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17 January, 2018
On December 28, 2018, Notifications of the Trade Competition Commission (TCC) related to merger control under Section 51 of the Trade Competition Act, B.E. 2560 (2017) were published in the Government Gazette, coming into effect on the following day.
The notifications fix legal definitions for several key terms relating to merger control, including a definition of “monopoly” (a sole business operator in a certain market, with a turnover of THB 1 billion or more, with the power to independently determine prices and the quantity of their products or services), a reaffirmation of the definition of “market dominance” carried over from the Trade Competition Act BE 2542 (1999), definitions of key concepts such as the “single economic unit,” and definitions of key procedural terms relating to timing and administration.
Among other things, the notifications also set out the rules, criteria, and conditions for pre-merger approval and post-merger notification.
Pre-Merger Approval
Parties entering into any merger that may result in a monopoly, or a market-dominant company, must submit an application and supporting documents such as a merger plan, timeline, market structure analysis, and merger impact assessment, to the TCC for prior approval. After considering the application, the TCC may summon the applicant or other persons to clarify the proposed transaction and seek relevant information or opinions.
The TCC has to consider the documents and render its decision within 90 days of receipt. This may be extended by up to 15 days. Once the TCC makes its decision, the Office of Trade Competition Commission (OTCC) has to report it to the applicant within 7 days. The applicant may appeal that decision to the Administrative Court within 60 days of receipt.
Post-Merger Notification
Any merger that may result in a substantial lessening of competition must be reported to the OTCC by submitting a form prescribed by the Secretary-General, in person or by registered mail, within seven days of the merger. A number of supporting documents are required, including copies of any merger applications and supporting documents submitted to the Department of Business Development and/or the Securities and Exchange Commission, share and asset purchase agreements and related documents, and minutes of the shareholders or management meeting resolving the merger.
Exempt Transactions
Mergers or acquisitions which have an effect limited to the internal restructuring of related business operators (in terms of policies or control), in accordance with the notification of the TCC, are exempt from both pre- and post-merger requirements.
Pre-merger approval will not be required for mergers executed, or approved for execution by a shareholders or management meeting, before December 29, 2018.
For further information, please contact:
Athistha (Nop) Chitranukroh, Tilleke & Gibbins
athistha.c@tilleke.com
Nutavit Sirikan, Tilleke & Gibbins
nutavit.s@tilleke.com
