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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
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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?

 
MALTA

Dr. Michael Psaila
Managing Partner

Michael.Psaila@mamotcv.com

Tel: +356 2540 3210

Dr. Annalies Muscat
Senior Associate

Annalies.Muscat@mamotcv.com

Tel: +356 2540 3625

Dr. Laura Spiteri
Associate

Laura.Spiteri@mamotcv.com

Tel: +356 2540 3623

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. Mergers are regulated by the Control of Concentration Regulations (S.L. 379.08 of the laws of Malta) which are subsidiary legislation enacted under the Competition Act (Cap 379 of the laws of Malta). 

2) Which authorities enforce the merger control regulation?

The Office for Competition within the Malta Competition and Consumer Affairs Authority (the ‘MCCAA’) enforces the merger control regulations. The Director General (Competition) who heads the Office for Competition is tasked with determining whether a concentration is compatible with upholding competition on the Maltese market upon the concentration being notified to him. 

3) Relevant regulations and guidelines with links:

The legislation dealing with merger control is the Control of Concentration Regulations. Links to the relevant legislation, including the merger notification forms, are listed here:

Maltese version

English version

Att dwar il-Kompetizzjoni

Competition Act

Regolamenti dwar il-Kontroll ta’ Konċentrazzjonijiet

Control of Concentration Regulations

Formola ta’ Notifika dwar Konċentrazzjoni (Formola NK); Skeda għar-Regolamenti dwar il-Kontroll ta’ Konċentrazzjonijiet

The Concentration Notification Form (Form CN); Schedule to the Control of Concentration Regulations as Schedule 1

 

Guidance on Mergers & Acquisitions (issued by the Office for Competition)

 

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

Maltese competition law is interpreted in accordance with EU competition law in this respect (as in any other competition regulation matters).

Generally, restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements.

The Form CN has a specific section on ancillary restraints, which requires any such restraints to be listed by the notifying party or parties. 

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.)

Where the undertakings wanting to form a concentration are subject to the Investment Services Act (Cap 370 of the laws of Malta), the Insurance Business Act (Cap 403 of the laws of Malta), or the Banking Act (Cap 371 of the laws of Malta), the parties concerned are required to obtain written consent from the Malta Financial Services Authority prior to forming the concentration. With regard to undertakings subject to the Lotteries and Other Games Act (Cap 438 of the laws of Malta), the parties concerned require the prior written approval of the Malta Gaming Authority. 

Where undertakings listed on the stock exchange are subject to a takeover bid, the Listing Authority will also deal with such a concentration.

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 mandatory if the turnover thresholds are met.  

Types of transactions to file – what constitutes a merger

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

Article 2 of the Regulations defines a concentration as:

  1. The merging of two or more undertakings that were previously independent from each other; or
  2. The acquisition by one or more undertakings or by one or more persons already controlling at least one undertaking of direct or indirect control of the whole or parts of one or more other undertakings; or
  3. The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity, i.e. a full-function joint venture.

It should be noted that certain transactions of a temporary nature will not be deemed to give rise to a concentration (see topics 19 and 20). 

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

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

The Regulations define control, which may be sole or joint, as the possibility of exercising decisive influence on an undertaking, in particular:

  1. Through ownership or the right to use all or part of the assets of an undertaking; or
  2. Through rights or contracts which confer decisive influence on the composition, voting, or decisions of the organs of an undertaking. It should be noted that even persons or undertakings not holding such rights or entitled to such rights under the contract concerned are deemed to have acquired control if they have the power to exercise the rights deriving therefrom. 

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

If acquisition of a minority interest also confers someone,  through  rights   or   contracts,  decisive influence  on  the composition,  voting  or decisions  of the   organs  of   the   undertaking in question, this too amounts to control over the business and would be subject to merger control.  

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

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Acquisition of a new business by the joint venture.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Thresholds that decide whether a merger notification must be filed

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

a) Turnover thresholds

Concentrations are to be notified to the Director General when, in the preceding financial year, the aggregate turnover in Malta of the undertakings concerned exceeds €2,329,373.40 and each of the undertakings concerned had a turnover in Malta equivalent to at least 10% of the combined aggregate turnover of the undertakings concerned. 

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds laid out in topic 14 apply to all types of businesses. It is only the calculation of the turnover that is different for certain particular businesses (see topic 17). 

16) Rules on calculation and geographical allocation of turnover

Article 3 of the Regulation deals with the calculation of the turnover. The aggregate turnover comprises the amounts derived by each of the undertakings concerned in the preceding financial year from the sale of products and the provision of services to other undertakings or consumers falling under the undertaking’s ordinary activities after deduction of sales rebates and the value added tax and other taxes directly related to the turnover. 

The aggregate turnover of an undertaking party to a concentration shall be calculated by adding together the respective turnovers in Malta of the following:

  1. the undertakings concerned;
  2. those undertakings in which the undertaking concerned, directly or indirectly:
  • owns more than half the capital or business assets, or
  • has the power to exercise more than half the voting rights, or
  • has the power to appoint more than half the members of the board of directors or other body or bodies legally representing the undertakings, or
  • has the right to manage the undertakings’ affairs. 
  1. those undertakings which have in the undertaking concerned the rights or powers listed in paragraph (2) above;
  2. those undertakings in which an undertaking as referred to in paragraph (3) above has the rights or powers listed in paragraph (2);
  3. those undertakings in which two or more undertakings as referred to in paragraphs (1) to (4) jointly have the rights or powers listed in paragraph (2) above.

In the case that the concentration consists in the acquisition of parts of one or more undertakings, only the turnover relating to the parts which are the subject of the transaction shall be taken into account.

The Office for Competition considers the European Commission’s Consolidated Jurisdictional Notice when calculating turnovers. 

17) Special rules on calculation of turnover for particular businesses

Credit institutions and other financial institutions 

The turnover shall comprise the sum of the following income items:

  1. interest income and similar income;
  2. income from securities, which includes income from shares and other variable yield securities, from participating interests, and from shares in affiliated undertakings;
  3. commissions receivable;
  4. net profit on financial operations; and
  5. other operating income,

after deduction of value added tax and other taxes directly related to such income items that are received by the institution or its branch in Malta. 

Insurance undertakings

The turnover shall consist of the value of gross premiums written which shall comprise all amounts received and receivable in respect of insurance contracts issued by or on behalf of the insurance undertakings. This also includes outgoing reinsurance premiums and after deduction of taxes and parafiscal contributions or levies charged by reference to the amounts of individual premiums or the total volume of premiums.

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

Where two or more transactions take place within a two-year period between the same persons or undertakings, they shall be treated as one and the same concentration arising on the date of the last transaction.  

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

19) Temporary change of control

According to the Regulations, the following shall not be deemed to give rise to a concentration and, hence, do not need to be notified:

  1. where the holding of equity securities is on a temporary basis by credit or financial institutions or insurance companies, the normal activities of which include transactions and dealings in equity securities for their own account or for the account of others, which equity securities they have acquired in an undertaking with a view to reselling them, provided they do not exercise voting rights in respect of those equity securities;
  2. where control is acquired by the person or entity competent to conduct the liquidation or winding-up of the undertaking;
  3. where control is acquired by a company the sole object of which is to acquire holdings in other undertakings with the purpose of managing such holdings and to turn them to profit without directly or indirectly involving itself in the management of those undertakings.

20) Special industries, owners or types of transactions

See topic 19(1) and (2) above. 

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

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but there is a simplified procedure available if there is no overlap (see topic 33).

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

As a consequence of the EU "one-stop shop" principle, the Maltese merger control rules do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the Maltese Office for Competition. 

Merger control even if thresholds are NOT met

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

No, the Office for Competition will only handle a merger notification if the thresholds are met or if a referral from the European Commission allows it to handle the notification.

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

Only in the case of referral from the European Commission.  

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The Office for Competition does not accept referrals of a notified concentration from another jurisdiction. However, as was outlined in topic 23, the European Commission may refer a concentration notification to the competent authorities of a Member State. 

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29).

The  Office for Competition may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation (No. 139/2004) but affects trade between EU member states and threatens to significantly affect competition in Malta. Such a request shall be made within 15 working days of the date on which the merger was notified to the Office for Competition. The European Commission shall immediately notify the other EU member states of the request and will decide whether to examine the merger within 25 days after this notification.

Besides referral to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

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

Referral to the Office for Competition:

If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the Office for Competition, provided that the merger may significantly affect competition in a distinct market in Malta. If the Office for Competition does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the Office for Competition, decide to refer a merger that has already been notified to the European Commission to the Office for Competition. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the Office for Competition:

If a merger is not subject to EU merger control but is subject to merger control in Malta and at least two other EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Malta or any other EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

Concentrations are to be notified to the Director General prior to their implementation and, in the case of an agreement, the announcement of a public bid, or the acquisition of a controlling interest, within fifteen working days following their conclusion. 

31) Pre-notification consultations

The Regulations emphasise the value of pre-notification meetings both to the notifying parties and to the Director General (Competition), particularly with regard to the amount of information required in the notification. 

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

No. Notification has to occur within 15 working days of the announcement of a public bid.

Please also note that chapter 11 of the Listing Rules deals with takeover bids in Malta. The Listing Authority is the authority competent to supervise a bid. An offeror shall inform the Listing Authority of a bid and shall announce his decision to launch the bid within 7 days of acquiring a controlling interest as a result of the acquisition. 

33) Forms available for completing a notification

The available form allows for both a simplified short-form and for a full notification form. The requirements of each notification are listed in the Schedule to the Regulations. 

Parties to a concentration may avail themselves of the simplified notification where:

  1. where two or more undertakings acquire joint control of a joint venture, provided that the joint venture has no, or negligible, actual or foreseen activities, within the territory of Malta because the turnover of the joint venture and/or the turnover of the contributed activities in Malta is less than €698,812.02 and the total value of assets transferred to the joint venture in Malta is less than €698,812.02;
  2. where two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, provided that none of the parties to the concentration are engaged in business activities in the same product and geographical market, or in a product market which is upstream or downstream of a product market in which any other party to the concentration is engaged;
  3. where two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking and two or more of the parties to the concentration are engaged in business activities in the same product and geographical market and their combined market share is less than 15% or one of the of the parties to the concentration is engaged in business activities in a product market which is upstream or downstream of a product market in which any other party to the concentration is engaged and their combined market share on the upstream and downstream market is less than 25%.

It should nonetheless be noted that the Director General (Competition) may, in exceptional cases and in view of the economic conditions pertaining to the market and the parties to the concentration, require the parties to the concentration to submit a full notification. 

34) Languages that may be applied in notifications and communication

Maltese or English.

35) Documents that must be supplied with notification

The notifying parties should provide the following information when submitting a concentration notification form:

  1. copies of the final or most recent versions of all documents bringing about the concentration;
  2. in a public bid, a copy of the offer document. However, if this is unavailable at the time of notification, the parties should submit it as soon as possible. This is not required if the notification is a simplified notification;
  3. a written description and/or an organigram of the proposed structure of ownership or control after completion;
  4. a written description and/or an organigram of the group of the acquirer/target/joint venture partner (as/if applicable)
  5. copies of the most recent annual reports and accounts of all the parties to the concentration;
  6. where at least one affected market is identified, the parties are to also submit copies of analyses, reports, studies, and surveys submitted to or prepared for any member(s) of the board of directors, the supervisory board, or the shareholders’ meeting, for the purpose of assessing or analyzing the concentration with respect to competitive conditions, actual and potential competitors, and market conditions. 

Furthermore, where appropriate, the parties are to submit proof that the representative who signed the Form CN is duly authorised. 

36) Filing fees

The concentration notification fee is of €163.06 and must be paid by the party or parties to the concentration on submission of the duly completed notification form. 

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

37) Is implementation of the merger before approval prohibited?

Yes. Generally, a concentration cannot be put into effect before it has been duly notified to the Director General, and it has been declared lawful. 

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

Yes. The Director General may, upon a reasoned request, grant the parties permission to implement a concentration before its notification and/or approval. The Director General may subject the permission to certain conditions and obligations. 

39) Due diligence and other preparatory steps

No guidelines are available, but standard due diligence and preparatory steps that are reversible and unlikely to affect the market will normally be regarded as acceptable.

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

An "ordinary cause of business" clause that prevents the target company from taking decisions outside the cause of its ordinary business until the closing date is generally acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss any decisions in their respective businesses.

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

This would require permission from the Director General (see topic 38). 

42) Consequences of implementing without approval/permission

In the event that a concentration is implemented before it is declared lawful by the Director General, the Competition and Consumer Appeals Tribunal will impose a penalty of not less than €1,000 and not more than €10,000 on any person or undertaking participating in the concentration. 

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

The Regulations do not contain any provisions regarding pre-notification. However, the Schedule to the Regulations does state that pre-notification meetings are valuable to both the notifying parties and to the Director General, particularly in determining the amount of information that is required in the notification. Parties to the notification may also request that the Director General accept that the notification is complete notwithstanding the failure to provide all the information required by the notification form if they consider that certain pieces of information are not necessary. 

 

No set duration or deadline

Phase 1: 

Where the concentration has been notified to the Director General, he may:

  1. conclude that the notified concentration does not fall within the scope of the Regulations and shall record this finding by means of a decision; 
  2. find that the concentration does not raise serious doubts as to its lawfulness, despite the concentration falling within the scope of the Regulations, and shall declare it to be a lawful concentration; or
  3. find that the notified concentration falls within the scope of the Regulations and raises serious doubts as to its lawfulness, and decide to initiate phase 2 proceedings.

Decisions regarding the outcome of the notification of the concentration must be taken by the Director General within 6 weeks from the day following the receipt of the notification. If the information supplied in the notification is incomplete, the 6 weeks start to run from the day following the receipt of the complete information.

The 6-week period may be extended to 2 months if, after notification of the concentration and not later that the end of the fifth week from its notification, the undertakings concerned submit commitments following the Director General’s finding that the concentration raises serious doubts as to its lawfulness. 

In the case of a concentration notified using the simplified procedure, the Director General is to take a decision within 4 weeks from its notification. 

The time limits may be suspended where the Director General has had to request information from or  to order an investigation of the undertakings concerned because:

  • the information requested by the Director General from the notifying parties or an involved party is either not provided or is not provided in full within the time limit fixed by the Director General;
  • the information the Director General requested from a third party is either not provided or is not provided in full within the time limit fixed by the Director General owing to circumstances for which the notifying party or an involved party is responsible;
  • one of the notifying parties or another involved party has refused to submit to an investigation deemed necessary by the Director General or to cooperate in an investigation;
  • the notifying parties have failed to inform the Director General of material changes in the facts contained in the notification. 

Phase II:

When during Phase I proceedings the Director General finds that the proposed concentration raises serious doubts as to its lawfulness, the Director General will then proceed as follows:

  1. Where the Director General finds that, following modification by the undertakings concerned (where necessary), the notified concentration does not infringe the Regulations, he shall issue a decision declaring the concentration lawful. The decision shall cover restrictions directly related to and necessary for the implementation of the concentration;
  2. The Director General may also attach to his decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into;
  3. Where the Director General finds that a concentration infringes the Regulations, he shall issue a decision declaring that the concentration is unlawful. 

Decisions taken by the Director General pursuant to paragraphs 1) and 2) concerning the notified concentrations must be taken as soon as it appears that the serious doubts there appeared to be in Phase I have been removed or at the latest within not more than 4 months from the date when Phase 2 proceedings were initiated. 

When the undertakings concerned submit commitments with a view to rendering the concentration lawful, they may request that this time limit be suspended for a period of up to 1 month for proper consideration of such commitments. 

Decisions taken by the Director General pursuant to paragraph 3) must be taken within not more than 4 months from the date on which Phase 2 proceedings were initiated. This time limit may be suspended where the Director General has had to request information from or to order an investigation of the undertakings concerned because:

  • the information requested by the Director General from the notifying parties or an involved party is either not provided or is not provided in full within the time limit fixed by the Director General;
  • the information the Director General requested from a third party is either not provided or is not provided in full within the time limit fixed by the Director General owing to circumstances for which the notifying party or an involved party is responsible;
  • one of the notifying parties or another involved party has refused to submit to an investigation deemed necessary by the Director General or to cooperate in an investigation;
  • the notifying parties have failed to inform the Director General of material changes in the facts contained in the notification. 
Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

TheDirector General will assess whether the concentration raises serious doubts as to its lawfulness, that is whether or not it would lessen competition in the Maltese market or a part thereof. 

In determining the concentration’s compatibility with competition rules, the Director General takes into account a number of factors, such as:

  1. whether the concentration will reduce effective competition in the Maltese market in view of the structure of all the markets concerned and the actual or potential competition from undertakings located either within or outside Malta;
  2. whether the business of a party to the concentration has failed or is likely to fail;
  3. the nature and extent of development and innovation in a relevant market; and
  4. the market position of the undertakings concerned and their economic and financial power. 

However, if the Director General deems the concentration to bring about gains in efficiency that will be greater than and will offset the effects of any prevention or lessening of competition resulting from the concentration, that concentration will not be prohibited. 

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

If the creation of a joint venture has as its object or effect the coordination of the competitive behavior of undertakings that remain independent, such coordination shall be assessed in accordance with the general prohibition of anti-competitive agreements laid down in Article 5 of the Competition Act with a view to establishing the lawfulness of the coordination. In making such an assessment, the Director General shall take into account:

  1. whether two or more parent companies retain, to a significant extent, activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market; and
  2. whether the coordination which is the direct consequence of the joint venture affords the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products or services in question. 

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If upon examining the notification the Director General concludes that the concentration notification raises some doubts as to its lawfulness, he may decide to initiate Phase 2 proceedings. The undertakings concerned may make modifications to the concentration and upon re-notification to the Director General, he may decide that this no longer raises serious doubts as to its lawfulness and declare it to be a lawful concentration. 

The Director General may also attach to his decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Director General with a view to rendering the concentration lawful.

Publicity and access to the file

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

Upon the concentration’s notification to the Director General, the Director General shall publish the fact of the notification, the names of the parties to the concentration, the nature of the concentration, and the economic sectors involved in the Government Gazette and a daily newspaper. In publishing the fact of the notification, the Director General shall also state that any third party objectors have the right to submit their objections to the concentration within seven days from the publication of the fact of the notification. 

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

The merging parties:

Access to the file is available to the parties directly involved in the concentration upon their written request. The right to access the file shall not, however, extend to business secrets of other parties or other confidential information or to internal documents of, or correspondence between, the Director General, the European Commission, or of the competition authorities of other Member States. 

Any documents obtained through access to the file may only be used for the purposes of the relevant proceedings. 

Third parties:

Third parties do not have access to files concerning concentrations. The Director General will publish the decisions he takes with regard to the notified concentrations. While the publication would list the names of the parties and the main content of the decision, regard is had to the legitimate interest of the undertakings so as to protect their business secrets. 

Judicial review

50) Who can appeal and what may be appealed?

Persons, undertakings and any third party the Director General deems to have a sufficient interest in the merger, can appeal to the Civil Court (Commercial Section). An appeal may be on points of law and/or of fact and may be filed within twenty days from the final decision of the Director General or, in the case of third parties, within twenty days from the publication of the decision. The Director General and any party to the proceedings who feels aggrieved by the judgment delivered by the Civil Court (Commercial Section) may further appeal, on points of law or fact, to the Court of Appeal.


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