1) Is a merger control regulation in force?

Yes. Merger control is regulated under the Taiwan Fair Trade Act (“TFTA”).

2) Which authorities enforce the merger control regulation?

The Taiwan Fair Trade Commission (“TFTC”) enforces the TFTA including the merger regulation contained therein. 

Generally speaking, decisions of the TFTC may be appealed to Taipei High Administrative Court. Decisions of the TFTC which involve intellectual property issues may be appealed to Taipei High Administrative Court or Intellectual Property and Commercial Court. Decisions of Taipei High Administrative Court and the Intellectual Property and Commercial Court may be appealed to the Supreme Administrative Court.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in the TFTA. More detailed rules may be found in various administrative rules and guidelines. Links to the relevant legislation, rules and guidelines are listed below:

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

Ancillary restrictions are not exempted from general competition scrutiny by the texts of either the TFTA or regulations promulgated by the TFTC. Neither is it practice of the TFTC to expressly clear ancillary restrictions together with mergers. It is thus unclear whether the ancillary nature of a restriction would be a valid defence against challenges based on general prohibitions on anti-competitive agreements. The general competition regulation applies to both mergers and ancillary restrictions, and the TFTC may review whether the ancillary restrictions are necessary and justifiable.

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.)

Telecommunication entities

An approval from the Ministry of Transportation and Communications is also required for a merger between telecommunication entities that install telecommunications line facilities and equipment for telecommunications services. 

Financial Institutions

An approval from the Financial Supervisory Commission is also required for a merger between financial institutions such as banks, insurance companies, financial holding companies, trust companies and securities and futures companies. 

Foreign Direct Investment

Statute for Investment by Foreign Nationals (the “Statute”) is the main regulation concerning foreign Investment in Taiwan.  Foreign investment which meets the conditions under the Statute shall file an application with the Department of Investment Review, Ministry of Economic Affairs (the “DIR”) for approval.  A foreign investor refers to a natural without Taiwan nationality or a legal person which is not established under Taiwan law.  However, please note that investors from Mainland China are not considered foreign investors under the Statute, however, such investors are subject to separate regulation (see below for details).

What is considered a “foreign investment”

Under the Statute, any of the following investments made by a foreign investor is defined as foreign investment:

1. To acquire shares issued by a Taiwanese company, or contributing to the capital of a Taiwanese company.
2. To establish a branch office, a sole proprietorship or a partnership in Taiwan.
3. To provide loan(s) to one of the invested business entities referred to in the preceding two paragraphs for a period exceeding one year.

Activities protected under the Statute

Under the Statute, a foreign investor is prohibited from investing in the following industries:

1. Those which may negatively affect national security, public order, good customs and practices, or national health.
2. Those are prohibited by the law.

A negative list of the industries subject to foreign investment control may be downloaded from DIR’s website.

Application procedure

When conducting foreign investment (including changing the scope of an approved foreign investment) in Taiwan, an application with the DIR shall be filed by using a unified form and include a wide range of information, e.g. information about the investor’s and target’s business activities and source of financing of the foreign investment.

In the event of a foreign investment failing to acquire the DIR’s approval, the DIR may revoke the foreign investor’s right of exchange settlement against his/her income of the profit from his/her investment, and the interest accrued thereon in a prescribed period of time, and/or revoke the approval for the foreign investor’s investment and his/her rights under the Statute.

For foreign investment involving acquisition of shares of a listed, OTC-listed or emerging market company for less than 10%, the foreign investor shall acquire approval from the Financial Supervisory Commission instead of the DIR.

Investment by an investor from Mainland China

Measures Governing Investment Permit to the People of Mainland Area (the “Measures”) is the main regulation concerning the investment from Mainland China.  Investment from Mainland China which meets the conditions under the Measures shall file an application with the DIR for approval.

Under the Measures, the definition of an investor from Mainland China (“PRC investor”) is as follows:

1. Natural or legal persons, organizations and other institutions from Mainland China and the companies they invest into in a third area other than Mainland China (the “Third Area”) which are engaged in investment in Taiwan.
2. The invested companies in the Third Area mentioned in the preceding paragraph refer to natural or legal persons, organizations and other institutions from Mainland China that constitutes any of the following: i) directly or indirectly holding the shares issued by a company in the Third Area or a total contributing amount exceeding 30% of such company’s capital; or ii) having the controlling power over a company in the Third Area.

Under the Measures, the investments by PRC investors that require the DIR’s approval include:

1. To acquire shares issued by sole proprietorship, partnership, limited partnership or capital contribution of companies in Taiwan, exclusive of single or accumulated investment that is less than 10% of a listed, OTC-listed or emerging market company.
2. To establish a branch office, a sole proprietorship, partnership, or limited partnership in Taiwan.
3. To provide loan(s) to the invested business entity referred to in the preceding two paragraphs for a period exceeding one year.
4. By contract or other methods to have controlling power over sole proprietorship, partnership, limited partnership, non-listed, non-OTC-listed, non-emerging market companies in Taiwan.
5. Merger of invested companies in a Third Area with the business or the property of non-listed, non-OTC-listed or non-emerging market companies in Taiwan.

Under the Measures, investments from PRC investors that are legal persons, organizations, other institutions or the Third Area companies invested by PRC’s political party, military, administrative or political agencies (institutions), or organizations are restricted. 

Only the industries listed in the positive list may be invested by PRC investors and the DIR’s approval is required.  The positive list may be downloaded from DIR’s website (in Chinese language only).

The DIR may restrict, prohibit or revoke the investment by PRC investors if any of the following situations are present:

1. One of the parties has the position of economic exclusive occupancy, oligopoly or monopoly in Taiwan.
2. The investment will have political, social or cultural sensitivity or impact upon national security in Taiwan.
3. The investment has negative influence on the national economic development or financial stability of Taiwan.

When a PRC investor conducts investment (including changing the scope of the approved investment) in Taiwan, an application with the DIR shall be filed by using a unified form and include a wide range of information, e.g. information about the investor’s and target’s business activities and source of financing of the foreign investment.

In the event of an investment by PRC investor failing to acquire the DIR’s approval, the DIR may impose administrative fines, order the PRC investor to cease or withdraw the investment or to rectify the violation within a specified time limit, and/or suspend the PRC investor’s right as a shareholder.  If the PRC investor fails to cease or withdraw the investment or to rectify the violation within the required time, the DIR may impose consecutive fines upon such PRC investor for each and every violation until he/she ceases or withdraws the investment or rectifies the violation.  The DIR may inform the competent authority for company registration to revoke or nullify the PRC investor’s company recognition or registration when necessary.

For foreign investment involving acquisition of shares of a listed, OTC-listed or emerging market company for less than 10%, the foreign investor shall acquire an approval from the Financial Supervisory Commission instead of the DIR.

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

No. 

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory if any of the filing thresholds are met.

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

Yes, according to the TFTA, a merger subject to merger control is defined as a transaction whereby:

1. an entity and another entity are merged into one;
2. an entity directly or indirectly acquires shares or capital contributions that results in said entity holding 1/3 or more of the shares or capital contributions  of another entity;
3. an entity assumes or leases the whole or a major part of the business or assets of another entity;
4. an entity jointly operates with another entity on a regular basis or is entrusted by another entity with the operation of its business on its behalf; or
5. an entity directly or indirectly acquires control over the business operations or the employment and dismissal of the personnel of another entity.

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

The TFTA does not require a “change of control” for all types of mergers. For instance, a transaction that results in a party holding 1/3 or more of the shares or capital contributions of another entity is considered a merger although there is no change of control.

11) How is “control” defined?

“Control” is not expressly defined under the TFTA, and is to be assessed on a case-by-case basis. According to a precedent of the Supreme Administrative Court, a majority on the board of directors does not necessarily amount to “control” for the purpose of merger regulation.

12) Acquisition of a minority interest

As stated under (2) in topic 9, a transaction that results in a party holding 1/3 or more of the shares or capital contributions of another entity is considered a merger subject to merger control, provided the thresholds in topic 14 are met.

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

“Joint operation” is a type of merger (see (4) in topic 9 above).  According to the TFTC’s past decisions, joint venture falls under the definition of “joint operation”. 

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

A merger notification shall be filed if:

1. During the immediately preceding fiscal year, a merging party’s local turnover exceeds NTD 15 billion and another party’s local turnover exceeds NTD 2 billion, provided however that if all the merging parties are financial institutions, notification is only required if one merging party’s local turnover exceeds NTD 30 billion and another party’s local turnover exceeds NTD 2 billion; or
2. During the immediately preceding fiscal year, (i) all merging parties had an aggregate global turnover exceeding NTD 40 billion, and (ii) at least each of two of the merging parties’ local turnover exceeds NTD 2 billion. 

b) Market share thresholds

A merger notification shall be filed, irrespective of the turnover of the parties, if:

1. A merging party’s local market share in any market (relevant or irrelevant to the proposed transaction) amounts to 1/4 or more; or
2. The merging parties’ aggregated local market share in any market (relevant or irrelevant to the proposed transaction) amounts to 1/3 or more.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

As mentioned in topic 14, a higher turnover threshold applies to a merger between financial institutions.

16) Rules on calculation and geographical allocation of turnover

When calculating the turnover of a merging party, the turnover of the ultimate parent and all its subsidiaries (not only the merging party) shall be included.  Besides, all sales to Taiwan customers shall be included in the calculation of local turnover regardless of whether destination of the products is in Taiwan or not.

17) Special rules on calculation of turnover for particular businesses

The turnover of the following businesses shall be calculated as below:

1. Bank: 

The “net income” disclosed in the statement of comprehensive income as defined in the Regulations Governing the Preparation of Financial Reports by Public Banks. 

2. Financial holding company: 

The “net income” disclosed in the statement of comprehensive income as defined in the Regulations Governing the Preparation of Financial Reports by Financial Holding Companies. 

3. Security firm: 

The “income” disclosed in the statement of comprehensive income as defined in the Regulations Governing the Preparation of Financial Reports by Securities Firms. 

4. Insurance company: 

The “total operating income” disclosed in the statement of comprehensive income as defined in the Regulations Governing the Preparation of Financial Reports by Insurance Enterprises.

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)

Regardless of the geographic dimension of the affected markets, mergers shall be notified to the TFTC if any of the thresholds are triggered. However, an exemption from the filing obligation applies where foreign entities jointly establish or operate a joint venture that does not engage in economic activities within the territory of Taiwan.

22) No overlap of activities of the parties

N/A

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

A transaction meeting the thresholds in question 14 will not be subject to merger control if:

1. Any of the entities participating in a merger, or its wholly-owned subsidiary, already holds 50% or more of the voting shares or capital contributions of another entity participating in the merger and merges such other entity;
2. Entities of which 50% or more of the voting shares or capital contributions are held by the same entity merge each other;
3. An entity assigns all or a principal part of its business or assets, or all or part of any part of its business that could be separately operated, solely to another entity newly established by the former entity;
4. The redemption of shares by certain shareholders of an entity (pursuant to the Company Act or the Securities and Exchange Act) results in any remaining  shareholder(s) holding 1/3 or more of the outstanding shares of the entity; 
5. A single entity establishes a subsidiary and holds 100% of the shares or capital contribution of such  subsidiary; or
6. Any other circumstance designated by the TFTC. In the announcement Merger Types to Which Paragraph 1 of Article 11 of the Fair Trade Act Does Not Apply, the TFTC have designated the following circumstances that are also exempted from notification duty:
   • An entity merges with other entities that are controlled by, controlling or affiliated with the former.
   • An entity merges with other entities, and the merging parties are controlled by the same entity.
   • An entity assigns a part of or the entire voting shares or capital contributions of a third-party entity that are in its possession to other entities that are controlled by, controlling or affiliated with the former.
   • An entity assigns a part of or the entire voting shares or capital contributions of a third-party entity that are in its possession to other entities, and the merging parties are controlled by the same entity.
   • Foreign entities jointly establishing or operating a joint venture that does not engage in economic activities within the territory of Taiwan.

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

No.

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

No.

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

There is no specific deadline that a notification shall be filed within, but a merger that triggers any of the filing thresholds cannot be closed without the TFTC’s clearance.

31) Pre-notification consultations

A merging party may apply for pre-notification consultation to clarify questions regarding for instance the notifying parties, the required documents, the applicable procedure or whether a transaction meets the definition of  a merger or triggers any of the filing thresholds. The TFTC’s response is non-binding and only oral comments will be provided.

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

N/A

33) Forms available for completing a notification

The TFTC provides forms in both traditional Chinese and English but the former is the only version to be filed with the TFTC.

34) Languages that may be applied in notifications and communication

Traditional Chinese only, and any documents attached to the notification form must come with a summary traditional Chinese translation.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

1. The merging parties’ certificates of incorporation;
2. Power of attorney for the lawyer representing the notifying party;
3. For each merging party: the most recent annual report if the merging party’s stock is listed on the stock exchange or traded on over-the-counter markets; if not, the financial statement and operating report for the preceding fiscal year of the merging party;
4. A list of the parties’ subsidiaries;
5. All documents concerning the merger, such as the merger agreement;
6. A list of the parties’ registered intellectual property rights;
7. Group chart/overview for each of the parties to the merger showing the merging party’s parent company, subsidiaries and other subsidiaries of the merging party’s parent company; and
8. An organization chart before and after the merger.

After filing, the TFTC may request additional information such as reports of market definition and market shares.

36) Filing fees

No.

37) Is implementation of the merger before approval prohibited?

Yes.  The merging parties must be run separately and independently until the merger has been approved.

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

No.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents competitively sensitive information from being used for purposes other than assessing the viability of the merger.

There are no guidelines on what may be considered acceptable preparatory steps.  

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

An "ordinary courseof business" clause that prevents the target company from making decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

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

There is no formal application procedure for “carve out”, but “carve out” may be granted by the TFTC on an exceptional basis if there are strong business justifications.

42) Consequences of implementing without approval/permission

The parties may be fined. The amount of the fine will be between NTD 200,000 and 50,000,000.

Furthermore, the merger may be prohibited and the TFTC may decide to prescribe a period of time for the parties to split, to dispose of all or a part of the shares, to transfer a part of the operations, or to remove certain persons from their positions, or make any other necessary dispositions (such as submitting a notification).

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

The TFTC will approve the merger if the advantages to the overall economy outweigh the disadvantages to the overall economy.

In a horizontal merger, the TFTC’s review will be focused on the following factors: (1) unilateral effects; (2) coordinated effects; (3) entry barriers; and (4) countervailing power of customers.

In a vertical merger, the TFTC’s review will be focused on the following factors: (1) competitors’ ability to choose trading counterparts after the merger; (2) impact on entry barriers for potential competitors to enter the relevant market; (3) likelihood that participating parties may abuse their market power through the merger; (4) likelihood that competitors may need to increase their operation costs in order to be competitive; (5) likelihood to form cartels; and (6) likelihood of market foreclosure.

In a conglomerate merger, the TFTC’s review will be focused on the following factors: (1) likelihood of change of legal landscape and the impact on the participating parties; (2) likelihood of cross-industry operation facilitated by technological innovation; and (3) whether participating parties have any original plan of cross-industry operation before the merger.

In the case where there are significant anti-competitive concerns, the parties may provide the following explanations for the TFTC’s assessment: (1) economic efficiency; (2) consumer welfare; (3) the fact that one of the merging parties is in a disadvantaged trading position; (4) the fact that one of the merging parties is an endangered entity; and (5) other benefits to the overall economy.

45) May any non-competition issues be considered?

Industrial policy sometimes may be taken into consideration by the TFTC when the proposed merger involves a key industry of Taiwan.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture involves coordination between the partners of the joint venture as object or effect, the TFTC will assess whether such coordination is ancillary to the merger or constitutes an anti-competitive agreement.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions or prohibited.  Remedies can be either structural or behavioral, but the TFTC has historically only imposed behavioral remedies.

The TFTC may revoke an approval if at any time it becomes aware that incorrect or misleading information was provided by the parties or if the parties do not comply with the conditions of the approval.

If a merger is implemented without approval, the TFTC may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition (see topic 5).

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

After filing, the TFTC may publish some basic information of a merger and invite public comment on a high-profile or complex merger.  For the mergers that attract high attention, during phase II, the TFTC may provide more details and invite the merging parties, third parties, other government agencies, professors, and government think tanks to attend a closed-door meeting to hear their comments on the merger.  Also, the TFTC may publish a press release on its decisions on high-profile or complex mergers.  If the TFTC prohibits a merger or approves a merger with conditions, it will publish a redacted version of the full decision.

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

The merging parties:

Yes.

Third parties:

No.

50) Who can appeal and what may be appealed?

The merging parties can generally appeal any decisions by the TFTC to the Taipei High Administrative Court or the Taipei District Court (see topic 2) including conditions contained in an approval decision.

Third parties may not appeal any merger decisions.