Pre-Merger Notification Jersey

Transcription

1 Pre-Merger Notification Jersey Is there a regulatory regime applicable to mergers and similar transactions? Yes. Part 4 of the Competition (Jersey) Law 2005 (the Law ) deals with mergers and acquisitions. The Competition (Mergers and Acquisitions) (Jersey) Order 2005 (the Order ) specifies the types of merger or acquisition which are affected by the Law. The merger control provisions contained in the Law came into effect on 1 May The Competition Regulatory Authority and the Court must try to ensure that it interprets and applies the Law in a way which is consistent with EU competition law. This is a first for Jersey. Identify Applicable National Regulatory Agency/Agencies The Jersey Competition Regulatory Authority (the JCRA ). Is there a supranational regulatory agency (e. g., the European Commission) that has, or may have exclusive competence? If so, indicate. Are there pre-merger filing requirements; if so, where are they published? Yes. These requirements are mentioned in the Law. Also, the JCRA published a Mergers and Acquisitions Guideline which can be found at What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions) The Order requires a merger to be approved by the JCRA before being executed where the share of supply or purchase of one or more of the parties to the merger in any product or service exceeds certain thresholds. A merger is subject to the requirement for prior approval in three situations:

2 - Where it results in a share of supply or purchase of 25 per cent or more being achieved, or increased. This threshold is intended to apply to horizontal mergers, i.e. where the parties are existing competitors, and their combined shares of supply or purchase equal or exceed 25 per cent. - Where one party has a share of supply or purchase of 25 per cent or more, and the other has a vertical relationship with that party. - Where one party has a share of supply or purchase of 40 per cent or more of any product or service. It should be emphasized that these thresholds are purely jurisdictional tests, and do not imply in any way that the merger is problematic from a competition point of view. The JCRA can reach such a conclusion only after a full assessment as to whether the merger would substantially lessen competition. Is there a "size of transaction" threshold? Is there a "size or turnover of the parties" test; if so, what is it and how are size and turnover to be calculated? There is no turnover of the parties test. As far as the size of the parties test is concerned, please refer above (What kinds of transactions ) with regards to the share of supply or purchase test. Is geographic scope/national market effect of transaction an issue with respect to filing or approval requirements? If so, specify. Geographic scope/national market effect would be an issue to the extent that the merger or acquisition might lead to a substantial lessening of competition in Jersey or any part of it. Is the filing voluntary or mandatory? What are the penalties for non- compliance? If the merger does not fall within the criteria described in the Order, filing is not mandatory. Otherwise it is. Non-compliance could lead to the non-effectiveness of the transaction and the JCRA issuing directions against the parties and potential financial penalties of up to 10 per cent of an undertaking s turnover during the period of the breach up to a maximum of three years). Time in which a filing must be made An application for approval should be made (in the case of a private business acquisition) on or after the date when the agreement is signed but before completion, or (in the case of acquisition of a listed company) when the bid is publicly announced. Before submitting an application for approval of a merger, the parties may ask the JCRA for an informal meeting to discuss (a) whether the requirements for prior approval may apply and (b) any queries the parties may have on the information to be provided in the JCRA s Merger Application Form (the Application ).

3 Form and Content of Initial Filing The JCRA has determined the form in which an Application for approval of a merger must be made and the information and documents that must be contained in and submitted with the Application. These requirements are detailed in the Application which can be found at Information that must be contained in the Application includes description of the merger, details of the undertakings and parties involved, effects on competition. The JCRA is willing to review drafts of the Application prior to formal submission. Are filing fees required? The JCRA s fee for a preliminary merger assessment is 5, The JCRA has the discretion to reduce this fee in appropriate circumstances. Unless otherwise agreed in writing with the JCRA prior to submission, an Application must include payment for this amount. If a full investigation is required, a further fee of 15, will be required and invoiced separately. Is There An Automatic Waiting Period? If so, specify. Are There Time Limits Within Which The Regulatory Agency Must Act? Can they be shortened by the parties or be extended by the regulatory agency? The JCRA normally would expect to conclude a preliminary assessment as to whether a merger raises competition concerns meriting a fuller investigation within one calendar month of the filing of the Application. If such competition concerns are raised, the JCRA would expect to complete its full investigation within an additional four months. The JCRA may extend this period by a further month in particularly complex cases or where additional information is necessary. On the other hand, the JCRA expects that some mergers can be dealt with more quickly and concluded in less than six months, if not within the first month. On receipt of the Application, the JCRA will publish a notice, in the Jersey Gazette an on its website, stating that the parties have submitted the application and inviting comments on the proposed merger. The JCRA s final decision will be placed on the JCRA s website. What is the substantive test for clearance? Substantial lessening of competition in Jersey or part of it. An analysis whether any such merger substantially lessens competition involves: 1. defining the affected relevant market (s); 2. assessing concentration levels in the affected markets; 3. assessing the ability of the merged entity to substantially lessen competition as a result of the merger, either unilaterally or in cooperation with competitors; 4. assessing whether other market forces, such as the entry of new competitors, eliminate the risk of a substantial lessening of competition; and 5. assessing any pro-competitive effects or efficiencies that may result from the merger.

4 In assessing whether a merger substantially lessens competition, the JCRA will aim to apply the test in a similar way to the UK competition authorities, the Office of Fair Trading and the Competition Commission, as well as the European Commission. What are the common Post-Filing Procedures: Requests for further information, etc? The Law provides that at any time after receiving an application and before determining it the JCRA may request the applicant to provide any additional information or documents the JCRA may need to enable it to determine the application, verified in such manner as the JCRA may require. Describe the sanctions for not filing or filing and incorrect/incomplete notification. If a transaction is completed without approval, where one of the parties is a Jersey company, title to the shares in the company will not be transferred; and title to any property in Jersey will not be transferred. The JCRA may issue directions requiring the breach to be brought to an end, which may: - require action to nullify the effect of the merger where possible; - impose conditions relating to the conduct of the merged business; - require disposal of some or all of the relevant assets. The JCRA can also impose financial penalties where the breach was intentional, negligent or reckless. The penalty can be up to 10 per cent of the turnover of the relevant undertaking during the period of the breach to a maximum period of 3 years. Furthermore, the Law makes it a criminal offence to knowingly or recklessly provide the JCRA with information that is materially false or misleading. The JCRA also may delay its investigation, or refuse to approve a merger, if the parties do not provide all required information. The applicant must therefore complete the Application truthfully and completely. Describe the procedures if the agency wants to challenge the transaction? The JCRA may refuse to approve a merger or an acquisition if it is satisfied that the merger or acquisition would substantially lessen competition in Jersey or any part of Jersey. The JCRA may also refuse to approve a merger or acquisition if any information or document it has requested in connection with the application for the approval is not provided to it within a reasonable time of being requested. The JCRA s refusal must be giving in writing and must specify the reasons for the refusal. The JCRA must publish its decision. Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger? If a transaction is completed without approval, where one of the parties is a Jersey company, title to the shares in the company will not be transferred; and title to any property in Jersey will not be transferred. The JCRA may issue directions requiring the breach to be brought to an end, which may: - require action to nullify the effect of the merger where possible;

5 - impose conditions relating to the conduct of the merged business; - require disposal of some or all of the relevant assets. The JCRA can also impose financial penalties where the breach was intentional, negligent or reckless. The penalty can be up to 10 per cent of the turnover of the relevant undertaking during the period of the breach to a maximum period of 3 years. Third parties who consider they have been harmed as a result of any unlawful transaction may have a claim for damages, including punitive damages, in the Royal Court. Describe, briefly, your assessment of the regulatory agency's current attitudes/activities Since the coming into force of the Law, there have only been 2 applications to the JCRA. One of them was approved and the other one is pending. * * * * * The Lex Mundi member in this jurisdiction is Mourant de Feu & Jeune Antitrust, Competition and Trade Practice Group Mourant du Feu & Jeune, Jersey (Contact: Celine Bernaird -Celine.Berniard@mourant.com)