Yrityskauppamenettely: käsittelyvaiheet ja aikataulu/EN
When a merger is notified to the Finnish Competition and Consumer Authority (FCCA), its review proceeds under a two-phase procedure whose timetable is worth taking into account already at the contract-drafting stage of the transaction.
- Mistä on kyse: Merger review is divided into a first phase of no more than 23 working days and, if necessary, a further investigation of no more than 69 working days.
- Miksi sillä on kaupallista merkitystä: The timetable directly affects the transaction's closing date and is worth factoring in already in the conditions precedent of the share purchase agreement (SPA).
- Mikä menee useimmin pieleen: The time limit only starts to run once the notification is complete — an incomplete notification does not start the clock, which often comes as a surprise in scheduling.
First Phase of Review
[muokkaa]The FCCA takes its decision, as a starting point, within 23 working days of the notification being received as complete (section 26 of the Competition Act). The majority of mergers are approved already at this stage without further measures, since the transaction does not, on first impression, have effects that would significantly impede competition.[1]
Further Investigation (Second Phase)
[muokkaa]If the FCCA considers that the merger may have effects that significantly impede competition, it refers the matter to further investigation. The FCCA must then, no later than 69 working days from its decision to proceed with further investigation, either impose conditions on the merger or make a proposal to the Market Court for the prohibition of the transaction; otherwise the transaction is deemed approved (section 26(2) of the Competition Act). On the FCCA's application, the Market Court may extend this time limit of the FCCA's own by no more than 46 working days (section 26(2) of the Competition Act). This is specifically the FCCA's own processing time: if the FCCA proceeds to propose that the transaction be prohibited, the Market Court, after the proposal has been submitted, has its own, separate 69-working-day processing time (see Market Court Proceedings Where the FCCA Proposes Prohibition of the Transaction below).
The time limit does not run if the parties fail to provide information requested by the FCCA in time (stop the clock). In practice, it is worth responding to information requests quickly and thoroughly — a deficient response can, paradoxically, extend the entire process.
Commitments as Part of the Review
[muokkaa]The parties may offer commitments to the FCCA to remove competition concerns already at the first phase, which can enable approval of the transaction without moving to further investigation. If the impediment to competition can be avoided through conditions, the FCCA must, instead of making a proposal, negotiate and order that the conditions be complied with (section 25(2) of the Competition Act).
Market Court Proceedings Where the FCCA Proposes Prohibition of the Transaction
[muokkaa]If the conditions negotiated at the first phase are not sufficient to remove the competition concern, the FCCA makes a proposal to the Market Court for the prohibition or dissolution of the merger, or for the imposition of conditions (section 25 of the Competition Act). The proposal must be made within the FCCA's own 69-working-day time limit described above. Once the proposal has been lodged, the Market Court has its own, separate 69-working-day time limit to issue its decision; if this time limit is exceeded, the transaction is deemed approved (section 29(1) of the Competition Act). These two 69-working-day time limits therefore run consecutively and are not the same period: the Market Court's own time limit starts to run only once the FCCA's proposal has been lodged. The Market Court may prohibit the transaction, order it to be dissolved, or impose conditions on it (section 25(1) of the Competition Act). A prohibition on implementing the transaction lapses unless the Market Court orders otherwise within 23 working days of the proposal (section 29(2) of the Competition Act).
Conditionality in the Share Purchase Agreement
[muokkaa]Because the review period can last several months, competition law clearance is typically made a condition precedent to completion in the share purchase agreement (SPA). The related contract-drafting questions — such as the parties' obligation to assist in obtaining clearance (efforts clauses) and a possible separate contractual penalty if clearance is not obtained (reverse break fee) — are discussed in more detail in Competition Law Clauses in M&A Agreements.
See Also
[muokkaa]- Fundamentals of Merger Control and the Notification Obligation
- Competition Law Assessment of Mergers and Remedies
- Competition Law Clauses in M&A Agreements
- Appeals in Competition Matters
Sources
[muokkaa]- ↑ Handling of Mergers at the Finnish Competition and Consumer Authority (Finnish text), FCCA Guideline 1/2022.