Merger filings increasing in Australia, Brazil, Turkey and Saudi Arabia, but down in the US and EU
6 min read
After a record-breaking 2021, merger filings in the US and EU decreased in 2022, but merger filings are steadily increasing in Latin America, the Middle East and Australia, according to the annual results of White & Case's Global Antitrust Merger StatPak (WAMS), a resource providing up-to-date information on merger control filing activity by competition authorities around the world.
"The global landscape for merger filings is rapidly changing," said J. Mark Gidley, Chair of White & Case's Global Competition Practice. "While merger filings in the US and EU have fallen they remain still a bit above historical levels, and we have seen the emergence of other merger control regimes as key players, such as Saudi Arabia, Turkey, Peru, Australia and Brazil. With changing markets and global efforts to increase merger scrutiny, WAMS will continue to be an integral tool for companies assessing risks and approvals in cross-border M&A activity."
WAMS is the first-of-its-kind tool to serve as a clearinghouse for merger notification data, all-in-one place, in an easy-to-access format. It currently includes filing activity data from 84 of the most active merger control jurisdictions in the world, spanning five continents.
The data, which assessed more than 7,800 merger control filings globally in 2022, showed the following:
United States: Above Historical Averages, But Cooling Off at Year End
Despite US merger control filings falling below 2021's record-setting year, from January to November in 2022, Hart-Scott-Rodino (HSR) merger filings are 5 percent above the five-year average for full year 2017-2021. However at year end 2022, there were signs that merger filings were declining. In November 2022—historically the busiest month for HSR filings—there were only 243 filings in the US, which was 60 percent lower than the November 2021 total of 607 HSR filings, and 43 percent lower than the November 2020 total of 424. November 2022 HSR filings are nearly 30 percent lower than the five-year historical average of November filings between 2017 and 2021.
November 2022 also marked the first full year that President Joe Biden's antitrust teams at the Department of Justice (DOJ) and Federal Trade Commission (FTC) have been in place. Despite announcements noting that the agencies intend to increase enforcement, measured by court actions, the agencies have filed a similar number of complaints against merging parties in 2022 as in 2021. In 2021, the DOJ and the FTC filed a combined 15 complaints (including complaints filed with settlements or consents) against merging parties, whereas in 2022, the DOJ and the FTC filed a combined 17 complaints against merging parties, including complaints filed with settlements or consents.
European Union: Filings Fall
As of November 30, 2022, WAMS data shows that merger filings before the European Commission (EC) are down approximately 7 percent compared to the same period in 2021. Despite the year-on-year decrease, merger filings to the EC are only down 2 percent compared to the four-year average for the same period last year, and up 2.5 percent compared to the ten-year average for full years 2012-2021.
Notably, 2022 saw a higher intervention rate from the EC for merger filings, with the EC issuing two prohibition decisions so far in 2022, compared to none in the full years 2021 and 2020.
Despite Russia's invasion of Ukraine, the Antimonopoly Committee of Ukraine (AMCU) continues to operate. However, likely, in part, as a result of the war, the number of merger filings in 2022 dropped significantly in Ukraine as compared to the previous years. From January 1, 2022 through November 30, 2022, the AMCU has reviewed just more than 300 merger notifications, down 61 percent compared to 2021 year-end notifications. The AMCU also continues to initiate investigations and take enforcement actions, issuing fines for failure to notify transactions, amid the invasion.
Latin America: The Strongest Showing Yet
In Brazil, merger filing activity is reaching new heights, as notifications are estimated to surpass the country's record-breaking 2021 numbers. As of November 30, 2022, there have been 609 merger notifications in Brazil; while in 2021, there were just 628 merger notifications by year-end. WAMS data also shows that merger notifications in the country are 47 percent above the five-year average for the same period last year.
Despite increased enforcement by Mexico's Federal Economic Competition Commission (COFECE), merger notifications in 2022 in the country are keeping pace with 2021. From January 1, 2022 through October 31, 2022, transacting parties in Mexico have made 149 merger notifications. It appears likely that notifications will ultimately surpass those made over the same period in 2021, as a continued increase in merger notifications is expected through the year-end.
According to WAMS data, 2022 has also been a significant year for Peru's merger control regime. From January 1, 2022 through June 15, 2022, Peru's National Institute for the Defense of Competition and Protection of Intellectual Property (Indecopi) received more than double the number of notifications than it received the year prior, representing a 264 percent increase above the full-year average of 2017-2021. This increase is likely, in part, due to the entry into force of a new per-merger notification regime that expanded the country's review to include all sectors and industries when merging parties meet certain revenue thresholds. As a result, the notifications received this year in Peru span a number of sectors, including telecommunications, pharmaceuticals, mining, retail and others.
Turkey: 2022 Has Been a Terrific Year for Merger Filings
In Turkey, merger filings are keeping pace with 2021, and are expected to exceed last year's merger filings by the year-end. From January 1, 2022 through June 30, 2022, the Turkish Competition Authority (TCA) has reviewed 152 transactions, which represents nearly an 8 percent increase in merger filing activity from 2021, according to WAMS data. WAMS data also shows that H1 2022 merger filings in Turkey are 42 percent above the 2017-2021 average for the same period.
Saudi Arabia: Merger Filings on Track for Double-Digit Spike in 2022
Since Saudi Arabia adopted a new merger control regime in late 2019, merger control filings have continued to rapidly increase in the country, and 2022 is on track to be yet another record-breaking year. The Saudi Arabia General Authority for Competition reported at least 143 filings during the first three quarters of 2022, and based on current estimates, at least 337 total filings are forecasted for 2022, which would represent a 14 percent increase as compared to full year 2021, where only 295 filings were reported. Merger filings in the country for 2022 are also estimated to be at least 189 percent greater than the five-year average of 2017-2021.
Australia: A Year-Over-Year Upsurge
The Australian Competition and Consumer Commission (ACCC) has assessed an increasing number of transactions so far in 2022, continuing a year-over-year upsurge in the country. So far this year, merger notifications are up 39 percent, above the four-year average of 2017–2021, reflecting the continuing attractiveness of Australia as an investment destination.
Due to significant merger reforms proposed by the ACCC in the past 12 months, including a proposal to introduce a mandatory and suspensory merger clearance regime, and another proposing to focus on transactions involving minority interests, it is expected that the number of merger notifications in Australia will continue to increase significantly in the coming years.
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