The Competition Bureau announced today that it will begin publishing monthly reports of concluded merger reviews, which the Commissioner of Competition Melanie Aitken had referred to in recent public statements.
In making the announcement the Bureau said:
“The report will contain a list of merger reviews concluded in the prior month where: a pre-merger notification was made under section 114 of the Competition Act; and/or a request was made for an advance ruling certificate under section 102 of the Act.
The report will provide the names of the parties to the transaction, the industry sector involved, and the result of the Bureau’s review.
The first report, for the month of February 2012, will be published at the beginning of March and at the beginning of each month thereafter.”
This announcement is the latest in a number of recent merger related initiatives by the Bureau, which have included a recent Merger Remedies Study Summary, newly updated Merger Review Process Guidelines and Merger Enforcement Guidelines and new Hostile Transactions Interpretation Guidelines.
The Bureau had already been issuing reasonably detailed Technical Backgrounders for mergers since 2005 – a practice, however, the Bureau discontinued.
The Bureau’s new reports will include the parties to the transaction, industry (by NAICS code, similar to product classification in U.S. merger control filings under the HSR Act and the reasons for concluding its review (i.e., whether clearance was received by way of an Advance Ruling Certificate or “no action letter”, registration of a consent agreement or judicial decision).
In the months leading up to this announcement there had been some debate regarding the confidentiality of merger filing information. For example, in a letter from the Canadian Bar Association to the Senior Deputy Commissioner of Competition in November, 2011 (Proposed Merger Register), the CBA took the position that where a merger was not yet public the Bureau could not, absent express authorization, disclose the identity of the parties (or details regarding the merger).
The confidentiality provision of the Competition Act (section 29) does, however, contain an exception for information needed for the “administration or enforcement of [the] Act” and, despite some recent arguments to the contrary, the scope of this provision is not settled (and, for example, was at the center of a recent tussle between the parties in the ongoing Commissioner of Competition v. Chatr Wireless Inc. case).
Not surprisingly, section 29 has been argued to provide both broad protection – for example, by defence counsel or the Bureau in resisting efforts by plaintiffs’ counsel to obtain disclosure of information obtained by the Bureau – or more narrow protection – for example, in cases where it may be argued that information submitted to the Bureau is required for the “administration or enforcement of the Act”.
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