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In many jurisdictions the competition authorities’ activities may be affected by the coronavirus situation, and the deadlines described in the Merger Control Guide may temporarily not be relied on in this situation. You should consult with local counsel if you are involved in transactions that require merger filing. We have noted the following regarding the merger notification procedures:
Argentina: Deadlines have been suspended in all files pending before the Argentine Antitrust Commission in the period between March 16 and 25 October 2020, both dates included. According to Resolution 448/2020 deadlines will will start running again from October 26 2020.
Australia: Non-essential face-to-face meetings with the ACCC are unlikely to be available in the foreseeable future, but calls and Skype videoconferences can proceed as normal. There are no statutory timeframes for merger reviews undertaken under the ACCC's informal clearance process, but the ACCC has guidelines setting out approximate timeframes. While still uncertain, the overall impact of the COVID-19 situation on review timelines is likely to be negative, at least in the short term. The ACCC anticipates a material increase in businesses seeking urgent interim authorisation to coordinate conduct (e.g. allowing competitors to collaborate on allocating scarce resources to meet community needs, or creating a consistent industry response to the crisis). Such applications will be an important priority for the ACCC and may divert resources from the ACCC's mergers unit. The ACCC is not currently asking parties to delay applications for merger clearance or authorisations at this stage, but is encouraging parties to consider whether some could more appropriately be postponed – for example those which are not urgent or mergers that are more speculative or at a very early stage with no sale agreements in place. The ACCC is encouraging competition counsel on deals to update the ACCC on a regular basis regarding any changes in the commercial timing of mergers under consideration and/or changes in the likelihood that these mergers will proceed under current market conditions.
Austria: The Federal Act on Accompanying Measures for COVID-19 in the Judiciary, which was adopted as part of the 2nd COVID-19 Act (Federal Law Gazette I No. 16/2020) and entered into force on 23 March 2020, also has an impact on deadlines in merger filing procedures. Pursuant to Section 6 of the Act, the four-week review period for the submission of a request for examination by the Official Parties (= for the initiation of an examination of the merger by the Cartel Court in an in-depth "phase II" examination) for all merger notifications received by the Federal Competition Authority between 23 March 2020 and 30 April 2020 will uniformly start running from 1 May 2020. The same applies to the five / six-month period for rendering a decision under Section 14 Cartel Act for all applications for in-depth examination that are currently pending before the Cartel Court or made until (and including) 30 April 2020. This could potentially lead to considerable delays for all mergers that are notified between 23 March 2020 and 30 April 2020 and thus should be taken into account when establishing time tables for transactions. However, it may also be expected that the Official Parties, i.e. the Federal Competition Authority and the Federal Cartel Prosecutor, will increasingly make use of the possibility to waive their right to initiate an in-depth examination of a merger before the expiry of the prolonged review period under Section 11 (4) Cartel Act in case of unproblematic transactions caught by the new provisions in order to still allow a timely and efficient clearance of such matters. The Federal Competition Authority now allows the electronic submission of merger notifications via the WEB-ERV system (the personal submission of filings is currently not possible and the Federal Competition Authority currently does not recommend the submission of documents by postal services).
Belarus: The Government of the Republic of Belarus has determined that some documents and certificates will remain valid for another 3 months after the expiration date, if they expire from April 30 to July 31, 2020. These documents include, in particular, approvals of mergers issued by MART and preliminary approvals of transactions with stocks, shares in the charter capital of insurance companies issued by Ministry of Finance.
Brazil: The Brazilian Antitrust Authority (“CADE”) continues to function normally, with most of its officials working remotely and face-to-face replaced by conference calls. The time periods for review of merger filings already notified or yet to be duly reported have not changed so far, although CADE will carry out a contextual analysis of the cases, due to the challenges created by the COVID-19 pandemic. The analysis of more complex mergers, acquisitions, and joint ventures may be delayed, especially for those in which examination depends on market tests. On June 12, 2020, Law No. 14,010/2020 entered into force, establishing emergency and temporary rules on private legal relations in the face of the COVID-19 pandemic. Among the changes, the new law modifies relevant provisions of Law No. 12,529/2011 (the Brazilian Competition Act). Concerning the merger filings, Law No. 14,010/2020 suspends the mandatory filing to CADE of joint ventures, consortia and associative agreements entered into between March 20 and October 30, 2020, or while the state of public calamity lasts. A complete and up-to-date analysis of the COVID-19 pandemic’s impacts in Brazil is available here.
China: Due to the outbreak of Covid-19 and requirements for epidemic prevention, the SAMR announced a notice about adjustment on their working procedures on February 5, 2020. As per the notice, the merging filing work is carried out via online manners. All merger filing materials, including filing materials and supplementary materials concerned, shall be submitted to the email address (firstname.lastname@example.org ) of Anti-monopoly Bureau of the SAMR. If the materials are not able to be submitted by email, the merging parties can send them to the office of Anti-monopoly Bureau by courier. All notices, questionnaires and determinations issued by Anti-monopoly Bureau are circulated to the merging parties via email or fax.
In addition, on April 4, 2020, the SAMR made an announcement on supporting epidemic prevention and re-opening of work from anti-monopoly enforcement perspective. As per the Announcement, the SAMR declares that it will:
Colombia: All authorities will preferably provide their services through virtual channels (except for authorities that do not have virtual channels available). Administrative acts that are issued in all new proceedings, will be notified electronically.
It is mandatory for the parties involved in proceedings in process (initiated before the enactment of Decree 491, 2020) to provide the electronic address for the purpose of notification.
The authorities may, by means of an administrative act, suspend the terms in ongoing proceedings. This will affect other terms, such as the expiration or prescription of legal actions. In any case, the terms will be automatically resumed when the State of Sanitary Emergency ends.
Finally, due to the enactment of Decree 491, 2020 all matters within administrative law, including merger control, will have extended terms for answering requests from citizens made in exercise of the fundamental right to request information embodied in Article 23 of the Colombian Political Constitution.
Denmark: Deadlines in merger filing procedures are suspended in the period from 18 March to 17 August 2020.
European Union (EU): The European Commission has put in place a number of measures to ensure business continuity and has continued to ensure the implementation of the EU Merger Regulation. However, the European Commission’s services advise that they face difficulties in some cases in collecting information from the market. Consequently, parties are strongly advised to discuss the timing of notifications of transactions and to use electronic means to notify their transactions.
Finland: On 16 March 2020 the Finnish Competition and Consumer Authority (FCCA) announced that companies are encouraged to delay merger notifications if possible. The FCCA noted that it may take longer than usual to investigate mergers and acquisitions as the authority is facing potential difficulties in collecting information from third parties, such as customers, competitors and suppliers following the authority’s remote working measures. Additionally, FCCA recommends parties to submit notifications and other documentation electronically.
Germany: The following statement was issued on 17 March 2020:While the Bundeskartellamt remains operational for the time being, we kindly ask undertakings and their representatives to consider in each individual case whether, in view of the challenging circumstances, a project has to be submitted to the Bundeskartellamt right away or whether it could possibly also be submitted at a later date. https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/AktuelleMeldungen/2020/17_03_2020_Communication_Bundeskartellamt.html
Latvia: Following the legislative measures taken in the fight against the Coronavirus (Covid-19) outbreak the Competition Council continues its work without impediments. However, as far as the market situation during the pandemic is concerned, the Council has established that there is a significant issue existing in the retail sector during the COVID-19 emergency situation in the activities of retailers related to application of unfair and unreasonable sanctions and return of goods.
Malta:: The Office for Competition has issued a statement that, in the light of COVID-19, concentration notification forms - and any supporting documentation that may accompany the notification form - are to be submitted online and that the notification fee must be paid by the notifying parties via online banking. No documentation is to be sent to the Office without its prior request.
Norway:: The Ministry of Trade, Industry and Fisheries has issued a draft regulation which allows for extension of deadlines in merger control cases under the Norwegian Competition Act triggered by the outbreak of Covid-19. The exact scope and application of the draft regulation is, based on the draft alone, somewhat unclear, but could potentially result in considerably longer case handling time. The draft regulation has not yet been adopted. No date for adoption is currently set. Based on the consultation responses, the draft regulation might be subject to amendments before it possibly enters into force. The draft regulation and consultation documents are available here (in Norwegian only): Proposed extension of deadlines in merger control cases - draft regulation on exemption from the procedural rules in the Norwegian Competition Act.
Poland: During the COVID-19 pandemic, the President of the Polish Competition Authority (the PCA) has been handling cases on a regular basis. Although, the majority of case handlers work remotely there are no delays at the PCA related to the pandemic. The PCA can be contacted as usual by email, phone, fax or regular mail. However, in principle, in-person visits are not possible - the decisions issued by the PCA may be collected in person with the prior consent of the case handler. Furthermore, the PCA currently accepts paper submissions in person, but it also encourages parties to provide their submissions by regular mail or electronically, if possible.
Spain: All non-urgent administrative procedures, including merger control, have been suspended until further notice. The CNMC is able to accept and review notifications and prenotifications but the deadlines will not run and the CNMC will only take decisions where satisfied that otherwise serious harm would be caused to the parties.
The Philippines: With respect to merger control, Republic Act No. 11494, otherwise known as the “Bayanihan to Recover as One Act” (Bayanihan 2)
It should be noted that a merger or acquisition, even if not compulsorily notifiable during the two-year period from Bayanihan 2’s effectivity, may nevertheless be reviewed by the PCC motu proprio after the lapse of one year from the law’s effectivity, and then, if it is found to substantially prevent, restrict or lessen competition in the relevant market, it can be voided or approved subject to certain remedies or commitments. The PCC may also issue interim measures while its review is ongoing.
It is therefore still important for transacting parties, especially in a transaction where there are horizontal overlaps or vertical relationships between and among the seller, the buyer, and the target companies and assets, to conduct a competitive assessment of their transaction to (a) assess whether or not the transaction would raise competition-related concerns, (b) consider the risks of the PCC conducting a motu proprio review upon the lapse of the one year prohibition, (c) prepare possible defenses that may be asserted in the event that such a motu proprio review is conducted, and (d) evaluate if a voluntary notification would be the more prudent course of action to obtain deal certainty and avoid a subsequent review by the PCC.
The PCC has also indicated that it will issue implementing guidelines for pending and future transactions. It will also be important to monitor these issuances.
Turkey: The Turkish Competition Authority has not yet announced any limitations on their bandwidth and they have not requested applicants’ cooperation with special circumstances related to the ongoing COVID-19 outbreak. While things could change rapidly, it appears to be business as usual so far at the Authority. It is, however, recommended for businesses to expect a longer review process for merger filings, as the COVID-19 positive numbers are exponentially growing, and the state administrative measures are getting tougher.
United Kingdom: Due to the ongoing coronavirus (COVID-19) pandemic, the CMA is not able to accept delivery of any documents or correspondence by post or courier to any of its offices.