CCM MERGER APPLICATION FOR GUIDANCE

What are merger application for guidance?
Merger application for guidance is an application made under section 47 of the Competition Act 2007, by one or more merger parties to the CCM for guidance as to whether their anticipated merger will, if carried into effect, is likely to result in a substantial lessening of competition within any market for good or services.

It is not mandatory for merger parties to notify their anticipated merger, but parties may do so if they have serious concerns as to whether the anticipated merger 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 apply for such guidance.
Generally, the CCM is unlikely to intervene in a merger situation unless:

• the merged entity will have a market share of at least 30%; or

• 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, application for guidance will not be entertained if the anticipated merger is still confidential. This is because the CCM must be able to make the transaction known to the public, in order to get third party inputs about the transaction.

How will the decision affect me?
The guidance will state whether the anticipated merger will, if carried into effect will result in a substantial lessening of competition within any market for goods or services.
If the CCM issues a favorable decision, the CCM will take no further action in relation to the section 48 with respect to the anticipated merger or merger, unless it has reasonable grounds for suspecting that:

1. 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

2. a party who provided an undertaking has failed to adhere to one or more of the terms of the undertaking.

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 CCM accepting an undertaking, the decision and the undertaking will be published on the CCM Website.
If the CCM finds that the proposed merger may result in a substantial lessening of competition, it will give notice of its findings to the applicant.

Applications for guidance can be made by filling out Form 1 and submitting it to the CCM. Upon receipt of a complete Form M1, the CCM will conduct an assessment which is expected to be completed within 30 working days.
If the Form M1 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 CCM may seek further clarification in relation to these reasons. The purpose of the non-confidential version is to allow the CCM to seek inputs from third parties relating to what has been stated in the document concerned.

If the CCM is unable to conclude that the merger does not raise competition concerns, it will proceed to conduct a more detailed assessment.
For a more detailed assessment, the CCM may ask any questions and information it deems relevant a a new deadline shall be set according to the complexity of the case, and shall in no circumstances exceed 6 months.

Compliance with filing requirements
As mergers are time-sensitive, merger parties should ensure that the Form they submit meet all the applicable filing requirements. The CCM may refuse to accept an application if it is:

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

The indicative timeframe of 30 working days for a review will commence only when these conditions are met.
In the course of the application, the CCM may request for further information over and above that required in Form 1. Failure to furnish the information may also result in the CCM exercising its discretion to determine the application by not giving the guidance sought. CCM may also embark on a review in accordance with section 48 of the Act, availing itself of all its powers under an investigation mode.

Completed form must be submitted to the CCM on weekdays from 0900 hours to 1700 hours (except on Public Holidays) in both hard and soft copies to the following address:
Competition Commission of Mauritius
1st Floor GM Tower
7, Maupin Street
Port Louis