Merger Control 2018

The Merger Control guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.

Last Updated September 26, 2017

Jean-François Bellis is the co-founder of Van Bael & Bellis. He has extensive experience assisting clients in a broad range of antitrust issues, including cartels, dominant market positions, mergers and state aid. Jean-François has written extensively on competition law and has spoken on this subject at numerous international conferences. He is also a professor of EU competition law at the Institute of European Studies of the University of Brussels.

Van Bael & Bellis is widely acknowledged as having one of the leading practices in EU competition law. Since the early 1970s, members of the firm have been involved in many of the seminal cases in the field. With one of the largest competition practices in Brussels, Van Bael & Bellis has extensive expertise in all aspects of EU competition law. Van Bael & Bellis has assisted clients in cases at both an EU and national level, notably appearing before the European Commission and the EU courts, where the firm has acted as defence counsel in many landmark cases. Within the field of merger control specifically, Van Bael & Bellis has a dedicated team of merger control specialists and regularly represents merging parties in cases involving key issues of jurisdiction, procedure and substantive law. The firm has succeeded in obtaining clearance of numerous complex transactions before the European Commission. With its large number of lawyers qualified to practise in a number of EU Member States, the Van Bael & Bellis team also routinely helps clients to obtain merger clearance from Member State authorities for transactions which do not meet EU thresholds. The firm is also frequently called upon to co-ordinate merger control filing efforts across the world.

The continuous increase in merger activity around the world has made merger control more relevant than ever. At the same time, co-ordinating global merger filings has become an ever-more complex task as the number of countries which have merger control legislation in place has also significantly increased. As a result, an ever-increasing number of transactions require filings in a growing number of jurisdictions.

Unfortunately, this proliferation of merger control regimes has not gone hand in hand with an increase in standardisation. Each merger control regime has its own test that determines what transactions amount to a notifiable event (with some only catching changes in control while others also catch certain acquisitions of non-controlling minority stakes); its own filing thresholds (some based on turnover, some on market share, some on value of assets and some on combinations of those various tests); its own formalities for making notifications (filing fees, translations, etc); its own timelines (with quick-trigger filings in some cases, review periods of varying lengths and different possibilities of stopping the clock on such a review); and its own substantive test for review (with some jurisdictions carrying out only a competition law assessment, while others also take into account public interest issues). With many of these rules, the devil is often in the detail.

As a result of these developments, navigating a global merger review process has become much more complex. This book aims to cut through some of that complexity and provide the reader with a practical guide that covers 24 jurisdictions in a user-friendly question-and-answer format.

The questions cover all the key rules relevant for a merger control filing assessment, including: what kind of transactions have to be notified; what are the filing thresholds; what is the procedure and timeline for notification and approval; what are the substantive considerations of the authorities; and what kind of enforcement record do the authorities have? Moreover, the questions go beyond the letter of the law and probe for useful answers on how these rules are applied in practice.

For instance, the questions on applicable fines for failure to file not only ask whether such penalties exist and what their legal maximum is but, more importantly, they also ask whether these penalties are applied in practice and what penalties have been imposed recently.

As another example, many jurisdictions allow for informal pre-notification contacts with the authorities to narrow the focus of the filing and facilitate a smoother review. However, it is important to know that, in practice, pre-notification in these jurisdictions can differ.

Although by no means a substitute for seeking advice from experienced merger control counsel, this book provides clear and practical answers to most of the questions faced by any company involved in a transaction that requires merger control filings. The reader will find in this book a very useful tool for finding a way through the increasingly complex labyrinth of global merger control.

As with any work of this nature, preparing this book has been a team effort. With this in mind, I would like to thank all the authors for their contributions, as well as the Chambers team for their diligence in compiling this book.