Mergers
54.—(1) Subject to section 55, mergers that have resulted, or may be expected to result, in a substantial lessening of competition within any market in Singapore for goods or services are prohibited.[23/2007]
(2) For the purposes of this Part, a merger occurs if —(a)
2 or more undertakings, previously independent of one another, merge;
(b)
one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings; or
(c)
the result of an acquisition by one undertaking (the first undertaking) of the assets (including goodwill), or a substantial part of the assets, of another undertaking (the second undertaking) is to place the first undertaking in a position to replace or substantially replace the second undertaking in the business or, as appropriate, the part concerned of the business in which that undertaking was engaged immediately before the acquisition.[23/2007]
(3) For the purposes of this Part, control is, in relation to an undertaking, regarded as existing if, by reason of rights, contracts or any other means, or any combination of rights, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the undertaking and, in particular, by —(a)
ownership of, or the right to use all or part of, the assets of an undertaking; or
(b)
rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.[23/2007]
(4) For the purposes of this Part, control is acquired by any person or other undertaking if that person or undertaking —(a)
becomes a holder of the rights or contracts, or entitled to use the other means, referred to in subsection (3); or
(b)
although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.[23/2007]
(5) The creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity constitutes a merger falling within subsection (2)(b).[23/2007]
(6) In determining whether influence of the kind referred to in subsection (3) is capable of being exercised, regard must be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made.[23/2007]
(7) For the purposes of this Part, a merger is not to be deemed to occur if —(a)
the person acquiring control is a receiver or liquidator acting as such or is an underwriter acting as such;
(b)
all of the undertakings involved in the merger are, directly or indirectly, under the control of the same undertaking;
(c)
control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy; or
(d)
control is acquired by an undertaking referred to in subsection (8) in the circumstances specified in subsection (9).[23/2007]
(8) The undertaking referred to in subsection (7)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others.[23/2007]
(9) The circumstances referred to in subsection (7)(d) are that —(a)
the control concerned is constituted by the undertaking’s holding, on a temporary basis, securities acquired in another undertaking; and
(b)
any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists —(i)
is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities; and
(ii)
is not for the purpose of determining the manner in which any activity of the other undertaking, being an activity that could affect competition in markets for goods or services in Singapore, is carried on.[23/2007]
(10) In subsection (9), “specified period” means —(a)
the period of 12 months from the date on which control of the other undertaking was acquired; or
(b)
if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Commission determines and specifies with respect to that case.[23/2007]
Excluded mergers
55. The section 54 prohibition does not apply to any merger specified in the Fourth Schedule.[23/2007]
Confidential advice by Commission on anticipated mergers
55A.—(1) A party to an anticipated merger may apply to the Commission for its advice as to whether the view of the Commission is that the anticipated merger, if carried into effect, is likely to infringe the section 54 prohibition.[15/2018]
(2) Subject to regulations made under subsection (5), the Commission may issue the advice under subsection (1) if the Commission is satisfied —(a)
that all parties to the anticipated merger intend to carry into effect the anticipated merger;
(b)
that no information relating to the anticipated merger is in the public domain at the time that the application under subsection (1) is made; and
(c)
if information relating to the anticipated merger enters the public domain after the application under subsection (1) is made, that there are good reasons for the applicant not notifying the Commission of the anticipated merger and not applying to the Commission for its decision, under section 57.[15/2018]
(3) Despite subsection (2), the Commission may refuse to issue the advice mentioned in subsection (1) if the Commission is of the view that, given the facts and circumstances of the anticipated merger, the parties to the anticipated merger are able to assess whether an application under section 57 in respect of the anticipated merger should be made without the advice.[15/2018]
(4) Advice issued by the Commission under this section is not binding on the Commission.[15/2018]
(5) The Minister may make regulations to provide —(a)
that the Commission may issue advice under this section in relation to only such anticipated mergers as are prescribed; and
(b)
for the procedure to be followed —(i)
by any party making an application under this section; and
(ii)
by the Commission, in considering such an application.[15/2018]
Requests for Commission to consider anticipated mergers and mergers
56.—(1) Section 57 provides for an anticipated merger to be considered by the Commission on the application of a party to that anticipated merger who thinks the anticipated merger, if carried into effect, may infringe the section 54 prohibition.[23/2007]
(2) Section 58 provides for a merger to be considered by the Commission on the application of a party involved in that merger who thinks the merger may infringe the section 54 prohibition.[23/2007]
(3) The Minister may by regulations provide —(a)
that only such anticipated mergers as are prescribed may be notified to the Commission under section 57; and
(b)
for the procedure to be followed —(i)
by any party making an application under section 57 or 58; and
(ii)
by the Commission, in considering such an application.[23/2007]
Notification of anticipated merger
57.—(1) A party to an anticipated merger of the relevant type which applies for the anticipated merger to be considered under this section must —(a)
notify the Commission of the anticipated merger; and
(b)
apply to it for a decision.
(2) Subject to subsections (3) and (5) and sections 60A(1) and 60B(1), on an application under this section, the Commission may make a decision as to —(a)
whether the section 54 prohibition will be infringed by the anticipated merger, if carried into effect; and
(b)
if it will not be infringed, whether it is —(i)
because of the effect of an exclusion which will apply if the anticipated merger is carried into effect;
(ii)
because the anticipated merger, if carried into effect, is exempted from the application of the prohibition under subsection (3); or
(iii)
because a commitment has been accepted pursuant to section 60A(1).[23/2007; 15/2018]
(3) Where the Commission proposes to make a decision that the section 54 prohibition will be infringed by an anticipated merger, if carried into effect, the Commission must give written notice to the party who applied for a decision on the anticipated merger and the party may, within 14 days of the date of the notice, apply to the Minister for the anticipated merger, if carried into effect, to be exempted from the section 54 prohibition on the ground of any public interest consideration.[23/2007]
(4) The decision of the Minister made under subsection (3) is final.[23/2007]
(5) Where the Minister exempts an anticipated merger under subsection (3), the Commission may make a decision under subsection (2)(b)(ii).[23/2007]
(6) The Minister may revoke the exemption of an anticipated merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.[23/2007]
(7) Subject to subsection (8), where the Commission makes a decision that an anticipated merger, if carried into effect, will not infringe the section 54 prohibition, the Commission may, if it thinks fit, state that the decision is valid only for the period it specifies therein.[23/2007]
(8) Before the expiry of the period referred to in subsection (7), if any, an application may be made by all parties to the anticipated merger who applied to the Commission for a decision on the anticipated merger under this section for that period to be extended.[23/2007]
(9) Where an application for an anticipated merger to be considered has been made to the Commission in accordance with subsection (1) and the anticipated merger is carried into effect before the Commission makes a decision under subsection (2) in respect thereof, the application relating to the anticipated merger —(a)
may be treated by the Commission as if it were an application for the resulting merger to be considered made in accordance with section 58; and
(b)
the Commission may make a decision under section 58 in respect of the resulting merger.[23/2007]
(10) For the purpose of subsection (9), the Commission may make a decision under section 58(2)(b)(ii) (read with section 58(5)) in respect of the merger referred to in subsection (9), even though the exemption was granted by the Minister under subsection (3) in respect of the anticipated merger.[23/2007]
(11) Despite subsection (9), the Commission may refuse to make any decision in respect of a merger referred to therein and require any party involved in the merger to apply to the Commission for the merger to be considered under section 58(1).[23/2007]
(12) In this section, “an anticipated merger of the relevant type” means an anticipated merger of the type prescribed by regulations made under section 56(3)(a).[23/2007]
Notification of merger
58.—(1) A party involved in a merger which applies for the merger to be considered under this section must —(a)
notify the Commission of the merger; and
(b)
apply to it for a decision.[23/2007]
(2) Subject to subsections (3) and (5) and sections 60A(1) and 60B(1), on an application under this section, the Commission may make a decision as to —(a)
whether the section 54 prohibition has been infringed; and
(b)
if it has not been infringed, whether that is —(i)
because of the effect of an exclusion;
(ii)
because the merger is exempted from the prohibition under subsection (3); or
(iii)
because a commitment has been accepted pursuant to section 60A(1).[23/2007; 15/2018]
(3) Where the Commission proposes to make a decision that the section 54 prohibition has been infringed, the Commission must give written notice to —(a)
the party who applied for a decision on the merger; or
(b)
in a case where section 57(9) applies, the party who applied for a decision on the anticipated merger (which was carried into effect) or, where that party no longer exists, the merged entity,
and the party or merged entity so notified by the Commission may, within 14 days of the date of the notice, apply to the Minister for the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration.
[23/2007]
(4) The decision of the Minister made under subsection (3) is final.[23/2007]
(5) Where the Minister exempts a merger under subsection (3), the Commission may make a decision under subsection (2)(b)(ii).[23/2007]
(6) The Minister may revoke the exemption of a merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.[23/2007]
(7) A reference in any provision of this Act to an application or a notification under section 58 includes a reference to an application or a notification under section 57 that the Commission treats as an application or a notification under section 58 pursuant to section 57(9).[23/2007]
Interim measures in relation to notifications of anticipated mergers and mergers
58A.—(1) If, in respect of an application under section 57 or 58, the Commission has reasonable grounds for suspecting that —(a)
the section 54 prohibition will be infringed by an anticipated merger, if carried into effect; or
(b)
the section 54 prohibition has been infringed by a merger,
but has not completed its consideration of the matter, and the Commission considers that it is necessary for it to act under this section —
(c)
for the purpose of preventing any action that may prejudice —(i)
the consideration of the anticipated merger or merger; or
(ii)
the giving of any direction under section 69; or
(d)
as a matter of urgency for the purpose —(i)
of preventing serious, irreparable damage to a particular person or category of persons; or
(ii)
of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(2) Before giving a direction under this section, the Commission must —(a)
give written notice to the person to whom it proposes to give the direction; and
(b)
give that person an opportunity to make representations.[23/2007]
(3) A notice under subsection (2) must indicate the nature of the direction which the Commission is proposing to give and its reasons for wishing to give it.[23/2007]
(4) A direction given under this section has effect while subsection (1) applies, but may be replaced if the circumstances permit by a direction under section 69.[23/2007]
(5) Sections 69(2)(c)(i) and (d)(i) and 85 also apply to directions given under this section.[23/2007]
Effect of decision that anticipated merger, if carried into effect, will not infringe section 54 prohibition
59.—(1) This section applies to an anticipated merger in respect of which the Commission has determined an application under section 57 by making a decision that the anticipated merger, if carried into effect, will not infringe the section 54 prohibition.[23/2007]
(2) The Commission must not take any further action in relation to the section 54 prohibition with respect to the anticipated merger (including where the anticipated merger is carried into effect, or if the Commission’s decision is valid for a specified period, where the anticipated merger is carried into effect within that period) unless —(a)
it has reasonable grounds for suspecting that any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or
(b)
it has reasonable grounds for suspecting that a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.[23/2007]
(3) Action that may be taken in respect of the circumstances referred to in subsection (2) may include the revocation of the decision that the anticipated merger, if carried into effect, will not infringe the section 54 prohibition.[23/2007]
(4) No penalty may be imposed under this Part in respect of any infringement of the section 54 prohibition by the anticipated merger to which this section applies, if carried into effect or, where the Commission’s decision is valid for a specified period, if carried into effect within that period.[23/2007]
(5) The Commission may remove the immunity given by subsection (4) if —(a)
it takes action under this Part with respect to one of the circumstances referred to in subsection (2);
(b)
it considers that it is likely that the anticipated merger, if carried into effect, or the resulting merger will infringe the section 54 prohibition; and
(c)
it gives written notice to the party on whose application the decision was made that it is removing the immunity as from the date specified in its notice.[23/2007]
(6) If the Commission has reasonable grounds for suspecting that —(a)
any information on which it based its decision (which may include information on the basis of which it accepted a commitment), and which was provided to it by a party to the anticipated merger, was incomplete, false or misleading in a material particular; or
(b)
a party who provided a commitment has failed to adhere to one or more of the terms of the commitment,
the date specified in a notice under subsection (5)(c) may be earlier than the date on which the notice is given.
[23/2007]
(7) Where —(a)
the Commission has made a decision that an anticipated merger, if carried into effect, will not infringe the section 54 prohibition; and
(b)
the merger resulting from a purported carrying into effect of the anticipated merger is materially different from the anticipated merger,
nothing in this section prevents the Commission from taking any action in relation to the section 54 prohibition in respect of the merger.
[23/2007]
Effect of decision that merger has not infringed section 54 prohibition
60.—(1) This section applies to a merger if the Commission has determined an application under section 58 by making a decision that the merger has not infringed the section 54 prohibition.[23/2007]
(2) The Commission must not take any further action in relation to the section 54 prohibition with respect to the merger unless —(a)
it has reasonable grounds for suspecting that any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or
(b)
it has reasonable grounds for suspecting that a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.[23/2007]
(3) Action that may be taken in respect of the circumstances referred to in subsection (2) may include the revocation of the decision that the merger has not infringed the section 54 prohibition.[23/2007]
(4) No penalty may be imposed under this Part in respect of any infringement of the section 54 prohibition by a merger to which this section applies.[23/2007]
(5) The Commission may remove the immunity given by subsection (4) if —(a)
it takes action under this Part with respect to the merger in one of the circumstances mentioned in subsection (2);
(b)
it considers that it is likely that the merger will infringe the section 54 prohibition; and
(c)
it gives written notice to —(i)
the party on whose application the decision was made; or
(ii)
in a case where section 57(9) applies, the party who applied for a decision on the anticipated merger (which was carried into effect) or, where that party no longer exists, the merged entity,
that it is removing the immunity as from the date specified in its notice.
[23/2007]
(6) If the Commission has reasonable grounds for suspecting that —(a)
any information on which it based its decision (which may include information on the basis of which it accepted a commitment), and which was provided to it by a party involved in the merger, was incomplete, false or misleading in a material particular; or
(b)
a party who provided a commitment has failed to adhere to one or more of the terms of the commitment,
the date specified in a notice under subsection (5)(c) may be earlier than the date on which the notice is given.
[23/2007]
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
