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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
show/hide chapter
  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
show/hide chapter
  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
show/hide chapter
  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
HONG KONG

Peter Armitage
Practice Group Head

Peter.armitage@ashurst.com

Tel: +61 2 9258 6119

Alyssa Phillips
Partner

Alyssa.phillips@ashurst.com

Tel: +61 7 3259 7352

Joshua Cole
Partner

joshua.cole@ashurst.com

Tel: +852 2846 8905

Angie Ng
Counsel

Angie.ng@ashurst.com

Tel: +61 2 9258 6275

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes, there is merger control regulation in force in Hong Kong.  

The Competition Ordinance (which came into force on 14 December 2015) prohibits mergers that have or are likely to have the effect of substantially lessening competition in Hong Kong (“Merger Rule”). 

The Merger Rule only applies to "mergers" where at least one undertaking participating in the merger either holds a carrier licence in Hong Kong within the meaning of the Telecommunications Ordinance (Cap 106) (“Carrier Licence”), or directly or indirectly controls an undertaking that holds a Carrier Licence.  Broadly, a Carrier Licence refers to a licence issued to network operators (including local and external fixed network operators and mobile network operators) that establish and maintain wired or wireless transmission facilities that carry communications between locations.

2) Which authorities enforce the merger control regulation?

The Hong Kong Competition Commission (“Commission”) and the Office of the Communications Authority (“Communications Authority), together the "Competition Authority", have concurrent jurisdiction and are jointly responsible for enforcing the Competition Ordinance.  Given the Communications Authority's specific function of regulating the telecommunications sectors (and given the restricted application of the Merger Rule as explained in topic 1), the Communications Authority would ordinarily take the role of lead authority on matters relating to the Merger Rule. 

The Competition Tribunal's (“Tribunal”) role is to adjudicate on: (a) cases brought by the Competition Authority; (b) appeals against the Competition Authority's decisions; and (c) follow-on private actions.

3) Relevant regulations and guidelines with links:

The Merger Rule is located in Schedule 7 of the Competition Ordinance (referred to in the table below).  Links to the relevant legislation, guideline and form are set out below.

Original Chinese version

Original English version

《競爭條例》(第619章)

Competition Ordinance (Cap 619)

《合併守則指引》

Guideline on the Merger Rule (“Guideline”)

表格 M: 申請把合併 或擬作 出的合併 申請把合併或擬作 出的合併豁除於合併守則適 用範圍之外的決定所需提供的資料

Merger notification form (“Form M”)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Where restrictions are directly related and necessary to the implementation of the merger agreement, they will be treated as ancillary restrictions and will be assessed as part of the merger transaction under the Merger Rule.

Restrictions that are not directly related and necessary will fall to be assessed under the prohibitions on anticompetitive agreements (“First Conduct Rule”) and abuse of market power (“Second Conduct Rule”).

5) May an authority order a split-up of a business irrespective of a merger?

The Competition Tribunal has the authority to order a split up of a business if there has been a contravention of the competition rules (which includes the Merger Rule as well as the general prohibitions in the First Conduct Rule and the Second Conduct Rule).

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Aside from the Commission and the Communications Authority, there are no other authorities in Hong Kong that will consider competition issues in the merger context or would otherwise require a filing based on competition grounds.

7) Are any parts of the territory exempted or covered by particular regulation?

No territories within Hong Kong are exempted from the Merger Rule.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is voluntary.

The only circumstance where a merger filing is mandatory is where a party is required under the Hong Kong Code on Takeovers and Mergers and Share Repurchases (“Takeovers Code”) to make a mandatory general offer (“MGO”) that would result in a "change" in relation to a Carrier Licensee. The Takeovers Code requires that a potential MGO offeror obtains prior formal consent from the Communications Authority in relation to the "change" to the Carrier Licensee, before it triggers an obligation to make a MGO.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

The Merger Rule only applies if at least one undertaking  participating in the merger either holds a Carrier Licence, or directly or indirectly controls an undertaking that holds a Carrier Licence.

A merger takes place if:

  1. two or more undertakings previously independent of each other cease to be independent of each other;
  2. one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings (this includes the creation of joint ventures); or
  3. an acquisition by one undertaking of the whole or part of the assets of another undertaking results in the acquiring undertaking being in a position to replace the acquired undertaking or to substantially replace the acquired undertaking.

10) Is "change of control" of a business required?

Yes, a merger takes place if an undertaking acquires direct or indirect control of the whole or part of another undertaking. 

11) How is “control” defined?

"Control" of an undertaking is acquired if by reason of rights, contracts and/or any other means, "decisive influence" is capable of being exercised with regards to the activities of the target undertaking and, in particular, by:

  1. ownership of or the right to use all or part of, the assets of an undertaking; or
  2. rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of any governing body of an undertaking.

"Decisive influence" refers to the power to determine decisions (including to veto such decisions) relating to the strategic commercial behaviour of an undertaking, such as the budget, business plan, major investments or the appointment of senior management.  

12) Acquisition of a minority interest

The Competition Ordinance and Guideline do not expressly address the acquisition of minority interests.  

If the acquisition of a minority interest results in an undertaking having decisive influence over the target undertaking – for instance based on veto rights, the transaction could be subject to merger control.

13) Joint ventures/joint control – which transactions constitute mergers?

The creation of a joint venture could be caught by the Merger Rule, provided the joint venture performs, on a lasting basis, all the functions of an autonomous economic entity.

"Performing all the functions of an autonomous economic entity" means that a joint venture must operate in a market and perform the functions normally carried out by an undertaking operating in that market.  The joint venture must have a management dedicated to its day-to-day operations and access to sufficient resources, including finance, staff and assets.  It must also be intended to operate for a sufficiently long period to bring about a lasting change in the structure of the undertakings concerned.

Conversely, a joint venture does not perform all the functions of an autonomous economic entity if it only takes over one specific function within the parent companies’ business activities without access to or presence in the market.  

The Competition Authority will also take into account the presence of the joint venture’s parent companies in upstream or downstream markets.  Where a substantial proportion of sales or purchases between the parents and the joint venture go on for a lengthy period and are not on an arm’s length basis, the joint venture is likely to be viewed as lacking sufficient economic autonomy in its operational activities.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

N/A

b) Market share thresholds

See topic 14.e.

c) Value of transaction thresholds

N/A

d) Assets requirements

See topic 14.e.

e) Other

There are no specific filing thresholds under the Competition Ordinance.  Instead, the question is whether a merger involving a Carrier Licensee has taken place or is to take place (see topics 1 and 9).

The Competition Authority does, however, identify the following "safe harbours" which provide an indication that mergers are unlikely to substantially lessen competition:

Concentration ratio:

If the post-merger combined market share of the four (or fewer) largest firms (CR4) in the relevant market is less than 75%, and the merged firm has a market share of less than 40%, the Competition Authority takes the view that it is unlikely that there will be a need to carry out a detailed investigation or to intervene.  Where the CR4 is 75% or more, the Competition Authorityis unlikely to investigate the transaction if the combined market share of the merged entity is less than 15% of the relevant market.

Herfindahl-Hirschman Index (HHI): 

  1. where post-merger HHI is less than 1,000 in the relevant market; 
  2. where the post-merger HHI is between 1,000 and 1,800 and the merger produces an increase in the HHI of less than 100 in the relevant market; or 
  3. where the post-merger HHI is more than 1,800, and the merger produces an increase in the HHI of less than 50.

15) Special thresholds for particular businesses

As explained in topic 1, the Merger Rule only applies to mergers involving at least one undertaking holding a carrier licence within the meaning of the Telecommunications Ordinance, and there are no special thresholds for particular businesses.

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

Neither the Competition Ordinance nor Guideline expressly refer to whether or when a series of transactions must be treated as one transaction. 

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

The Competition Ordinance does not expressly address the issue of a temporary change of control.  

The Guideline, however, indicates that in general, the Competition Authority will not be concerned about changes in the control of undertakings which are not of a lasting nature.  Changes of control of undertakings which are purely transitory in nature, for example, a transaction that is short term and is only an intermediary step among several operations occurring in succession are unlikely to have any effect on competition in the relevant market.

20) Special industries, owners or types of transactions

The Merger Rule does not apply to statutory bodies in Hong Kong, unless specified  in a regulation.  There are currently six statutory bodies which are not exempt from the Merger Rule and these are:

  1. Ocean Park Corporation;
  2. Matilda and War Memorial Hospital;
  3. Kadoorie Farm and Botanic Garden Corporation;
  4. The Helena May;
  5. Federation of Hong Kong Industries; and
  6. The general committee of the federation of Hong Kong Industries.

21) Transactions involving only foreign businesses (foreign-to-foreign)

22) No overlap of activities of the parties

Transactions will be caught by the Merger Rule if at least one undertaking (i.e., be it the acquirer or target) participating in the transaction either holds a Carrier Licence in Hong Kong; or directly/indirectly controls an undertaking that holds a Carrier Licence in Hong Kong.

23) Other exemptions from notification duty even if thresholds ARE met?

Not applicable as the merger regime is voluntary.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The Competition Authority may seek to oppose a merger in the Tribunal even if the transaction falls within the two safe harbours.  The Guideline states that while the Competition Authority is unlikely to further assess any mergers which fall within the safe harbor thresholds, it may still commence investigation in "appropriate circumstances".

Referral to and from other authorities

26) Referral within the jurisdiction

The Competition Authority may be notified of allegedly anticompetitive mergers by other Hong Kong regulators.  The Commission's website states that the Commission will "collaborate with other local regulators… to achieve effective enforcement". 

27) Referral from another jurisdiction

The Competition Authority may be notified of allegedly anticompetitive mergers by overseas competition authorities.  The Commission's website states that the Commission will "collaborate with…overseas competition authorities to achieve effective enforcement".

28) Referral to another jurisdiction

There is nothing within the Competition Ordinance or Guideline which prohibits the Competition Authority from referring a matter to another jurisdiction.

29) May the merging parties request or oppose a referral decision?

Neither the Competition Ordinance nor Guideline expressly address this point.

Filing requirements and fees

30) Stage of transaction when notification must be filed

As notification is voluntary (with the exception explained in topic 8), there is no specified deadline to lodge a filing.  However, given anticompetitive mergers could be unwound, the Guideline encourages merging parties to contact the Competition Authority "at an early stage" to understand whether the Competition Authority has any concerns about a proposed transaction. 

31) Pre-notification consultations

Merging parties are encouraged to contact the Competition Authority to discuss a proposed merger and seek its non-binding informal advice on whether the merger would raise competition concerns.  

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Where a proposed transaction would require a party to make a mandatory general offer (“MGO”) under the Takeovers Code and result in a change to a Carrier Licensee, it is mandatory that the potential MGO offeror obtains prior formal consent from the Competition Authority.

33) Forms available for completing a notification

Merging parties may seek the Competition Authority's view on whether the merger or proposed merger is likely to give rise to concerns under the Merger Rule in two ways: (a) through the "informal advice" route; or (b) through the "Decision" route.  In practice, parties submit applications for informal advice or a Decision pursuant to the Merger Rule to the Communications Authority rather than the Commission as the former would ordinarily take the role of lead authority on Merger Rule matters (see topic 1).  There is no need to submit applications to both the Communications Authority and the Commission.

Informal advice route

Pursuant to the informal advice route, the Competition Authority will advise the parties requesting the advice whether the proposed merger is likely to give rise to concerns under the Merger Rule on a non-binding and confidential basis.  

Although there are no prescribed forms under this route, the Competition Authority expects parties to provide some evidence that either the heads of agreement, term sheet or sale and purchase agreement are in place.  Parties may also make reference to the type of information listed in "Form M", to the extent where it is applicable, when submitting their notification.

Decision route

Pursuant to the Decision route, parties may apply to the Commission for a decision as to whether the merger is: (a) excluded from the application of the Merger Rule by or as a result of economic efficiencies that arise or may arise from the merger outweighing the adverse effects caused by any lessening of competition; or (b) excluded from the application of the Merger Rule by virtue of the exemption for statutory bodies in Hong Kong or the exemption for specified persons and persons engaged in specified activities (i.e., as determined by the Chief Executive in Council by means of regulations) of the Competition Ordinance.

If a formal decision from the Competition Authority is sought, then the information required is set out in Form M.

34) Languages that may be applied in notifications and communication

In practice, notifications and communications are submitted in English.  Form M states that where supporting documents are not available in Chinese or English, applicants should provide a Chinese or English translation of the document (i.e., suggesting that supporting documents can be submitted in Chinese as well).

35) Documents that must be supplied with notification

Informal advice route

See topic 33.

Decision route

Information to be provided includes the parties' general corporate information and business activities, description of the transaction, proposed market definition, market shares, competition analysis and grounds for exclusion.  Supporting documents required include "all documents necessary to support statements and explanations made" in Form M

Examples of supporting documents include: 

  1. documents bringing about the merger; 
  2. annual report and accounts; and
  3. internal documents prepared for the board of directors indicating transaction structure and rationale and business plans for each merging party and/or the concerned carrier licensees under their control.

36) Filing fees

Informal advice route

There is no filing fee involved for informal advice. 

Decision route

A fee of HKD 500,000 is payable by a party applying to the Competition Authority for a decision as to whether the merger falls within an exemption.  For the Communications Authority specifically, the fee is equal to the costs and expenses incurred in making a decision, capped at HKD 500,000. 

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

No, as filing is voluntary.  

However, in the case where a party is required under the Takeovers Code to make a mandatory general offer (“MGO”) that would result in a "change" in relation to a carrier licensee under the Telecommunications Ordinance (Cap 106), the Takeovers Code requires that a potential MGO offeror obtains formal consent from the Communications Authority in relation to the "change" to the carrier licensee, before it triggers an obligation to make a MGO.

38) May the parties get permission to implement before approval?

Not applicable as filing is voluntary.

39) Due diligence and other preparatory steps

If appropriate controls are in place around the exchange of commercially sensitive information, parties can safely conduct the due diligence required to complete the transaction.  Normally, such controls should involve a competition protocol, and a small centralised team with whom information can be shared on a controlled basis. 

Merger parties that are competitors should not proceed to take steps to integrate the businesses until after completion.

40) Veto rights before closing and "Ordinary course of business" clauses

Given filing is voluntary, there are no specified sanctions for implementing the merger before clearance.

However, in the case where a party is required under the Takeovers Code to make a mandatory general offer (“MGO”) that would result in a "change" in relation to a carrier licensee under the Telecommunications Ordinance (Cap 106), the Takeovers Code requires that a potential MGO offeror obtains formal consent from the Communications Authority in relation to the "change" to the carrier licensee, before it triggers an obligation to make an MGO.  Failure to do so may result in disciplinary action under the Takeovers Code.  Sanctions include issuance of a public apology, public censure, and requirements on the company involved, licensed representatives and registered institutions not to act or implement the merger or acquisition. 

41) Implementation outside the jurisdiction before approval – "Carve out"

Neither the Competition Ordinance nor the Guideline expressly address whether or not the Competition Authority may accept a carve out where the transaction is international.

42) Consequences of implementing without approval/permission

Given filing is voluntary, there are no consequences for implementing without approval/permission.

See topic 40 with regards to consequences of implementing without approval/permission in the context where a party is required under the Takeovers Code to make an MGO that would result in a "change" in relation to a carrier licensee under the Telecommunications Ordinance (Cap 106).

The process – phases and deadlines

43) Phases and deadlines

Informal advice route

There is no indicative timetable in relation to review periods for informal advice.  The Guideline states that the Competition Authority will try to deal with requests in an "efficient and timely manner and within the parties' requested timeframe, where that is possible".

Decision route

Before deciding on an application for a Decision, the Competition Authority must publish a notice of the application on its website.  The Competition Authority must then allow at least a period of 30 days for representations to be submitted, and consider any representations about the application.

There are no statutory timelines for review of applications for formal decision.  The time taken by the Competition Authority to make a decision will depend on the nature and complexity of the transaction in question and the resources available to the Competition Authority at that point in time.  The Guideline states that the Competition Authority will endeavor to process applications in an efficient and timely manner with due regard being paid to the circumstances of the case.

Other deadlines

Separately, the Competition Authority can, within 30 days from the day on which it has become or ought to have become aware of the merger, commence an investigation into the merger.  If it has reasonable cause to believe that the merger may contravene the Merger Rule it can, within 6 months from the day that the merger was completed or it became aware of the merger (whichever is later), bring proceedings before the Tribunal.

Furthermore, as explained in topic 47, before commitments are accepted by the Competition Authority, it must give notice of the proposed commitment to those likely affected by the merger and proposed commitment, and allow for at least 15 days for submissions.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The substantive test is whether the merger has, or is likely to have, the effect of substantially lessening competition in Hong Kong.  The focus of the Competition Authority's assessment is the likely competitive effects the merger has on the relevant market(s) in Hong Kong.  The Competition Authority will generally interpret a substantial lessening of competition by reference to whether the merger is likely to encourage one or more firms to raise prices, reduce output, limit innovation, or otherwise harm consumers as a result of diminished competitive constraints or incentives.  

The term "substantial" is intended to avoid application of the regime to situations where there are limited effects on the competitive process, such as may occur where there is day-to-day injury to individual competitors but the competitive process within the relevant market remains strong. 

45) May any non-competition issues be considered?

Non-competition issues are considered in the following ways:

  1. a merger will be allowed to proceed if the economic efficiencies that arise or may arise from the merger outweigh the adverse effects caused by any lessening of competition in Hong Kong; and
  2. the Chief Executive in Council may exempt a specific merger or proposed merger from the Merger Rule, if there are exceptional and compelling reasons of public policy for doing so.

46) Special tests or criteria applicable for joint ventures

See topic 13 about how joint ventures are viewed under the merger regime. 

47) Decisions and remedies/commitments available

Commitments to prevent the Competition Authority from investigating or bringing an action in the Tribunal 

In order for the Competition Authority not to take, or to cease, enforcement actions, the parties may offer remedies to eliminate or avoid the effect of substantially lessening competition in the relevant market.  Guidelines state that the Competition Authority will consider accepting both structural and/or behavioural remedies, however that structural remedies are preferred. 

The commitments are given in exchange for the Competition Authority agreeing not to investigate the conduct and not to bring an action in the Tribunal.  

Before the commitments are accepted by the Competition Authority, it must give notice of the proposed commitment to those likely affected by the merger and proposed commitment, and allow for at least 15 days for submissions. 

Decision

The Competition Authority may make a Decision as to whether or not the merger is excluded from the application of the Merger Rule.  A Decision by the Competition Authority may include conditions or limitations subject to which it is to have effect.  

If the Competition Authority Authority decides that the merger is or would not be in breach of the Merger Rule, then the undertaking has immunity from the Competition Authority bringing an action unless the Competition Authority rescinds its decision, the merger is implemented in a materially different manner, or the undertaking fails to comply with a condition.  

If the Competition Authority decides that the merger is in breach of the Merger Rule, then the Competition Authority may bring proceedings before the Tribunal seeking orders to stop the contravention.

Publicity and access to the file

48) How and when will details about the merger be published?

Informal advice route

The informal advice process is confidential, and therefore only the parties will be informed of the Competition Authority's opinion.  As noted in topic 31, there is no timetable for providing informal advice but parties may request a preferred time frame.

Decision route

The Competition Authority must make Decisions available in an online register, at the Competition Authority's offices and in any other manner which it considers appropriate. 

Information regarding the merger will first become available when the Competition Authority publishes a notice of the application giving brief details of the proposed transaction and inviting submissions.  After the Decision is made, the Competition Authority will publish a report of its Decision.

49) Access to the file for the merging parties and third parties

The merging parties:

There is no process available to merger parties to access the Competition Authority's "file" as of right.  However, if litigation results, then documents may be produced to the relevant parties pursuant to Tribunal discovery processes.

Third parties:

There is no process available to third parties to access the Competition Authority's "file" as of right.  However, if litigation results, then documents may be produced to the relevant parties pursuant to Tribunal discovery processes.

Judicial review

50) Who can appeal and what may be appealed?

Action by the Competition Authority

If the Competition Authority, after carrying out an investigation, has reasonable cause to believe that a merger has or an anticipated merger is likely to contravene the Merger Rule, or if the Competition Authority has come to that view after an application for a formal decision, it may bring proceedings before the Tribunal seeking orders to stop the potential contravention.

Appeal of formal decision to the Tribunal 

If an undertaking applied for a Decision to the Competition Authority, and the Decision is unfavourably made, that undertaking may then apply for a review of the decision to the Tribunal.  

Such an application may only be made with leave of the Tribunal.  The Tribunal may not grant leave unless it is satisfied that either: (a) the review has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the review should be heard.

Appeal of judgment of the Tribunal to the Court of Appeal 

Generally, an appeal lies as of right to the Court of Appeal against any decision, determination or order of the Tribunal under the Competition Ordinance.  The Court of Appeal has jurisdiction to hear and determine an appeal and may: 

  1. confirm, set aside or vary the decision, determination or order of the Tribunal;
  2. where the decision, determination or order of the Tribunal is set aside, substitute any other decision, determination or order it considers appropriate; or
  3. remit the matter in question to the Tribunal for reconsideration in the light of the decision of the Court of Appeal.

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