UPDATE: The Merger Register went live on March 9, 2012.
The Competition Bureau will, at “the beginning of March”, start publishing a “Merger Register” on its website that will disclose certain information about transactions that are subject to the pre-merger notification obligations contained in the Competition Act. Designed to increase the level of transparency at the Bureau, the Merger Register is not without controversy. Divulging such information is a marked departure in practice, as the Bureau has traditionally felt constrained by the confidentiality restrictions in the Competition Act.
The Bureau announced on February 6, 2012 that any merger review completed after February 1, 2012 will be included in the Merger Register, so long as the parties have either submitted a pre-merger notification or sought an advance ruling certificate in respect of the transaction. In essence, every merger transaction reviewed by the Bureau – other than a non-notifiable transaction reviewed on the initiative of the Bureau – will be captured by the Merger Register.
Inclusion in the Merger Register will mean the following information will be disclosed:
- the names of the parties;
- the industry involved (the NAICS code); and
- the outcome of the review.
Concerns have been raised that disclosing this information contravenes the strict confidentiality provisions found in the Competition Act. However, the Competition Bureau considers that publishing the Merger Register falls within one of the exceptions to the provisions, which permits disclosure “for the purposes of the administration or enforcement” of the statute.
In the majority of cases, particularly where the buyer or seller is a public company, the parties will have announced the transaction publicly prior to the conclusion of the Bureau’s review. In addition, in the overwhelming majority of cases, the Bureau will already have contacted market participants (i.e., customers and suppliers of the parties) as part of its merger review. However, in cases where no market contacts have been made, where the parties have decided not to make the transaction public, and where the parties were under no other legal obligation to disclose the transaction, the Merger Register could represent the initial public disclosure of the transaction and the merger review. Finally, the Bureau has traditionally only divulged the specific outcome of a merger review publicly (i.e., whether an advance ruling certificate or a “no-action” letter was issued) in high-profile cases that merited a “position statement” or “technical backgrounder.”
There may be limited opportunities to minimize the impact of disclosure via the Merger Register process, and parties seeking to maintain the confidentiality of the transaction and the outcome of the review will need to identify these concerns to their legal advisers very early in the process and develop appropriate communications plans to manage this process.