What are merger notifications?

Merger notifications are applications by merger parties to the CCS for a decision as to whether their anticipated merger will, if carried into effect, infringe, or whether their merger has infringed, the section 54 prohibition.  A merger infringes the section 54 prohibition if it has resulted, or may be expected to result, in a substantial lessening of competition within any market in Singapore.

When should a notification be made in respect of an anticipated merger or merger?

It is not mandatory for merger parties to notify their anticipated merger or merger, but parties may do so if they have serious concerns as to whether the anticipated merger or merger has resulted or may be expected to result in a substantial lessening of competition. Merger parties are strongly encouraged to conduct a self-assessment to ascertain if it is necessary to notify.  In doing so, they should refer to the CCS Guidelines on the Substantive Assessment of Mergers.  Generally, the CCS is unlikely to intervene in a merger situation unless:

•        the merged entity will have a market share of at least 40%; or

•        the merged entity will have a market share of between 20% and 40% AND the post-merger combined market share of the three largest firms (CR3) is at least 70%.

In the case of an anticipated merger which has yet to be carried into effect, notification will not be accepted if the anticipated is still confidential.  This is because the CCS must be able to make the transaction known to the public, in order to get third party inputs about the transaction. Alternatively, merger parties may wait until the anticipated merger has been carried into effect before notifying the merger.

A fee is payable with the notification.

How will the decision affect me?

The decision will state whether the anticipated merger will, if carried into effect, infringe, or whether the merger has infringed, the section 54 prohibition.

If the CCS issues a favorable decision (i.e. that the section 54 prohibition will not be, or has not been, infringed), the CCS will take no further action in relation to the section 54 prohibition with respect to the anticipated merger or merger,  unless it has reasonable grounds for suspecting that:

i)                    any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or

ii)                  a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.

In the case of anticipated mergers, a favourable decision may be subject to a validity period, in which case the immunity applies only if the anticipated merger is carried into effect within the validity period.

If the favourable decision arises from the CCS accepting a commitment, the decision and the commitment will be published on the CCS Public Register.

If the CCS proposes to make an infringement decision (i.e. that the anticipated merger will, if carried into effect, infringe, or that the merger has infringed, the section 54 prohibition), it will give notice of the proposed infringement decision, whereupon the applicant may apply to the Minister for the merger to be exempted on public interest grounds.  If the CCS proceeds to issue an infringement decision, the decision will be published on the Public Register. Directions to remedy, mitigate or eliminate the adverse effects arising from the merger may also be issued.

How do I notify a merger?

Applications for a decision can be made by filling out Form M1 and submitting it to the CCS, together with the prescribed fee. Upon receipt of a complete Form M1, the CCS will conduct a preliminary assessment (Phase 1 review) which is expected to be completed within 30 working days.

If the Form M1 or Form M2 and its supporting documents contain any information which the applicant feels is confidential, a non-confidential version of the form or document must be submitted.  Any confidential information removed from the non-confidential versions should be replaced by square brackets containing the word “CONFIDENTIAL”.  The non-confidential version of each document must also be accompanied by a separate annex identifying the confidential information and explaining why the information should be treated as confidential.  The CCS may seek further clarification in relation to these reasons.  The purpose of the non-confidential version is to allow the CCS to seek inputs from third parties relating to what has been stated in the document concerned.    

If the CCS is unable to conclude that the merger does not raise competition concerns in Phase 1, it will proceed to conduct a more detailed assessment (Phase 2 review). The CCS will not embark on a Phase 2 review until the CCS receives Form M2. As a Phase 2 review is more complex, the CCS will endeavor to complete it within 120 working days.

Where Form M2 is required and has not been furnished by the merger parties previously, the CCS will stipulate a deadline within which the merger parties are to submit Form M2. Merger parties who are unable to comply with the deadline should request for an extension of time as soon as possible. If Form M2 is not submitted within the deadline stipulated by the CCS and any extensions which may have been granted, the CCS may determine the application by not giving the decision sought.

In order not to place any undue burden on merger parties, the CCS will ask for Form M2 only if it is unable to conclude in Phase 1 that the merger does not raise competition concerns. However, merger parties are free to submit Form M2 on their own accord (together with Form M1) if they assess that the merger is a complex one and anticipate that it is likely to go into a Phase 2 review.

Compliance with filing requirements

As mergers are time-sensitive, merger parties should ensure that the form(s) they submit meet all the applicable filing requirements and the relevant fee is paid. The CCS may refuse to accept an application if it is

• incomplete;
• not accompanied by the relevant supporting documents;
• not substantially in the prescribed form;
• not accompanied by the appropriate fee; or
• not in compliance with any requirement under the Act or any relevant regulations.

The indicative timeframe of 30 working days for Phase 1 review and 120 working days for Phase 2 review will commence only when these conditions are met.

In the course of the application, the CCS may request for further information over and above that required in Form M1 or Form M2. Failure to furnish the information may also result in the CCS exercising its discretion to determine the application by not giving the decision sought.

Merger parties should refer to the CCS Guidelines on Merger Procedures, as well as the Competition Regulations, for more details on how to make an application.

Submission of Applications

Completed form(s) must be submitted to the CCS on weekdays from 0900 hours to 1700 hours (except on Public Holidays) in both hard and soft copies (stored in CD-ROM), to the following address:

Mergers Unit – Application for Decision

Competition Commission of Singapore

5 Maxwell Road Tower Block

#13-01 MND Complex

Singapore 069110