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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?

 
SINGAPORE

Kala Anandarajah, PBM
Partner

kala.anandarajah@rajahtann.com

Tel: +65 6232 0111

Dominique Lombardi
Partner (Foreign Lawyer)

dominique.lombardi@rajahtann.com

Tel: +65 6232 0104

Tanya Tang
Partner (Chief Economic and Policy Advisor)

tanya.tang@rajahtann.com

Tel: +65 6232 0298

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. The Merger control provisions under the Competition Act (Cap.50B) came into force on 1st July 2009.

2) Which authorities enforce the merger control regulation?

The Competition and Consumer Commission of Singapore (“CCCS”) enforces the merger regime under the Competition Act. Note, however, that sectoral merger control regulations are enforced by the relevant sectoral regulators (e.g. the Infocomm Media Development Authority or the Civil Aviation Authority of Singapore).

Decisions by the CCCS may be appealed to the Competition Appeal Board.

3) Relevant regulations and guidelines with links:

The main provisions applicable to mergers are contained in  Part III, Division 4 and Division 4A of the Singapore Competition Act (“Competition Act”). Specifically, Section 54 of the Competition Act prohibits mergers that may result or have resulted in a Substantial Lessening of Competition (“SLC”) in any market in Singapore. More detailed rules may be found in various regulations issued under the Competition Act and in Guidelines issued by the Competition and Consumer Commission of Singapore (“CCCS”). Links to the relevant legislation, regulations and guidelines are listed here:

Official English version

Competition Act (Cap.50B)

Competition Regulations

Competition (Notification) Regulations

Competition (Fees) Regulations

CCCS Guidelines on Merger Procedures (including merger notification forms)

CCCS Guidelines on the Substantive Assessment of Mergers

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

Under the Third Schedule to the Competition Act, the prohibition of anti-competitive agreements (Section 34 of the Competition Act) does not apply to any agreement that results or would result in a merger and the prohibition of abuse of dominance (Section 47 of the Competition Act) does not apply to any conduct that results or would result in a merger. 

Generally, restrictions of competition that are directly related and necessary to the implementation of   the merger, for instance a (limited) non-competition obligation on the seller, are considered ancillary to the merger and will be assessed as part of, and under, the merger review. Such ancillary restrictions are not subject to separate scrutiny under Section 34 and/or Section 47 of the Competition Act. However, restrictions that go beyond what may be considered as ancillary to the merger may be caught by the general prohibition of anti-competitive agreements or abuse of dominance as the case may be.

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

Yes. Under the Competition Act, the CCCS may require any party to an anti-competitive agreement and any person engaged in an abuse of dominance ”to dispose of such operations, assets or shares of such undertaking in such manner as may be specified by the Commission”. The same applies to parties to a merger that results in a SLC.

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.)

Under the Fourth Schedule to the Competition Act, the general merger regime does not apply to any merger:

  1. approved by any Minister or regulatory authority (other than the CCCS) pursuant to any requirement for such approval imposed by any written law;
  2. approved by the Monetary Authority of Singapore established under section 3 of the Monetary Authority of Singapore Act (Cap. 186) pursuant to any requirement for such approval imposed under any written law; or
  3. under the jurisdiction of any regulatory authority (other than the CCCS) under any written law relating to competition, or code of practice relating to competition issued under any written law.

To illustrate, mergers in the telecommunications and media sectors involving certain licensees must be notified to and/or approved by the Infocomm Media Development Authority (IMDA); mergers involving an airport licensee must be notified to and approved by the Civil Aviation Authority of Singapore (CAAS) and mergers involving banks incorporated in Singapore requires the approval of the Monetary Authority of Singapore.

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. However, in reality the CCCS appears to be of the view that notification should be made where the thresholds are crossed. There is no limitation period on investigations and in practice the CCCS has initiated investigations of mergers that were completed years ago. The CCCS highly recommends notification of a merger, where the thresholds stated in topic 14a and 14b are met.

Types of transactions to file – what constitutes a merger

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

Yes. Under Section 54 of the Competition Act a merger occurs where:

  1. two or more undertakings, previously independent of one another, merge;
  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 a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity); or
  3. the result of an acquisition by one undertaking (the first undertaking) of the assets (including goodwill), or a substantial part of the assets, of another undertaking (the second undertaking) is to place the first undertaking in a position to replace or substantially replace the second undertaking in the business (or part of the business) in which that undertaking was engaged immediately before the acquisition..

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (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 under certain conditions.

11) How is “control” defined?

The Competition Act states that “control” of an undertaking exists where 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 undertaking.

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, or when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control, this will amount to a merger.

The CCCS Guidelines on the Substantive Assessment of Mergers provide further guidance on the concepts of "Control" and "Acquisition of control".

12) Acquisition of a minority interest

The acquisition of a minority interest that does not result in the acquisition of control (whether joint or sole) over a business, i.e. that does not confer to the minority shareholder the ability to have a decisive influence over the business, is not subject to merger control. Note, however, that under the CCCS Guidelines on the Substantive Assessment of Mergers, the ownership of 30% to 50% of the voting rights of an undertaking gives rise to a rebuttable presumption that decisive influence exists. Veto rights which provide a minority shareholder with the ability to block strategic business decisions of an undertaking may also be sufficient to establish 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. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  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.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on anti-competitive agreements may also be applied if the joint venture has the coordination of the market behaviour of the parent companies as object or effect.

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 indicative turnover thresholds to decide whether a merger notification must be filed. Note, however, that the CCCS has stated that a merger between small businesses, i.e. where each of the parties’ individual turnover in Singapore in the financial year preceding the transaction is below SGD 5,000,000 and the combined worldwide turnover of all the parties is below SGD 50,000,000, are unlikely to be investigated.

b) Market share thresholds

The CCCS highly recommends notification of a merger, where the following indicative thresholds are crossed:

  1. the ‘merged entity’ has a market share of 40%, or
  2. the ‘merged entity’ has a market share of more than 20% and the post-merger combined market share of the three largest firms (CR3) in the market(s) is 70% or more.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds set out in topic 14 apply to all mergers falling under CCCS’ merger regime.

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

There is no definition or guidance on when and whether series of transactions must be treated as one transaction. The fact that a merger is the result of a series of transactions will have to be disclosed to the CCCS when providing the details of the merger and this will be done through one application only. 

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

19) Temporary change of control

Under the Competition Act, an acquisition of control will not amount to a merger and, therefore, will not fall under the merger regime where control is acquired by an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others and:

  1. the control concerned is constituted by the undertaking’s holding, on a temporary basis, securities acquired in another undertaking; and
  2. any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists: (i) is for the purpose of arranging for the disposal of all or part of the other undertaking or its assets or securities within a period of 12 months (which may be extended by the CCCS) from the date on which control of this other undertaking was acquired; and (ii) is not for the purpose of determining activities of the other undertaking, that could affect competition in markets for goods or services in Singapore.

20) Special industries, owners or types of transactions

Industries:

The merger control regulation does not apply to mergers involving any undertaking relating to the following specified activities:

  1. the supply of ordinary letter and postcard services by a person licensed and regulated under the Postal Services Act (Cap. 237A);
  2. the supply of piped potable water;
  3. the supply of wastewater management services, including the collection, treatment and disposal of wastewater;
  4. the supply of bus services by a licensed bus operator under the Bus Services Industry Act 2015;
  5. the supply of rail services by any person licensed and regulated under the Rapid Transit Systems Act (Cap. 263A); and
  6. cargo terminal operations carried out by a person licensed and regulated under the Maritime and Port Authority of Singapore Act (Cap. 170A).

Owners / Types of transactions:

Under the Competition Act, the following transactions do not amount to a merger, and may therefore not be subject to merger control:

  1. the person acquiring control is a receiver or liquidator acting as such or is an underwriter acting as such;
  2. all of the undertakings involved in the merger are already, directly or indirectly, under the control of the same undertaking;
  3. control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy.

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

There is no exemption for foreign-to-foreign transactions. Foreign-to-foreign mergers which would result in a substantial lessening of competition in Singapore are prohibited, regardless of where the undertakings concerned are registered or whether they own assets in Singapore.

22) No overlap of activities of the parties

There is no exemption for non-horizontal mergers. The prohibition of mergers that would result in a substantial lessening of competition applies to all mergers, whether horizontal, vertical or conglomerate mergers. 

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

There is no such exemption, given that notification to the CCCS is voluntary.

Merger control even if thresholds are NOT met

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

Yes. The thresholds provided by the CCCS are indicative only to help the parties in assessing whether a notification to the CCCS should be made or not.

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

The CCCS has no power under the Competition Act to request the parties to notify their merger. It may, however, informally suggest to the parties that it would be best to do so.

The CCCS has the power to block a merger which will result or has resulted in a substantial lessening of competition in Singapore and, therefore, infringes the Competition Act.  In making its decision, the CCCS will look at a number of factors, not limited to the market share of the parties; it may thus block a transaction although the indicative market share thresholds are not crossed. 

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

Notification of a merger to the CCCS is voluntary and can be made either before or after the implementation of the merger. In both cases, the CCCS has the power to impose interim measures to prevent the merger parties from taking any action that might prejudice CCCS’s ability to consider the merger situation further and/or to impose appropriate remedies. 

31) Pre-notification consultations

Parties having the good faith intention to engage in their transaction may approach the CCCS to discuss the content of the notification. This is referred to as Pre-Notifications Discussions (“PNDs”). Generally, the parties will have to provide at the start and in any event in the course of the PNDs a draft of the Form M1, i.e. fairly complete information.

PNDs are useful as they allow the parties to discuss and agree with the CCCS on the scope of the information that the parties will need to provide for their Form M1 to be declared complete. It may further assist in speeding up the merger review since the CCCS will have reviewed the draft Form M1 and discussed any possible gaps therein with the parties before the formal notification is done.

The CCCS will not share its views as to whether the merger raises or will raise competition concerns during the PNDs. If the parties want to have CCCS’ views as to whether a merger should be notified or not, they can apply to the CCCS for a Confidential Advice.

Parties may apply to the CCCS for a Confidential Advice if the following conditions are met: the merger has not been completed but the parties have a good faith intention to proceed with the transaction; the merger is not public and the merger raises a genuine concern as to whether notification is recommended or not.

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

N/A

33) Forms available for completing a notification

There are two forms available: Form M1 for the initial merger notification and Form M2 if the CCCS requires additional information for a phase II proceeding. 

34) Languages that may be applied in notifications and communication

English.

35) Documents that must be supplied with notification

The following documents (where available) must be included in the application:

  1. all relevant documents to support statements and explanations made in the form(s);
  2. copies of the final or most recent version of all documents bringing about the merger, whether by agreement between the merger parties, acquisition of a controlling interest or a public bid;
  3. in the case of a public bid, a copy of the offer document; if it is unavailable at the time of notfication, it should be submitted as soon as possible and not later than when it is posted to shareholders;
  4. copies of the most recent annual report and accounts (or equivalent for unincorporated bodies) for each of the merger parties;
  5. copies of all analyses, reports, studies, surveys (including consumer surveys), and similar documents prepared for the purpose of assessing, analysing or giving a view on the merger with respect to market shares, competitive conditions, competitors (actual and potential), the rationale for the merger, potential for sales growth or expansion into other product or geographic markets, and/or general market conditions. For each of these documents, the date of preparation and the designation of each individual who prepared the document should be stated (if not contained in the document itself);
  6. copies of the two most recent business plans for each merger party and, where available, a copy of the (draft) business plan for the merged entity; and
  7. 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, Singapore, is also relevant.

36) Filing fees

The filing fees for a decision on whether a merger or a proposed merger would result in a substantial lessening of competition or not are set out below:

Description Amount of fees
In the case of a merger: where all the parties merging are small or medium sized enterprises (i.e. annual sales turnover of not more than SGD 100 million or not having more than 200 employees): SGD 5,000
In the case of an acquisition of control by acquisition of shares or assets (including creation of a a joint venture): where the acquirer(s) is a small or medium sized enterprise: SGD 5,000
Where the turnover of the target undertaking or turnover attributed to the acquired asset is equal to or less than SGD 200 million: SGD 15,000
Where the turnover of the target undertaking or turnover attributed to the acquired asset is between SGD 200 million and SGD 600 million: SGD 50,000
Where the turnover of the target undertaking or turnover attributed to the acquired asset is above SGD 600 million: SGD 100,000

 

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

37) Is implementation of the merger before approval prohibited?

No. However, please refer to topic 30 and topic 42 on the interim measures the CCCS may impose on the merger parties, which may include a direction not to implement a proposed merger or to hold businesses separate while the CCCS is reviewing a notified merger or is conducting an investigation into an unnotified merger.

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

N/A

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive business information from being used for purposes other than assessing the viability of the proposed transaction/merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

There are no guidelines on what may be considered acceptable preparatory steps. However, the CCCS has stated in its Guidelines on Merger Procedures that “Parties to an anticipated merger should exercise due caution when exchanging commercially sensitive information (such as prices and customer details) in the context of the merger negotiations and the application and review process. The exchange of such information may infringe the section 34 prohibition of the Act (which prohibits anti-competitive agreements) where it has the object or effect of restricting competition within Singapore”.

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

N/A

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

Since notification is voluntary under Singapore merger control, there is no stand-still obligation as such and, therefore, no specific rules on “carve out” of the Singapore part of a transaction to avoid delaying implementation in the rest of the world pending approval in Singapore. See, however, topic 30 and topic 42 on the risks in implementing a transaction which is likely to infringe the Competition Act.

42) Consequences of implementing without approval/permission

Whilst there is no requirement to obtain approval of a proposed transaction before implementing it, the CCCS has the power to investigate any proposed or implemented merger if it suspects that the merger would result or has resulted in a substantial lessening of competition in Singapore. If the CCCS makes a decision that a merger has resulted in a substantial lessening of competition, it can impose on the parties any direction it considers appropriate to bring the infringement to an end including, for example, a direction to divest part of the assets, unwind the merger and/or impose financial penalties of up to 10% of the infringing parties’ turnover in Singapore for the period of the infringement up to a maximum of 3 years. Additionally, the CCCS may issue interim directions while reviewing a notified merger or investigating an unnotified merger, which includes a direction to the parties not to implement their proposed merger or to hold the business separate.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

The CCCS encourages pre-notification discussions (“PNDs”), once the parties have a good faith intention to enter into a merger transaction. The PNDs process is set out in the Guidelines on Merger Procedures. Typically, the CCCS will request a draft of Form M1 to be provided at the start of the discussions.

PNDs are not compulsory but is an option open to the parties. 

No set duration or deadline

Assessment of completeness of notification:

When the merger notification has been formally submitted, the CCCS will assess whether the notification is complete and inform the parties accordingly. 

The acknowledgement by the CCCS that the notification is complete further supposes that the parties have paid the applicable administrative filing fees.

The Phase 1 review starts from the date when the CCCS has received a complete notification.

No set duration or deadline 

Phase 1:

The merger is either approved (with commitments if relevant) or it is decided to initiate a phase II investigation of the merger.

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

If competition concerns are identified in Phase 1 whichindicate that a Phase 2 review may be necessary, the CCCS will address to the applicant(s) an “issues letter”setting out the main competition concerns and giving the applicants the opportunity to offer commitments to address these concerns before proceeding to a Phase 2 review.

30 working days from the date when the notification was complete. Note that this timeline is indicative only and the CCCS is not bound by such timeline.

Extension:
The Phase 1 review can be extended where the parties are unable to provide additional information requested by the CCCS within the deadline fixed by the CCCS. In such case, the clock will stop until the parties have provided the requested information. Note that it is prudent for the applicant(s) to submit a request of extension of time to the CCCS if they feel that they will not be able to meet the deadline thus fixed.

Separately, if commitments are offered by the applicant(s) during Phase 1, the indicative 30 working days timeline may be extended by 20 additional working days.

Phase 2:

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

Phase 2 will start with the filing by the applicant(s) of a Form M2, which requires more detailed information on the relevant markets and on the parties. 

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

Up to 120 working days from the date of filing of a complete Form M2 by the applicant(s).

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The test is whether the merger has resulted, or the proposed merger is likely to result, in a substantial lessening of competition. The test is applied by comparing the extent of competition in the relevant market with and without the merger.

A range of factors may be taken into consideration in assessing the potentiality of a substantial lessening of competition, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

Not at the CCCS’s level. However, where the CCCS proposes to prohibit a merger, the applicant may, within 14 days after receiving the Provisional Statement of Decision, apply to the Minister of Trade and Industry for the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration. 

46) Special tests or criteria applicable for joint ventures

No.

47) Decisions and remedies/commitments available

A merger may be approved with or without commitments or be prohibited.

If the CCCS expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the CCCS will normally only consider an approval with conditions if the parties have offered commitments.

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

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments agreed to in the final decision.

If a merger has already been implemented, the CCCS may prohibit the merger and order a separation of the businesses or any other direction it deems fit to restore competition. The CCCS may also impose financial penalties on the parties for infringing the prohibition of mergers resulting in a substantial lessening of competition.

Publicity and access to the file

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

A non-confidential summary of the transaction will be published by the CCCS on the public register on its website once the CCCS accepts the merger filing as being complete.

The non-confidential summary of the merger made available on the public register is part of the notification form the parties file with the CCCS and includes:

  1. the names of the merger parties;
  2. a description of the transaction;
  3. a description of the business activities of the merger parties worldwide and in Singapore;
  4. a description of the overlapping goods or services, including brand names;
  5. a description of substitute goods or services;
  6. the applicant’s views on the relevant market(s) and their structure; and
  7. the applicant’s views on the competitive effects of the merger (non-coordinated, coordinated and/or vertical effects, as relevant).

The public register will be updated if/when the CCCS is considering accepting commitments or to proceed to a Phase 2 review and when a decision is made. A non-confidential version of the CCCS grounds of decision will further be made available in the public register

Upon publication of the summary of the merger, third parties are invited to submit their views on the transaction to the CCCS. Third parties will also be invited to provide comments on commitments offered by the parties in the course of the merger review. 

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

The merging parties:

If, towards the end of Phase 2, CCCS reaches a preliminary view that the merger will result in a substantial lessening of competition, it will issue a Provisional Statement of Decision to the applicant(s) setting out the reasons why the CCCS is of the view that the merger should be prohibited. Only at this stage will the applicant(s) be given the opportunity to access the file. Note that CCCS’s internal documents and confidential information provided by third parties will not be accessible to the applicant(s). 

Third parties:

Third parties do not have access to the file.

Judicial review

50) Who can appeal and what may be appealed?

The applicant may, within 14 days after receiving the Provisional Statement of Decision, apply to the Minister of Trade and Industry for the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration. The decision by the Minister to exempt or not to exempt the merger is final.

A CCCS’s decision that the proposed merger or the implemented merger will result or has resulted in a substantial lessening of competition in violation of Section 54 of the Act can be appealed by the merger parties to the Competition Appeal Board within 4 weeks from the date the infringement decision was notified to the applicant(s) or the date the decision was published, whichever the earlier.

Where the CCCS’s decision imposes directions on third parties, these parties may appeal to the Competition Appeal Board against the directions given to them. Otherwise, third parties cannot appeal the CCCS’s decision that section 54 of the Act has been infringed.


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