Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

MERGERS & ACQUISITIONS6.5 Merger ReviewLarge merger cases require priorreview and approval in manyjurisdictions. As part of their review,competition authorities may prohibitmergers or approve them subject toconditions. Mergers are usually onlyprohibited or subjected to conditionsMergers are usually onlyprohibited or subjected toconditions if the authorityconcludes that the mergerwill ‘substantially harmcompetition’.if the authority concludes that the merger will ‘substantially harm competition’.Given the discretion inherent in the interpretation of this threshold, variouscompetition authorities have published merger guidelines. These are intendedto assist firms and their advisers to anticipate the procedures and criteria thatwill be applied in assessing a merger.An example of such guidelines is contained in the Horizontal MergerGuidelines published in 1997 by the US Department of Justice (DoJ) and theFederal Trade Commission (FTC). The Guidelines set out a five-stage analysisof the following subject areas: 59• market definition;• identification of firms participating in the relevant market and their marketshares;• identification of potential adverse effects of the merger;• analysis of barriers to market entry; and• evaluation of any efficiencies arising from the merger.Further details about investigative techniques recommended for use duringthe merger review process can be found at the website of the InternationalCompetition Network.6.6 Information in Merger ReviewAs part of the merger review process, themerging firms must normally provideinformation to the reviewing authority.It is standard practice in jurisdictions,which impose merger review, to requireparties to be merger to submit advancenotice of the proposed transaction. Theinformation disclosed in the pre-mergernotification will normally be used by a competition authority in the first stageof merger review (i.e. to determine if any anticompetitive concerns are presentand whether to proceed with a more detailed review of the proposedtransaction). 60Where a merger is proposed each of the undertakings involved must accordingto Section 44 (1) notify the Commission of the proposal in the prescribedmanner. If after receipt of a notification, the Commission is of the opinionthat in order to consider the proposed merger it requires further information,www.images.com68 Enforcing the Competition Law in Namibia: A Toolkit