On March 1, 2012, the Competition Bureau will begin publishing a
"Merger Register" on its website that will disclose
certain information about transactions that are subject to the
pre-merger notification obligations contained in the
Competition Act. Designed to increase the level of
transparency at the Bureau, the Merger Register is not without
controversy. Divulging such information is a marked departure in
practice, as the Bureau has traditionally felt constrained by the
confidentiality restrictions in the Competition Act.
The Bureau announced on February 6, 2012, that any merger review
completed after February 1, 2012, will be included in the Merger
Register, so long as the parties have either submitted a pre-merger
notification or sought an advance ruling certificate in respect of
the transaction. In essence, every merger transaction reviewed by
the Bureau – other than a non-notifiable transaction
reviewed on the initiative of the Bureau – will be
captured by the Merger Register. Inclusion in the Merger Register
means that the names of the parties, the industry involved, and the
outcome of the review will be published on the Bureau's
Concerns have been raised that disclosing this information
contravenes the strict confidentiality provisions found in the
Competition Act. However, the Competition Bureau considers
that publishing the Merger Register falls within one of the
exceptions to the provisions, which permits disclosure "for
the purposes of the administration or enforcement" of the
In the majority of cases, particularly where the buyer or seller
is a public company, the parties will have announced the
transaction publicly prior to the conclusion of the Bureau's
review. In addition, in the overwhelming majority of cases the
Bureau will already have contacted market participants (i.e.,
customers and suppliers of the parties) as part of its merger
review. However, in cases where no market contacts have been made,
where the parties have decided not to make the transaction public,
and where the parties were under no other legal obligation to
disclose the transaction, the Merger Register could represent the
initial public disclosure of the transaction and the merger review.
Finally, the Bureau has traditionally only divulged the specific
outcome of a merger review publicly (i.e., whether an advance
ruling certificate or a "no-action" letter was issued) in
high-profile cases that merited a "position statement" or
There may be limited opportunities to minimize the impact of
disclosure via the Merger Register process, and parties seeking to
maintain the confidentiality of the transaction and the outcome of
the review will need to identify these concerns to their legal
advisers very early in the process and develop appropriate
communications plans to manage this process.
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