1) Is a merger control regulation in force?

There is presently no general merger control law under the Competition Act 2010. An amendment to the Competition Act 2010 to include a merger control regime is expected in the near future. 

However, there is industry specific merger regulation for the aviation industry under the Malaysian Aviation Commission Act 2015 (Act 771) and for the communications and multimedia industry under the Communications and Multimedia Act 1998 (Act 558).

2) Which authorities enforce the merger control regulation?

The Malaysia Aviation Commission with respect to activities covered by the Malaysian Aviation Commission Act 2015.  

The Malaysian Communications and Multimedia Commission with respect to activities covered by the Communications and Multimedia Act 1998.  

3) Relevant regulations and guidelines with links:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Whilst there is no general merger control regime in force, general competition regulation is relevant to ancillary restrictions and activities ancillary to the mergers.  

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Besides the specific merger control rules for the aviation and communications and multimedia industries, the Capital Market and Services Act 2007 (together with the subsidiary legislations issued thereunder i.e. the Malaysian Code on Take-overs and Mergers 2016 and the Rules on Take-overs, Mergers and Compulsory Acquisitions) requires certain take-overs, mergers and compulsory acquisitions to be notified to and approved by the Securities Commission Malaysia. 

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Merger filing is voluntary both under the Malaysian Aviation Commission Act 2015 and under the Communications and Multimedia Act 1998.

9) Is there a general definition of transactions subject to merger control?

Not applicable under the Competition Act 2010.

Different considerations apply for the voluntary notifications under the Malaysian Aviation Commission Act 2015 (Act 771) and the voluntary application for assessments under the Communications and Multimedia Act 1998 (Act 588).

Under the Malaysian Aviation Commission Act 2015, a merger subject to merger control is defined as a transaction whereby: 

1. two or more enterprises, previously independent of one another, merge;
2. one or more persons or enterprises acquire direct or indirect control of the whole or part of one or more enterprises;
3. an entity acquires assets (including goodwill) of another entity which results in the former entity replacing or substantially replacing the latter in the business it was engaged in immediately before the acquisition; or
4. a joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity.

Under the Communications and Multimedia Act 1998, a merger subject to merger control is defined as a transaction whereby: 

1. two or more previously independent entities merge by: (i) combining into a new firm, with each entity ceasing to exist as separate legal entities; or (ii) one entity being absorbed into another, where the former entity ceases to exist as a legal entity and the latter firm retaining its legal identity;
2. one or more entities acquire direct or indirect control of whole or part of one or more of other entities;
3. an entity acquires assets (including goodwill) of another entity which results in the former entity replacing the latter in the business it was engaged in immediately before the acquisition; or
4. a joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity, and involves changes in the shareholding structure of the parent entities.

10) Is "change of control" of a business required?

See topic 9.

11) How is “control” defined?

The Malaysian Aviation Commission Act 2015 provides that ”control”, in relation to an enterprise, shall be 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 enterprise and, in particular, by

1. ownership of, or the right to use all or part of, the assets of the enterprise; or
2. rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the enterprise.

Further, “control” is acquired by any person or other enterprise if he or it becomes a holder of the rights or contracts, or entitled to use the other means, referred to above at (2) or, although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.

Under the Communications and Multimedia Act 1998, the Malaysian Communications and Multimedia Commission will consider “control” to exist when one entity can exercise decisive influence over the activities of another entity by reason of rights, contracts or other means. A firm can obtain control of another firm through:

1. legal control, i.e. having more than 50% ownership of all voting rights in an entity (i.e. all the voting rights attributable to the share capital of a firm which are currently exercisable at a general meeting); or
2. de-facto control, i.e. circumstances in a relationship between two or more entities which allows one firm to influence another’s activities to affect its key strategic commercial behaviour. Circumstances which may suggest de-facto control exists include: (i) an agreement that one party will cease all production and only source its requirements from another; (ii) the existence of financial or lending arrangements, which allow one entity to gain decisive influence over another entity’s activities; or (iii) the ability of minority shareholders to veto decisions essential for the strategic commercial behaviour of the undertaking through additional rights (such as decisions relating to budgets or business plans).

12) Acquisition of a minority interest

Acquisition of a minority interest may be considered to involve a change of control, if veto decisions essential for the strategic commercial behaviour of the enterprise is acquired - See topic 11.

13) Joint ventures/joint control – which transactions constitute mergers?

Filing is voluntary under the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. But the Malaysian Aviation Commission and the Malaysian Communications and Multimedia Commission may initiate investigations and ultimately prohibit any transactions involving the establishment of a joint venture, changes in group of controlling owners and significant changes in the activities of the joint venture. 

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998.

However, there are specific turn over thresholds under the Guidelines on Notification and Application Procedure for an Anticipated Merger or a Merger issued pursuant to the Malaysian Aviation Commission Act to assist merging parties to determine whether to submit a voluntary filing to the Malaysian Aviation Commission.

b) Market share thresholds

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. 

However, the Guidelines on Mergers and Acquisitions issued pursuant to the Communications and Multimedia Act 1998 states that voluntary filing to the Malaysian Communications and Multimedia Commission may be relevant where one of the parties is in a dominant position or where the transaction will create a dominant position. A market share of 40% or more is stated to be indicative of dominance. 

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

There are no thresholds that decide whether a merger notification must be filed as filing is voluntary under both the Malaysian Aviation Commission Act and the Communications and Multimedia Act 1998. 

However, the Guidelines on Mergers and Acquisitions issued pursuant to the Communications and Multimedia Act 1998 states that voluntary filing to the Malaysian Communications and Multimedia Commission may be relevant where one of the parties is subject to investigations by the Malaysian Communications and Multimedia Commission and/or where there is significant cross shareholding between the merging parties.

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

N/A

19) Temporary change of control

N/A

20) Special industries, owners or types of transactions

N/A

21) Transactions involving only foreign businesses (foreign-to-foreign)

N/A

22) No overlap of activities of the parties

N/A

23) Other exemptions from notification duty even if thresholds ARE met?

N/A

24) May a merging party file voluntarily even if the thresholds are not exceeded?

There is no general merger control regime under the Competition Act 2010. In respect of the specific industries regulated by the Malaysian Aviation Commission Act 2015 (Act 771) and the Communications and Multimedia Act 1998 (Act 588), voluntary filing is permitted (i.e. whether or not the thresholds are exceeded). 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

As explained in topic 8 and 14, merger filing is voluntary. The thresholds described in topic 14 are only guidelines as to when a voluntary notification may be relevant. 

With respect to the Malaysian Aviation Commission, the guidelines provide that even if the thresholds are not met, it still has the power to investigate an anticipated merger or a merger where there is reason to suspect that it has resulted or may be expected to result in the substantive lessening of competition in any aviation service market.

The Malaysian Communications and Multimedia Commission states that M&As which do not meet the thresholds are unlikely to require investigation and may not need to be notified to MCMC or submitted for assessment. Having said that, as the Commission regulates general competition practices in the industry which include any conduct which has the purpose of substantially lessening competition in a communications market, the Commission retains the general power to enquire on and/or investigate an impugned transaction even if the thresholds are not met.    

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A  

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

Under the Malaysian Aviation Commission Act 2015, voluntary notification for anticipated mergers may be filed when the merger parties have a bona fide intention to proceed with the anticipated merger and the anticipated merger has been made public by any party or by the Commission. The conclusion of binding agreements are not required. As for a merger that has already been completed, the notification and application to the Malaysia Aviation Commission may be made at any time but a merger party is encouraged to make a notification and an application to the Commission as soon as possible after the merger is completed.

Similarly under the Communications and Multimedia Act 1998, the Malaysian Communications and Multimedia Commission encourages merger parties to only file a notification when the merger has been publicly announced (or is made known to the public generally) and the parties have a bona fide intention to proceed with the merger. The conclusion of binding agreements are not required.

31) Pre-notification consultations

Under the Malaysian Aviation Commission Act 2015, pre-notification consultations are not allowed.

Under the Communications and Multimedia Act 1998, pre-notification consultations are allowed on a limited and confidential basis.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

See topic 6.

33) Forms available for completing a notification

See topic 3.

34) Languages that may be applied in notifications and communication

English (insofar as this is relevant in the context of the Malaysian Aviation Commission Act 2015 and the Communications and Multimedia Act 1998).

35) Documents that must be supplied with notification

Under the Malaysian Aviation Commission Act 2015, the documents to be supplied with a merger notification include:

1. A copy of the certificate of incorporation, Memorandum of Association, Article of Association, Form 58 of the Companies Act 2016 (or its equivalent), or any proof of business registration of each party to the merger, whichever is applicable. Such copy shall be certified true by a director or company secretary of the relevant party;
2. Any proof of shareholding such as register of members, return of allotment of shares or shareholders’ agreement;
3. Any proof of the organisational structure and decision-making mechanism of each party to the merger;
4. A copy of the most recent annual report and audited accounts of the parties to the merger;
5. The latest versions of the transaction documents, which include sale and purchase agreements, heads of agreement, offer documents, contracts, and any related agreements. Such documents shall be certified true by a director or company secretary of a party to the said transaction;
6. Diagrams to show the change in the ownership structure;
7. Documents on sources of funding or any other documents to show the existence of indirect control (if any);
8. A copy of evidence or data to substantiate the explanation on the relevant aviation service market definition. This may include any study that analysed the relevant aviation service market, market research, interview with buyers or sellers, or consumer surveys;
9. Data on the number of enterprises in a relevant aviation service market, their market shares in terms of sales revenue, sales volume, or capacity, and concentration ratios; 
10. Details of each new or potential competing enterprise by full name, full address of the registered office and the principal place of business, contact number, and a contact person;
11. Supporting documents prepared for the purpose of analysing competitive environments and competitors (existing and potential), and general market conditions; and
12. Provide data to support any monetary or numerical estimates of the value of the economic efficiencies and reasoning upon which the data relies.

Under the Communications and Multimedia Act 1998, the documents to be supplied with a merger notification include:

1. The merger parties’ incorporation documents, shareholding information, information on related entities, addresses for service, information on beneficiaries;
2. A copy of the Annual Reports and accounts of each merger party for the past three (3) financial years;
3. Information on the merging party’s reporting obligations to notify other relevant agencies or authorities in respect of their merger and the applicable timelines by those agencies or authorities;
4. Information on the transaction including the structure, status, identification of the relevant markets, documents prepared to evaluate the proposed transaction, timelines and key milestones planned for the transaction, commercial rationale, valuation, shareholding structure of the newly merged entity, composition of the management team of the new or acquired entity;
5. Information on the merging parties’ goods and services sold by the merging parties, customer segments, any dealings involving horizontal or vertical arrangements or other cooperative arrangements, other acquisitions within the last 5 years, details of the total group turnover of each party to the merger (worldwide and Malaysia);
6. Copies of all analyses, reports, studies, surveys, and similar documents prepared for the purpose of assessing, analysing or giving a view on the merger with respect to the relevant communications market, market shares (of each merger party before the merger and the merged entity after the merger), competitive conditions, competitors (actual and potential), market share of the competitors, the rationale for the merger, potential for sales growth or expansion into other product or geographic markets, general market conditions, industry background, countervailing buyer power, barriers to entry, counterfactual information, vertical effects, failing firm defences, efficiencies, effects of the merger;
7. Copies of the two most recent business plans for each party to the merger and, where available, a copy of the (draft) business plan for the merged or acquired entity; and
8. Copies of any relevant market research reports that are available to either of the merger parties. Where geographic markets are arguably wider than national, market research that focuses on areas outside of, or including Malaysia, is relevant; 
9. Economic data relating to price elasticity in the market;
10. A copy of final or near final versions of all documents for the transaction; 
11. For entities relying on the failing firm defense, evidence that trading conditions and performance are unlikely to improve, all refinancing options have been explored and exhausted, and there are no other credible bidders the firm/division concerned is indeed about to fail imminently under current ownership (this should in the market), and that all possible options have been explored; and
12. Names and contact details of a representative sample of small, medium and large sized competitors, suppliers and customers in the relevant communications market in which it operates

36) Filing fees

N/A

37) Is implementation of the merger before approval prohibited?

No, due to the voluntary nature of the notification and application regimes.  

38) May the parties get permission to implement before approval?

N/A, see topic 37.

39) Due diligence and other preparatory steps

N/A

40) Veto rights before closing and "Ordinary course of business" clauses

N/A

41) Implementation outside the jurisdiction before approval – "Carve out"

N/A

42) Consequences of implementing without approval/permission

Due to the voluntary nature of the notification and application regimes, there are generally no consequences for implementing without prior approval. However, in the event the respective Commissions have indicated its objection to the anticipated merger, proceeding with the same may trigger sanctions. Specifically, the Malaysian Communications and Multimedia Commission may seek an interim injunction against the merger parties while the Malaysian Aviation Commission may impose a financial penalty.

43) Phases and deadlines

Not applicable under the Competition Act 2010. 

Different procedures apply for voluntary notifications under the Malaysian Aviation Commission Act 2015 and application for assessments under the Communications and Multimedia Act 1998. 

Vis a vis the Malaysian Aviation Commission Act 2015, there are 2 phases:

Vis-a-vis the Communications and Multimedia Act 1998, please refer to pages 9-10 and 27 in the Guidelines on Mergers and Acquisitions (see topic 3):

44) Tests or criteria applied when a merger is assessed

Generally, the Malaysian Aviation Commission will evaluate whether the merger ”would result or is expected to result in a substantial lessening of competition” in any aviation service market by reference to the following factors:

1. the affected aviation service market;
2. the market power and market concentration;
3. the competitive effects arising from horizontal mergers, vertical mergers or conglomerate mergers;
4. the possible entry and expansion of competitors; or
5. countervailing buyer power.

Generally, the Malaysian Communications and Multimedia Commission will seek to establish:

1. If a licensee is dominant, whether the effect of the merger is to substantially lessen competition in the market;
2. If a licensee is not dominant, whether the purpose of the merger is to substantially lessen competition in the market.

45) May any non-competition issues be considered?

The Malaysian Communications and Multimedia Commission may take national interest into consideration.

46) Special tests or criteria applicable for joint ventures

N/A

47) Decisions and remedies/commitments available

Under the Malaysian Aviation Commission Act 2015, upon completion of the assessment, the Malaysian Aviation Commission may either issue a non-infringement decision, a non-infringement decision pursuant to an undertaking, or an infringement decision.

The orders which may be imposed following an infringement decision by the Malaysian Aviation Commission include prohibiting an anticipated merger from being carried into effect, requiring a merger to be dissolved or modified, requiring a merging party to enter into agreements designed to prevent or lessen the anti-competitive effects arising from a merger, requiring a merging party to dispose such businesses, assets, shares or rights in a manner that may be specified by the Commission or providing a performance bond, guarantee or other form of security on such terms and conditions as may be determined by the Commission.

Remedies may take any form and they can be either structural or behavioural and with or without time limitations.

Under the Communications and Multimedia Act 1998, upon completion of the assessment, the Malaysian Communications and Multimedia Commission may issue a Notice of No Objection or a Notice of Objection to the merger.   

When issuing a Notice of Objection to a proposed merger, the Commission may include an order that the licensee must not continue with or complete the merger and must not transfer any licenses or spectrum assignments granted pursuant to the Act to another entity. On the other hand, when issuing a Notice of Objection to a completed merger, the Notice of Objection may include an order to prevent further integration between the merger parties, or to prevent the merged or acquired entity from trading. 

48) How and when will details about the merger be published?

The Malaysian Aviation Commission Act 2015 may publish a summary of the application for the purpose of public consultation in the preliminary phase and again when the Commission has issued its decision.

No guidance is provided vis-à-vis the Communications and Multimedia Commission.

49) Access to the file for the merging parties and third parties

The merging parties:

It is unclear to what extent the merging parties may access to the file. 

Third parties:

It is unclear to what extent third parties may access to the file. 

50) Who can appeal and what may be appealed?

Different procedures apply for the voluntary notifications under the Malaysian Aviation Commission Act 2015 (Act 771) and the application for assessments under the Communications and Multimedia Act 1998 (Act 588).

Generally, a party affected by a decision of the commission may apply to the High Court for a judicial review.