acquisition of a controlling stake in another undertaking is usually relevant for merger control purposes. However, "control" is not defined unanimously throughout the different jurisdictions. It typically refers to an undertaking's opportunity to (solely or jointly) exercise decisive influence over another undertaking. Sole control is usually conferred by a majority holding in the voting rights.

The assessment of control can be difficult where minority shareholders have been conferred additional rights (for example, in the company's articles or by agreement between the company's shareholders). These veto rights are normally deemed to transfer control if they relate to strategic decisions on the company's business policy (for example, budget and business plan). They do not transfer control if they do not go beyond the veto rights normally accorded to minority shareholders in order to protect their financial interests as investors in the company (for example, changes in the statute, an increase or decrease in the capital or liquidation).

However, there are merger control regimes in which a transaction constitutes a (notifiable) concentration despite the fact that the transaction does not lead to a change of control: In some countries, the acquisition of a certain stake in a company's shares constitutes a concentration, irrespective of whether the stake confers control; in other countries, a concentration arises, while the influence conferred to the acquiring party/parties does not amount to control, but to a lesser degree of influence:

  • 25%-stake: There are various jurisdictions in which merger control rules apply if a certain shareholding-level is met or exceeded (irrespective of whether the shareholding confers control). For example, in Austria, Germany, Israel and the Ukraine, merely acquiring a non-controlling share of 25% or more constitutes a relevant event.
  • Influence not amounting to control: There are a number of jurisdictions in which a concentration is deemed to occur even if the degree of influence does not amount to the decisive influence required under the control concept. For example, the following jurisdictions require varying degrees of influence, e.g. UK: "material influence", Canada: "significant influence", and Germany: "competitively significant influence". In these regimes it is necessary to evaluate the factors which are deemed to be sufficient to bring about the necessary influence (for example, board representation and competitive ties).

For instance, the concept of the "competitively significant influence" applied in Germany, may be illustrated by the ATEC/ NA-decision of the German Federal Cartel Office (FCO) in 2008. In this case, the FCO ultimately prohibited the acquisition of a 13.75% shareholding in Norddeutsche Affinerie AG (NA) by ATEC Industries AG (A- TEC). Despite falling short of an acquisition of control, the FCO found the transaction to be notifiable in Germany because it gave A-TEC competitively significant influence over NA. In view of the constantly low voting presence at NA's annual general meetings in recent years the shares held by ATEC represented a blocking minority comparable to a 25% share acquisition. The other shareholders of NA also had no expertise in the relevant sector of copper and did not pursue any long-term strategic interests that would influence the competitive behaviour of NA. A-TEC, on the other hand, was active in all NA's key areas of business. The FCO found the combination of the two companies to be restrictive of competition. Consequently, the FCO prohibited the transaction and, as it had already been closed, ordered its unwinding.

2.3. Jurisdictional thresholds

Only those concentrations are notifiable that have, simply put, an economic impact. To assess this impact most jurisdictions apply turnover thresholds. This means that it has to be examined, if the undertakings involved reach certain levels of revenue (the thresholds usually refer to local and worldwide revenues). However, there are a number of countries which have (in addition or alternatively), asset- or market share related thresholds. These can raise difficult questions concerning what assets need to be taken into account or on what basis the market share must be calculated.

It is important, when considering this stage, to have access to data concerning the undertakings involved, such as:

  • a country-by-country split of revenue data of the participants to the transaction;
  • a list of local subsidiaries; and
  • ideally, financial statements.

The review of jurisdictional thresholds is often considered to be a mechanical exercise. However, it is important to be careful.

Lawyers tend to apply the concepts with which they are familiar from their home jurisdictions. These do not necessarily match with the concepts of the relevant regime. For instance, while we (with a European merger control background) would deem it normal to disregard revenues of the seller, there are jurisidictions (e.g., Brazil) in which the seller's revenues need to be taken into account for assessing whether the jurisdictional thresholds are met.

Therefore, it is advisable to have a jurisdictional review crosschecked by local counsel. There can, notably, be particularities regarding the:

  • Identification of the undertakings whose turnover is to be taken into account.
  • Calculation of group turnover.
  • Calculation of the turnover of the parties involved, e.g. there are jurisdictions which apply a multiplicator-rule for certain industries (e.g., media).
  • Calculation of market shares.
  • Reference year for which the turnover needs to be taken into account.

As mentioned above, attention should be paid to catch-all jurisdictions, i.e. merger control regimes, in which the relevant revenue thresholds may be met by one party to the transaction only. Typical catch-all-jurisdictions include:

  • Serbia;
  • Montenegro;
  • Ukraine; and
  • Certain Western European countries, such as Austria.

2.4. Exceptions

In practice, there is frequently a variety of jurisdictions where the relevant thresholds are met, including jurisdictions where the target has very little activity or even no activity at all.

Some jurisdictions provide exceptions to prevent an excess of filings. In some countries foreign-to-foreign transactions are excluded from merger control, even where the jurisdictional thresholds are met. This may apply, for example, where the transaction:

  • does not give rise to a direct change in control of a local company (this is a concept known in many Commonwealth of Independent States (CIS) countries); and/or
  • does not affect the competitive structure of the national market concerned (effects doctrine).

The effects doctrine has considerable importance, particularly for catch-all jurisdictions. It provides that foreign-to-foreign mergers are only notifiable, if they have a direct and foreseeable impact on the jurisdiction's market. In practice, the question whether or not a filing obligation is triggered frequently falls in a grey area. While most countries recognise the concept on an abstract level, local competition authorities (for example, in Central and Eastern European countries) may not necessarily be familiar with the application of the concept and/or authorities may take the formal stance that whenever the jurisdictional thresholds are met a filing obligation is triggered, irrespective of a local effect. Therefore excessive reliance on the effects doctrine is dangerous.

However, the effects doctrine is not only a useful way to exclude filing obligations in catch-all-jurisdictions; it is also often applied to reduce filing requirements in joint venture-transactions. These transactions frequently lead to jurisdictional thresholds being met in various jurisdictions, as typically the revenue of the controlling parent companies must be taken into account (this applies, for example, under Regulation (EC) No. 139/2004 on the control of concentrations (Merger Regulation)). However, there are good arguments against there being effects in a market if the joint venture is not planned to become active in that country.

Despite the practical importance of the effects doctrine, case law and practice is scarce. In the EU, there has been a landmark decision of the Court of First Instance in the case of Gencor/Lonrho (Case IV/M.619 OJ 1997 L11/30; Case T-102/96 [1999] ECR 753). In that case the court held that the application of the Merger Regulation to a merger between companies located outside EU territory "is justified under public international law when it is foreseeable that a proposed concentration will have an immediate and substantial effect in the Community".

EU practice in the aftermath of the Gencor decision is far from transparent. Therefore, national decisional practice may provide guidance of when a merger can have effects on the national market. For example, the German Federal Cartel Office (Bundeskartellamt) (FCO) issued guidelines on the domestic effects doctrine. This may be a helpful starting point also for the assessment in other jurisdictions. According to these guidelines a merger has a domestic effect (even if the target is not active in Germany), if it leads to an appreciable increase or an addition of know how, resources, financial strength or IP rights, which would benefit future activities of the party that operates in Germany.

3. Preparation of the Filing

After the jurisdictional merger review assessment, legal advisers are usually able to identify those jurisdictions where the filing requirements are met. Before the filing may be prepared, several follow-on questions need to be addressed, which are dealt with below:

3.1. Are filings mandatory or voluntary?

In most jurisdictions filings are mandatory if the jurisdictional thresholds are met. The filing obligations are usually enforced by severe sanctions for failure to notify. Typically, these include fines and civil nullity sanctions, which will be dealt with below:

  • Fines: Fines for early implementation can be significant. For instance under the EU Merger Regulation the European Commission can impose fines of up to 10 % of the aggregate turnover of the undertaking concerned.
  • Civil nullity sanctions: Many merger control regimes deem a transaction to be invalid unless approval has been obtained. While it may be difficult to assess, which parts of an agreement underlying the concentration are affected by the nullity sanction foreseen in the merger control regime in one particular country, it is evident that these difficulties themselves are among the main reasons better not to risk the invalidity of an agreement or parts thereof.

3.2. Are there filing deadlines?

There are some jurisdictions that require that the filing be submitted within a certain time period of, for example, signing of the relevant agreements or announcement of the public bid. For instance, in Serbia, such filing deadline is 15 days. Filing deadlines often impose considerable pressure on the parties to prepare the submissions. In practice, therefore, parties should identify those jurisdictions at an early stage.

3.3. Approximately how long will the merger control proceedings take?

In most transactions time is scarce. Therefore, the length of the review process before the competition authority needs to be considered in the transaction planning. In addition, preparation of the notification may take considerable time. Short forms and simplified procedures can significantly facilitate the filing process. Most jurisdictions foresee a two-phase procedure. The majority of cases are cleared within Phase I, which usually takes around a month. Phase II proceedings typically take considerably longer (often up to several months). Comparatively fewer mergers end up in Phase II, where the case undergoes an in-depth investigation by the relevant competition authority. For instance, the EU Commission has initiated Phase II proceedings in only about 5% of the notified cases since the entry into force of the Merger Regulation.

When predicting the timescale, the practice of local authorities plays a significant role. In most jurisdictions, there are statutory deadlines within which the authority must make a decision. However, some authorities employ considerable discretion concerning when a notification is considered to be complete and the timetable starts. In addition, in various regimes the authority can stop the clock running where further information is required. This often leads to time delays of several weeks (sometimes even months) compared to time periods set out in the relevant laws.

Jurisdictional assessment and planning, and in particular the assessment of timing aspects, must take into account the potential substantive competitive issues that the transaction may trigger. For example, if the parties identify critical issues that may raise competition concerns, they may consider pre-notification contacts with the relevant authorities to discuss the competitive issues at an early stage. If the concerns are sufficiently severe, it may be necessary to consider offering remedies (for example, to divest businesses to third parties). The parties are usually well advised to discuss these issues at an early stage so as not to delay the process.

3.4. Questionnaires and briefing of local counsel

Once preliminary measures have been undertaken, the next step of the process is to prepare the notification. This involves interaction with local counsel, who not only represent the client before the respective competition authority, but also put together the notification.

The relevant information must be compiled to draft the notifications, if this has not already been done. In most cases, questionnaires are sent to the parties in order to gather the relevant information. There are still major discrepancies between countries concerning the amount and quality of information required. Many countries require translated and legalised documents, including powers of attorney, annual reports and many others.

Despite the differences between jurisdictions there are some common features notifications usually have to contain, including a:

  • description of the parties (containing corporate and business information);
  • description of the transaction;
  • definition of the relevant markets; and
  • competitive assessment of the markets involved.

If there are several jurisdictions in which filing obligations are triggered, it may be practical and encourage consistency to prepare a master template, based on which local counsel can draft a local filing.

In terms of information gathering, compiling the required information often turns out to be a time-consuming exercise, which may use considerable company resources. To organise the information gathering it is efficient to have one central contact at the company who serves as an interface between the company and the lawyers and distributes the questionnaires within the organisation to the appropriate contacts.

4. Handling (Parallel) Merger Control Proceedings

Based on the assessment regarding the timing aspect described above (see section 3.3 above), merger control proceedings in various countries may be started concurrently or consecutively. In any event (due to different review time-phases foreseen in different countries), the situation may occur that clearances have been received from some national competition authorities, while the proceedings in other countries are still pending. Absence clearance, the question may arise if the transaction may nonetheless be closed.

This will be dealt with in more detail below.

4.1. Can the transaction be implemented before clearance?

The basic principle in all jurisdictions where notification is mandatory is that the transaction must not be closed before the clearance of the competent competition authority is obtained (standstill period or ban on closing). However, there are exceptions to this rule (for example Italy).

Some jurisdictions have legal exceptions to the standstill requirement. For instance, most regimes provide exceptions (derogations) to the suspension requirement for public bids (Article 7, EU Merger Regulation).

In other jurisdictions, where there are no exceptions, it may be possible to obtain similar results by applying a narrow definition of what constitutes an "implementation" of a transaction. For example, there are jurisdictions where only the actual exercise of the voting rights associated with the acquired shares is considered an implementation, but not the acquisition of the shares.

4.2. Are carve outs appropriate?

When the parties are planning to close the deal on a certain date and the clearance process is expected to take longer in some jurisdictions, the parties may consider setting in place hold-separate arrangements (carve outs) so that the closing of the transaction is not delayed by the merger approval process in a particular jurisdiction. Jurisdictions where the merger control process is still pending are then carved out from the transaction (i.e. the transaction is not implemented in these jurisdictions) until clearance has been obtained in these countries. However, many authorities have already made clear that they do not, in principle, support manoeuvres around the ban on closing, unless a clear-cut structural carve-out can be set-up.

For instance, in late 2008 the (German) FCO fined Mars for a breach of the ban on closing (not acknowledging an alleged carve out). In detail, the FCO imposed a fine totalling EUR 4.5 million against Mars, for a breach of the ban on closing. In May 2007, Mars notified its intention to acquire Nutro Products (a dog food producer) to the authorities in Germany and the US, among others. After clearance of the transaction by the US authorities and during the period of ongoing examination by the German authorities, Mars acquired the majority of the shares in Nutro Products, while the distribution rights for Nutro products in Germany were carved out by transferring them to a company belonging to the seller. According to the FCO, by acquiring Nutro Products' trademark rights and production sites, Mars took possession of all the assets necessary to enable it to compete successfully (also on the German market) and therefore infringed the German suspension requirement.

This article appeared in the 2013 edition of The International Comparative Legal Guide to: Merger Control; published by Global Legal Group Ltd, London. Online: www.iclg.co.uk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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