COVID-19 NOTICE – TEMPORARY MODIFICATIONS OF PROCEDURES
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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
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  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
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  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
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  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)
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  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
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  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?

 
MALAYSIA

Shanti Mogan
Co-Head of the Competition Law & Antitrust Practice Group - Partner

shanti@shearndelamore.com

Tel: +603 2027 2921

Anand Raj
Co-Head of the Competition Law & Antitrust Practice Group - Partner

anand@shearndelamore.com

Tel: +603 2027 2828

Lilien Wong
Partner

lilien.wong@shearndelamore.com

Tel: +603 2027 2744

Haniza Abdul Ghani
Associate

haniza.ghani@shearndelamore.com

Tel: +603 2027 2612

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?

There is presently no general merger control law under the Competition Act 2010. An amendment to the Competition Act 2010 to include a merger control regime is expected in the near future. 

However, there is industry specific merger regulation for the aviation industry under the Malaysian Aviation Commission Act 2015 (Act 771) and for the communications and multimedia industry under the Communications and Multimedia Act 1998 (Act 558).

2) Which authorities enforce the merger control regulation?

The Malaysia Aviation Commission with respect to activities covered by the Malaysian Aviation Commission Act 2015.  

The Malaysian Communications and Multimedia Commission with respect to activities covered by the Communications and Multimedia Act 1998.  

3) Relevant regulations and guidelines with links:

Aviation - Official English version

Malaysian Aviation Commission Act 2015  (Act 771) (Part VII Division 4)  

Guidelines on Substantive Assessment of Mergers

Guidelines on Notification and Application Procedure for an Anticipated Merger or a Merger

Application Form for an Anticipated Merger or a Merger

Guidelines on the Determination of Financial Penalties  

Communication and Multimedia - Official English version

Communications and Multimedia Act 1998 (Act 588) (Chapter 2 of Part VI)

Guidelines on Mergers and Acquisitions

Guidelines for the Authorisation of Conduct

Guideline on Dominant Position

Guideline on Substantial Lessening of Competition

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

Whilst there is no general merger control regime in force, general competition regulation is relevant to ancillary restrictions and activities ancillary to the mergers.  

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

No.

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.)

Besides the specific merger control rules for the aviation and communications and multimedia industries, the Capital Market and Services Act 2007 (together with the subsidiary legislations issued thereunder i.e. the Malaysian Code on Take-overs and Mergers 2016 and the Rules on Take-overs, Mergers and Compulsory Acquisitions) requires certain take-overs, mergers and compulsory acquisitions to be notified to and approved by the Securities Commission Malaysia. 

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

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is voluntary both under the Malaysian Aviation Commission Act 2015 and under the Communications and Multimedia Act 1998.

Types of transactions to file – what constitutes a merger

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

Not applicable under the Competition Act 2010.

Different considerations apply for the voluntary notifications under the Malaysian Aviation Commission Act 2015 (Act 771) and the voluntary application for assessments under the Communications and Multimedia Act 1998 (Act 588).

Under the Malaysian Aviation Commission Act 2015, a merger subject to merger control is defined as a transaction whereby: 

  1. two or more enterprises, previously independent of one another, merge;
  2. one or more persons or enterprises acquire direct or indirect control of the whole or part of one or more enterprises;
  3. an entity acquires assets (including goodwill) of another entity which results in the former entity replacing or substantially replacing the latter in the business it was engaged in immediately before the acquisition; or
  4. a joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity.

Under the Communications and Multimedia Act 1998, a merger subject to merger control is defined as a transaction whereby: 

  1. two or more previously independent entities merge by: (i) combining into a new firm, with each entity ceasing to exist as separate legal entities; or (ii) one entity being absorbed into another, where the former entity ceases to exist as a legal entity and the latter firm retaining its legal identity;
  2. one or more entities acquire direct or indirect control of whole or part of one or more of other entities;
  3. an entity acquires assets (including goodwill) of another entity which results in the former entity replacing the latter in the business it was engaged in immediately before the acquisition; or
  4. a joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity, and involves changes in the shareholding structure of the parent entities.

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

See topic 9.

11) How is “control” defined?

The Malaysian Aviation Commission Act 2015 provides that ”control”, in relation to an enterprise, shall be regarded as existing if, by reason of rights, contracts or any other means, or any combination of rights, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the enterprise and, in particular, by

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

Further, “control” is acquired by any person or other enterprise if he or it becomes a holder of the rights or contracts, or entitled to use the other means, referred to above at (2) or, although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.

Under the Communications and Multimedia Act 1998, the Malaysian Communications and Multimedia Commission will consider “control” to exist when one entity can exercise decisive influence over the activities of another entity by reason of rights, contracts or other means. A firm can obtain control of another firm through:

  1. legal control, i.e. having more than 50% ownership of all voting rights in an entity (i.e. all the voting rights attributable to the share capital of a firm which are currently exercisable at a general meeting); or
  2. de-facto control, i.e. circumstances in a relationship between two or more entities which allows one firm to influence another’s activities to affect its key strategic commercial behaviour. Circumstances which may suggest de-facto control exists include: (i) an agreement that one party will cease all production and only source its requirements from another; (ii) the existence of financial or lending arrangements, which allow one entity to gain decisive influence over another entity’s activities; or (iii) the ability of minority shareholders to veto decisions essential for the strategic commercial behaviour of the undertaking through additional rights (such as decisions relating to budgets or business plans).

12) Acquisition of a minority interest

Acquisition of a minority interest may be considered to involve a change of control, if veto decisions essential for the strategic commercial behaviour of the enterprise is acquired - See topic 11.

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

Filing is voluntary under the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. But the Malaysian Aviation Commission and the Malaysian Communications and Multimedia Commission may initiate investigations and ultimately prohibit any transactions involving the establishment of a joint venture, changes in group of controlling owners and significant changes in the activities of the joint venture. 

Thresholds that decide whether a merger notification must be filed

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

a) Turnover thresholds

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998.

However, there are specific turn over thresholds under the Guidelines on Notification and Application Procedure for an Anticipated Merger or a Merger issued pursuant to the Malaysian Aviation Commission Act to assist merging parties to determine whether to submit a voluntary filing to the Malaysian Aviation Commission.

b) Market share thresholds

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. 

However, the Guidelines on Mergers and Acquisitions issued pursuant to the Communications and Multimedia Act 1998 states that voluntary filing to the Malaysian Communications and Multimedia Commission may be relevant where one of the parties is in a dominant position or where the transaction will create a dominant position. A market share of 40% or more is stated to be indicative of dominance. 

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. 

However, the Guidelines on Mergers and Acquisitions issued pursuant to the Communications and Multimedia Act 1998 states that voluntary filing to the Malaysian Communications and Multimedia Commission may be relevant where one of the parties is subject to investigations by the Malaysian Communications and Multimedia Commission and/or where there is significant cross shareholding between the merging parties.

15) Special thresholds for particular businesses

N/A

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

N/A

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

19) Temporary change of control

N/A

20) Special industries, owners or types of transactions

N/A

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

N/A

22) No overlap of activities of the parties

N/A

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

N/A

Merger control even if thresholds are NOT met

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

There is no general merger control regime under the Competition Act 2010. In respect of the specific industries regulated by the Malaysian Aviation Commission Act 2015 (Act 771) and the Communications and Multimedia Act 1998 (Act 588), voluntary filing is permitted (i.e. whether or not the thresholds are exceeded). 

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

As explained in topic 8 and 14, merger filing is voluntary. The thresholds described in topic 14 are only guidelines as to when a voluntary notification may be relevant. 

With respect to the Malaysian Aviation Commission, the guidelines provide that even if the thresholds are not met, it still has the power to investigate an anticipated merger or a merger where there is reason to suspect that it has resulted or may be expected to result in the substantive lessening of competition in any aviation service market.

The Malaysian Communications and Multimedia Commission states that M&As which do not meet the thresholds are unlikely to require investigation and may not need to be notified to MCMC or submitted for assessment. Having said that, as the Commission regulates general competition practices in the industry which include any conduct which has the purpose of substantially lessening competition in a communications market, the Commission retains the general power to enquire on and/or investigate an impugned transaction even if the thresholds are not met.    

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A  

28) Referral to another jurisdiction

N/A

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

N/A

Filing requirements and fees

30) Stage of transaction when notification must be filed

Under the Malaysian Aviation Commission Act 2015, voluntary notification for anticipated mergers may be filed when the merger parties have a bona fide intention to proceed with the anticipated merger and the anticipated merger has been made public by any party or by the Commission. The conclusion of binding agreements are not required. As for a merger that has already been completed, the notification and application to the Malaysia Aviation Commission may be made at any time but a merger party is encouraged to make a notification and an application to the Commission as soon as possible after the merger is completed.

Similarly under the Communications and Multimedia Act 1998, the Malaysian Communications and Multimedia Commission encourages merger parties to only file a notification when the merger has been publicly announced (or is made known to the public generally) and the parties have a bona fide intention to proceed with the merger. The conclusion of binding agreements are not required.

31) Pre-notification consultations

Under the Malaysian Aviation Commission Act 2015, pre-notification consultations are not allowed.

Under the Communications and Multimedia Act 1998, pre-notification consultations are allowed on a limited and confidential basis.

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

See topic 6.

33) Forms available for completing a notification

See topic 3.

34) Languages that may be applied in notifications and communication

English (insofar as this is relevant in the context of the Malaysian Aviation Commission Act 2015 and the Communications and Multimedia Act 1998).

35) Documents that must be supplied with notification

Under the Malaysian Aviation Commission Act 2015, the documents to be supplied with a merger notification include:

  1. A copy of the certificate of incorporation, Memorandum of Association, Article of Association, Form 58 of the Companies Act 2016 (or its equivalent), or any proof of business registration of each party to the merger, whichever is applicable. Such copy shall be certified true by a director or company secretary of the relevant party;
  2. Any proof of shareholding such as register of members, return of allotment of shares or shareholders’ agreement;
  3. Any proof of the organisational structure and decision-making mechanism of each party to the merger;
  4. A copy of the most recent annual report and audited accounts of the parties to the merger;
  5. The latest versions of the transaction documents, which include sale and purchase agreements, heads of agreement, offer documents, contracts, and any related agreements. Such documents shall be certified true by a director or company secretary of a party to the said transaction;
  6. Diagrams to show the change in the ownership structure;
  7. Documents on sources of funding or any other documents to show the existence of indirect control (if any);
  8. A copy of evidence or data to substantiate the explanation on the relevant aviation service market definition. This may include any study that analysed the relevant aviation service market, market research, interview with buyers or sellers, or consumer surveys;
  9. Data on the number of enterprises in a relevant aviation service market, their market shares in terms of sales revenue, sales volume, or capacity, and concentration ratios; 
  10. Details of each new or potential competing enterprise by full name, full address of the registered office and the principal place of business, contact number, and a contact person;
  11. Supporting documents prepared for the purpose of analysing competitive environments and competitors (existing and potential), and general market conditions; and
  12. Provide data to support any monetary or numerical estimates of the value of the economic efficiencies and reasoning upon which the data relies.

Under the Communications and Multimedia Act 1998, the documents to be supplied with a merger notification include:

  1. The merger parties’ incorporation documents, shareholding information, information on related entities, addresses for service, information on beneficiaries;
  2. A copy of the Annual Reports and accounts of each merger party for the past three (3) financial years;
  3. Information on the merging party’s reporting obligations to notify other relevant agencies or authorities in respect of their merger and the applicable timelines by those agencies or authorities;
  4. Information on the transaction including the structure, status, identification of the relevant markets, documents prepared to evaluate the proposed transaction, timelines and key milestones planned for the transaction, commercial rationale, valuation, shareholding structure of the newly merged entity, composition of the management team of the new or acquired entity;
  5. Information on the merging parties’ goods and services sold by the merging parties, customer segments, any dealings involving horizontal or vertical arrangements or other cooperative arrangements, other acquisitions within the last 5 years, details of the total group turnover of each party to the merger (worldwide and Malaysia);
  6. Copies of all analyses, reports, studies, surveys, and similar documents prepared for the purpose of assessing, analysing or giving a view on the merger with respect to the relevant communications market, market shares (of each merger party before the merger and the merged entity after the merger), competitive conditions, competitors (actual and potential), market share of the competitors, the rationale for the merger, potential for sales growth or expansion into other product or geographic markets, general market conditions, industry background, countervailing buyer power, barriers to entry, counterfactual information, vertical effects, failing firm defences, efficiencies, effects of the merger;
  7. Copies of the two most recent business plans for each party to the merger and, where available, a copy of the (draft) business plan for the merged or acquired entity; and
  8. Copies of any relevant market research reports that are available to either of the merger parties. Where geographic markets are arguably wider than national, market research that focuses on areas outside of, or including Malaysia, is relevant; 
  9. Economic data relating to price elasticity in the market;
  10. A copy of final or near final versions of all documents for the transaction; 
  11. For entities relying on the failing firm defense, evidence that trading conditions and performance are unlikely to improve, all refinancing options have been explored and exhausted, and there are no other credible bidders the firm/division concerned is indeed about to fail imminently under current ownership (this should in the market), and that all possible options have been explored; and
  12. Names and contact details of a representative sample of small, medium and large sized competitors, suppliers and customers in the relevant communications market in which it operates

36) Filing fees

N/A

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

37) Is implementation of the merger before approval prohibited?

No, due to the voluntary nature of the notification and application regimes.  

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

N/A, see topic 37.

39) Due diligence and other preparatory steps

N/A

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

N/A

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

N/A

42) Consequences of implementing without approval/permission

Due to the voluntary nature of the notification and application regimes, there are generally no consequences for implementing without prior approval. However, in the event the respective Commissions have indicated its objection to the anticipated merger, proceeding with the same may trigger sanctions. Specifically, the Malaysian Communications and Multimedia Commission may seek an interim injunction against the merger parties while the Malaysian Aviation Commission may impose a financial penalty.

The process – phases and deadlines

43) Phases and deadlines

Not applicable under the Competition Act 2010. 

Different procedures apply for voluntary notifications under the Malaysian Aviation Commission Act 2015 and application for assessments under the Communications and Multimedia Act 1998. 

Vis a vis the Malaysian Aviation Commission Act 2015, there are 2 phases:

Phase

Duration/Deadline

Preliminary phase

Commission may publish a summary of the application for the purpose of public consultation. 

Any person may submit feedback within thirty days from the date of publication of the summary of application or any other period as may be determined by the Commission. At the end of such period, the Commission will proceed with the Phase 1 Assessment.

30 days. 

Phase 1 Assessment 

Commission to evaluate the possible competitive effects of an anticipated merger or a merger

 

No set duration or deadline

Phase 2 Assessment

Phase 2 entails a more detailed and extensive examination of the effects of an anticipated merger or a merger. It is triggered in the event the Commission, during the Phase 1 Assessment, finds that an anticipated merger or a merger raises competition concerns

Upon completion of Phase 2 Assessment, the Commission will:

  1. Prepare a proposed decision and give notice of its proposed decision to the applicant
  2. Provide an opportunity to the applicant, a merger party or relevant person to peruse the proposed decision before its publication
  3. If the proposed decision contains a finding that an anticipated merger will infringe or a merger has infringed the Act, provide the applicant an opportunity to make a written representation before making a final decision
  4. Publish its proposed decision

No set duration or deadline

 

Vis-a-vis the Communications and Multimedia Act 1998, please refer to pages 9-10 and 27 in the Guidelines on Mergers and Acquisitions (see topic 3):

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations, but it is normally advisable to inform the Malaysian Communications and Multimedia Commission of the intended transaction at an early stage and to enter into pre-notification consultations that will include submitting one or more draft notifications. In unproblematic cases the Commission may be ready to approve the merger very shortly after receiving the formal notification, if there have been extensive pre-notification consultations.

No set duration or deadline

Assessment of completeness of notification:

When the merger notification has been formally submitted, the authority must assess and inform the Applicant of a valid and complete application within 5 working days.

The Commission may deem an application invalid if is not complete or is not supported by the relevant documentation. If the notification is deemed incomplete, the Commission must send a Notice of Rejection within 10 working days from the date the application was received and state which information is missing. For the assessment process to continue, an Applicant must submit an amended application that remedies the invalidities identified in the Notice of Rejection.

Even when the notification has been declared complete, the Commission may still request more information and documentation and the authority can at any time until the merger has been approved request a full notification, even if a simplified notification has already been accepted and declared complete.

5 working days for the Commission to assess completeness of notification.

If notification is incomplete, the Commission has 10 working days from the date of receipt of the application to issue a Notice of Rejection that sets out the grounds of invalidity.

Preliminary Review

After informing the Applicant of its receipt of a valid and complete application but before commencing a Phase I Assessment, the Commission will undertake a preliminary review to determine whether the transaction meets the thresholds. 

If the transaction does not meet the relevant thresholds and will not be assessed, the Commission will notify the applicant within 10 working days.

5 working days for the Commission to assess whether the merger meets the threshold.

10 working days from the date of receipt of an application.

Phase I Assessment:

The merger is either approved (with commitments if relevant) and a Notice of No Objection is issued or it is decided to initiate a Phase II investigation of the merger. The Commission will only proceed to Phase II if it is unable to determine the effect or purpose of the merger based on the information obtained through Phase I of the assessment.

In practice the Malaysian Communications and Multimedia Commission may undertake the same types of investigations under Phases I and II, and the Commission may also negotiate commitments in both phases. However, complex and/or problematic mergers will often require the longer deadlines applicable in Phase II.

Indicatively, 30 working days from the date when the notification was complete.

Phase II Assessment:

The merger is either approved, approved with conditions/commitments or prohibited.

If the Malaysian Communications and Multimedia Commission reaches the view that it is likely to issue an unfavourable decision, it will issue a Statement of Issues prior to making a final decision. The Applicant will have 30 days to provide submissions in response.

The investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

Indicatively, 120 working days from the date when the Phase II investigation was initiated.

Extension:
The timeframe may be extended at the Commission’s absolute discretion including if it requests further information from the Applicant informally or requests information from third parties pursuant to its information gathering powers.

When the Applicant receives a Statement of Issues, they have 30 days to submit a response.

Authorisation

Authorisation is a separate process to notification and is available to merger parties under section 140 of the Communications and Multimedia Act 1998 provided that the merger has not yet taken place. Further, the Commission will only grant this authorisation to parties where the Commission is satisfied that the authorisation is in the national interest. 

While notification and authorisations involve different filing procedures and different considerations, the documents required are substantially the same.

There are three phases for authorisation:

  1. Preliminary phase – The aim is to establish the facts of the case and the Commission may undertake initial economic, legal and technical analysis (see the merger assessment procedure set out above)
  2. Investigative phase – if the prima facie evidence indicates that the merger will lead to a substantial lessening of competition, the Commission will carry out a cost benefit analysis. The Commission may also make a Public Inquiry.
  3. Decision making phase – Commission to decide whether to approve, approve with undertakings or reject the application.

If the Commission decides not to authorise the merger, it may choose to issue a Statement of Issues setting out the Commission’s preliminary findings and the grounds for that view, which the Applicant has 30 days to respond to.

Preliminary phase – may take up to 30 days from receipt of the complete application 

Investigative phase – may take up to 120 days 

Decision making phase – may take up to 30 days to complete.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

Generally, the Malaysian Aviation Commission will evaluate whether the merger ”would result or is expected to result in a substantial lessening of competition” in any aviation service market by reference to the following factors:

  1. the affected aviation service market;
  2. the market power and market concentration;
  3. the competitive effects arising from horizontal mergers, vertical mergers or conglomerate mergers;
  4. the possible entry and expansion of competitors; or
  5. countervailing buyer power.

Generally, the Malaysian Communications and Multimedia Commission will seek to establish:

  1. If a licensee is dominant, whether the effect of the merger is to substantially lessen competition in the market;
  2. If a licensee is not dominant, whether the purpose of the merger is to substantially lessen competition in the market.

45) May any non-competition issues be considered?

The Malaysian Communications and Multimedia Commission may take national interest into consideration.

46) Special tests or criteria applicable for joint ventures

N/A

47) Decisions and remedies/commitments available

Under the Malaysian Aviation Commission Act 2015, upon completion of the assessment, the Malaysian Aviation Commission may either issue a non-infringement decision, a non-infringement decision pursuant to an undertaking, or an infringement decision.

The orders which may be imposed following an infringement decision by the Malaysian Aviation Commission include prohibiting an anticipated merger from being carried into effect, requiring a merger to be dissolved or modified, requiring a merging party to enter into agreements designed to prevent or lessen the anti-competitive effects arising from a merger, requiring a merging party to dispose such businesses, assets, shares or rights in a manner that may be specified by the Commission or providing a performance bond, guarantee or other form of security on such terms and conditions as may be determined by the Commission.

Remedies may take any form and they can be either structural or behavioural and with or without time limitations.

Under the Communications and Multimedia Act 1998, upon completion of the assessment, the Malaysian Communications and Multimedia Commission may issue a Notice of No Objection or a Notice of Objection to the merger.   

When issuing a Notice of Objection to a proposed merger, the Commission may include an order that the licensee must not continue with or complete the merger and must not transfer any licenses or spectrum assignments granted pursuant to the Act to another entity. On the other hand, when issuing a Notice of Objection to a completed merger, the Notice of Objection may include an order to prevent further integration between the merger parties, or to prevent the merged or acquired entity from trading. 

Publicity and access to the file

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

The Malaysian Aviation Commission Act 2015 may publish a summary of the application for the purpose of public consultation in the preliminary phase and again when the Commission has issued its decision.

No guidance is provided vis-à-vis the Communications and Multimedia Commission.

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

The merging parties:

It is unclear to what extent the merging parties may access to the file. 

Third parties:

It is unclear to what extent third parties may access to the file. 

Judicial review

50) Who can appeal and what may be appealed?

Different procedures apply for the voluntary notifications under the Malaysian Aviation Commission Act 2015 (Act 771) and the application for assessments under the Communications and Multimedia Act 1998 (Act 588).

Generally, a party affected by a decision of the commission may apply to the High Court for a judicial review.


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