Merger Control

2024
13th Edition

Contributing Editors:

Nigel Parr & Steven Vaz
Ashurst LLPTABLE OF CONTENTS
Preface
Nigel Parr & Steven Vaz
Ashurst LLP

Jurisdiction chapters
1

Belgium
Hendrik Viaene & Emilia Bonine
McDermott Will & Emery

9

CyprusPantelis Christofides
L Papaphilippou & Co LLC17

European Union
Hendrik Viaene, Stéphane Dionnet & Mélissa Hui
McDermott Will & Emery

32

FranceHelen Coulibaly-Le Gac, Julia Coste & Marie Doisy
BBLM Avocats

45

Germany
Timo Angerbauer, Paul Drößler, Tobias Pukropski & Fabian Grossmann
ROCAN

54

GreeceEfthymios Bourtzalas
MSB Associates

59

IsraelDr. David E. Tadmor, Shai Bakal, Ayal HaCohen & Roi Krause
Arnon, Tadmor-Levy

71

Japan
Tsuyoshi Ikeda, Aya Yasui & Muneharu Yamamoto
Ikeda & Someya

80

Korea
Joo Hyoung Jang, Sae Young Kim & Grace (Hyun Ju) Koh
Barun Law LLC

90

MalawiGeorge Naphambo
Naphambo & Company

100

Malaysia
Nadarashnaraj Sargunaraj & Nurul Syahirah Azman
Zaid Ibrahim & Co (in association with KPMG Law)

109

New Zealand
Alicia Murray & Andrew Matthews
Matthews Law

114

Nigeria
Anuoluwapo Balogun, Comfort Agboola, Adebola Soyode & Chidiebere Obialor
Olaniwun Ajayi LP

125

Switzerland
Michael Tschudin & Janica Wyss
Wenger Vieli Ltd.

133

Turkey/Türkiye
Gönenç Gürkaynak & Öznur İnanılır
ELIG Gürkaynak Attorneys-at-Law

JapanTsuyoshi Ikeda
Aya Yasui
Muneharu Yamamoto
Ikeda & Someya

Overview of merger control activity during the last 12 months
The Antimonopoly Act (the “AMA”) is the primary law governing the merger control andfiling requirements in Japan. The Japan Fair Trade Commission (the “JFTC”), the competentagency supervising the AMA, also issues the Guidelines to Application of the Antimonopoly
Act Concerning Review of Business Combination (the “Merger Guidelines”) and the Policies
Concerning Procedures of Review of Business Combination (the “Merger Review Policies”),
which reflect the JFTC’s attitude regarding merger review.
The JFTC annually publicises an overview of merger filings and merger review in Japan,
as well as major cases of the preceding fiscal year. According to the JFTC’s announcement,
306 merger cases were filed with the JFTC during the fiscal year of 2022 (starting in
April 2022, ending in March 2023), which is in line with the average rate of around 300
cases per year. The number of merger cases involving non-Japanese parties was 37. The
number of merger filings is considered to have recovered to the same level as before the
COVID-19 pandemic. A total of 299 out of 306 cases were cleared in Phase I review, andno case was sent to Phase II review in the 2022 fiscal year. In 2022, the JFTC cleared one
case (the Imabari Shipbuilding/Hitachi Zosen case) with a condition proposed by the party.
Also, the cases in which the JFTC completed a merger review during the fiscal year 2022
included 15 cases which did not meet the filing threshold. As we discuss in the sectionof “New developments in jurisdictional assessment or procedure”, in the Merger Review
Policies revised in 2019, the JFTC expresses its intention to examine merger transactions
that are significantly large and would likely affect consumers in Japan even if they do notmeet the filing threshold.
The number of merger filing cases received by the JFTC in the three recent fiscal years are
as follows:

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FY 2020

FY 2021

FY 2022

Total number of merger cases filed

266

337

306

Number of cases cleared in Phase I

258

328

299

(Out of the above numbers)
Number of cases in which the waiting period was
shortened

199

248

243

Number of cases withdrawn before completion of
Phase I7

8

7Number of cases sent to Phase II

1

1

0

Previously, the merger review results of individual cases were released only for cases sent toPhase II review. However, in recent years, the JFTC makes public announcements not only
on cases sent to Phase II review, but also on cases completed in Phase I review, including
cases that were not subject to the filing requirement. As such cases are socially high-profileand may be used as reference for businesses, it is believed that this new trend of publicannouncement will continue.

New developments in jurisdictional assessment or procedure
The AMA prohibits the acquisition or possession of the shares of a company, interlocking
directorates, shareholding by a person other than a company or a merger of companies,
joint incorporation-type split or absorption-type split, joint share transfer, or acquisitionof businesses, etc. (these are referred to as “business combinations”), where it creates abusiness combination that may substantially restrain competition in any particular fieldof trade, or where a business combination is created through an unfair trade practice.
Prohibited business combinations are subject to a cease-and-desist order pursuant to Article
17-2 of the AMA.
Notification is compulsory if the transaction meets a certain threshold under Chapter 4 of the
AMA and the Merger Guidelines. The AMA does not define any market share jurisdictional
thresholds. A transaction within the same company group is generally exempt from theobligation of notification.
Foreign-to-foreign transactions are subject to merger control examination under the AMA, as
long as the thresholds – which apply equally to foreign-to-foreign transactions and domestictransactions – are met. There is no local effect test; a local presence does not always trigger
the notification requirement. However, any transaction that meets any of the notificationthresholds is considered to have a local effect.
The JFTC can review any merger below the notification threshold, either of its own initiativeor through a voluntary consultation by the merging party(ies).
The completion of transactions that are subject to a notification requirement must be
suspended for 30 calendar days of the statutory waiting period (corresponding to the end of
the “Phase I review period”) from the date of acceptance of said notification. Nevertheless,the JFTC can shorten the waiting period in response to a written request from the notifying
party, if it is deemed appropriate to do so.
The related parties can theoretically implement transactions after the waiting period ends,
even if the succeeding review process (the “Phase II review period”) has been commenced
by the JFTC. In practice, however, they tend not to complete transactions before the Phase

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II review is completed. If a transaction that has a possibility of substantially restraining
competition is to be closed during the Phase II review period, the JFTC can request theTokyo District Court to issue an urgent injunction order to refrain the related parties fromcompleting the transaction.
If the related parties fail to meet the waiting period requirement, they will risk a criminal fineof up to JPY2 million, which can be imposed on both the notifying company(ies) and on any
representative(s) or employee(s) responsible for the failure.
Although the JFTC has never imposed such penalties in any case, it did issue a warning in thecase of Canon Inc.’s acquisition of Toshiba Medical Systems Corporation (“TMSC”) in 2016,
for being possibly inconsistent with the notification system. To be more specific, before filingthe notification to the JFTC, Canon acquired a stock option of TMSC, paying an amount equal
to the value of the underlying common shares to Toshiba Corporation, the parent company of
TMSC. In addition, a third party other than Canon and Toshiba was designated to own voting
shares of TMSC until Canon exercised the stock option. The JFTC cautioned that a company
that plans to acquire shares of a target company in this way is required to file a notification
with the JFTC prior to implementation.
In practice, the parties conventionally consult with the JFTC voluntarily prior to filing a
notification in Japan. Parties can discuss issues on a voluntary basis with the JFTC by meansof a pre-notification consultation. During the consultation, the parties can submit written
explanations concerning an overview of transactions and potential competitive issues,and discuss substantive issues including market definition and any other anticompetitive
concerns (such as high market shares or lack of strong competitive pressure from current or
potential competitors).
The period of pre-notification depends mainly on the intention and purpose of the parties.
For instance, if the parties only ask the JFTC to review the draft of the formal notification,
it will take just a few days; while in the case of complicated transactions that have various
potential competition issues, it is expected to take several months or more.
The JFTC and the parties communicate confidentially in this process. If the parties havealready publicly disclosed the transaction, the JFTC may contact their competitors andcustomers so that it can obtain their opinions on such transaction. Recently, the JFTC
announced that the JFTC solicits opinions on cases in which it is necessary to seek opinionsfrom a broader range of third parties, particularly in the digital field, regardless of whether
Phase II has commenced. In April 2023, the JFTC solicited opinions in the case of Adobe Inc.,
which planned to acquire Figma, Inc.; however, in accordance with the parties’ terminationof the merger agreement, the JFTC announced in December 2023 that it had closed themerger review.
It should be noted that, in the Merger Review Policies that were revised in 2019, the JFTC
recommends that parties whose domestic sales fall under the thresholds of the notification
consult voluntarily prior to the notification process when the total consideration for theacquisition (transaction value) will exceed JPY40 billion, and the scheduled transaction isdeemed to affect domestic consumers, such as by satisfying one of the following:• the business base or research and development base of the acquired (target) company islocated in Japan;• the acquired company conducts sales activities targeting domestic consumers, such as
creating a Japanese website or using a brochure in Japanese; or• the total domestic sales of the acquired company exceed JPY100 million.

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Recently, there has been an increased awareness that an acquisition of small businesses
such as start-up companies with lower sales but a potentially high value of data and strong
competitiveness may pose an antitrust problem, because such businesses would lose thechance to compete with other larger potential competitors. As described above, in Japanthe JFTC has the power to review merger cases even if such cases do not meet the filingthreshold. However, the JFTC decided to provide expressly in the Merger Review Policies
in 2019 that the JFTC has the intention of examining such merger transactions even if they
do not meet the filing threshold. In fact, the JFTC conducted merger reviews on at least twocases in 2019 and 2020 that did not meet the filing threshold (Google/Fitbit and M3/Nihon
Ultmarc), and as mentioned above, the JFTC reviewed 15 cases which did not meet the filingthreshold in fiscal year 2022.
According to the JFTC, in the case of Google/Fitbit, the JFTC decided to conduct a merger
review on the grounds that the transaction was significantly large and would likely affectconsumers in Japan, although this transaction did not meet the thresholds under the AMA.
The JFTC cleared the transaction by concluding that it would not substantially restrain
competition based on the behavioural remedy proposed by the parties. This is the firstpublic case in which the JFTC investigated a merger on a concentration that fell below thenotification thresholds since the Merger Review Policies were amended in 2019. It would besensible to assume that the JFTC will likely investigate future merger cases involving a big
tech company regardless of whether the transaction meets the notification thresholds. Thiscase is a good example of how active the JFTC is in vertical and conglomerate mergers.
In the M3/Nihon Ultmarc case, even though the transaction did not meet the jurisdictional
threshold to file a notification under the AMA, and the parties had already executed thetransaction several months previously, the JFTC opened its examination on whether it
would likely substantially restrain competition in certain relevant markets, and imposed
the behavioural remedy proposed even though the parties had already consummated thetransaction. This was the first case in which the JFTC made public that it had challenged aconsummated merger.
The case of Adobe/Figma in 2023 mentioned above is another example that was subject to the
JFTC’s merger review even though the transaction did not meet the thresholds. The JFTC also
explains that Furukawa Battery/Sanyo Electric in 2022 did not meet the criteria. In Furukawa
Battery/Sanyo Electric, the parties’ voluntary consultation triggered the JFTC’s merger review.
In addition, with respect to the filing requirement threshold, the JFTC made anannouncement in June 2022, regarding the Nippon Steel/Tokyo Rope case, which was not
subject to the filing requirement of 20%. In this case, the JFTC examined whether thelargest shareholder’s acquisition of an additional 9.91% of voting rights by takeover bid in
March 2021, in addition to its existing 10% of voting rights, amounting in total to 19.91%,
creates a “joint relationship” of the parties, and the case is thus subject to merger review.
When Nippon Steel learned the view of the JFTC, it offered to sell the shares gradually ata higher price than that at which it had obtained them in the transaction. As a result, the
JFTC agreed not to start a merger review.
From another viewpoint, the JFTC sometimes requires the entity to submit internal
documents such as minutes of the Board of Directors’ meeting, materials that analyse
the purpose and effect of the business combination, and a business plan of the relevantorganisation or section of the business combination. In June 2022, the JFTC published adocument that explains the JFTC’s practice regarding the submission of internal documentson the review of the business combination. The document explains the scope, timing andmethod of the submission of the internal documents.
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With respect to an economic security issue, the JFTC does not conduct its merger review
process under the AMA from the viewpoint of economic or national security; this is instead
governed by the Foreign Exchange and Foreign Trade Act (the “FEFTA”).
The FEFTA regulates foreign transactions or inward investments as foreign direct
investments or specified acquisitions – e.g., the FEFTA requires the filing of a notification
prior to transactions in certain areas, such as weapons, aircrafts, space, nuclear facilities,
dual-use technologies (which could be used for military purposes), cybersecurity, electricity,gas, telecommunications, water supply, railways and oil.
In sum, the JFTC does not prohibit parties from implementing mergers due to a threat toeconomic or national security.

Key industry sectors reviewed and approach adopted to market definition,
barriers to entry, nature of international competition, etc.
In some industry sectors, through accumulated experience of various cases, the JFTC has
several certain approaches that are typically used to define “relevant market”. The below
cases relating to prescription drugs and retail are examples of such approach.
Generally, the JFTC’s precedents define the relevant market concerning prescription drugs
by considering the ATC Classification System established by the European PharmaceuticalMarket Research Association (the “EphMRA”). Specifically, in examining substitutability
from the demand side between different products, the JFTC would identify the function oreffect of those products on the ATC Classification System and define the product market.
In addition, unlike the ordinary course of examination of a horizontal merger in which
the market share held by the parties is assessed, the JFTC tends to adopt a unique
examination method for the merger of retail businesses. Firstly, the JFTC identifies
the geographic trading area (“Shoken” in Japanese) within which the parties’ storesare competing, such as “within a 500m to 2km radius from the store”, based on POS
system data. Next, the JFTC applies this geographic trading area to each retailing store
operated by the parties, and analyses how many stores operated by the parties and theircompetitors compete within each geographic trading area before and after the merger.
Then, if the JFTC finds a high market concentration in a certain geographic area, where thenumber of brands declined from three to two or from two to one, it would further examine
the substantial restraint on competition in such areas by assessing the magnitude ofcompetitive pressure by the geographically adjacent market or other business category(such as general merchandise store, supermarkets, etc.). A case of a Japanese major GMS,
Aeon, which acquired Fuji, a supermarket and drugstore, cleared on January 19, 2022, is
one example of this approach. In this case, the JFTC defined the geographic range to betargeted within 2–7km from each store, because of the type and scale of stores, and thatmost users travel by car to visit stores.
With respect to digital markets, the Merger Guidelines and the Merger Review Policies,
revised in December 2019, focus on business combinations in digital markets, which can beoutlined as follows:• The definition of product and geographical market in a platform service – the JFTC may
define a relevant market consisting of multiple segments of customers (for example, users
and shops in the case of a credit card) as one or multiple markets. In doing so, the JFTC may
take into account various elements, including the degree of scope of products or region forusers’ replacement in the competition of service quality, and other elements specific todigital services, such as the type of service or functions available.
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JapanIkeda & Someya• Substantial restraint of trade – in a horizontal business combination, among other things,
the JFTC will take network effects into account where such effects are significant, andswitching is difficult due to network effects and/or a high switching cost. In vertical or
conglomerate business combinations, the JFTC will consider – in a combination of
upstream and downstream players that both deal with data – whether the transaction
may lead to a refusal to supply data to other companies. In the purchase of start-ups, thetransaction would hinder new entry to the market (killer acquisition).
The JFTC also explains how to assess the importance of data in assessing competition.
The revised Merger Guidelines provide that, in assessing the importance of data forcompetition purposes or whether a business operator will become a potential influential
competitor, the following points will be taken into consideration:(a) what kinds of data are held or collected by one of the parties;(b) how much data is held and how much data is collected by one of the parties daily, andfrom how wide an area;(c) how frequently one of the parties collects data; and(d) how much the data held or collected by one of the parties relate to the improvement of
the service provided by the other party in the product market. Furthermore, it is also
taken into consideration how advantageous the data that is held or collected by one ofthe parties is, as compared to the data that is available to the competitor in the productmarket of the other party, from the perspectives in points (a) to (d).

Key economic appraisal techniques applied, e.g., as regards unilateral effects
and co-ordinated effects, and the assessment of vertical and conglomeratemergers
Recently, the JFTC has been actively expanding its human resources for economic appraisal
techniques. For example, on April 1, 2022, the JFTC established a new division of the
Economic Analysis Office. In addition, on May 31, 2022, the JFTC published a document
explaining the points to consider in submitting the reports and data for economic appraisal.
The document refers to the principles to be met on economic appraisal, the ideal structureof the reports, the practice of the data submission requirement for the JFTC’s economic
appraisal, and so on.
In some precedents, the JFTC has also shown its tendency to actively introduce new economic
appraisal techniques into the merger review process. For instance, in 2021 the JFTC useddetailed economic appraisal in three cases. In the case of silicon wafer makers, the JFTC
found it appropriate to focus on Cournot competition, assuming quantity competition(GlobalWafers GmbH/Siltronic AG (2021)). In 2022, the JFTC used economic appraisal
techniques in two cases, Furukawa Battery/Sanyo Electric and Microsoft/Activision Blizzard.
In the case of battery makers, the JFTC conducted the economic appraisal by comparative
analysis of prices regarding each product based on actual sales results and other data which
the parties submitted to the JFTC in order to investigate the degree of competition between
the parties (Furukawa Battery/Sanyo Electric (2022)).

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Approach to remedies (i) to avoid second stage investigation, and (ii) following
second stage investigation
To avoid a second stage investigation, if the JFTC indicates an anticompetitive concern
relating to the transaction, the party may consider consulting with the JFTC about a remedy
even at the pre-notification consultation.
The case of Z Holdings/Line (both of which are IT giants in Japan) is very useful in understanding
the importance of the pre-notification consultation in Japan. This case commenced withthe parties’ consultation with the JFTC on November 18, 2019, and the JFTC finally made aclearance without any conditions. While the parties spent eight months in pre-notification
consultation with the JFTC, the JFTC had just 21 calendar days (12 business days in Japan)
to review the transaction in the Phase I process. Based on these facts, it is reasonable to statethat the JFTC investigated the case substantially, including an evaluation of the proposed
remedy, during the pre-notification phase.
The case of Google/Fitbit is also worth noting, as the parties promised to conduct a behavioural
remedy for the “longest” period of 10 years. As this case shows, the JFTC tends to adopt
behavioural remedies to resolve anticompetitive issues in merger transactions. In recent
years, there has not been a notable case cleared with a structural remedy, other than thecase of DIC/BASF Color Effect Japan (2020) and the case of Shinko kenzai/Nittetsu kenzai (2021).
In evaluating a proposed remedy’s effectiveness, the primary focus is whether this remedy
could resolve anticompetitive concerns raised by the JFTC in the merger review process. Fora behavioural remedy, it is essential that the proposed behaviour could increase the numberof other competitors and/or empower other competitors’ competitiveness, which could
activate competition between them; and it would be considered necessary for a neutral third
party to monitor the parties’ implementation of the proposed behavioural remedy for a longtime period. Likewise, for a structural remedy, it would be necessary for a neutral third party
to monitor the parties’ implementation of the proposed structural remedy so that a candidate
with potential competitiveness would be chosen as a prospective acquirer.
It is worth noting that, in the remedy package in the case of Google/Fitbit, it was set out that themonitoring trustee would monitor the parties’ compliance with the proposed behavioural
remedy and report to the JFTC semi-annually for 10 years.
In a recent case, Imabari Shipbuilding/Hitachi Zosen, the case was cleared by conducting abehavioural remedy.

Key policy developments
Starting from April 2021, the JFTC strengthened its resource and the power of the Mergers
and Acquisitions Division with respect to investigation under Article 47 of the AMA, byempowering officials in the Mergers and Acquisitions Division to issue executive orders moreeasily. In addition, on April 1, 2022, the JFTC established a new division of the Economic
Analysis Office. In 2024, the JFTC also strengthened its resource and 12 of the increased
staff are to strengthen the system of ensure its advocacy.
On March 31, 2023, the JFTC announced the “Guidelines Concerning the Activities ofEnterprises, etc. Toward the Realization of a Green Society under the Antimonopoly Act”
(the “Green Guidelines”) to encourage efforts of businesses for the realisation of carbon
neutrality. The Green Guidelines have a “business combinations” chapter (as Part IV), whichshows supposed cases of mergers together with the JFTC’s commentaries for each supposed
case. On April 24, 2024, the JFTC revised the Green Guidelines and added its explanation
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in the “basic viewpoints in business combination review” section, and the JFTC explainsthat for users who prefer products that can contribute to reduction of greenhouse gas, newproducts may be regarded as not substitutable for existing products. In such cases, therelevant market of the new and existing products may be separately defined, and the new andexisting products can be seen as an adjacent market to each other; and the existing products
can be evaluated as elements that promote competition in the relevant market for new
products. Thus, the Green Guidelines can also be referenced for applicable merger cases.
On June 16, 2023, the JFTC published a statement, “Towards the Active Promotion ofCompetition Policy in response to Socioeconomic Changes as represented by Digitalization– Coordination and Strengthening of Advocacy and Enforcement”. In this statement, the
JFTC states that they intend to promote the strengthening of its response to socioeconomicchanges, including digitalisation, by using enforcement and advocacy. Regarding merger
control, the statement includes mentions of the utilisation of internal documents and the useof economic appraisal techniques.

Reform proposals
As mentioned above, the Merger Guidelines and other relevant regulations were issued
by the JFTC in 2019, and thus there is no specific plan to amend the AMA and the relevant
regulations.

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Tsuyoshi Ikeda
Tel: +81 50 1745 7070 / Email: tsuyoshi.ikeda@ikedasomeya.com
Tsuyoshi Ikeda is a partner at Ikeda & Someya. He has served as aninvestigator at the JFTC, where he: participated in around 20 dawn raids;
prepared the implementation of the leniency system; and investigated a caseinvolving standard essential patents. With his success in the most cuttingedge cartel cases, merger reviews, and other types of antitrust/competition
cases, he has been recognised as one of the most prominent antitrust/competition law practitioners in Japan by lawyer-ranking institutes such as
Who’s Who Legal.
Aya Yasui
Tel: +81 50 1745 6886 / Email: aya.yasui@ikedasomeya.com
Aya Yasui is experienced in international transactions, at both U.S. andJapanese major law firms, with a particular focus on antitrust, personal
information protection and privacy issues. She has also been seconded tomajor global companies and has legal experience as in-house counsel at an
automobile manufacturer. She provides advice on legal risks in cutting-edge
fields by utilising her extensive business experience and language skills.
Muneharu Yamamoto
Tel: +81 50 1753 5050 / Email: muneharu.yamamoto@ikedasomeya.com
Muneharu Yamamoto gained extensive experience at a major internationallaw firm in a wide range of corporate legal matters, including related fields,with a focus on representing domestic and foreign companies in litigation anddisputes. He also gained familiarity with the U.S. legal system through a law
school programme while studying in the U.S., making use of such experience.
He is resident in our firm’s Osaka office.

Ikeda & Someya〒100-0006, Yurakucho ITOCiA Office Tower, 16th Floor, 2-7-1, Yurakucho, Chiyoda-ku, Tokyo, Japan
Tel: +81 50 1745 4000 / URL: www.ikedasomeya.com

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Global Legal Insights – Merger Control provides
analysis, insight and intelligence across 15
jurisdictions, covering:• Overview of merger control activity during thelast 12 months• New developments in jurisdictional
assessment or procedure• Key industry sectors reviewed and approach
adopted to market definition, barriers to entry,
nature of international competition, etc.
• Key economic appraisal techniques applied,e.g., as regards unilateral effects and coordinated effects, and the assessment ofvertical and conglomerate mergers• Approach to remedies (i) to avoid second stage
investigation, and (ii) following second stage
investigation• Key policy developments• Reform proposals

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