INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis
number of authorities now also have “call-in” powers. Given this, determining where to file requires a careful country-by-country analysis. As such, each chapter of the 2025 edition of the Chambers Merger Control guide indicates whether that jurisdiction has such powers and whether it has in fact called in below-threshold transactions. A new challenge faced by merging parties is the possibility of having to make separate, poten - tially very onerous filings under the EU Foreign Subsidies Regulation (FSR), distinct from any merger control filing that may also be required. The FSR requires, inter alia, notification to and prior approval by the Commission of certain transactions where one party is established in the EU and the other (typically the acquirer, but also possibly a merging party or joint venture partner) benefits from “financial contributions” meeting certain monetary thresholds. Obtaining FSR approval is proving to be a major additional challenge for companies to overcome before they can close their deal. Moreover, an increasing number of countries (virtually every EU member state, as well as doz - ens of non-EU countries) now have foreign direct investment (FDI) legislation that may require additional filings and approvals. Although neither FDI nor subsidies fall within what one tradition - ally has in mind when speaking of “merger con - trol”, they represent significant further hurdles now faced by merging companies. Substantive reviews Once it has been determined where merger con - trol filings need to be made, the next question is what the regulatory reviews will entail and what needs to be done in order to obtain approval in each jurisdiction. Again, each merger control regime has its own test for determining whether
a given transaction will be approved – while the approach may be broadly similar across jurisdic - tions, there are nuances in each that are impor - tant to understand. For example, is the legal test for assessing merg - ers based on maintaining effective competition, avoiding the creation or strengthening of a domi - nant position, or some other standard? Are verti - cal mergers subject to the same level of scrutiny as horizontal mergers? How are efficiencies con - sidered by the regulator in its assessment? Is the agency’s analysis based purely on competition law principles or are there other (eg, public inter - est) considerations at play? What kinds of argu - ments are most likely to be persuasive to each authority, and how does one ensure a consistent approach across jurisdictions given international co-operation between regulators? Timing Of course, another key issue will be how the reg - ulatory process affects timing. After all, there is no such thing as a deal that is not time-sensitive. In every transaction, there is a sense of urgency and a desire to close as soon as possible, ideally the day before yesterday. This urgency needs to be reconciled with the fact that, with some notable exceptions, most merger control jurisdictions require closing to be suspended until regulatory approval has been granted. As indicated above, Australia has now been added to this group. Taking into account the time needed to prepare the filing(s), which in challenging cases can easily be hundreds of pages long (excluding annexes) in certain juris - dictions, the time spent in “pre-notification con - sultations” with the relevant authorities before formal filing occurs (an increasingly common practice), and the time it takes for the review process(es) to play out, closing can easily be
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