It is not mandatory for merger parties to notify CCCS of their merger or anticipated merger. However, parties may do so if they have serious concerns as to whether the merger or anticipated merger has led to or may lead to a substantial lessening of competition.
Generally, we are unlikely to intervene in a merger situation unless:
- the merged entity will have/has a market share of at least 40%; or
- the merged entity will have/has a market share of between 20% and 40% AND the post-merger combined market share of the three largest firms (CR3) is at least 70%.
To ascertain if there is a need to file a merger notification with CCCS, merger parties should first find out if the merger is excluded or exempted. Click here for more information.
If the merger is not excluded or exempted, merger parties are strongly encouraged to conduct a self-assessment to check if they run the risk of infringing Section 54 of the Act. To do so, they should refer to the CCCS Guidelines on the Substantive Assessment of Mergers 2016.
If merger parties remain concerned about infringing the Act after performing a self-assessment and wish to submit a notification for CCCS’s decision, they may either submit a formal application to CCCS or contact CCCS to set up a pre-notification discussion (PND), prior to submitting a formal application.
CCCS is unable to accept the notification of an anticipated merger if it is still confidential. This is because it must be able to make the transaction known to the public in order to get third party inputs about the transaction.
However, businesses that wish to keep their mergers confidential for the time being, but yet wish to get an indication from CCCS on whether or not their mergers would infringe the Competition Act may approach CCCS for confidential advice. Details on the process for confidential advice can be found in the CCCS Guidelines on Merger Procedures 2012.