Merger Control 2020 Comparisons

Last Updated July 13, 2020

Contributed By Drew & Napier LLC

Law and Practice

Authors



Drew & Napier LLC is a full-service law firm which has one of the oldest and largest dedicated competition law practices in Singapore. The practice has grown in tandem with the development of national and sectoral competition laws in Singapore. The firm’s competition law practice comprises an experienced and highly qualified team of over 12 lawyers which handles competition and regulatory matters both generally under the Competition Act (Chapter 50B), as well as in the carved-out sectors such as telecommunications, media, energy and post. Since 1999, the practice has worked on every noteworthy competition law-related matter in the telecommunications, media and postal sectors. Drew & Napier is regularly commissioned by the Singapore competition regulators to undertake market studies, and regularly assists regional companies, multinational corporations, associations, government bodies and industry regulators on a wide range of matters in Singapore and ASEAN member countries.

The merger control legislation in Singapore is set out in the Competition Act (Cap 50B, Competition Act), the primary competition legislation in Singapore. In particular, Section 54 of the Competition Act prohibits mergers and acquisitions that result, or may be expected to result, in a substantial lessening of competition (SLC) within any market in Singapore (the Section 54 Prohibition).

The Competition Act was enacted on 19 October 2004 and implemented in phases, with the merger provisions coming into force on 1 July 2007. The Act is enforced by the Competition and Consumer Commission of Singapore (the Commission).

The Commission has issued the following guidelines on how it will interpret and give effect to the merger control provisions in the Competition Act:

  • Guidelines on Merger Procedures 2012 (effective from 1 July 2012); and
  • Guidelines on the Substantive Assessment of Mergers 2016 (effective from 1 December 2016).

While Singapore does not have any specific legislation prohibiting or requiring consent for foreign transactions or investments, certain sectors, eg, media and telecommunications, may have laws on foreign ownership.

With respect to certain industry sectors such as telecommunications, media, post, gas and electricity, these are regulated by industry-specific statutes containing merger control provisions, which are in turn enforced by industry-specific regulators. In particular, the Section 54 Prohibition does not apply to the mergers specified in the Fourth Schedule of the Competition Act, namely, mergers which are: 

  • approved by any minister or any regulatory authority, including the Monetary Authority of Singapore (other than the Commission), pursuant to any requirement imposed by written law;
  • under the jurisdiction of another regulatory authority under any written law or code of practice relating to competition;
  • relating to the supply of licensed and regulated ordinary letter and postcard services, potable piped water, wastewater management services, licensed and regulated bus services, licensed and regulated rail services, and licensed and regulated cargo terminal operations; or
  • with economic efficiencies that outweigh the adverse effects of the SLC within a market in Singapore.

The Commission is the statutory body responsible for administering and enforcing the Competition Act. With effect from 1 April 2018, the Commission also assumed responsibility for administering and enforcing the Consumer Protection (Fair Trading) Act (Cap 52A), which provides for the protection of consumers against unfair practices and related matters.

As mentioned, sectoral regulators have purview over merger control in their respective sectors.

In cross-sectoral competition matters, the Commission will work with the relevant industry-specific regulator(s) to determine which regulator is best placed to handle the matter in accordance with statutory powers. The lead will be taken by the agency which is best placed in terms of its ability to investigate the alleged anti-competitive conduct and impose any necessary remedies.

Notification in respect of a merger, or an anticipated merger, is voluntary. Merger parties may notify a merger before, during or after the merger comes into effect. However, there are risks attached to proceeding with a merger before or during notification, as the Commission may commence investigations on its own initiative and issue directions or impose financial penalties if any infringement is found.

As notification is voluntary, there are no sanctions for failing to notify the Commission of a merger. Merger parties should undertake a self-assessment to determine if notification is appropriate, eg, if they think that the merger may result in an SLC within any market in Singapore.

Even if no notification is made, the Commission may nonetheless initiate an investigation if it has reasonable grounds for suspecting that the Section 54 Prohibition has been or will be infringed. If the Commission decides that there is or will be an infringement, it may decide on actions to remedy, mitigate or prevent any adverse effects to competition caused by the merger. These actions may include a direction to divest all or part of the business or to unwind the merger (see 5.4 Typical Remedies).

If the Commission finds that the infringement was committed intentionally or negligently, a financial penalty may be imposed on any of the merger parties, which may not exceed 10% of each party’s business turnover in Singapore for each year of infringement, up to a maximum of three years.

In general, mergers and anticipated mergers that result, or may be expected to result, in an SLC within any market in Singapore will be caught. A merger occurs if:

  • two or more undertakings, previously independent of one another, merge;
  • one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings; or
  • the result of an acquisition by one undertaking (the first undertaking) of the assets (including goodwill), or a substantial part of the assets, of another undertaking (the second undertaking) is to place the first undertaking in a position to replace or substantially replace the second undertaking in the business or, as appropriate, the part of the business in which that undertaking was engaged immediately before the acquisition.

While an undertaking’s acquisition of a majority stake in another undertaking is one of the more obvious examples of a merger, the creation of a joint venture through the transfer or pooling of assets may also be subject to the merger provisions.

Certain transactions do not constitute a merger for the purposes of the Competition Act, if:

  • the person acquiring control is a receiver or liquidator acting as such, or is an underwriter acting as such;
  • all of the undertakings involved in the merger are, directly or indirectly, under the control of the same undertaking;
  • control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy; or
  • control is acquired by an undertaking, the normal activities of which include carrying out transactions and dealings in securities for its own account or for the account of others under the circumstances specified in Section 54(9) of the Competition Act.

The determination of whether a merger exists is based on qualitative rather than quantitative criteria, focusing on the concept of control, which may occur either on a legal or on a de facto basis.

Control is the ability to exercise "decisive influence" in relation to the activities of an undertaking. This requires consideration of all relevant circumstances of the case and not only the legal effect of any instrument, deed, transfer, assignment or other act.

Control of an undertaking is seen to exist if decisive influence is capable of being exercised, in particular, by:

  • ownership of, or the right to use all or part of, the assets of an undertaking; or
  • rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.

The Commission considers that decisive influence is deemed to exist if there is ownership of more than 50% of the undertaking’s voting rights. Where ownership is between 30% and 50% of the undertaking’s voting rights, there is a rebuttable presumption that decisive influence exists. "Voting rights" refers to all the voting rights linked to the share capital of an undertaking and currently exercisable at a general meeting. That said, control could potentially be established at levels below these indicative thresholds if other relevant factors (eg, other forms of voting rights) provide strong evidence of control.

The Commission may also assess, on a case-by-case approach, whether a party has de facto control over an undertaking. For example, decisive control may exist where minority shareholders have additional rights that allow them to veto decisions that are essential for the strategic commercial behaviour of the undertaking, such as the budget, business plans, major investments, appointment of senior management or market-specific rights. The acquisition of a minority shareholding which confers decisive influence over an undertaking could amount to a merger that is considered reviewable by the Commission.

As merger notification is voluntary, the market share thresholds set out by the Commission are indicative thresholds, and mergers that fall below these thresholds may still be investigated in appropriate circumstances.

The Commission is unlikely to investigate a merger involving only small companies where in the financial year preceding the merger:

  • each party’s turnover in Singapore was below SGD5 million; and
  • the combined worldwide turnover of all the parties was below SGD50 million.

The Commission is generally of the view that competition concerns are unlikely to arise in a merger situation unless the market share of the merged entity will be:

  • 40% or more; or
  • between 20% and 40%, and the post-merger market share of the three largest firms is 70% or more.

Conversely, mergers that meet or exceed the above thresholds are not necessarily prohibited under Section 54 of the Competition Act. Merger parties are encouraged to carry out self-assessments as to whether their transaction is likely to lead to an SLC in any market in Singapore and if notification to the Commission is recommended.

There are also prescribed notification thresholds in the merger control regimes in some industry sectors regulated by industry-specific statutes.

The indicative thresholds are calculated on the basis of market shares.

Market share thresholds are based on how the market is defined and this, in turn, is dependent on the specific facts and circumstances of the particular merger under assessment or investigation.

Save for the exceptions set out in the Fourth Schedule to the Competition Act, the Section 54 Prohibition applies to any merger or anticipated merger that results, or may be expected to result, in an SLC within any market in Singapore, regardless of whether the parties to the merger have a local presence within Singapore.

While, theoretically, one party may meet the indicative market share thresholds in the absence of a substantive overlap, notification of the merger to the Commission is recommended only where there are concerns that the merger will lead to an SLC in any market in Singapore.

The merger provisions apply to joint ventures which constitute a merger. A joint venture constitutes a merger when:

  • it is subject to joint control;
  • it operates in the market and performs all the functions of an autonomous economic entity operating in that market; and
  • it is intended to operate on a lasting basis.

There is joint control where two or more parties are able to exercise decisive influence over the undertaking, which includes the power to block actions that determine the strategic commercial behaviour of the undertaking. Joint control is characterised by the possibility of a deadlock arising from the power of two or more parent companies to reject proposed strategic decisions, unless there is consensus in determining the commercial activities of the joint venture.

A joint venture is subject to the Section 54 Prohibition only if it operates in the market and performs all the functions of an autonomous economic entity. A joint venture which only takes over one specific function within the parent companies’ business activities without access to the market will not come under the purview of the Section 54 Prohibition – for example, if the joint venture is limited to research and development, or production only, or the distribution or sales of its parent companies’ products. However, a joint venture which makes use of one or more of its parent companies’ distribution networks or outlets, or relies almost entirely on sales to, or purchases from, its parent companies for an initial start-up period, is not precluded from being regarded as performing all the functions of an autonomous economic entity, if it is geared to play an active role in the market.

A joint venture which constitutes a merger must be intended to operate on a lasting basis, which may normally be demonstrated by the commitment of resources by its parent companies. For joint ventures established with a specified duration, the agreement should provide for a sufficiently long time period in order to bring about a lasting change in the structure of the undertakings concerned, or otherwise for the possible continuation of the joint venture beyond this period. Conversely, a joint venture established for a short, finite duration will not be considered to be operating on a lasting basis.

The Commission may conduct an own-initiative investigation into mergers that it was not notified of if there are reasonable grounds to suspect that the Section 54 Prohibition is, or will be, infringed. The Commission may investigate a merger based on information from complaints by third parties or its market intelligence function. There is no statute of limitations on the Commission’s ability to investigate a merger or apply sanctions.

There is no requirement for parties to suspend the implementation of a merger, or anticipated merger, prior to clearance. While merger parties may implement an anticipated merger or further integrate a completed merger before or during notification to the Commission, these actions are done at the parties’ own risk if there is a likelihood that the merger may lead to an SLC. See 2.13 Penalties for the Implementation of a Transaction Before Clearance.

The Commission may issue directions imposing interim measures it considers appropriate for mergers under investigation. Interim directions are issued for the purposes of preventing merger parties from taking any action that may prejudice the Commission’s investigations or its ability to impose the appropriate remedies, or as a matter of urgency to prevent serious, irreparable damage to a particular person or category of persons, or to protect the public interest. These measures may include suspending the merger, prohibiting the transfer of staff, or setting limits on the exchange of commercially sensitive information.

If the parties concerned do not comply with the Commission’s direction, the Commission may apply to register the direction with a district court, following which, any person who fails to comply with a registered direction without reasonable excuse may be found to be in contempt of court. Sanctions for contempt of court include the imposition of a fine or imprisonment. The court may also issue orders to secure compliance with the direction, or to require any person to remedy, mitigate or eliminate any effects arising from non-compliance.

As a matter of practice, the Commission is unlikely to use these powers unless it believes that there is a real possibility of the merger raising serious competition concerns. As of 1 April 2020, the Commission has only exercised its power to issue interim directions once, namely, in the case of Grab’s acquisition of Uber's Southeast Asian business and Uber's acquisition of a 27.5% stake in Grab (Grab-Uber case). See 9.2 Recent Enforcement Record for a brief discussion of the case.

Where the Commission finds that there has been an infringement of the Section 54 Prohibition, it will decide on the appropriate action to remedy, mitigate or prevent the adverse effects resulting from the merger, and to prevent the recurrence of such infringements. Such actions may involve directions requiring the unwinding of the merger or the divesting of one of the overlapping businesses that led to the competition concerns, as well as the imposition of financial penalties. See 5.4 Typical Remedies.

There are no prescribed general exceptions to the suspensive effect. Prior to the issuance of interim directions (ie, to suspend a merger), the Commission will provide parties with the proposed interim directions and an opportunity to make written representations. The Commission will consider the written representations before making a decision on whether or not to issue the interim directions.

If issued, the interim directions take effect immediately from the date of issuance and shall be in effect until the completion of the Commission’s investigations, or unless otherwise varied by the Commission

As notification is voluntary, merger parties may choose to implement an anticipated merger or further integrate a completed merger while it is being considered by the Commission, or before notifying the Commission. However, see 2.12 Requirement for Clearance Before Implementation and 2.13 Penalties for the Implementation of a Transaction Before Clearance on the risks of proceeding with a merger before clearance.

As notification is voluntary, the Competition Act does not stipulate any deadlines for notification. Instead, merger parties are strongly encouraged to conduct a self-assessment of the merger and consider whether to notify the Commission. Parties may choose to notify their merger to the Commission for a decision at any time before, during or after the merger.

Anticipated mergers may only be notified if they are no longer confidential and may be made known to the public, while for completed mergers, an application may be made at any time, although parties are encouraged to do so as soon as possible after completion.

For anticipated mergers, an application can only be made once the parties have a bona fide intention to proceed with the transaction and the merger has been made public, or if the parties have no objections to the Commission publicising their merger for the purpose of seeking third party views. In practice, the Commission is likely to require a memorandum of understanding or draft agreement to evidence such an intention. For completed mergers, the Commission would require a binding agreement for the filing to be made.

The filing fees for mergers or anticipated mergers are as follows:

  • where the turnover of the target undertaking or asset is equal to or less than SGD200 million, the fee is SGD15,000;
  • where the turnover of the target undertaking or asset is between SGD200 million and SGD600 million, the fee is SGD50,000; and
  • where the turnover of the target undertaking or asset is above SGD600 million, the fee is SGD100,000.

If the merger parties are small or medium-sized enterprises (SME) or if the acquiring party is an SME, and direct or indirect control in the SME will not be (or has not been) acquired, the filing fee will be SGD5,000. SMEs are defined in the Competition (Fees) Regulations 2007 as undertakings with an annual sales turnover of not more than SGD100 million or having no more than 200 employees.

Any party to a merger or anticipated merger may apply to the Commission for a decision. Joint filings are encouraged by the Commission.

The Commission will review a merger in either one or two phases. A Phase 1 review, which begins with the submission of a completed Form M1, entails a quick assessment and allows the Commission to give a favourable decision with regard to a merger situation that clearly does not raise any competition concerns. If the Commission is unable to clear a merger situation after a Phase 1 review, it will provide the applicant(s) with a summary of its key concerns and conduct a more detailed assessment in a Phase 2 review, upon receiving a completed Form M2 and response to the Phase 2 information request from the applicant(s).   

Applicant(s) should include all relevant documents to support statements and explanations made in Form M1, including transaction documents, annual reports and accounts, and business plans, among others.

Form M2 lists the further information and supporting documents which may be required by the Commission in a Phase 2 review. If applicant(s) consider that the merger is likely to go into a Phase 2 review, they may also voluntarily submit the information required in Form M2, together with Form M1, at the outset.

Even where Forms M1 and/or M2 have been completed and submitted, the Commission may require additional information from the applicant(s) for the purposes of assessing the merger situation.

The Commission may refuse to accept an application if it is not:

  • complete;
  • accompanied by relevant supporting documents;
  • substantially in the prescribed form;
  • accompanied by the appropriate fee; or
  • in compliance with any requirement prescribed under the Competition Act or accompanying regulations.

To avoid any unnecessary delay, merger parties should therefore ensure that the application is complete and all filing requirements are met upon submission.

If the Commission has issued a favourable decision based on information which was incomplete, false or misleading, the Commission may review and revoke the decision.

Persons who recklessly or intentionally provide false or misleading information to the Commission may also be charged and convicted of a criminal offence under the Competition Act. Upon conviction, such persons may face a fine of up to SGD10,000 or imprisonment for up to 12 months, or both. As of 1 April 2020, no cases have been brought in respect of such offences under the Competition Act.

In general, the Phase 1 review is expected to be completed within 30 working days, commencing on the day of receipt of a completed application. If a Phase 2 review is required, the Commission will endeavour to complete it within 120 working days of the applicant(s) submitting a completed Form M2 and a response to the Phase 2 information request that is deemed satisfactory by the Commission. In any event, the indicative timeframe for Phase 2 will only commence after the expiry of the indicative timeframe of 30 working days for the Phase 1 review.

Merger parties should note that the indicative timeframes are not binding on the Commission and the Commission has the power to "stop the clock" during the review, for example, if the merger parties fail to provide the Commission with the additional information requested within the stipulated time period (or any extensions of time given), or if commitments are being considered.

Parties may either engage the Commission in pre-notification discussions (PNDs) or seek confidential advice before submitting Form M1 and commencing the formal notification process.

PNDs

To expedite the review process, merger parties intending to make an application may engage the Commission in PNDs to discuss the content of the notification and the timing of the formal notification.

No specific timetable is given, since the Commission states that the length and formality of PNDs depend on the merger parties’ preference, the transaction’s complexity and the concerns that may be raised. The Commission states that PNDs are most useful where a draft Form M1 is provided.

The Commission will generally not give its views on whether a merger situation is likely to proceed to Phase 2 review or if it might lead to an SLC.

While parties can engage in PNDs for anticipated mergers that may not yet be made public, PNDs are not intended to relate to purely speculative or hypothetical transactions. Parties should demonstrate a good faith intention to proceed with the transaction, for example, by already having a draft agreement in place.

Confidential Advice

Parties may approach the Commission for confidential advice on a merger, especially at the stage when merger parties are concerned to preserve the confidentiality of the transaction. This process is only available if the Commission is satisfied that certain conditions are met:

  • the merger must not be completed but there must be a good faith intention to proceed with the transaction;
  • the merger must not be in the public domain, unless exceptional circumstances apply;
  • the merger situation must raise a genuine issue relating to competitive assessment in Singapore, for example, if there is a lack of relevant precedents and therefore the Commission’s approach to the merger situation is genuinely in doubt; and
  • the requesting party or parties are expected to keep the Commission informed of significant developments in relation to the merger in respect of which confidential advice was obtained, for example, the completion date or abandonment of the merger.

If the Commission decides that the above conditions are not met, the Commission will return the confidential information that was submitted by the merger parties. The Commission will not disclose the fact that confidential advice was requested, or the parties’ information, to other organisations or foreign competition authorities unless relevant waivers are given by the merger parties.

In both Phase 1 and Phase 2 reviews, the Commission may request additional or more comprehensive information when it is clear that the information is necessary. Applicant(s) are encouraged to comply with such information requests promptly and by such deadline as the Commission deems appropriate, so that the merger assessment can be completed within the indicative timeframes. If the requested information cannot be furnished by the deadline, the applicant(s) should promptly request an extension of time from the Commission.

The Commission may "stop the clock" and thereby extend the relevant time period for assessing the merger. If the applicant fails to provide the additional information within the deadline and any time extensions which have been granted, the Commission has the power to determine the application by not giving a decision, and then commence its own investigation into the merger using its statutory powers.

There is currently no separate accelerated review procedure available. That said, Phase 1 is generally considered a quick assessment which allows the Commission to issue a favourable decision in the case of a merger that is unlikely to raise any competition concerns.

The Commission employs the SLC (substantial lessening of competition) test in assessing mergers. There is no precise threshold as to what constitutes an SLC. In applying the SLC test, the Commission will compare the likely state of competition in the scenario where the merger has proceeded, against the scenario where the merger has not proceeded (often referred to as the counterfactual).

As noted in 2.5 Jurisdictional Thresholds, the Commission will seek to define the relevant market(s), in order to assess the extent of competition in each relevant market both with and without the merger situation. However, as market shares alone do not provide deep insight into the nature of competition between firms in a market, an SLC could potentially be established at thresholds below those set out in 2.5 Jurisdictional Thresholds, if other relevant factors provide strong evidence of an SLC.

While market definition depends on the specific facts and circumstances of the particular merger under assessment or investigation, the Commission may be guided by market definitions from other jurisdictions if such definitions are relevant, based on the facts of the case.

In assessing whether a merger situation might have the effect of an SLC in the relevant market, the Commission will look at:

  • the extent to which the merger parties are close competitors;
  • competition from existing competitors operating in the relevant market;
  • competition from potential competitors; and
  • the degree of countervailing buyer power of customers, such that some or all customers would be able to prevent the merged entity from raising prices.

For horizontal mergers, the Commission will consider whether the merger situation gives rise to non-coordinated effects or co-ordinated effects.

Non-coordinated Effects (or Unilateral Effects)

Non-coordinated effects (or unilateral effects) may arise where a firm, having merged with its closest competitor, could find it profitable to raise prices (or reduce output or quality) because of the loss of competition between the merged entities. Rival firms in the market may also find it profitable to increase their prices independently because of the loss of competitive pressure arising from the merger. Non-coordinated effects may also arise when an existing firm merges with a potential or emerging competitor, thereby preserving the market power of the incumbent firm that would otherwise have been threatened. 

Co-ordinated Effects

Co-ordinated effects may arise due to the merger situation increasing the possibility that, post-merger, some or all firms in the same market may find it profitable to co-ordinate their behaviour by raising prices, or reducing quality or output. This may occur where a merger reduces competitive constraints from actual or potential competition in a market, thus increasing the probability of collusion or strengthening a tendency for competitors to collude.

Non-horizontal Mergers

Non-horizontal mergers, such as vertical mergers and conglomerate mergers, may also trigger competition concerns in certain circumstances. With respect to vertical mergers, the Commission will consider factors such as the possibility of foreclosure, the increased potential for collusion, and the creation of barriers to entry. With respect to conglomerate mergers, the Commission will consider factors such as the prospects of the conglomerate merger increasing the feasibility of potential anti-competitive strategies, and facilitation of co-ordination.

Economic efficiencies may be considered by the Commission at two distinct points in the analytical framework.

Firstly, efficiencies may be assessed when considering whether the merger is likely to lead to an SLC. A merger may not result in an SLC where, for example, the efficiency gains from the merger of two of the smaller firms in a market allow the merged entity to exert greater competitive pressure on larger competitors. Secondly, efficiencies may also be taken into account where they outweigh the adverse effects resulting from the SLC caused by the merger, such that there are net economic efficiencies in markets in Singapore.

In general, efficiencies must be demonstrable (ie, clear and quantifiable), merger-specific (ie, would occur only due to the merger), timely (ie, the benefits will materialise within a reasonable period of time), and sufficient in extent (with reference to the magnitude of the efficiencies).

The Minister for Trade and Industry (the Minister) has the power to exempt a merger or an anticipated merger on the grounds of any public interest consideration, upon the application of a merger party, who has been notified that the Commission proposes to issue an unfavourable decision in respect of the merger.

The same substantive assessment applies to a joint venture which is deemed to constitute a merger for the purposes of the Competition Act. As the creation of a joint-venture merger may increase the probability of co-ordination between the joint-venture parent entities in some cases, the Commission will assess any co-ordination which takes place outside of the approved joint venture with a view to establishing whether the behaviour poses competition concerns.

Where the Commission makes a decision that a merger has infringed the Section 54 Prohibition, or that an anticipated merger, if carried into effect, will infringe the Section 54 Prohibition, it may give such person as it thinks appropriate directions to effect the appropriate remedy. The directions may include provisions prohibiting an anticipated merger from being brought into effect or requiring a merger to be dissolved or modified in such a manner (eg, requiring the disposal of such operations, assets or shares of such undertaking in a manner specified) as the Commission may direct.

The Commission may also require merger parties which intentionally or negligently infringe the Section 54 Prohibition to pay a financial penalty as the Commission may determine.

Generally, merger parties are encouraged to take the initiative to propose commitments that are appropriate to meet any competition concerns at any time before the Commission decides on the merger. The Commission will only accept commitments that are proportionate and sufficient to clearly address the identified adverse effects on competition. Even if merger parties propose commitments, the Commission may consider and impose alternative remedies.

When deciding on the appropriate remedy, the Commission will take into consideration the effectiveness of different remedies and their associated costs, and will have regard to the principle of proportionality.

The Commission may consider two types of remedies – structural remedies and behavioural remedies.

Structural Remedies

Structural remedies are generally preferred to behavioural remedies because they clearly address the market structure issues that gave rise to the competition problems and, once implemented, require little ongoing monitoring by the Commission. Typically, structural remedies involve the sale of one of the overlapping businesses that led to the competition concern. The Commission considers that, ideally, this should be a self-standing business which is capable of being fully separated from the merger parties and, in most cases, will be part of the acquired enterprise.

The sale should be completed within a specified period, subject to the Commission’s approval of the buyer. This is to ensure that the proposed buyer has the necessary expertise, resources and incentives to operate the divested business as an effective competitor in the marketplace. Otherwise, it is unlikely that the proposed divestiture will be an effective remedy for the anti-competitive elements identified.

In appropriate cases, the Commission will also consider other structural or quasi-structural remedies, for example, the divestment of the buyer’s existing business (or part of it) or an amendment to intellectual property licences.

Behavioural Remedies

The Commission will consider behavioural remedies in situations where divestment is considered to be impractical or disproportionate to the nature of the concerns identified. In some cases, behavioural remedies may also be necessary to support structural divestment.

In determining which remedies would be appropriate and comprehensive, the Commission will take into account how effectively the action would prevent, remedy or mitigate the competition concerns caused by the merger. The Commission’s starting point will be to choose the remedial action that will restore the competition that has been, or is expected to be, substantially reduced as a result of the merger. Given that the effect of a merger is to change the structure of the market, remedies that aim to restore all or part of the pre-merger market structure are likely to be a more direct way of addressing the adverse effects, although other remedies may be considered in view of the associated costs and effectiveness.

As the Commission may accept commitments at any time before making its decision, parties can generally propose commitments at any time during the Commission’s review or investigation. While merger parties are encouraged to take the initiative to propose commitments that they think may be appropriate to meet any competition concerns, the Commission may also invite merger parties to consider whether they want to offer commitments.

If the Commission identifies competition concerns in Phase 1 which indicate that a Phase 2 review may be appropriate, those concerns will be communicated to the applicant(s) in writing through an issues letter. This presents the applicant(s) with a final opportunity to propose commitments to address these concerns in Phase 1.

Towards the end of Phase 2, if the Commission reaches a preliminary view that the merger is likely to give rise to an SLC, the Commission will issue a Statement of Decision (Provisional). The Statement of Decision (Provisional) may outline remedies that the Commission considers may be appropriate, and parties will be given a final opportunity to respond and propose commitments or give their views on the remedies outlined.

In both Phase 1 and Phase 2, where the Commission considers that the commitments proposed by the merger parties are a suitable remedy, the Commission will issue an invitation to comment on its website, and may also approach third parties individually for their views. Having obtained third-party views, the Commission will decide whether or not the commitments are appropriate and may be accepted. Where commitments have been accepted, the Commission will issue a favourable decision and may publish the details of all commitments as part of its decision on the merger on its public register. If an unfavourable decision is issued (eg, if the Commission finds that the proposed commitments would not be appropriate or sufficient to address competition concerns arising from the merger), directions will be given in writing to such person(s) as the Commission considers appropriate, and the decision and directions will be published on the public register.

Divestitures to a pre-approved buyer should be completed within a specified period. An independent trustee may be appointed, at the business owner’s expense, to monitor the operation of the business pending disposal and/or to handle the sale if the owner has not completed the divestiture within the specified period.

If the parties are required to complete divestitures pursuant to a commitment accepted by the Commission, which has issued a favourable decision, the Commission may revoke the decision for failure to adhere to the terms of the commitment.

Where divestitures are ordered pursuant to directions imposed by the Commission but are not complied with, the Commission may seek to enforce its directions with a district court. See 2.13 Penalties for the Implementation of a Transaction Before Clearance on the possible penalties for non-compliance with the Commission’s directions.

The Commission will give notice of its decision to the applicant(s), announce the decision on its website, and publish the text of the decision (with confidential information redacted if the Commission agrees with the confidentiality claims of the merger parties) on the public register.

For foreign-to-foreign transactions, there is one case in which the Commission has accepted commitments from the merger parties – the proposed acquisition by ADB BVBA of all the shares of Safegate International AB from Fairford Holdings Private AB, which received a clearance decision from the Commission on 29 January 2016 (ADB-Safegate).

If merger parties have included ancillary restrictions in their notification application, a clearance decision will cover ancillary restrictions as well. Separate notifications for guidance, or a decision, may be necessary for parties who have not notified their mergers.

The Commission considers that ancillary restrictions are agreements, arrangements or provisions that are directly related and necessary to the implementation of a merger. Pursuant to an exception under the Third Schedule of the Competition Act, restrictions that fit within this definition are excluded from the application of Section 34 of the Competition Act, which prohibits anti-competitive agreements, and Section 47 of the Competition Act, which prohibits abuse of a dominant position.

However, a restriction is not automatically deemed directly related to the merger simply because it is agreed at the same time as the merger, or is expressed to be so related. To be directly related, the restriction must be connected with the merger but ancillary or subordinate to its main object.

A restriction is likely to be necessary if, for example, in the absence of the restriction, the merger would not go ahead or could only go ahead at substantially higher costs, over an appreciably longer period, or with considerably greater difficulty. In determining the necessity of the restriction, the Commission will consider whether its duration, subject matter and geographical field of application are proportionate to the overall requirements of the merger.

In addition, merger parties must demonstrate that they have chosen the option that is the least restrictive of competition, if equally effective alternatives are available for attaining the same objective.

Third parties are permitted to be involved in the review process. See 7.2 Contacting Third Parties for further information. Third parties may also make complaints to the Commission.

In general, parties that suffer loss or damage as a result of a competition law infringement will have a private right of action to seek relief in civil proceedings. Such rights will only arise after the Commission has made a decision that a merger has infringed the Section 54 Prohibition and the appeal period has expired, or where an appeal has been brought, upon the determination of the appeal. Private actions must be brought within two years from the date of the Commission’s decision or from the determination of the appeal, whichever is later.

Relief may be in the form of an injunction or declaration, damages, and such other relief as the court deems fit.

The Commission gathers information about the competitive effects of the merger from the merger parties and from third parties, including customers, competitors, suppliers, and other regulatory bodies and government departments, where relevant.

The Commission will invite third parties to comment on the merger and commitments (if any) via a public consultation exercise.

Details of notified mergers will be published on the public register when the Commission receives a satisfactory application. The details published will usually include:

  • the names of the merger parties;
  • a description of the transaction;
  • a description of the merger parties’ business activities (worldwide and in Singapore);
  • a description of the overlapping goods or services, including brand names;
  • a description of substitute goods or services; and
  • the applicant’s views, including but not limited to the definition of the relevant markets, barriers to entry and countervailing buyer power, and the competitive effects of the merger.

All relevant information, including information that may be confidential, must be provided to the Commission. Both confidential and non-confidential versions of an application or submission should be provided, as non-confidential versions are required to facilitate the Commission’s discussions and meetings with third parties, and the publication of a non-confidential version of the decision without delay.

If excessive or unreasonable confidentiality claims are made, the Commission may "stop the clock" until the applicant files a non-confidential version that is deemed acceptable by the Commission.

While the Commission will treat all parties’ submissions on confidentiality seriously, confidential information may need to be disclosed in exceptional circumstances. In such cases, the Commission will liaise with the parties in advance to consider ways to minimise any detriment to them. Applicant(s) will also be given an opportunity to review the draft decision before publication to determine whether it contains confidential information, although the Commission retains the final discretion to decide whether or not information is confidential.

The Commission is permitted under the Competition Act to enter into co-operation arrangements with any foreign competition body with approval from the Minister, which may take the form of information exchange or any other assistance as may be necessary to assist in the enforcement or administration of competition laws.

The Commission may also co-operate with foreign antitrust authorities in respect of mergers notified in other jurisdictions. Form M1 requires the parties to state which other jurisdictions they intend to notify (or have notified) of the merger. Merger parties will also be asked if they would be willing to provide a waiver that allows the Commission to exchange confidential information with competition agencies in other jurisdictions.

Parties have a right to appeal to the Competition Appeal Board (the Board) against the Commission’s decision or direction (including interim measures). The Board is an independent body comprising members appointed by the Minister.

Any merger party may appeal against the Commission’s decision, whereas the Commission’s direction may be appealed by the party on whom the direction is imposed. The Board can confirm, impose, revoke or vary a direction, or make any other direction or decision, as long as it is a decision or direction that the Commission itself could have given. While parties may appeal against the Commission’s refusal to vary, substitute or release existing commitments, parties cannot appeal against the Commission’s refusal to accept any commitments offered.

An appeal to the Board against a direction will not operate to suspend that direction, except in the case of appeals against financial penalties. The infringement decision and the direction will remain in effect (unless suspended by an interim order made by the Board or, in the case of a further appeal, the relevant appeal court).

Further appeals against the decisions of the Board are limited only to points of law and the amount of the financial penalty imposed, and may be made to the High Court and then to the Court of Appeal. Only a party to the proceedings at which the Board reached its decision can make such appeals. The High Court may determine any such appeal by confirming, modifying or reversing the Board’s decision and making such further or other order on appeal.

It is also possible to bring an action in judicial review. Parties must make an application under Order 53 of the Rules of Court, before a judge, for leave to bring an action in judicial review. Once leave is granted, parties must make the judicial review application to the High Court within 14 days.

Parties who wish to appeal to the Board must lodge a notice of appeal in the prescribed form within four weeks of the date on which the appellant was notified of the contested decision or the date of publication of the decision, whichever is earlier. The Board may, in its discretion and on the appellant’s application, extend the time limit provided for lodging a notice of appeal.

As soon as is practicable, the Board will:

  • set a timetable outlining the preparatory steps to be taken by the parties for the oral hearing of the appeal;
  • fix the hearing date;
  • notify the parties in writing of the timetable and the date and place of the hearing; and
  • send the parties a report summarising the factual context of the case and the parties’ principal submissions, if it is considered to be necessary for the expeditious disposal of the appeal.

As of 1 April 2020, there has only been one appeal filed before the Board in respect of the Section 54 Prohibition in Singapore. The matter concerns Uber’s appeal against the Commission’s decision issued on 24 September 2018, which found that Grab and Uber had infringed the Section 54 Prohibition. The Notice of Appeal was filed on 20 October 2018 and as of the time of writing the Board has not released its decision in the appeal.

Parties to an anticipated merger or a completed merger have a right to appeal against the Commission’s decision.

Any person, other than a person referred to above, to whom the Commission has given a direction under Sections 58A, 67 or 69 of the Competition Act, may also appeal to the Board.

As of 1 April 2020, there are no cases in which third parties have brought an appeal against a clearance decision by the Commission.

The most recent amendments to the Competition Act were passed on 19 March 2018 and came into effect on 16 May 2018, following a public consultation conducted between 21 December 2017 and 11 January 2018. Relevant to merger control, the amendments formalised the existing process for the Commission to give confidential advice on anticipated mergers; and widened the Commission’s powers of enforcement, enabling enforcement officers to conduct interviews with persons after entering the premises for the purpose of an investigation, without having to issue a notice under Section 63(1) of the Competition Act.

While there are no current public proposals to revise the Competition Act or implement regulations, the Commission has indicated that it will be undertaking a comprehensive review of the Competition Act, with a view to recommending changes that will balance regulatory and business compliance costs against the benefits from effective competition.

As of 1 April 2020, a total of 80 mergers have been notified to the Commission since the merger provisions came into force on 1 July 2007. The Commission has cleared 71 mergers, with three mergers pending, while the remaining six mergers have been withdrawn or abandoned. Of the 71 clearance decisions, four mergers were cleared conditional to the Commission receiving remedies or commitments from the parties, namely, in:

  • the proposed acquisition by Seek Asia Investments Pte Ltd of the Jobstreet Business in Singapore (cleared on 13 November 2014);
  • ADB-Safegate (cleared on 29 January 2016);
  • the proposed acquisition by Times Publishing Limited of Penguin Random House Pte Ltd and Penguin Books Malaysia Sdn Bhd (cleared on 25 September 2017); and
  • the acquisition by Pathology Asia Holdings Pte Ltd of Innovative Diagnostics Private Limited and Quest Laboratories Pte Ltd (cleared on 21 October 2019).

Of the three cases above, only the ADB-Safegate merger concerned a foreign-to-foreign transaction.

As of 1 April 2020, the Grab-Uber case is the only one in which the Commission has:

  • investigated a merger which was not notified to the Commission;
  • issued its first-ever interim measures direction; and
  • imposed financial penalties for an infringement of the Section 54 Prohibition.

Following the Grab-Uber merger announcement on 26 March 2018, the parties started the process of transferring acquired assets without notifying the Commission. This led to the Commission initiating an investigation of its own accord, as there were reasonable grounds to suspect an infringement of the Section 54 Prohibition. While investigations were ongoing, the Commission issued interim measures directions, which, inter alia, required the parties to cease any action that could lead to further integration of the merger or prejudice the Commission’s ability to assess the merger.

Ultimately, when the Commission issued its final infringement decision on 24 September 2018, a total of approximately SGD13 million in financial penalties was imposed on Grab and Uber for completing an irreversible merger that harmed competition, as the transfer of assets made it impossible to restore competition and market conditions to the pre-transaction state. 

As of 1 April 2020, the Board has not released its decision in the Uber appeal. See 8.2 Typical Timeline for Appeals for further details.

The Commission has demonstrated its ongoing vigilance through its investigations into un-notified mergers on its own initiative, as seen in the Grab-Uber case. In this particular case, the Commission’s issuance of its first-ever interim directions to prevent the further integration of the merging parties while investigations were ongoing, and the first-ever imposition of financial penalties in a merger decision, demonstrated the Commission’s commitment to taking timely enforcement action against competition law infringements.

While the Commission has yet to issue any specific guidance on its approach to the enforcement of competition laws in the context of the COVID-19 pandemic, the Commission has stated that it remains operational, albeit with the vast majority of its team telecommuting. In particular, parties seeking to file a merger or other notification are encouraged to contact the Commission via email and the Commission will provide guidance on how to file such notifications.

Drew & Napier LLC

10 Collyer Quay
10th Floor Ocean Financial Centre
Singapore 049315

+65 65 35 0733

+65 65 35 4906

mail@drewnapier.com www.drewnapier.com
Author Business Card

Law and Practice in Singapore

Authors



Drew & Napier LLC is a full-service law firm which has one of the oldest and largest dedicated competition law practices in Singapore. The practice has grown in tandem with the development of national and sectoral competition laws in Singapore. The firm’s competition law practice comprises an experienced and highly qualified team of over 12 lawyers which handles competition and regulatory matters both generally under the Competition Act (Chapter 50B), as well as in the carved-out sectors such as telecommunications, media, energy and post. Since 1999, the practice has worked on every noteworthy competition law-related matter in the telecommunications, media and postal sectors. Drew & Napier is regularly commissioned by the Singapore competition regulators to undertake market studies, and regularly assists regional companies, multinational corporations, associations, government bodies and industry regulators on a wide range of matters in Singapore and ASEAN member countries.