(4) Voluntary notificationIn the event that the concentration is not beyond the Thresholds, the undertakings concerned are voluntary to notify the concentration to the AMB. In this case, the AMB have the discretion to decide whether to enter into the inspection stage after the brief review over the notification. When the AMB is reviewing the notification, the undertakings concerned may decide to continue or suspend the concentration and assume the consequences thereof. If the AMB accept the notifications and decides to do the inspection on the concentration while the undertakings concerned are continuing or have completed the concentration, whether article 48 of the AML is applicable will be a problem. We also do not see much more willingness of the undertakings concerned to trigger this notification procedure if they believe the concentration is near to or a little above the Thresholds.
(5) Withdrawal of the notificationIf the concentration has been notified to the AMB and the notifying parties intend to withdraw the notification, they need to submit the written application to explain the reason for the withdrawal. Except for the termination of the concentration, any withdraw will need the consent of the AMB. If the AMB agrees to the withdrawal, the examination will be terminated. But the consent by the AMB to the withdrawal shall not be regarded as the appraisal of concentration. In case of the disagreement to the withdrawal, how the AMB will carry out and to what extent the undertakings concerned should assist the inspection are still ambiguous.
5. Effective date of notificationThe notification shall become effective on the date on which they are received by the AMB. But when the AMB receives the submitted documents and finds that they are not complete, the AMB will require the notifying parties to provide extra documents in a set period. In this regard, the effective date of notification will be the one on which the AMB receives the complete notification. And the AMB will issue the notifying parties that it accepts the notification in writing.
If the AMB finds that the notifying parties deliberately conceal material information or provide false information, the AMB will not accept the notifications. The result of these kind of activities by the notifying parties remains to be clarified though the Draft Notification Rule cites article 52 of the AML as the penalty.
6. Examination by AMB(1) Two stages of examination1) Stage one – preliminary examinationAfter the date on which the AMB receives the complete notifications, it shall make a decision on whether to carry out the further examination or not within thirty (30) working days and advises the notifying parties in writing. If the AMB does not decide to carry out the further examination, the undertakings concerned can continue the notified concentration. Otherwise, the notified concentration shall be suspended until the completion of stage two – further examination.
2) Stage two – further examinationIn the further examination, where the AMB concludes that the notified concentration will or may exclude or restrict competition, it will not only notify its opposing opinion to the undertakings concerned, but allow the undertakings concerned to provide the written defenses if any in a reasonable period which has not been specified in the Examination Rule. The defenses can be submitted by all the undertakings concerned, not limited to the notifying parties. The defenses shall include the related facts and reasons and be provided together with the corresponding evidence. If the undertakings concerned do not provide the defenses within that reasonable period, the AMB shall issue a decision declaring its opposing opinion.
