Have any notified transactions been prohibited by the competition authority in your jurisdiction since January 2021? If so, on what basis?
There has been no such prohibition.
Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been affected?
No such proposal has been published.
Is the submission of a merger notification suspensory and mandatory in your jurisdiction? If so, has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction? If so, kindly provide details.
No. There is no legal obligation on merging parties to notify or seek the approval of the CCM before implementing a merger transaction. Nonetheless, the Act provides parties to a merger situation with the possibility of seeking the guidance of the CCM on whether or not the merger may substantially lessen competition, and as such, whether or not the merger is in conformity with the Act. Such application for guidance is voluntary, but commonly referred to as merger notification. The parties would invariably wait for a decision of the CCM before embarking on the proposed merger
Is the submission of a merger notification non-suspensory and voluntary in your jurisdiction? If so, has the authority brought any cases against entities for failure to notify a transaction post-completion within the stipulated time period? If so, kindly provide details, including details of instances where the authority has specifically requested notification of mergers.
Yes. Merger notifications are voluntary and non-suspensory. There are no cases brought agains an entity for failure to notify a transaction post-completion within the stipulated time. Yes. There are no instances where the authority has specifically requested notification.
Please describe any cases in which the competition authority fined any entity for failing to comply with merger conditions.
None. A fine is not applicable for failure to comply with merger conditions – the CCM cannot inflict any fine, as a merger situation can only be remedied as opposed to being penalised. The CCM may give the enterprise such directions as it considers necessary, reasonable and practicable to remedy, mitigate or prevent the substantial lessening of competition, and any adverse effects that have resulted from, or are likely to result from, the substantial lessening of competition.
Please describe any cases in which the acquisition of shares or assets of another firm was interdicted by the competition authorities in your jurisdiction, as well as the basis for this.
None. However, in April 2021, the CCM allowed an acquisition of shares in a “rum” industry to proceed by imposing conditions to prevent what it termed a “merger situation”.
Please describe any cases in which parties (acquirer and target) did not have physical presence in your jurisdiction and the transaction was nonetheless notified. For example, where either party makes sales and derive some turnover in your jurisdiction do not have any subsidiaries or assets in the country, what is the local nexus test /local effects test to establish merger review jurisdiction?
Local counsel have not come across such a case.
Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?
Yes. The CCM approved two mergers in June 2019 and July 2020 respectively, subject to undertakings given by the parties, which satisfy the CCM that they address all concerns about any prevention, restriction, distortion or substantial lessening of competition.
Local counsel do not have a full picture of the novel conditions, as some aspects of these have been kept confidential by the CCM.
Please indicate whether the competition authority has required notification of internal restructurings (that do not involve a change in ultimate control) and, if so, on what basis.
Please indicate whether an obligation to notify could be triggered as a result of a change in direct control over an entity through the interposition of a new entity within the group, albeit that the restructure does not result in a change in ultimate control.
No. As stated above, there is no requirement of notification.
Please describe cases of mergers that have been approved subject to public interest grounds since January 2021 and kindly describe the nature of these public interest grounds.
Only one in April 2021. As stated above, the case concerned an acquisition of shares, by a public “rum” company in another public listed “rum” company, in terms of which, the acquirer intended to double its shareholding to 66.6%. The CCM imposed conditions, by requiring the potential acquirer to divest in a third rival rum company, so as to prevent a “merger situation” which would have lessened competition in the rum industry.
Please describe cases where the competition authority has prohibited a merger transaction based on public interest grounds alone.
Describe the circumstances in which ‘greenfield’ / joint ventures mergers are caught under the merger review regime, and kindly provide instances of such mergers that have been notified to and considered by the competition authority.
Local competition laws do not catch such mergers or potential mergers.
Please indicate whether there are any circumstances in which non-controlling minority share acquisitions that have been found to constitute a notifiable merger and the basis for this.
On average how long does the authority in your jurisdiction take to approve a non-complex transaction? What about a complex one?
Each case will depend upon its own merits and is entertained diligently. For example, an application for guidance may be disposed of within a period of six months. Complex cases include those which are the subject of an investigation by the ED, followed by a decision by the Commissioners of the CCM (adjudicative arm), which generally take much longer.
Kindly indicate whether the competition authority enjoys the power to “stop the clock” for the review of a merger and under what circumstances can this happen. If so, please describe cases where the authority has stopped the clock.
Please indicate whether, legally or in practice, your competition authority allows for “Carve out” / “hold separate” arrangements (this means that where clearance is not obtained in your jurisdiction by a specific date, the acquirer would opt not to take over the company in your jurisdiction but will implement the transaction in countries where approval has been obtained. The target in your jurisdiction may be left behind with the sellers for future disposal separately). If so, kindly describe cases where this has happened.
There is no such provision.
Please indicate whether, legally or in practice, your competition authority allows for a transaction to close sequentially (for example: the shares in a target company, which triggers a filing requirement in your jurisdiction or which is active in your jurisdiction, will only be transferred after clearance in your jurisdiction has been obtained, while the shares in other companies affiliated to the target and operating in other countries thus do not trigger a filing requirement in your jurisdiction, shall be transferred as soon as clearances in those other relevant jurisdictions have been obtained (irrespectively of whether clearance in your jurisdiction has been obtained). If so, kindly describe cases where this has happened.
There is no such provision.
