Notifiable transactions and Advance Ruling Certificates
All merger transactions, whether or not they are notifiable, are subject to examination by the Commissioner to determine whether they have, or are likely to have, the effect of preventing or lessening substantially competition in a definable market. The assessment of the competitive effects of a merger is made with reference to the factors identified under section 93 of the Act. The Bureau has issued the Merger Enforcement Guidelines, which describe the merger enforcement policy of the Commissioner.
Part IX (Notifiable Transactions) of the Act provides the statutory framework for pre-notification, which requires the parties to certain proposed transactions to notify the Commissioner prior to completing their transaction. The Notifiable Transactions Regulations set out the procedure for calculating the aggregate value of assets and gross revenues from sales for purposes of the party-size and transaction-size thresholds in sections 109 and 110 of the Act, respectively.
Part IX requires parties to certain proposed transactions exceeding certain monetary thresholds to:
- notify the Commissioner prior to the completion of the proposed transaction;
- provide specified information; and
- wait a specified period of time before completing the transaction.
Advance ruling certificates
An Advance Ruling Certificate (ARC) may be issued by the Commissioner to a party or parties to a proposed merger transaction who want to be assured that the transaction will not give rise to proceedings under section 92 of the Act. Section 102 of the Act provides that an ARC may be issued when the Commissioner is satisfied that there would not be sufficient grounds on which to apply to the Competition Tribunal for an order against a proposed merger. The issuance of an ARC is discretionary. An ARC cannot be issued for a transaction that has been completed, nor does an ARC ensure approval of the transaction by any agency other than the Bureau.
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