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INTERNATIONAL MERGER NOTIFICATION percent or greater equity or voting interest. > The definition of "concentration" is also potentially broad, and captures acquisitions of minority interests as follows: • where the parties are competitors or suppliers, a notification is required where the purchaser acquires a share interest of 5 percent or more, or increases its share interest by 5 percent or more; and • otherwise, a notification is required where the purchaser acquires a share interest of 20 percent or more, or increases its share interest by 20 percent or more. "In January 2013, the Common Market for Eastern and Southern Africa ("COMESA") implemented a new and potentially burdensome merger notification regime." Timing of Reviews Parties to proposed transactions subject to notification under the Brazilian Competition Act are prohibited from implementing a merger prior to CADE approval. Notifications can be filed at any time prior to completion of the transaction. The maximum period for CADE to review a transaction is 240 days, although CADE can extend this period for up to 90 additional days. However, CADE has stated that it will endeavor to complete reviews of non-complex transactions within 30 days after filing. Early reports indicate that it has met that commitment in respect of a significant number of transactions. Notification Form Except for certain "non-complex" transactions that may qualify for a short-form notification that contains only summary information, each party to a notifiable transaction in Brazil must file a voluminous notification containing, among other things, internal company documents, extensive sales and other financial data, contact information for customers, suppliers and competitors and information about minority interests of 5 percent or more (even if there is no overlap in the parties' businesses). While some other jurisdictions can also require the filing of extensive information and documents with a notification, Portuguese versions or translations of all such documents must be filed with CADE. (Some other jurisdictions require translations, but China, for example, will accept Chinese summaries of documents in lieu of full translations.) COMESA – AN AFRICAN SUPRANATIONAL AUTHORITY In January 2013, the Common Market for Eastern and Southern Africa ("COMESA") implemented a new and potentially burdensome merger notification regime. COMESA is a supranational organization of the following 19 African states: Burundi, Comoros, the Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. Notification Thresholds Regulations establishing the COMESA Competition Commission (CCC) require the parties to a proposed merger to notify the CCC where either the purchaser or the target company (including their respective affiliates) operates in at least two COMESA member states. Unlike minimum sales or asset thresholds for notification found in most other merger notification regimes, the CCC set the financial threshold for notification at $0 (nil) in assets or revenues. However, the definition of "operates" in this context is unclear and may provide some limitation on the scope of the notification obligation. For example, it remains to be seen whether the CCC will take the position that a company that merely owns land or mineral rights in two or more member states, but otherwise has no other assets or operations in COMESA, would satisfy the notification threshold because it "operates" in such states. In addition, the regulations state that they apply only to mergers that have an appreciable effect on trade between member states and that restrict competition in COMESA. While a plain reading of this requirement might exempt transactions from notification where only the acquiror has operations in the region, draft guidelines issued by the CCC indicate that a notification is required even in such circumstances. The draft guidelines also take the position that the operations of parties' subsidiaries (and possibly even entities in which the parties hold minority interests) must be included in assessing whether the notification thresholds are met. The definition of "merger" under the regulations is also potentially broad, and includes the acquisition or establishment of any interest that enables the holder to directly or indirectly exercise "any control whatsoever" over the activities or assets of an undertaking. However, the CCC's draft guidelines suggest that a potentially higher threshold, requiring the "possibility of exercising decisive influence," will be necessary to constitute a merger. Interaction with Filing Obligations in COMESA Member States Where a COMESA notification is required, and subject to the CCC referring a notification to a member state if the impact of the transaction is principally in that state, the CCC intends for the COMESA regime to operate to the exclusion of individual notification regimes in COMESA member states. (Currently, eight of the 19 COMESA member states have their own notification regimes.) However, recent media reports indicate that, in some circumstances, both COMESA and the Kenyan competition authority have asserted jurisdiction (and notification obligations) over the same transaction. Pending greater clarity on the issue, parties subject to merger notification thresholds of both COMESA and a member state may be wise to approach both the CCC and relevant state-level regulators. In the meantime, the CCC has begun to receive merger filings, the first one in late March 2013 in respect of a sale by Philips Electronics, a Dutch company, of a Hong Kong-based entertainment business unit to Funai Electric, a Japanese distributor of electronic equipment. Timing of Reviews If a COMESA filing is required, it must be made within 30 business days of the parties' "decision to merge." While unclear, it appears that the CCC may be taking an expansive view of when a "decision to merge" has been made, and may have in mind that the filing require- www.lexpert.ca | LEXPERT • June 2013 | 37 C-00-Firm.indd 37 13-05-17 10:06 AM