Competition Act, 1998 (Act No. 89 of 1998)Competition Commission RulesPart 6 - Merger Procedures26. Merger filing requirements |
| 1) | In respect of a particular merger, the primary acquiring firm and the primary target firm must satisfy the notice requirements of section 13(1) and (2) as follows: |
| a) | The Merger Notice required by section 13(1) may be filed by either the primary acquiring firm or the primary target firm. |
| b) | Within 3 days after filing the Merger Notice, the party who filed it must file proof of delivery of a copy of the Merger Notice to— |
| i) | each other party to the merger; and |
| ii) | to any person in respect of that party who is entitled to a copy in terms of section 13(2). |
| c) | Within 5 days after receiving a copy of a Merger Notice the primary acquiring or primary target firm that did not file the notice, must file— |
| i) | Proof of delivery of a copy of the Merger Notice to any person in respect of that party who is entitled to a copy in terms of section 13(2); and |
| ii) | a Statement of Merger Information in Form CC 4(2), including either— |
| aa) | the firm's consent to be represented in the merger proceedings by the party who filed the Merger Notice; or |
| bb) | a statement that the firm intends to participate in the merger proceedings. |
| 2) | In respect of a particular merger, a party not referred to in sub-rule (1) must satisfy the notice requirements of section 13(1) and (2) as follows: |
| a) | Within 5 days after receiving a copy of the Merger Notice, each party must file a Statement of Merger Information in Form CC 4(3), including either— |
| i) | the firm's consent to be represented in the merger proceedings by the party who filed the Merger Notice; or |
| ii) | a statement that the firm intends to participate in the merger proceedings. |
| 3) | After receiving a copy of a Merger Notice— |
| a) | A party to that merger who complies with the requirements of sub-rule (1) or (2) as applicable will be deemed to have notified the Commission of that merger, unless the Merger Notice is subsequently withdrawn without substitution, or rejected; and |
| b) | A party to that merger who fails to file a required document in terms of sub-rule, (1) or (2) as applicable, within the time allowed by that sub-rule is deemed to have consented to be represented in the merger proceedings by the party that filed the merger notice. |
| 4) | A party who has consented, or is deemed to have consented, to be represented in the merger proceedings is bound by the Merger Notice and Statement of Merger Information submitted to the Commission by the party who filed the Merger Notice, as if those documents had been prepared and filed by the consenting party. |
| 5) | When filing its Statement of Merger Information, an acquiring firm, or a target firm, may file with it— |
| a) | any other document that it is required to file in terms of this Rule; or |
| b) | any document on behalf of another firm that is also an acquiring firm, or target firm, as the case may be. |
| 6) | In addition to the provisions of sub-rule (5)(b), when filing its Statement of Merger Information, a firm may file with it any document on behalf of another firm with the consent of that firm. |
| 7) | A Merger Notice must be in Form CC 4(1), and must have attached to it a completed Statement of Merger Information in respect of the party filing the notice, in Form CC 4(2). |
| 8) | Upon receiving a Merger Notice, the Commission must determine whether the merger is within the jurisdiction of the Act, and— |
| a) | if it is, |
| i) | send a copy of the Merger Notice and Statement of Merger information to the Minister; |
| ii) | if it is a large merger, send a copy of the Merger Notice to the Tribunal; and |
| iii) | publish a notice of the merger in the Gazette; or |
| b) | if it is not, - |
| i) | return the Merger Notice to the party that submitted it, with a letter indicating that the merger is not subject to review in terms of the Act; and |
| ii) | send a copy of that letter to— |
| aa) | every other party to the merger identified in the Merger Notice; and |
| bb) | each person identified in the Merger Notice as being entitled to receive a copy of the Merger Notice in terms of section 13(2). |
| 9) | If, in respect of a particular merger, the Commission issues a letter in terms of sub-rule (8)(b), no party to that merger is required to file or serve any further documents concerning that merger. |
| 10) | A merger proceeding begins when a party to the merger files a Merger Notice in the appropriate form. |