Merger Control 2022 Comparisons

Last Updated July 05, 2022

Law and Practice

Authors



Nader Al Awadhi In Association with GLA & Company provides strategic, cost-effective and forward-thinking legal representation for companies seeking to do business in the Middle East. GLA & Company's practice encompasses all of the legal issues companies will likely encounter in the global business environment. With extensive experience advising clients in the Gulf Cooperation Council (GCC) states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE), the firm offers unique insights for companies seeking to establish or expand business operations in these nations. Its job on deals is to get the same cleared with the local Competition Authority. GLA & Company has deep relationships with regulators in the GCC and has become successful in securing no objections from these bodies to clear these deals. Its lawyers are intimately familiar with the governing sources of authority and it routinely works with the relevant agencies, departments and committees on behalf of its clients.

Cabinet Resolution No 372 of 1440H Promulgating the KSA Competition Law (Royal Decree No (M75) of 1440H) (the “KSA Competition Law”).

The KSA Competition Law is supplemented by the implementing regulations pursuant to Resolution No 337 of 25/1/1441H concerning the Executive Regulations of the KSA Competition Law (“Executive Regulations”).

Merger Review Guidelines issued by GAC (defined in 1.3 Enforcement Authorities) in July 2021 (“Guidelines”).

The KSA General Authority For Competition (GAC) enforces the relevant legislation.

Notification is compulsory with respect to any entity that is encompassed within the scope of the KSA Competition Law. Exceptions:

  • transactions that do not result in a change of control (eg, acquisition of minority interests with no veto rights over strategic decisions or internal restructuring within the same corporate group); and
  • public institutions and state-owned companies if they are solely authorised by the government to supply goods or services in a certain field.

The KSA Competition Law provides for the following penalties upon breach:

  • In respect of Articles 5, 6, 7 and 11 (Anti-competitive Practices, Abuse of a Dominant Position, and Unlawful Economic Concentrations), a fine not exceeding an amount equal to 10% of the total annual sales the subject matter of the violation, or, where it is not possible to assess the relevant sales, a fine not exceeding SAR10 million. The Settlement Committee (GAC committee charged with reviewing any alleged breaches of the KSA Competition Law and Executive Regulations, excluding articles 12 and 24, and imposing penalties appropriately) may, at its discretion, elect instead to impose a fine not exceeding three times the profit generated by the offence. The quantum of fine may be doubled in the case of repeat offence.
  • In respect of Article 16 (impeding investigation), a fine not exceeding an amount equal to 5% of total annual sales, or, where it is not possible to assess the relevant sales, a fine not exceeding SAR5 million. The quantum of fine may be doubled in the case of repeat offence.
  • In respect of other breaches, a fine not exceeding SAR2 million.

When the Settlement Committee imposes any of the aforementioned penalties, the following shall be taken into consideration:

  • If the Establishment is engaged in several activities where each activity differs from the other, any fine shall be assessed according to the nature of the activity the subject matter of the violation, taking into account the activities targeted by the violation.
  • The conditions and circumstances of the violation.
  • The gravity of the violation.
  • The effects of the violation.

With respect to penalties implemented, GAC publishes the statistics surrounding the same annually. The latest report provided on GAC’s website is for the year 2020. The report detailed that GAC received 64 complaints in regard to violations of the KSA Competition Law. Forty-one of those cases were dismissed based on case-specific grounds (such as lack of jurisdiction, lack of reliance on actual evidence, or lack of evidence on violations of the KSA Competition Law). Ultimately GAC proceeded with 22 cases in total and decided to initiate investigation, research and evidence-gathering. In 2020, 10 final judgments were issued for GAC and endorsed by the Riyadh Administrative Court of Appeal, compared to 12 in 2019. Pursuant to Article 19 of the KSA Competition Law, the final judgments implemented against the violators shall be published at the expense of the violators. As such, GAC published in its 2020 annual report the 10 final judgments issued in its favour, along with the name of the violator, the fine amount, the status of collection, the violation type and the sector the violator is doing business in. The top three violation types involved “Public Security bid-rigging” and the fine amount for each was SAR5,000,000. The total cumulative fines imposed (collected and outstanding) for the year 2020 were SAR45,630,000.

The KSA Competition Law uses a principle of economic concentration to identify merger control issues. Economic concentration is defined as any action that results in a total or partial transfer of ownership of assets, rights, equity, stocks, shares, or liabilities of a firm to another by way of merger, acquisition, takeover, or the joining of two or more managements in a joint management, or any other form that leads to the control of an entity, including influencing its decision, the organisation of its administrative structure, or its voting system. This definition captures asset and share purchases, joint ventures, mergers and takeovers.

Exceptions:

  • The Guidelines confirm that if a transaction does not lead to a change of control over the target entity, then no GAC filing would be required.
  • Public institutions and state-owned companies if they are solely authorised by the government to supply goods or services in certain a field.

While prior to the issuance of the Guidelines it remained unclear how GAC would analyse the elements of control, the Guidelines now clarify this by defining “control” as “the ability to exercise decisive influence” over the “strategic or operational decisions” of the target entity, including the appointment of senior management and approval of budgets, business plans and major investments.

It is now clear that transactions that do not result in a change of control (eg, acquisition of minority interests with no veto rights over strategic decisions or internal restructuring within the same corporate group) are within the scope of the KSA Competition Law and notice to GAC is not required.

Article 7 of the KSA Competition Law provides that the entities involved in the economic concentration must notify the concentration to GAC if the total annual sales value of the entities seeking to participate in the economic concentration exceeds the amount determined by the Regulations.

Article 12(1) of the Executive Regulations specifies that the concentration must be notified to GAC if the total annual sales value of all entities intending to participate in the economic concentration exceeds SAR100,000,000.

Article 12(2) of the Executive Regulations also provides that where it is impossible to estimate the annual sales value of the entities, or where the entities’ business activities do not extend for a full fiscal year, then the annual sales value for the whole year shall be estimated based on the firms’ activity, as the case may be.

Threshold and Calculation

The KSA Competition Law bases the notification threshold on “the total annual sales value of the entities seeking to participate in the economic concentration”.

Total Annual Sales Value

  • In most cases, the “total annual sales value” will be the total gross revenues of the relevant entity. These are the amounts obtained by the entity from the sale of products and services falling within the entities’ ordinary business and related activities. For most entities that have financial statements prepared under the standards of the Saudi Organisation for Certified Public Accountants (“SOCPA”) or the equivalent prevailing accounting standards in the relevant entity’s place of incorporation, the annual sales will be the entity’s revenue appearing in the entity’s Income Statement, as reflected in the entity’s most recent audited financial statement. Where the entity is not required to produce audited financial statements, the annual sales will be the entity’s revenue appearing in its most recent annual statement of income and expense regularly prepared in accordance with the SOCPA standards or the equivalent accounting principles adopted by the entity, as the case may be.
  • In the event the relevant undertaking is an individual or a natural person, GAC will in general apply the same general principles to determining the relevant “annual sales” of the individual. The individual’s “annual sales” will generally be their annual revenue amounts obtained from their ordinary business activities. GAC will determine this on a case-by-case basis within the context of these general principles.
  • However, where the entity’s total sales incorporate sales rebates subsequently provided to its customers, the value of the sales rebates may be deducted from the gross sales figures to calculate the entity’s total sales for the purposes of the notification threshold.
  • In addition, where the entity’s total sales revenues incorporate the value of value added taxes and other taxes directly related to sales, the value of such taxes may be deducted from the gross sales figures to calculate the entity’s total sales for the purposes of the notification threshold.
  • Lastly the KSA Competition Law does not distinguish between sales taking place within KSA and those taking place outside KSA. Accordingly, GAC will consider the relevant annual sales figures to be the combined aggregate group-wide and worldwide sales figures of all the relevant entities.

Currency

If the entity’s financial statements are presented in a foreign (other than KSA) currency, then the annual gross revenues should be converted to values in Saudi Arabian Riyals according to the average over the relevant financial year of the foreign exchange rate quoted by the Saudi Central Bank.

Please see 2.8 Foreign-to Foreign Transactions.

The KSA Competition Law specifies that “all the entities participating in the concentration” and does not distinguish between acquiring and selling entity or between mergers and acquisitions. The KSA Competition Law therefore requires that the notification threshold consider the total sales of all entities participating in the concentration without distinction or exclusion.

GAC considers that the entities “participating” in the concentration are all those that form part of the newly concentrated entity after the economic concentration transaction has been completed. This means that:

  • Where two or more entities merge, the relevant entities are the merging entities in their entirety.
  • Where one entity acquires another entity, the relevant concentrated entities are the entire entity that is acquiring the other entity, and the entity being acquired, but not the entity that is selling the entity being acquired. 
  • Where one entity acquires a part of another entity’s operations, for example through purchasing a subsidiary or operational division, the relevant entities are: (1) the entire entity which is acquiring the operations or division, (2) the operations or division it is acquiring, but not the entity which is selling the operations or division. This is because the acquiring entity and the target operations or division generally form part of (and are therefore participating in) the economic concentration, but the selling entity generally does not form part of the economic concentration.
  • Where two or more entities together participate in a full-function joint venture, the relevant entities for the notification threshold are all the entities acquiring joint control of the joint venture in addition to the joint venture itself. This principle applies both to newly formed joint ventures and to the acquisition of joint control of pre-existing entities.

Group of Companies

  • Two or more legal entities will be considered to form part of the same economic entity if they constitute a “single economic entity”. The primary criterion in determining whether different legal entities form part of a single economic entity is “control”. If one legal entity controls other legal entities (such as subsidiaries), either directly or indirectly, then for the purposes of determining the total annual sales values of the entity, the relevant single economic entity will include the controlling entity and all of the entities it controls. If a single economic entity consists of two or more legal entities, and each of those legal entities prepares accounts, then the total sales of the single economic entity for the purposes of calculating the notification thresholds are the total combined gross sales revenues of all of the entities. A group will therefore include all companies that have direct or indirect control-based links with the entity concerned, including its subsidiaries, but also including its parent company(ies) and any other companies within the parent company's group.
  • Exception: The single economic entity’s revenues will exclude revenues resulting from transactions between the different legal entities within the group. Such intra-group transactions are not considered to be sales of the single economic entity.

The KSA Competition Law applies to all undertakings inside KSA. It also applies to undertakings outside KSA where those undertakings’ activities, including an Economic Concentration, may have an effect on a market in KSA. Article 3 of the Executive Regulations further provides that GAC may assess the effect, actual or potential, of such conduct outside KSA on a market inside the Kingdom.

Nexus Test

  • GAC will require economic concentrations taking place outside KSA to be notified where there is a sufficient nexus between the economic concentration and a market inside KSA. Pursuant to the KSA Competition Law and the Executive Regulations, this nexus is established where the foreign conduct (including economic concentrations among foreign undertakings) may have an effect on a market inside KSA.
  • GAC will consider that there is sufficient effect on a market in the KSA where that potential effect is direct, substantial and reasonably foreseeable.
  • Such economic concentrations among foreign undertakings are subject to the Article 7 of the KSA Competition Law and must therefore in general be notified if the other relevant criteria for required notification are also fulfilled.
  • GAC will in general not consider there to be sufficient effect on the KSA market where the foreign conduct (including economic concentrations) does not meet these criteria. For clarity, a direct effect is not limited to direct sales and may take place by way of indirect sales (eg, sales by way of a distributor).
  • GAC will also look to whether the actual or potential effect on competition is substantial. This requires that the effect take place on a market in KSA. GAC considers that this test will generally mean that jurisdiction is established where the actual or potential effect of the conduct on a market inside KSA is more than trivial.
  • GAC will also look to whether the potential effects on a market are reasonably foreseeable. In the general case, this will mean that the effect of the foreign conduct (including an economic concentration) can be reasonably foreseen and is more than merely speculative.
  • In general, GAC will consider it to be sufficient to establish a nexus if one or more of the foreign undertakings has sales in KSA. However, sales in KSA are not necessary to establish a sufficient nexus to a market in KSA.       

GAC will consider market shares and market concentration in the context of the other relevant factors that it may consider in order to conclude if a market concentration will take place. GAC typically measures market concentration using market shares, market concentration ratios and the Herfindahl-Hirschman Index (HHI). The HHI is calculated by adding the sum of the squares of the post-merger market share of the merged firm and each rival firm in the relevant market, thereby giving greater weight to the market shares of the larger firms. The HHI therefore requires the market shares, or estimates of them, for all the participants in the relevant market.

GAC will generally use the following HHI thresholds to undertake a preliminary assessment of the potential competition effects of an economic concentration:

  • GAC is unlikely to identify horizontal competition concerns in an economic concentration in a market with a post-concentration HHI below 1,000. Such an economic concentration generally does not require extensive further analysis.
  • GAC is unlikely to identify horizontal competition concerns in an economic concentration with a post-concentration HHI between 1,000 and 2,000 and an HHI delta below 250, or an economic concentration with a post-concentration HHI above 2,000 and an HHI delta below 150, except where special circumstances that require additional competition analysis are present.

The KSA Competition Law uses the principle of economic concentration to assess merger control issues. A joint venture will constitute an “Economic Concentration” when “the joint venture forms an autonomous economic undertaking, or performs the economic functions of an autonomous economic undertaking, on a lasting basis”. This would be considered a “full-function” joint venture. GAC will decide whether a joint venture would be considered a “full-function” joint venture on a case-by-case basis. Attributes of a “full-function” joint venture include:

  • the joint venture must operate in a market and perform the functions normally carried out by a commercial undertaking operating in that market;
  • the joint venture must ordinarily have a management dedicated to its day-to-day operations and access to sufficient resources, including finance, staff and assets (tangible and intangible), in order to conduct on a lasting basis its business activities within the area provided for in the joint venture agreement;
  • must be intended to operate for a sufficiently long period to bring about a lasting change in the structure of the undertakings concerned (the joint venture resource would be indicative on this point); and
  • will ordinarily have sufficient autonomy from its parent undertakings in terms of its operational decision-making to be considered a full-function joint venture.

A joint venture may begin its life as a non-full function joint venture and subsequently becomes a full-function joint venture, it will at that time be considered as a new Economic Concentration requiring notification. Such a change in the nature of the joint venture can include:

  • the joint venture’s activities are enlarged during its lifetime, such as commencement of commercial sales to third parties in an open market;
  • enlargement of the joint venture, such as through acquisition by the joint venture of the whole or part of another undertaking from the parent undertakings;
  • the parent undertakings transfer significant additional assets, contracts, know-how, or other rights to the joint venture, where this transfer would constitute or enable an extension of the joint venture’s activities, products, or geographic markets that were not the object of the original joint venture; and
  • a change in the organisational structure of the joint venture.

Changes in the nature of the joint venture are considered to have taken place upon the shareholder or the joint venture’s management taking the relevant decision that lead to the joint venture becomes a full-function joint venture, or the relevant activity commences.

GAC has no authority to investigate a transaction that does not meet the jurisdictional thresholds expressed under the KSA Competition Law and Executive Regulations.

The Competition Law provides that the undertakings participating in the economic concentration (or transaction) may not complete the transaction unless notified by GAC of GAC’s approval in writing, or if 90 days have elapsed since the review period by GAC has commenced and GAC has not provided an approval or rejection.

The 90-day regulatory review period will begin on the date on which GAC notifies the applicant that the applicant’s notification submission is complete. If the last day of this regulatory review period corresponds to an official holiday, the next working day thereafter shall be considered the last day of this regulatory review period.

The regulatory review period may be suspended under certain circumstances:

  • When GAC requests any information or documents from the applicants, GAC may suspend the regulatory review period from the date when it requests the information or documents to the date when the applicant provides the requested information or documents.
  • When GAC finds that the economic concentration parties or their representatives have provided incorrect information or failed to submit available information to GAC within the prescribed period.

Where the regulatory review period is suspended, the days during which it is suspended are not counted as part of the 90-day regulatory review period.

Where an economic concentration must be notified to GAC, it is a violation of the KSA Competition Law for the transaction to be completed unless the participating parties have received GAC’s approval in writing. Please refer to 2.12 Requirement for Clearance Before Implementation.

Please also refer to 2.2 Failure to Notify with respect to the penalties implemented and their publication. GAC’s 2020 annual report (most recent report here) does not indicate that any of the penalties imposed were with respect to parties who have implemented the transaction prior to GAC’s clearance.

Exemption

  • GAC’s board of directors has the authority pursuant to Article 8 of the KSA Competition Law and Chapter 7 of the Executive Regulations to provide a party or parties with an exemption that would exclude the KSA Competition Law from being applied to a specific transaction or economic concentration. The exemption will be granted if it would lead to improved market performance or improve the performance of undertakings in terms of the quality of the product or technological development or creative efficiency or both. The benefit of such exemption to the consumer should outweigh the effects of restricting the freedom of competition.
  • An application for exemption under this mechanism must be made and will be considered by GAC if the application: (1) is made in the format and on the forms specified under the Executive Regulations; provides adequate justification for the application; (2) includes sufficient evidence of the positive results envisaged from the economic concentration; and (3) provides supporting documents and any other information that GAC requires to review the application.
  • The board may, upon the recommendation of the technical committee, approve the application if the exemption would (1) lead to improving the market or undertakings' performance in terms of quality, diversification, technological development, or innovative efficiency; and (2) benefit consumers to a degree that outweighs the negative effects from the restriction of competition; and (3) does not enable the undertaking(s) benefiting from the exemptions to exclude competition or competitors from any market. All three conditions must be met for an exemption application to be approved. In addition to these conditions, the board may also consider any other factor relevant to assessing the degree of restriction of competition resulting from the exemption and the benefits resulting from the exemption.

Failing Firm

  • While GAC does not provide for a waiver or exemption for a failing firm under the KSA Competition Law, it does take this aspect into consideration in its assessment. Where one of the economic concentration parties is a failing firm, GAC may decide that an economic concentration which would otherwise cause competition problems may nonetheless be approved if the failing firm would be likely to exit the market even if the economic concentration does not take place.
  • The basic requirement for a “failing firm defence” is that the deterioration of the competitive structure that follows the economic concentration would take place with or without the economic concentration and therefore cannot be said to be caused by economic concentration.
  • GAC will generally only consider a “failing firm defence” to be appropriate if the economic concentration parties can demonstrate all three of the following criteria.
    1. that it is highly likely or inevitable that the allegedly failing undertaking would in the near future be forced to exit the market because of financial difficulties if it is not taken over by another undertaking;
    2. that the assets of the failing firm would also be highly likely or inevitable to exit the market if they do not participate in an economic concentration; and
    3. that there is no less anti-competitive alternative purchase or other alternative to the notified economic concentration.
  • The onus is on the relevant parties to provide GAC, in due time, with the “failing firm defence”, with all the relevant information necessary to demonstrate.

There are no circumstances where the authorities will permit closing before clearance or an exemption. It may be possible to carve out the businesses or assets in KSA and implement global closing to the extent the closing does not have a sufficient effect (see 2.8 Foreign-to-Foreign Transactions) on the KSA market. GAC approval may be required.

With respect to the required notification in the event the KSA Competition Law and Executive Regulations are applicable to a specific economic concentration, the relevant participants must notify GAC 90 days before completion of the economic concentration.

Please refer to 2.2 Failure to Notify with respect to penalties and their imposition. 

As part of the initial application for notification to GAC, the applicant must also provide a finalised, duly executed agreement to carry out the economic concentration, stating the nature of the transaction and a description of the share, equity, assets, rights or obligations to be purchased or transferred, or managements to be joined, between the relevant entities. GAC requires these documents for valid notification. If notification is made without all the requisite documents being provided, GAC reserves the right to close the notification file.

The fee to be paid for examining the Economic Concentration (the “Notification Fee”) is 0.0002 times (0.02% of) the total annual sales value of undertakings intending to participate in the Economic Concentration, with an upper limit of SAR400,000. The parties must pay the Notification Fee before submission of the notification and must submit proof of payment of the Notification Fee along with the other notification documents and information. GAC will require this proof of payment before the notification will be considered to be complete.

The parties intending to participate in the Economic Concentration transaction must notify GAC of the transaction. Notice of the transaction may be provided by the parties’ legal representative on behalf of the parties. A failure by the concentration parties to submit a notification does not preclude GAC from initiating a review and assessment of economic concentration either prior to or after the completion of the transaction.

The notification should in general be completed in the Arabic language. Notifying parties may choose to complete the forms in the English language but this must be accompanied by a translation into Arabic.

When submitting the notification, the applicant should submit the following information and documents:

  • the duly completed notification form, including the declaration as to the validity and accuracy of the information contained in the notification;
  • relevant identification documents of the person submitting the notification;
  • attach the required parties' documents (explained below);
  • proof of payment of the prescribed fees for examining the economic concentration;
  • the finalised, duly executed agreement to carry out the economic concentration, stating the nature of the transaction and a description of the share, equity, assets, rights or obligations to be purchased or transferred, or managements are to be joined, between the relevant entities;
  • a report that describes the economic impact of the transaction on the relevant markets (“Economic Report”), where this report should include a detailed description of the following items: (a) the economic concentration transaction and the participating parties, (b) the relevant sectors and markets on which the economic concentration may have an effect, (c) the key customers of the participating parties in those sectors and markets, (d) the key competitors of the participating parties in those sectors and markets, and (e) the potential impact of the economic concentration transaction on competition in those sectors and markets; GAC can discuss with the notifying parties the contents of such an Economic Report, and provide a brief template, upon request; plus any other data, information, or documents required by GAC to review the economic concentration; and
  • a full explanation of the above submitted documents.

For the acquiring entity/merging entity/first partner in the JV:

  • validated POA by the Ministry of Justice/KSA Embassy/KSA Consulate;
  • articles of association;
  • commercial register; and
  • financial statements for LFY.

For the target entity/merged entity/second partner in the JV:

  • validated POA by the Ministry of Justice/KSA Embassy/KSA Consulate;
  • articles of association;
  • commercial register; and
  • financial statements for LFY.

For the seller:

  • validated POA by the Ministry of Justice/KSA Embassy/KSA Consulate;
  • commercial register;
  • the official contact persons for the economic concentration parties and any relevant third parties are specified in the submission.

If notification is made without all the requisite documents being provided, GAC reserves the right to close the notification file. Pursuant to GAC’s 2020, 2019, and 2019 Annual Reports, zero applications were rejected for an incomplete notification application. 

Pursuant to Article 49 of the Executive Regulations, if the notifying party is found to have withheld information, provided misleading information, or concealed or destroyed documents that are useful in GAC’s investigation, they would be punished by a fine not exceeding (5%) of the total annual sales turnover or not exceeding SAR5 million when it is impossible to estimate the annual sales.

The Economic Concentration must be notified to GAC at least 90 days prior to the completion of the Economic Concentration. The applicant’s notification submission will be considered to be complete when the applicant has satisfied the required conditions for notification including providing the required information and documents required for complete notification. The 90-day regulatory review period will begin on the date on which GAC notifies the applicant that the applicant’s notification submission is complete.

The regulatory review period may be suspended when:

  • GAC requests any information or documents from the applicants, GAC may suspend the regulatory review period from the date when it requests the information or documents to the date when the applicant provides the requested information or documents;
  • GAC finds that the economic concentration parties or their representatives have provided incorrect information or failed to submit available information to GAC within the prescribed period.

A case team will be appointed to conduct its review and investigation into the economic concentration, within the 90 days. Once the case team has completed its review, it will submit a detailed note outlining its opinion for GAC board of directors. The board will evaluate the case team’s opinion, taking into account all relevant factors and its objectives under the KSA Competition Law and Executive Regulations. The board will issue a decision in one of the following three ways:

  • approval of the economic concentration application;
  • refusal of the economic concentration application, where such decision will be accompanied by a statement of reasons; or
  • approval of the economic concentration subject to conditions determined by the board, where such decision will be accompanied by a statement of reasons.

GAC is generally available for discussions with parties or their representatives prior to the formal notification of an economic concentration transaction.

Pre-notification discussions are entirely voluntary and at the parties’ discretion. GAC will not conduct pre-notification discussions on a hypothetical basis or without knowing the identities of the parties and markets at issue. To request a pre-notification discussion, the parties or their representatives should provide the following information to GAC: (i) the names and contact information of the economic concentration parties and their representatives (if any); (ii) the type of transaction; (iii) the markets or goods and services affected by the proposed transaction; and (iv) the possible impact of the transaction on competition in general terms.

It is generally recommended that this information be provided in the form of a brief confidential memorandum to GAC as this will assist the efficiency of the pre-notification process.

Pre-notification discussions are encouraged by GAC and treated as strictly confidential.

The information requested during the review process includes:

  • documents, records, data, files, specific written information and other information that GAC considers relevant for its review of the transaction;
  • such information from other parties, including from competitors, other stakeholders and the general public;
  • GAC may similarly accept information that has been offered voluntarily by other parties; and
  • GAC may require any of the economic concentration parties or other parties to provide it with market information to evaluate the effects of economic concentration on competition.

Written Requests

  • A request for information will ordinarily take place by way of a written request for information addressed to the relevant parties or their nominated representatives. The written request for information will state the purpose of the request, specify what information is required, and specify the time limit within which the information is to be provided.
  • A written request for information may cover all types of information helpful to the case team in assessing the transaction, including but not limited to written responses to specific questions, data and statistics, economic studies and market surveys, the parties’ internal documents such as strategic plans, strategic analyses of corporate markets, pricing policies, business plans, marketing plans, long- and short-term forecasts, a list of major customers, information about competitors, marketing and sales reports, sales and bidding data, excess capacities data, production costs, and any other documents and data that GAC deems to be necessary for its assessment of the intended economic concentration.

Meetings and Interviews

GAC may also gather information by holding meetings and direct interviews with the concentration parties or third parties. GAC may communicate by phone with any of the representatives or affiliates of the concentration parties for discussion and request any information required for the review of economic concentrations at any stage of the review process, when necessary.

Information that may be sought by way of phone communications or meetings may include the following:

  • basic or summary information that is required without delay;
  • verification of specific claims submitted by one of the concentration parties or third parties;
  • identification of specific individuals people who can provide evidence; and
  • any other information that may appropriately be sought in this way.

The 90-day regulatory review period may be suspended under certain circumstances:

  • when GAC requests any information or documents from the applicants, GAC may suspend the regulatory review period from the date when it requests the information or documents to the date when the applicant provides the requested information or documents;
  • when GAC finds that the economic concentration parties or their representatives have provided incorrect information or failed to submit available information to GAC within the prescribed period.

There is no indication that there is an option for an accelerated procedure under the applicable law or GAC regulations.

The substantive test employed by GAC pursuant to the KSA Competition Law and Executive regulations is whether there is an economic concentration (as defined under the KSA Competition Law) that cause a sufficient impact on the KSA market and lessens competition. Further, GAC considers change of control to be directly correlated with an economic concentration taking place.

In assessing whether an economic concentration substantially lessens competition, GAC will examine the competitive impact of the transaction in the context of the markets relevant to the economic concentration.

In defining markets in their product and geographic dimensions, GAC focuses on two key dimensions of substitution:

  • the product dimension – substitution between products is a central concept in defining the product dimension of markets. GAC notes that “product” in this context includes goods, services and other equivalent economic outputs;
  • the geographic dimension – substitution between different locations of the relevant goods or services is a central concept in defining the geographic dimension of markets. GAC notes that the “geographic dimension” in this context may be local, regional, national, or wider, including worldwide.

When defining markets, GAC will in most cases follow a general approach:

  • First, the products and geographic regions actually or potentially supplied by the economic concentration parties will be identified. This is the first step in identifying the markets that may be relevant in the analysis of the economic concentration. In this way, GAC begins by considering those areas of activity where competitive harm may occur, by considering in each case the products and geographic regions where there may be an overlap between the activity of the economic concentration parties, or some other meaningful economic relationship such as an actual or potential vertical relationship. This is done on a case-by-case basis. In many cases, more than one potential market may be identified.
  • GAC then considers the boundaries of those potential markets in their product and geographic dimensions. A properly defined relevant market includes all those products and geographic regions that are sufficiently close substitutes of the products and geographic regions first considered.

Further to the above, there are specific factors enumerated in the Executive Regulations that GAC may pass within its overall objectives of protecting and promoting competition within a market. These are as follows:

  • Structures of relevant markets and the level of actual or potential competition between undertakings inside KSA or abroad, in cases where it has an impact on local markets.
  • Financial positions of the parties to an economic concentration.
  • Commodity alternatives that are available to consumers, vendors and clients, and how accessible such alternatives are.
  • Level of product differentiation.
  • Consumer interests and welfare.
  • Potential impact of the economic concentration on prices, quality, diversification, innovation, or development in a relevant market.
  • Actual or potential harm or benefits to competition from the economic concentration transaction.
  • Supply and demand growth and trends in the relevant market and commodities.
  • Barriers to entry or exit of new undertakings into a relevant market, their continuation therein, or expansion, including regulatory barriers.
  • The extent to which an economic concentration may create or strengthen a significant market power or a dominant position of an undertaking – or group of undertakings – in any relevant market.
  • The level and historical trends of anti-competitive practices in a relevant market, either for the parties to an economic concentration or the undertakings influential in such market.
  • Views of the public, economic concentration-related parties, and sector regulators.

Dominance in a relevant market can be demonstrated if one or both of the following criteria are achieved:

  • A market share of 40% or more of the relevant market; whether it is the share of a single firm or a group of firms, whenever that group acts with a common will in committing the violation or causing the effect.
  • Ability to influence a relevant market such as controlling prices, production, or demand; whether it is the ability of a single firm or a group of firms, whenever that group acts with a common will in committing the violation or causing the effect.

There is no indication of GAC relying on case law with respect to issues such as market definitions from other jurisdictions.

GAC will broadly consider the following three categories of economic concentration:

  • horizontal concentrations – these involve concentrations of (actual or potential) suppliers of substitutable goods or services, typically operating on the same or a comparable functional level of the supply chain, and therefore commonly a concentration of competitors in the same market;
  • vertical concentrations – these involve undertakings operating (or potentially operating) at different functional levels of the same vertical supply chain, commonly where the output in one market is an input into production in the other market, and are therefore commonly not in direct competition with each other in any market;
  • conglomerate concentrations – these involve undertakings that operate (or potentially operate) in different markets and without being in the same vertical supply chain, but supplying goods or services that are in some way related to each other, for example products that are complements for consumers or in production.

GAC assesses the effect of economic concentrations on competition, competitive constraints and the efficiency of markets, rather than on the efficiency of individual entities.

The consideration of efficiencies is relevant to the competition assessment if, and only if, the efficiencies are likely to result in lower (or not significantly higher) prices, increased output and/or higher quality goods or services – in which case the conclusion may be that the economic concentration may not substantially lessen competition.

For GAC to take account of efficiency claims in its assessment of an economic concentration and to be in a position to reach the conclusion that, as a consequence of efficiencies, the economic concentration is unlikely to substantially lessen competition, the efficiencies have to benefit consumers; be specific to the economic concentration; and be verifiable. All of these conditions must be satisfied for GAC to consider efficiencies in the context of its competitive assessment of economic concentrations.

There is no express limitation or permission on what GAC can take into account to achieve the KSA Competition Law and Executive Regulation objectives.

KSA has a standalone law with respect to foreign investments that seems to be separate from the KSA Competition Law.

See 2.10 Joint Ventures.

To the extent the transaction creates an economic concentration that sufficiently impacts the KSA market, the GAC board has the authority to reject the notification filing and block the transaction from taking place or require conditions for the transaction to proceed. GAC has this authority pursuant to the KSA Competition Law and Executive Regulations.

The parties may propose structural or behavioural remedies.

In most cases, remedies are proposed by the economic concentration parties, at their discretion, as a means of permitting a transaction to be approved subject to conditions rather than the transaction being blocked altogether. In principle, the structure and content of the remedies offered to GAC will therefore be a matter for the party offering the remedies. However, GAC will only accept remedies as conditions if it is satisfied that they address GAC’s competition concerns to a degree sufficient to allow GAC to approve the transaction subject to those conditions. GAC will generally provide detailed feedback on the form and content of remedies proposed by the parties, including regarding whether GAC would be satisfied that they would alleviate the competition concerns sufficiently, and if not, what amendments to the proposed remedies would be required for GAC to accept them.

Economic concentration parties therefore have strong incentives to propose effective and enforceable remedies to GAC alleviate the identified competition concerns.

There is no specifically expressed legal standard for remedies. An acceptable remedy must adequately address and alleviate the potential competition harm created by the specific economic concentration.

The most common form of structural remedy likely to be accepted by GAC is divestiture.

We are not aware of GAC requiring remedies to address non-competition issues.

Economic concentration parties are free to propose remedies to GAC at any time throughout the transaction review process, including at the outset of the review, the prenotification phase, the moment of first notification, and after the economic concentration parties have been advised of potential competition concerns during a review. In general, economic concentration parties are encouraged to begin discussions with GAC as early in the process as possible.

When an economic concentration raises competition issues at the outset or during a review, the economic concentration parties may decide to offer remedies to GAC. If GAC accepts that the remedies are sufficient to address the competition concerns in that case, GAC may decide to approve the economic concentration subject to the conditions that the remedies be implemented, rather than blocking the economic concentration.

A divestiture remedy will normally specify the following key elements:

  • the scope of the divestiture package, such as the assets or businesses (or parts of businesses) to be disposed;
  • the process for selecting a purchaser; and
  • the process for the disposal, including the required timeline for the disposal.

Parties may not complete a transaction before remedies are complied with.

GAC maintains a role in relation to remedies and conditions accepted in relation to economic concentration, including:

  • monitoring parties’ compliance with commitments; and
  • investigating suspected breaches and enforcing remedies and conditions, including by legal action where appropriate.

Non-compliance or breach of an agreed remedy is a violation of the KSA Competition Law.

  • Where the economic concentration parties commit a breach of an obligation under the conditions, GAC may revoke its approval decision. In some cases, such as where a required divestiture is not made within the required timeframe, GAC’s decision to approve the economic concentration subject to the conditions may lapse on the basis that the required condition was not fulfilled. This, and comparable breaches of the conditions, may subject the economic concentration parties to fines under Article 19 of the KSA Competition Law.
  • The economic concentration parties may also be subject to fines under Article 20 of the KSA Competition Law, and other measures under Article 21 of the KSA Competition Law, where such measures may include requiring the economic concentration parties to unwind the economic concentration. Furthermore, GAC will also take into account all other relevant provisions of the KSA Competition Law and the Executive Regulations in setting fines and other measures, including but not limited to Article 22 of the KSA Competition Law and Chapter 7 of the Executive Regulations.

A formal decision permitting or prohibiting a transaction maybe issued to the party by GAC. In the event the investigation period of 90 days' lapses without the issuance of a decision by GAC, then it would be considered an approval pursuant to the KSA Competition Law. The application decisions are made public (as a statistic in GAC annual report); however, the party names are not mentioned unless they are penalised.

We are not aware of GAC having required remedies or prohibited foreign-to-foreign transactions.

Clearance decisions will only cover competition issues.

Relevant third parties could be involved in the review process by the applicant including them in the application submission, or by GAC requiring their input. The third parties have a right to request an interview or make a claim as part of a specific investigation for economic concentration. GAC may elicit information from third parties by conducting a survey.

The case team may discuss its interim assessment with third parties in order to identify and to seek to resolve any unresolved issues of any kind. The case team may present its interim assessment or part thereof to third parties for their opinions, while taking account of the need to obtain objective, impartial and substantiated opinions.

The third parties’ interests in confidentiality will be preserved throughout the assessment and investigation process. No documents of the third parties will be shared with others, except pursuant to the procedures outlined in the guidelines. Where a GAC document to be released during interim consultations contains information that is confidential to a third party, GAC will prepare a public version of that document which redacts any such confidential information. The parties whose confidential information is to be redacted will be given an opportunity to comment on this redaction.

Please see 7.1 Third-Party Rights.

The KSA Competition Law provides that the members of the board of directors and the employees of GAC must maintain the confidentiality of information, records, data, files and documents (together, “information”) obtained from the economic concentration parties or other entities in the course of collecting evidence or investigations. Such information may not be passed to other parties except with the approval of the board, where the board’s approval has been recorded in the meeting minutes, or with the approval of the Governor in the following cases:

  • with the consent of the party providing the information;
  • for submission of the information to judicial and quasi-judicial bodies; or 
  • for the purposes of the exchange of views and opinions with international competition authorities concerned with the review process, where the Economic Concentration Parties have been notified of GAC’s intention to disclose the information, and provided that the international competition authority receiving the information shall take the necessary legal measures for the protection of the confidentiality of the information.

Where an economic concentration is also being reviewed by competition authorities in other countries, including in cases where the possibility of remedies has also been raised in those other countries, GAC will seek where possible and reasonable to consult and coordinate with those foreign competition authorities. This consultation and coordination is for the purpose of seeking consistency where this is feasible and appropriate, including in relation to remedies.

Where appropriate, GAC will seek confidentiality waivers from economic concentration parties that allow GAC to exchange confidential information relating to the economic concentration with the relevant overseas competition authorities. GAC expects economic concentration parties to give GAC the same notice of economic concentrations and any potential remedies offered as the parties give to the overseas competition authorities, and normally requires simultaneous lodgement of submissions with GAC and overseas competition authorities.

The parties have 30 days from the date of notification or from the date specified for delivering the decision to the parties to the case, even if they failed to appear, to appeal GAC’s decision to the Riyadh Administrative Court of Appeal, otherwise it will become final.

If one of the parties appeals GAC’s decision before the Riyadh Administrative Court of Appeal, that party must notify GAC within three working days from the date of appeal, by means of a letter containing GAC's decision number and date and the number and date of the appeal filed with the Riyadh Administrative Court of Appeal and a copy thereof.

There are no release statistics with respect to successful or unsuccessful appeals against GAC.

We are not aware of any third-party appeals of GAC decisions as of yet.

There are no recent changes, as the KSA Competition Law and Executive Regulations are fairly new.

See 2.2 Failure to Notify.

The latest GAC annual report is from 2020 and they have yet to publish the 2021 report as of now. As such, there is no current information from GAC in this regard.

GLA & Company

Alex Saleh
Managing Partner

Kuwait +(965) 669 55516 / UAE +(971) 54 997 4040

alex.saleh@glaco.com www.glaco.com/attorneys/alex-saleh/
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Law and Practice in Saudi Arabia

Authors



Nader Al Awadhi In Association with GLA & Company provides strategic, cost-effective and forward-thinking legal representation for companies seeking to do business in the Middle East. GLA & Company's practice encompasses all of the legal issues companies will likely encounter in the global business environment. With extensive experience advising clients in the Gulf Cooperation Council (GCC) states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE), the firm offers unique insights for companies seeking to establish or expand business operations in these nations. Its job on deals is to get the same cleared with the local Competition Authority. GLA & Company has deep relationships with regulators in the GCC and has become successful in securing no objections from these bodies to clear these deals. Its lawyers are intimately familiar with the governing sources of authority and it routinely works with the relevant agencies, departments and committees on behalf of its clients.