On February 6, 2012, the Competition Bureau announced that as part of its
efforts to increase transparency in the merger review process it
will begin publishing monthly reports of concluded mergers.
The first report, for the month of February, will be
published in March and will appear as a table with information on the
parties to the transaction, the industry, and the result
(i.e. whether the merger was concluded following the
issuance of an Advanced Ruling Certificate (ARC) under section 102
of the Competition Act, the issuance of a
"No-action Letter", the registration of a consent
agreement, or a judicial decision).
The Bureau's decision to publish a list of completed merger
reviews comes after its previously announced decision to
discontinue issuing detailed backgrounders on the facts of
particular cases. Such backgrounders had been sporadic, and
subject to permission by the parties to reveal non-public
information, but had been helpful in shedding light on the
Bureau's enforcement approach to mergers – no such
details of individual cases will be provided in the merger
The monthly reports will list all closed mergers where a
pre-merger notification was supplied to the Bureau under section
114 of the Act, and/or a request was made for an ARC (or no-action
letter and waiver of the requirement to pre-notify).
In a letter to the Senior Deputy
Commissioner of Competition, the Canadian Bar Association (CBA)
expressed concern with the publication of information that, for
various reasons, has not been made public.
As noted by the CBA, section 29 of the Competition Act
establishes a statutory confidentiality scheme designed to protect
information supplied to the Bureau in confidence, including the
fact that a merger was reviewed by the Bureau. While the
Bureau does routinely contact market participants in conducting its
review of a proposed transaction, it is not apparent that consent
by merging parties to discrete market contacts implies consent to
the much broader publication of information envisioned in the
merger register. Indeed, this conclusion is supported by
section 10(3) of the Act which requires that all inquiries be
conducted by the Commissioner in private. Whether the merger
register will be seen to be necessary for the "administration
or enforcement" of the Act (an exception to the
confidentiality requirements), appears to be an open question.
We will continue to monitor the Bureau's response (if any)
to the concerns expressed by the CBA in relation to the merger
register as well as any legal challenges that may arise by parties
challenging disclosure of a concluded transaction in the merger
register pursuant to section 29 of the Act.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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