What are Pre-Notification Discussions (“PNDs”)?

The primary purpose of a PND is to help merger parties intending to submit a notification for decision to the CCS to identify the information needed for a complete submission, as well as any additional useful information that the CCS may require in assessing the notification.  Reducing the instances of the CCS asking for further information to be furnished will help expedite the merger review process. 

For mergers which have yet to be carried into effect, requests for a PND will be acceded to only if the merger parties intend in good faith to carry the merger into effect.  They should be relatively certain that they will be notifying the transaction to the CCS.  That the anticipated merger is still confidential, i.e. not in the public domain, does not preclude a PND.

What happens during the PND?

As the PND is meant to be an informal process, written confirmation as to what transpired at the PND will not be provided by the CCS.

During the PND, the CCS will, to the best of its ability, answer the merger parties’ queries relating to the information that they will need to submit when notifying the merger to the CCS for a decision, as well as any other queries pertaining to filing procedures.

The CCS may, where appropriate, provide an indication as to whether it is able to discern any competition concerns arising from the merger based on the facts which have been highlighted to its attention by the merger parties at the PND.  Alternatively, the CCS may give no indication, i.e. state that based on the available information, the CCS is unable to state whether competition concerns are likely or not.

Any indication relating to competition concerns provided by the CCS should be kept confidential by the merger parties.  They may make these concerns known only to their Board members and legal/financial advisers.  The indication should not, for example, be announced to shareholders. 

The indication is also not binding on the CCS.  For example, even if the CCS were to provide an indication to the effect that it is unable to discern any competition concerns, the CCS reserves its right to conduct further inquiries and/or take action against the merger at any time.

The provision of an indication of any competition concerns can be discerned is a one-shot process and is not meant to be iterative.  Thus, the CCS will not accept requests from merger parties for additional PNDs with progressively more information.  Parties are hence advised to provide to the CCS all the relevant information at the outset, no less than 5 working days before the PND.   If any information that is material to the issue of whether the merger raises competition concerns is adduced by the merger party after the deadline, the CCS may not have sufficient time to take the information into account in providing its assessment.   

How can I Request for a PND?

In requesting for a PND, the merger party should submit a written request containing the following information:

·         (In the case of an merger that has not been carried into effect) Sufficient information to show the good faith intention of the merger parties to carry the anticipated merger into effect. This may take the form of correspondence between the acquirer and acquired undertaking indicating their intention to enter into the merger, for example;

·         (For mergers which have already been carried into effect) Any write-ups or comments about the merger which are in the public domain, including media and industry write-ups and official press releases; 

·         Details of the merger, such as a brief background to the merger and its key milestones;

·         A brief description of the relevant market(s) and sector(s) involved;

·         The likely impact of the merger on competition in those markets and sectors in general terms. 

Parties intending to request for a PND should send the written request to the following email address: ccs_mergers@ccs.gov.sg.

If the request is acceded to, the merger party will be asked to submit a draft Application (comprising a Form M1 and supporting documents) to the CCS no less than 5 working days before the scheduled PND.  Merger parties should also refer to the CCS Guidelines on Merger Procedures before attending the PND.  Prior to the PND, the CCS may also call the merger party to clarify matters or get additional information.

Parties can call the CCS hotline (1800-3258282) for further enquires.