Thailand’s Trade Competition Commission Releases Implementing Rules on Merger Control
Since the enactment of the Thailand’s Trade Competition Act B.E. 2560 (2017) (“2017 Act”), the Trade Competition Commission (“Commission”) has published multiple notifications clarifying the full scope of a number of provisions in the 2017 Act. On 28 December 2018, the Commission published the implementing Notifications on merger control (“Merger Control Notifications”), which became effective the following day.
The Merger Control Notifications relate to:
(i) the criteria for considering the acquisition of the assets or shares in order to control business administration policy, superintendence or merger management;
(ii) the criteria, procedures and conditions for notification of the outcome of a merger;
(iii) the criteria, procedures and conditions for request for permission to conduct a merger; and
(iv) the criteria on being a business operator with market dominance.
Although Thai Competition Laws have been around for nearly two decades, there have been no implementing rules for merger control.
The publication of the Merger Control Notifications with their definitions of key terms has now shed light on when permission or notification for a merger is required.
For example, the Merger Control Notifications have clarified that a pre-merger approval is required where the merger may result in a ‘monopoly’ or a business operator with ‘market dominance’. There is ‘monopoly’ on the market when the merged company has the power to fix the price and quantity of its goods and services independently and has a sales revenue of THB1,000 million, or more.
The threshold for a business operator to have ‘market dominance’ is more complex, requiring either: (i) a business operator having a market share of 50 per cent or more and having a sales revenue of THB1,000 million, or more, in the preceding year; or (2) the first three business operators in a market of any goods or services having an aggregate market share of 75 per cent or more and each having a sales revenue of THB1,000 million or more in the preceding year.
A post-merger notification is required when a business operator engages in a merger that may cause substantial reduction of competition in a particular market. A ‘substantial reduction of competition’ has been defined as a merger which:
(i) has a sales revenue of THB1,000 million or more; and
ii) does not meet the requirements of having a ‘monopoly’ or being a business operator with ‘market dominance’.
Commentary from R&T Asia (Thailand), a member firm of Rajah & Tann Asia: With the publication of the Merger Control Notifications, Thailand’s merger control regime is now effectively in place and businesses are expected to comply with the pre-merger approval and post-merger notification requirements where they apply. With this development, Thailand’s active merger control regime must be analysed when transactions are being undertaken, whether in Thailand or across the world. The Thai rules look at a combination of revenue thresholds as well as market shares. It is complex and will require expert guidance; not a back of the envelope review only.