Listen: Merger control in Malta

In the fourth episode of the Ganado Meets Corporate Podcast, Dr Clement Mifsud-Bonnici, Senior Associate at Ganado Advocates, speaks with Office of Competition’s Director General, Godwin Mangion where together they discussed merger control law in Malta.

By way of background and for the listeners’ benefit, Mifsud-Bonnici kicked off the podcast by explaining that Malta adopts a pre-notification merger control system where deals which need to be notified to Malta’s national competition authority, the Office for Competition (‘‘Malta NCA’’) must be notified to the same and cleared, prior to their implementation.

Statistical Insight into the Malta NCA’s work in merger control

The Director General explained that in the past couple of years, the number of transactions being reported to the Malta NCA has increased, with figures consistently being in double figures, with 2023 looking to be a record year in terms of merger filings, surpassing the current 18 record figure.

In terms of timelines, the Director General provided a concise overview of the average screening times that the Malta NCA typically takes to review transactions. He explained that although the law provides a maximum of 4 weeks for short form notifications and 6 weeks for Phase 1 investigations, the Malta NCA is committed to try and issue its decision at least one week prior to the statutory deadlines.

The Director General also provided insight as to the number of cleared transactions or otherwise, stating that the Malta NCA has thus far, never blocked a transaction.

The rise of Phase II transactions – what do they entail?

The Director General explained that transactions which prima facie exhibit symptoms of competition concerns are further scrutinised through a Phase II investigation. Reflecting on past experience, the Director General explained that Phase II investigations can be quite cumbersome for the Malta NCA and the parties alike. The Director General held that one of the stumbling blocks that the Malta NCA faces when dealing with Phase II investigations is lack of data on local markets. This would in turn mean that the Malta NCA would need to go through a painstaking process of collecting information from market participants which can be quite time consuming.

With respect to a question on the sectors involved in the Phase II investigations that the Malta NCA has initiated so far, the Director General mentioned the retail sector, the telecom sector and the maritime sector. Ultimately half of these Phase II transactions were cleared, another half were abandoned, and one of them was cleared subject to commitments.

Given the lengthy and cumbersome process involved in Phase II investigations, Mifsud-Bonnici asked the Director General on how the Malta NCA goes about in managing the parties’ expectations who would anxiously be trying to get their deal cleared in anticipation of closing. The Director General confidently held that in the past, parties have been very cordial in providing information to the Malta NCA, whilst also pointing out that the Malta NCA keeps the parties in the loop throughout the entire process.

The Malta NCA’s relationship with other regulatory authorities

The Director General explained that the Malta NCA does not carry out its merger assessment in a vacuum, rather it consults with the appropriate regulator, where necessary and possible, to be in a better position to understand the markets concerned.

Besides the ‘traditional’ regulatory authorities, he Director General remarked that in some instances, the Malta NCA has also sought information from the National Foreign Direct Investment Screening Office in Malta.

Looking ahead – What’s on the legislative horizon for merger control in Malta?

The Director General also shared with Ganado insight on the upcoming legislative amendments in merger control. He explained that given that the merger regulations have been largely untouched since their inception, the time for amendments is nigh.

The Director General held that the current turnover thresholds will be revised to reflect the increased rate in inflation so that transactions of small fry are no longer notifiable to the Malta NCA. This would not only help small companies avoid being burdened with filing expenses but also allow the Malta NCA to free some of its limited resources and shift them to more fruitful work. A simplified notification form is also on the horizon, making the notification of small transactions a smoother and cheaper process[1].  The Director General also mentioned that the Malta NCA wants to move towards a paperless system, only accepting concentration notification forms (and ancillary documents) electronically rather than requiring parties to provide hard copies.

Gunjumping – a heavy price to pay (which might get even heavier!)

Parties to deals and their advisors should heed carefully the Director General’s stern reminder on their mandatory obligation of notifying their transactions to the Malta NCA, in order to avoid facing hefty penalties for gunjumping[2]. To this end, the Director General further mentioned that plans are in the pipelines to increase the penalties for gunjumping to further deter parties from failing to follow their mandatory notification obligations.

Closing remarks

The Director General closed off the podcast by giving parties a simple but necessary reminder; contact your respective advisors at the onset of deal negotiations to be able to understand whether the transaction is notifiable and to get the ball rolling on the merger control process. The Director General also reminded parties that the Malta NCA adopts an open-door policy and welcomes pre-notification meetings which provide parties with the ample opportunity to discuss with the Malta NCA their deals and concerns, prior to notification.

Authors: Clement Mifsud-Bonnici, Chris Grech

Footnotes

[1] In 2023 the European Commission also introduced a simplified procedure for small notifiable transactions which are caught under the European Union Merger Regulation. The 2023 Merger Simplification Package can be accessed here: https://competition-policy.ec.europa.eu/mergers/publications/simplification-merger-control-procedures_en

[2] Gunjumping refers to parties’ failure to notify their transactions to the Malta NCA as well as the parties’ implementation of transactions, prior to receiving clearance from the Malta NCA.