CHAPTER 07 Competition Act, Investment Canada Act and Other Restrictions on Foreign Ownership
of documents and data from the merging parties. It would also require engagement between the Bureau and the merging parties, their counsel, business people and their experts. The “efficiencies” defence has been the subject of significant policy debate in Canada, and the federal government has recently tabled proposed legislation that would repeal the defence. It is not presently clear whether and how efficiencies may continue to be factored in merger review in the absence of a statutory defence. SAFE HARBOURS – The Bureau’s (non-binding) Merger Enforcement Guidelines provide that mergers will generally not be challenged on the basis of concerns related to unilateral market power if the post-merger market share of the combined entity will be less than 35%. – Although possible, challenges based solely or primarily on concerns about coordinated behaviour by firms are rare in Canada. The Bureau’s Merger Enforcement Guidelines provide that a merger will generally not be challenged on the basis of an increased scope for coordinated behaviour if the following conditions are met: > the aggregate post-merger market share of the four largest firms in the relevant market will be less than 65%, or > the post-merger market share of the merged entity will be less than 10%. – Market shares above these levels are not necessarily challenged, but require more analysis of barriers to entry, remaining competition and other relevant factors. SERVICE STANDARD TIME PERIODS – The Bureau has adopted the following service standards reflecting the time in which it aims to complete reviews of mergers: > “Non-complex” mergers have an absence of competition issues and include transactions with no or minimal overlap between parties, assuming properly defined product and geographic markets. The service standard is 14 calendar days. Most merger transactions in Canada fall into this category. > “Complex” mergers generally involve transactions between competitors or between customers and suppliers, where there are indications that the transaction may, or is likely to, create, maintain or enhance market power. The service standard is 45 calendar days unless a supplementary information request is issued, in which case the service standard is extended to 30 calendar days from when the Commissioner receives a complete response to the request from all parties. – Service standard periods typically begin after the Bureau has received the complete information it needs to conduct its analysis. The Bureau is not legally obligated to meet the service standard time frames, and service standards do not modify statutory waiting periods. Therefore, it is possible that the statutory waiting period will expire before expiry of the service standard period
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