Answer ... The notification process is mandatory. All transactions that give rise to a concentration, as defined in the Control of Concentrations Regulations, must be notified to the director general (DG) before they are implemented. A concentration notification form, referred to as ‘Form CN’, must be completed and submitted within the specified time limits.
Although there are no exemptions per se, in order to simplify and speed up the examination of concentrations that are unlikely to raise competition concerns, the notifying parties may avail of a short-form notification. This applies solely to the acquisition of joint control by two or more undertakings where:
- the turnover of the joint venture and/or the turnover of the contributed activities is less than €698,812.02 in the Maltese territory; and
- the total value of assets transferred to the joint venture is less than €698,812.02 in the Maltese territory.
In such instances, the notifying parties may be authorised to dispense with the obligation to provide certain information. Notifying parties are therefore encouraged to consult with the Office for Competition with regard to what information is required from it. A notification in short form is made by providing that information expressly stipulated in Form CN, to the exclusion of other information.
Answer ... There is no requirement to do so, but it is certainly possible to hold a pre-notification discussion with the authority before formal notification. Indeed, in practice, pre-notification meetings are recommended and are considered extremely valuable to both the notifying parties and the DG in:
- determining the precise amount of information required in a notification;
- understanding the undertakings’ products or services, competitors and customers;
- determining the applicability or otherwise of the simplified procedure;
- identifying key issues and possible competition concerns;
- ascertaining deadlines; and
- understanding the Office for Competition’s procedure.
Answer ... Notification is incumbent on the person or undertaking acquiring control of the whole or parts of one or more undertakings. This means that in the case of the acquisition of a controlling interest in one undertaking by another, the acquirer must complete the notification; whereas in the case of a public bid to acquire an undertaking, the bidder must complete the notification.
However, where the concentration consists of a merger or the acquisition of joint control, the notification must be made jointly by the parties to the merger or by those acquiring joint control.
Each party completing the notification form is responsible for the accuracy of the information that it provides.
Answer ... Yes, pursuant to Part I of the Schedule (Regulation 5) to the Control of Concentrations Regulations, a notification fee of €163.06 must be paid by the notifying party or parties on submission of the duly completed notification form.
Answer ... The information to be provided in the notification is listed in the Schedule (Regulation 5) to the Control of Concentrations Regulations. This information may be grouped as follows:
- background information;
- details of the concentration;
- ownership and control;
- personal and financial links and previous acquisitions;
- supporting documentation;
- market definitions;
- information on affected markets;
- general conditions in affected markets;
- general market information;
- cooperative effects of a joint venture;
- general matters; and
- the declaration.
Supporting documentation includes:
- copies of the final or most recent versions of all documents bringing about the concentration, whether by agreement between the parties to the concentration, acquisition of a controlling interest or a public bid;
- in a public bid, a copy of the offer document;
- copies of the most recent annual reports and accounts of all the parties to the concentration; and
- where at least one affected market is identified, copies of analyses, reports, studies and surveys submitted to or prepared for any member(s) of the board of directors, the supervisory board or the shareholders’ meeting for the purpose of assessing or analysing the concentration with respect to competitive conditions, competitors (actual and potential), and market conditions.
Answer ... Article 5 of the Control of Concentrations Regulations states that concentrations are to be notified to the DG prior to their implementation and within 15 working days of conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest.
Answer ... In principle, concentrations must be notified within 15 working days of conclusion of the agreement, announcement of the public bid or acquisition of a controlling interest - not least because one of the documents to be assessed by the Office for Competition is the agreement itself. This notwithstanding, the office would entertain the idea of having an informal pre-notification meeting even prior to the signing of definitive agreements.
Yes, a transaction cannot be put into effect before it is notified to the DG and until it has been declared lawful by the DG. However, the DG may, either before notification or after the transaction has closed, grant a derogation from this provision after considering, among other things, the effects of the suspension on the undertakings concerned or on third parties and the threat to competition posed by the concentration.
In the case of a public bid which has been notified to the DG, where such derogation is granted, the acquirer must not exercise the voting rights attached to the securities in question or must exercise the voting rights only insofar as they are intended to maintain the full value of those investments.
Answer ... Yes, the Office for Competition will publish a notification in the Government Gazette and a daily newspaper and call interested parties to submit comments within seven days of publication.
Part F of the Schedule (Regulation 5) to the Control of Concentrations Regulations grants the possibility, in the event that a notifying party believes that its interests would be harmed by the publication or divulgation to other parties of any of the information supplied to the Office for Competition, to submit sensitive information in a separate document clearly marked as ‘business secrets’, together with the reasons why this information should not be divulged or published.
In the case of mergers or joint acquisitions, or in other cases where notification is completed by more than one of the parties, business secrets may be submitted under separate cover and referred to in the notification as an annex. All such annexes must be included in the submission for a notification to be considered complete.