Merger of Companies or Selling a Business
Contents:
1. Legislative framework and competent authority: what is the relevant legislation
2. Scope of legislation: what constitutes a concentration?
3. Are there any exemptions from the rule and are there any rules on particular sectors?
(Sections 6(4) & 5 of the Law)
4. What is the definition of ‘control’?
(Section 6(2) & (3) of the Law)
5. Can a concentration arise from multiple legal acts or in stages?
(Sections 7 & 8 of the Law)
6. What are the statutory thresholds for notification and are there any exceptions?
(Sections 3 & 5 and Schedule II of the Law)
7. Is filing mandatory or voluntary? If mandatory, do any exceptions exist?
(Sections 10 & 13 of the Law)
8. Filing formalities: what are the deadlines for filing?
(Section 10 of the Law)
9. Which parties are under the obligation to file a notification and do any filing fees apply?
(Sections 10 & 12 and Schedule III of the Law)
10. Do foreign-to-foreign concentrations have to be notified?
(Sections 3 & 6 of the Law)
11. Does implementation of the transaction have to be suspended prior to clearance?
(Sections 11, 24(2) & 29 of the Law)
12. What are the waiting periods?
(Sections 23, 24, 27, 29 & 30 of the Law)
13. Documentation: What is the level of detail required in the preparation of a filing?
(Schedule III of the Law)
14. Investigation procedure and timetable: What are the typical steps phases of the investigation?
(Sections 10, 15, 16, 17, 22 & 24 of the Law)
15. Can concentrations be cleared temporarily?
(Sections 31 & 32 of the Law)
16. What are the sanctions for pre-clearance implementation of the concentration or for any other infringment of the Law?
(Section 40 of the Law)
17. Are there any sanctions for supplying wrong or missing information?
(Section 40 of the Law)
18. What is the procedure followed in case of an infringement of the Law?
(Section 34 of the Law)
In case of any infringement of the provisions of the Law, including the statutory obligation for filing, the Commission prepares a statement of objections and issues summons to the persons to whom the statement of objections is addressed as well as to any person who may help in the assessment of the investigation, requiring their appearance before it in the course of a hearing.
The persons to whom the statement of objections is forwarded are given the opportunity for submitting written observations thereon within a reasonable time-limit, which may be justifiably extended. When submitting written observations, the persons concerned must clearly define any confidential information and/or business secrets therein included, explaining why such information should not be published or disclosed and the reasons why disclosure thereof would be damaging to the undertakings concerned. The non-confidential version of the written observations should also be submitted.
In the event where the said persons omit and/or refuse to submit any written observations within the defined time-limit, the Commission may proceed to the issue of its decision.
For the purposes of the above, the Commission is not bound to communicate to the persons concerned the whole case file, however, it is bound to communicate all documents used as evidence for the compilation of the statement of objections and that will subsequently also be used for the issuing of its decision, with the exception of those documents constituting business secrets.
19. What is the substantive test for clearance and is there a special substantive test for joint ventures?
(Section 19 of the Law)
20. What are the main factors that the Commission investigates during an assessment?
(Schedule I of the Law)
21.Is it possible to remedy competition concerns, by giving divestment undertakings or other remedies?
(Sections 22, 25, 26, 27 & 28 of the Law)
22. What are the basic provisions applicable to a divestment or other remedy?
(Section 25 and Schedule IV of the Law)
23. What publicity is given to the process and how is confidential information protected from disclosure?
(Sections 22, 28 & 48 of the Law)
24. Cross-border regulatory cooperation: does the Commission cooperate with antitrust authorities in other jurisdictions?
(Section 54 of the Law)
25. Available avenues: What are the opportunities for appeal or judicial review?
(Section 146 of the Constitution)