Lex Mundi Global Merger Notification Guide

Yes, the Control of Concentrations Regulations, S.L.379.08 ("the Regulations") are applicable to mergers and acquisitions. The Regulations are subsidiary legislation made under the Competition Act (Chapter 379 of the Laws of Malta).

The Office for Competition within the Malta Competition and Consumer Affairs Authority is the national competition authority. The Director General ("DG") heading the Office for Competition is responsible for assessing concentrations falling under the Regulations.

The DG's decisions are subject to appeal before the Civil Court (Commercial Section). The Civil Court (Commercial Section)'s judgment is also subject to appeal before the Court of Appeal. The appeal may be on points of law and fact.

Penalties for failing to comply with the merger control rules are imposed by the Civil Court (Commercial Section) following judicial proceedings filed by the Director General. The judgment of the Civil Court (Commercial Section) is again subject to a full right of appeal before the Court of Appeal.

Yes, the European Commission has exclusive competence in the case of mergers having a 'European Union dimension' in accordance with Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

Notification is mandatory where the transaction qualifies as a 'concentration' within the meaning ofthe Regulations. The requirements for filing are found in the Regulations and in the Schedule to the Regulations.

The concentration must be notified by the undertaking acquiring control. In the case of mergers or the acquisition of joint control, it must be notified jointly by the merging undertakings or by the undertakings acquiring joint control. In the case of a public bid to acquire an undertaking, the bidder must complete the notification.

A concentration within the meaning of the Regulations must satisfy two cumulative conditions. In the first place, there must be a permanent change in control. The transaction must consist of:

1. the merging of two or more undertakings that were previously independent from each other; or
2. the acquisition by one or more undertakings or by one or more persons already controlling at least one undertaking, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.

In the second place, the turnover thresholds must be satisfied. These are described in the reply to "What are the relevant thresholds for notification?" below.

The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (that is, a full-function joint venture) also constitutes a concentration.

The following are not considered to be a concentration:

1. the holding on a temporary basis by credit or financial institutions or insurance companies (the normal activities of which include transactions and dealings in equity securities for their own account or for the account of others) of equity securities which they have acquired in an undertaking with a view to reselling them, provided that they do not exercise voting rights in respect of those equity securities with a view to determining the competitive behaviour of that undertaking or provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those equity securities and that any such disposal takes place within two years of the date of acquisition (the latter period may be extended where it is shown that the disposal was not reasonably possible within two years);
2. control is acquired by a person or entity competent according to law to conduct liquidation, winding up, insolvency, cessation of payment, compositions or analogous proceedings; and
3. control is acquired by a company the sole object of which is to acquire holdings in other undertakings and to manage such holdings and turn them to profit without involving itself directly or indirectly in the management of those undertakings, without prejudice to their rights as shareholders. The voting rights in respect of the holding must be exercised (in particular, in relation to the appointment of members of the management and supervisory bodies of the undertakings in which they have holdings) only to maintain the full value of those investments and not to determine directly or indirectly the competitive conduct of those undertakings.

The acquisition of a minority interest is only considered to be a concentration to the extent that it results in a change of control, and therefore, if the minority shareholder will be able to exercise decisive influence in an undertaking.

In any case, if the acquisition of a minority interest does not constitute a concentration, the concentration may still be subject to competition rules, in particular, those on coordinated conduct (i.e., Article 101 of the Treaty on the Functioning of the European Union ("TFEU") and Article 5 of the Competition Act).

The Regulations explicitly refer to concentrations 'occurring in Malta or outside Malta'. Thus, foreign-to-foreign transactions are captured by the law so long as the jurisdictional test is satisfied. The jurisdictional test requires that each of the undertakings party to the transaction has a turnover in Malta. Hence, whilst the concentration may be foreign-to-foreign, if all the parties have turnover in Malta and the turnover thresholds are satisfied, the concentration is considered to have local effects.

The aggregate turnover of the undertakings concerned in the preceding financial year in Malta must exceed EUR 2,329,373.40, while their respective individual turnover in Malta must be equivalent to at least 10% of said aggregate turnover.

More recently, the Director General has taken the position that the turnover test does not apply to joint ventures, so that all new joint ventures must be notified.

The filing is mandatory if the transaction qualifies as a 'concentration' within the meaning of the Regulations. This is defined in the reply to "What kinds of transactions are "caught" by the national rules?"

Concentrations must be notified to the Director General prior to their implementation and within fifteen working days following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.

Yes, the concentration is suspended following notification until there has been a decision by the Director General on its lawfulness or until the time frame within which the Director General ought to take a decision expires.

However, the Director General may, upon a reasoned request before notification or after the transaction, after taking into account, inter alia, the effects of the suspension on one or more undertakings concerned by the concentration or on a third party and the threat to competition posed by the concentration, grant a derogation from suspension. The derogation may be made subject to conditions and obligations in order to ensure conditions of effective competition.

Furthermore, a public bid which has been notified to the Director General may be implemented following the grant of a derogation from suspension by the Director General, provided that the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of those investments.

The Regulations' Schedule provides a Concentration Notification Form, which must be filled in for notification of a proposed concentration. This form applies to all concentrations that require notification.

Some information requested in the form may not be required if the concentration qualifies under the simplified procedure.

The submission of the notification may be done physically or electronically.

The notifying parties must make sure that their notification is accompanied by the most recent copies of all documents bringing about the concentration, and copies of the most recent annual reports and accounts of all the parties to the concentration. In the case of a public bid, a copy of the offer agreement must also be submitted.

Additionally, where at least one affected market is identified, the notifying parties must include copies of analyses, reports, studies, and surveys for the purpose of assessing the concentration vis-à-vis competitive conditions, actual and potential competitors, and market conditions.

A notification fee of EUR 163.06 must be paid by the notifying party or parties together with the submission of the duly completed Concentration Notification Form.

In a "no-issues" transaction where no commitments need to be offered, the Director General will issue its decision within 4 weeks following complete notification if the simplified procedure is adopted, or otherwise within 6 weeks following complete notification if the proposed concentration is assessed under the standard Phase I procedure.

Where the parties need to submit commitments to obtain clearance, the 6-week time frame in Phase I will be extended to 2 months. Further, these timeframes may be suspended for a period of 3 weeks to discuss new/revised commitments.

Should the concentration raise serious competition concerns, so that the Director General deems it necessary, following Phase I, to proceed to Phase II, the decision will be taken within 4 months from the initiation of Phase II proceedings. This period can be suspended by up to 1 month, where commitments are offered.

Timeframes to respond to questions and requests for information are within the discretion of the Director General. Given the short timeframes for the Director General to reach a decision on the lawfulness of the concentration, the timeframes given to the parties to reply are also usually quite short, normally a few days to a week. However, the time given to the parties to reply will also be dictated by the nature of the questions asked and the difficulty or effort required in compiling or preparing the information requested. The Director General is usually quite flexible when the parties require a little more time to submit their replies. However, the timeframes may be suspended where the information requested is not provided or not provided in full within the time limit fixed by the Director General.

Proposed concentrations that "might lead to a substantial lessening of competition in the Maltese market or a part thereof" are prohibited by the Regulations.

As part of the substantive competitive assessment, the Director General will consider factors such as (a) the need to maintain and develop effective competition in the Maltese market; (b) whether the business or part thereof of a party to the concentration has, or is likely to, fail; (c) the nature and extent of development and innovation in a given relevant market; (d) the market position of the undertakings concerned and their economic and financial power; (e) alternatives available to suppliers and users; (f) legal or other barriers to entry; (g) supply and demand trends for the relevant goods and services; (h) the interests of the intermediate and ultimate consumers; (i) the development of technical and economic progress as long as it is to consumers' advantage and does not form an obstacle to competition.

As part of the substantive competitive assessment, the Director General customarily applies the European Commission's: (i) Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings ("Horizontal Merger Guidelines"); and (ii) Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings ("Non-Horizontal Merger Guidelines").

Following the notification of a proposed concentration, the Director General is empowered to issue a decision declaring the concentration to be unlawful or lawful in terms of the Regulations. The Director General can also attach conditions and obligations to his decisions, which the clearance of the transaction would be subject to. Final decisions can be challenged before the Courts of Malta.

The Director General is not empowered to impose penalties. The Civil Court (Commercial Section) may impose penalties if requested by the Director General.

Commitments may be submitted by the parties to the concentration themselves. The commitments may include structural commitments, such as divestitures, or non-structural commitments, such as promises by the parties to refrain from particular commercial behavior.

The intentional or negligent failure to notify a transaction in time and the intentional or negligent submission of incorrect or misleading information in a notification are liable to the payment of a penalty of not less than EUR 1,000 and not more than EUR 10,000.

Furthermore, the Director General may revoke his decision on the compatibility of a concentration where it is based on incorrect information for which one of the parties is responsible.

A penalty of up to 10% of the total turnover of the undertaking concerned in the preceding financial year can be imposed by the Civil Court (Commercial Section) where a concentration is implemented intentionally or negligently before it has been notified or before it is cleared or after it has been declared unlawful.
Furthermore, as pointed out in the reply to "What decisions can the agency make in relation to a notified merger?", the Director General may order any action to restore the status quo ante, such as requiring the undertakings or assets brought together to be separated.

The Regulations are only applicable to notifiable mergers. Thus, mergers that are not notifiable are not considered as concentrations for the purposes ofthe Regulations. It follows that the Director General may not review or challenge such mergers under the Regulations.

But, such a concentration may still be subject to competition rules, in particular, those on coordinated conduct (i.e. Article 101 of the TFEU and Article 5 of the Competition Act) and abuse of dominance (i.e. Article 102 of the TFEU and Article 9 of the Competition Act).

Where a transaction has not been notified, the Director General may still assess the concentration under the Regulations and take any one of the decisions outlined in our reply to "What decisions can the agency make in relation to a notified merger". In such cases, the Director General may also file proceedings before the Civil Court (Commercial Section) for the imposition of a penalty for failure to notify the transaction and, if the case is, for implementing the transaction before notification.

As in the case where a transaction has been notified, before taking a decision that the unnotified concentration is unlawful, the Director General must notify the undertakings concerned in writing of the objections raised against them, setting a time-limit within which they may inform him in writing of their submissions. The undertakings concerned may, within the time limit, make submissions to the Director General to defend themselves against the objections raised by the Director General, and will also be allowed to develop their arguments in a hearing. Further, the Director General will also provide the text of the provisional decision to the undertakings concerned for their views. Once the parties have submitted their views, the Director General will take a final decision annulling, amending or confirming the provisional decision. Where the parties have not made their views within the time limit set by the Director General, the provisional decision becomes final upon the expiry of that time frame.

The Director General's decision is subject to appeal before the Courts of Malta, as explained in the reply to "Identify the applicable national regulatory agency/agencies."

The Director General generally reviews proposed concentrations within the time-limits provided for in the Regulations. The Director General has only blocked one proposed concentration since the promulgation of the Regulations.

The Director General has not actively pursued the enforcement of gun jumping.

In January 2026, the Office for Competition launched a public consultation on proposed reforms to the Regulations. Some of the key proposed changes are the following:

• The turnover test will change, and the aggregate turnover of the undertakings concerned must exceed EUR 4,500,000 and at least 2 of the undertakings must have turnover exceeding EUR 800,000.
• The Director General will be empowered with a call-in power in connection with concentrations which do not satisfy the turnover test and which have not been implemented.
• Streamlining of the merger control review process, including new notification forms and removal of the 15-day notification deadline.
• A clarification that full-function joint ventures must satisfy the turnover thresholds for notification.

In Q2 2025, the European Commission launched a public consultation process to review its Horizontal Merger Guidelines and the Non-Horizontal Merger Guidelines.