GMAP Merger Control Minute October 2017
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Austria and Germany: value of transaction thresholds
Austria's value of transaction threshold is due to enter into force on 1 November. Germany's new threshold came into force on 9 June. We understand that the authorities in the two jurisdictions are currently preparing guidelines on how the thresholds should be applied. Under the new rules in Germany, participating undertakings must still meet the existing global threshold of EUR 500 million and the first domestic threshold of EUR 25 million. However, if the target has less than EUR 5 million sales in Germany (meaning that the second domestic threshold is not met), the transaction will nevertheless require a filing if the two following conditions are both met:
1. the “value of the consideration” for the transaction exceeds EUR 400 million; and
2.the target is significantly active in Germany
Read more about the German thresholds in our article.
China: revised merger control guidelines
On 8 September, MOFCOM published draft merger guidelines covering the definition of a concentration, the parties to a concentration, the calculation of turnover, filing procedure, the simplified filing process and MOFCOM’s power to review cases where a filing obligation is not triggered but competition concerns may nonetheless arise. Our lawyers participated in several rounds of 'closed-door' discussions organised by MOFCOM prior to the draft being published and have provided input. The final version of the rules is expected later this year.
India: 30 day filing deadline removed
The requirement on parties to notify transactions within 30 days of the relevant trigger event has been removed in India. Notifiable transactions will still require approval from the Competition Commission of India prior to closing (and remain subject to penalties for gun-jumping) but elimination of this deadline is a welcome development.
Italy: new thresholds are now in force
New thresholds came into force on 29 August 2017 and are as follows:
1. combined domestic turnover of all the concerned parties exceeds EUR 492 million (down from EUR 499 million); and
2. domestic turnover of at least two of the concerned parties exceeds EUR 30 million (down from EUR 50 million) now refers to two parties as opposed to just the target's domestic revenue.
Serbia: first gun-jumping fine imposed
In its first gun jumping case, the Serbian Commission for the Protection of Competition recently imposed a fine of approx. EUR 56,000 on a local company for implementing its takeover of another Serbian company prior to obtaining merger clearance.
South Africa: filing thresholds and filing fees increase
Separate thresholds apply for "large" and "intermediate" mergers in South Africa. This classification determines the filing fee and how the review process is conducted. Changes to the thresholds for intermediate merger notifications came into effect on 1 October 2017. They are:
1. merging parties’ combined assets or turnover in, into or from South Africa exceeds ZAR 600 million (approx. USD 44 million/EUR 38 million. Increased from ZAR 560 million), and
2.the target firm’s assets in South Africa or turnover generated in, into or from South Africa exceeds ZAR 100 million (approx. USD 7 million/EUR 6 million. Increased from ZAR 80 million).
The threshold for large mergers are unchanged. Filing fees have been increased to ZAR 150,000 (approx. USD 11,000/EUR 9,400) for intermediate mergers and ZAR 500,000 (approx. USD 37,000/EUR 31,000) for large mergers.
South Korea: threshold changes entered into force on 19 October
Changes to the jurisdictional thresholds took effect in South Korea as expected on 19 October. The amendments have raised the total assets/total turnover threshold amounts of each party from KRW 200 billion to KRW 300 billion (approx. USD 265 million/EUR 225 million) and from KRW 20 billion to KRW 30 billion (approx. USD 26 million/EUR 22 million) for the 'size of the parties' test. An increase of the local nexus/Korean sales threshold from KRW 20 billion to KRW 30 billion has also taken effect.
Taiwan: minor amendments to Fair Trade Law
The amendments effective as of 14 June include changes to the review period for pre-notification (from 30 calendar days to 30 working days) and the extension period (now should not exceed 60 working days). The Commission is also now empowered to seek public opinions on a proposed merger. Competent industry authorities or academic research institutes may be consulted on the economic benefits and disadvantages of a proposed transaction.
Tanzania: increased thresholds and heightened enforcement
The jurisdictional threshold in Tanzania increased from TZS 800 million to TZS 3.5 billion in June 2017. Unlike the prior rules which considered only global asset value, the new rules consider the parties' combined global assets or turnover. The acquisition of non-controlling minority interests can trigger a filing requirement in Tanzania and we understand that the Commission is currently taking an aggressive approach in requiring notifications for such transactions. Fines may be imposed for failure to notify.
Thailand: new trade competition law in force but merger control regulations awaited
The new Trade Competition Act of Thailand became effective on 5 October 2017. Regulations specifying the merger control thresholds and filing/notification procedures are expected soon.