Control of Concentration
MERGERS AND/OR ACQUISITIONS which must be notified
The Control of Concentrations Regulations (S.L. 379.08 of the Laws of Malta) require that the following transactions must be notified to the Malta Competition and Consumer Affairs Authority:
- the merging of two or more undertakings that were previously independent of each other ; or
- the acquisition by one or more undertakings or by one or more persons already controlling at least one undertaking, of direct or indirect control of the whole or parts of one or more undertakings;
- the aggregate turnover in Malta of the undertakings concerned exceeded €2,329,373,40 in the financial year prior to the transaction; AND
- each of the undertakings concerned had a turnover in Malta equivalent to at least 10% of the combined aggregate turnover (in Malta) of the undertakings concerned.
Notification is therefore required even where one or more of the undertakings concerned is not physically present in Malta, provided that the undertaking makes sales in Malta.
Details of Notification
Notification entails the completion of a Concentration Notification Form (the “CN Form”) with the following information:
- the notifying party and all parties to the concentration;
- the nature of the concentration;
- the extent to which the parties are involved in the concentration;
- the economic and financial structure of the concentration;
- the proposed structure of ownership and control;
- turnover in Malta and worldwide;
- details on product and market descriptions supporting documentation;
- all ancillary restrains;
- supporting documentation.
A concentration must be notified by the acquiring entity. However, where the transaction to be notified consists of a merger or the acquisition of joint control, it shall be notified jointly by the parties to the merger or by those acquiring joint control, as the case may be.
Timeframe for Notification
The Regulations provide specifically that concentrations cannot be put into effect until they have been duly notified to the Authority and declared lawful. Notification must be made within 15 working days following the conclusion of the relative agreement, the announcement of the public bid or the acquisition of a controlling interest. In terms of the Regulations, the implementation of a public bid is not prevented if notification has not occurred. However, in any such case, the acquirer must not exercise the voting rights attached to the securities in question, or must do so only to maintain the full value of those investments and on the basis of a specific derogation sought from and granted by the Authority.
Notification by Simplified Procedure
In the following circumstances, it may be possible to submit a simplified version of the CN Form, depending on the circumstances of the case:
- where two or more undertakings acquire joint control of a joint venture, provided that the joint venture has no, or negligible, actual or foreseen activities, within the territory of Malta because the turnover of the joint venture and/or the turnover of the contributed activities in Malta is less than €698,812.02 and the total value of assets transferred to the joint venture in Malta is less than €698,812.02;
- where two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, provided that none of the parties to the concentration is engaged in business activities in the same product and geographical market, or in a product market which is upstream or downstream of a product market in which any other party to the concentration is engaged;
- where two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking and two or more of the parties to the concentration are engaged in business activities either in the same product and geographical market and their combined market share is less than 15% or in a product market which is upstream or downstream of a product market in which any other party to the concentration is engaged and their combined market share is less than 25%.
Decisions issued by the Authority
Timeframes: The Authority is bound to issue a decision with regard to the lawfulness or otherwise of the transaction within:
- six weeks of the required notification;
- two months of notification if the notifying parties provide further information or commitments to the Authority;
four weeks of notification in the case of a notification by simplified procedure
- The parties may request the Authority to suspend such time periods for a period of three weeks in the event that the original transaction is to be revised significantly. The Authority may also suspend the time periods referred to above when it requires additional information from the parties to the transaction or where it intends to order an investigation of the undertakings concerned.
Following its examination of the relative notification and all supporting documentation within the applicable time-limits, the Authority will proceed in one of the following ways:
- where it concludes that the concentration notified does not fall within the scope of the Regulations, it shall record that finding by means of a decision;
- where it finds that the concentration notified, although falling within the scope of the Regulations, does not raise serious doubts about its lawfulness in terms of the provisions of the same Regulations, it shall decide not to oppose it and shall declare it to be a lawful concentration and such a declaration shall also cover restrictions directly related and necessary to the implementation of the concentration;
- where it finds that the concentration notified falls within the scope of the Regulations and raises serious doubts as to its lawfulness in terms of the provisions thereof, it will initiate proceedings by investigating the lawfulness of the transaction.
Following the initiation of proceedings, where the Authority finds that:
- following modification by the undertakings concerned, a notified concentration no longer raises serious doubts as to its lawfulness, it may declare the concentration to be lawful – provided that certain conditions and obligations may be attached to such decision;
- a concentration might lead to a substantial lessening of competition in the Maltese market or a part thereof, it shall issue, within four months from the date when proceedings were initiated, a decision declaring that the concentration is unlawful. In such case, where a concentration has already been implemented, the Authority may require the undertakings or assets brought together to be separated, or the cessation of joint control or any other action that may be appropriate in order to restore conditions of effective competition.
Appeal from the Authority’s Decision
The undertakings or association of undertakings concerned and any third parties (that is, other persons or undertakings showing a sufficient interest) may within fifteen days of the notification of the Authority’s final decision (or in the case of third parties within fifteen days of its publication), request the Authority to submit the decision for review by the Commission for Fair Trading. The submission of a decision for review by the Commission shall not suspend the decision of the Authority unless the Commission so directs in exceptional circumstances. The decision of the Commission is final.
GVZH Advocates provides legal guidance and support in respect of:
structuring merger and acquisition transactions;
product and geographical market definition;
handling antitrust investigation proceedings;
appeals from antitrust decisions;
drafting, reviewing and co-ordinating submissions of Concentration Notification Forms.