S.L. 379.8 Art. 20Interpretation.

In the interpretation of regulation 4(4) and of regulation

4(2)(b), the Director General shall have recourse to –

(a) the judgements of the Court and his own previous decisions;

(b) judgements of the Court of Justice of the European Union;

(c) relevant decisions of the European Commission;

(d) interpretative Notices and Guidelines of the European Commission on the relevant provisions of the TFEU and secondary legislation relative to competition; and

(e) other pertinent foreign jurisprudence. SCHEDULE Amended by: L.N. 49 of 2007; (Regulation 5) L.N. 425 of 2007; L.N. 349 of 2011; XVI.2019.72.

CONCENTRATION NOTIFICATION FORM (Form CN) INTRODUCTION purpose of this Form

Form specifies the information that must be provided by an undertaking undertakings when notifying the Director General of a concentration falling under Regulations on Control of Concentrations. attention is drawn to the provisions of the Regulations on Control of Concentrations, and the Competition Act as subsequently amended. should be noted that pre-notification meetings are extremely valuable to notifying parties and the Director General in determining the precise information required in a notification and, in the large majority of cases, a significant reduction of the information required. Accordingly, parties are encouraged to consult the Director General regarding the dispensing with the obligation to provide certain information (see on the possibility of dispensation).

need for a correct and complete notification information required by this Form must be correct and complete. The required must be supplied in the appropriate Section of this Form. this Form shall only be used to supplement the information supplied in particular you should note that:

The time-limits of the Regulations on Control of Concentrations linked the notification will not begin to run until all the information that has be supplied with the notification has been received by the Director General. This requirement is to ensure that the Director General is able assess the notified concentration within the strict time-limits provided by the Regulations on Control of Concentrations. The notifying parties should check carefully, in the course of preparing their notification, that contact names and numbers, and in particular fax numbers, provided to the Director General are accurate, relevant and up-to-date. Incorrect or misleading information in the notification will be considered to be incomplete information. a notification is incomplete, the Director General will inform the notifying parties or their representatives of this in writing and without delay. The notification will only become effective on the date on which the complete and accurate information is received by the Director General and the notification fee has been duly paid. Regulation 13(1) of the Regulations on Control of Concentrations provides that incorrect or misleading information, where supplied intentionally or negligently, can make the notifying party or parties liable to the payment of penalty of not less than one thousand euro (€1,000) and not more than ten thousand euro (€10,000). pursuant to regulation 8(5) of the Regulations on Concentrations the Director General may also revoke his the compatibility of a notified concentration where incorrect information for which one of the undertakings is

(f) You may request that the Director General accept that the complete notwithstanding the failure to provide information this Form, if such information is not reasonably available or in whole (for example, because of the unavailability on a target company during a contested bid). The Director General will consider such a request, provided give reasons for the unavailability of that information, and best estimates for missing data together with the sources estimates. Where possible, indications as to where any of information that is unavailable to you could be obtained General should also be provided.

(g) You may request that the Director General accept that the complete notwithstanding the failure to provide information this Form, if you consider that any particular information this Form, in the full or short form version, may not be necessary Director General’s examination of the case. The Director General will consider such a request, provided give reasons why that information is not relevant and necessary inquiry into the notified operation. You may explain this prenotification contacts with the Director General and/or notification and ask the Director General to dispense with to provide that information. C. Notification in short form

(a) In cases where a joint venture has no, or de minimis, actual activities within the Maltese territory, the Director General notification of the operation by means of short form. Such where joint control is acquired by two or more undertakings, * †

(i) the turnover of the joint venture and/or the turnover contributed activities, is less than €698,812.02 territory; and ‡

(ii) the total value of assets transferred to the joint § than €698,812.02 in the Maltese territory.

*The turnover of the joint venture should be determined according to the most recent audited parent companies, or the joint venture itself, depending upon the availability of separate resources combined in the joint venture. †The expression "and/or" refers to the variety of situations covered by the short form; for - in the case of the joint acquisition of a target company, the turnover to be taken into account of this target (the joint venture), - in the case of the creation of a joint venture to which the parent companies contribute turnover to be taken into account is that of the contributed activities, - in the case of entry of a new controlling party into an existing joint venture, the turnover venture and the turnover of the activities contributed by the new parent company (if any) account. ‡The total value of assets of the joint venture should be determined according to the last and approved balance sheet of each parent company. The term "assets" includes: (1) intangible assets that will be transferred to the joint venture (examples of tangible assets plants, wholesale or retail outlets, and inventory of goods), and (2) any amount of credit of the joint venture which any parent company of the joint venture has agreed to extend or §Where the assets transferred generate turnover, then neither the value of the assets nor may exceed €698,812.02. you consider that the operation to be notified meets these qualifications, you may explain this in your notification and ask the Director General to dispense with the obligation to provide the full-form notification, and to allow you to notify by means of short form. Short-form notification allows the notifying parties to limit the information provided in the notification to the following sections and questions: - Section 1, - Section 2, except questions 2.1 (a), (b) and (d), - Section 3, only questions 3.1 and 3.2 (a), - Section 5, only questions 5.1 and 5.3, - Section 6, - Section 10, - Section 11 (optional for the convenience of the parties), and - Section 12, - the five largest independent customers, the five largest independent suppliers, and the five largest competitors in the markets in which thejoint venture will be active. Provide the name, address, telephone number, fax number and appropriate contact person of each such customer, supplier and competitor. addition, with respect to the affected markets as defmed in Section 6, indicate for the Maltese territory and where different, in the opinion of the notifying parties, for the relevant geographic market, the sales in value and volume, as well as the market shares, for the year preceding the operation. The Director General may require full, or where appropriate partial, notification under the Form CN where: - the notified operation does not meet the short-form thresholds, or - this appears to be necessary for an adequate investigation with respect to possible competition problems. such cases, the notification may be considered incomplete in a material Director General will inform the notifying parties or their of this in writing and without delay and will fix a deadline for the a full or, where appropriate, partial notification. The notification will effective on the date on which all information required is received. must notify case of a merger or the acquisition of joint control in an undertaking meaning of regulation 2( ) of the Regulations on Control of d Concentrations, the notification shall be completed jointly by the parties to the those acquiring joint control as the case may be. case of the acquisition of a controlling interest in one undertaking by acquirer must complete the notification. case of a public bid to acquire an undertaking, the bidder must notification. party completing the notification is responsible for the accuracy of the which it provides. to notify The information requested by this Form is to be set out using and paragraph numbers of the Form, signing a declaration as provided and annexing supporting documentation. Supporting documents may be originals or copies of the originals. latter case, the notifying party must confirm that they are true and complete. One original and two copies of the Form CN and all supporting must be provided. The notification must be delivered to the Director General on at the following address: Malta Competition and Consumer Affairs Authority Office for Competition Mizzi House National Road Blata l-Bajda HMR 9010 Malta

F. Confidentiality Regulation 15 of the Regulations on Control of Concentrations Director General and public officers employed with or attached to consultants contracted therewith not to disclose information they through the application of the regulations of the kind covered by the professional secrecy. The same principle must also apply to protect between notifying parties.

If you believe that your interests would be harmed if any of the you are asked to supply were to be published or otherwise divulged to submit this information separately with each page clearly marked Secrets". You should also give reasons why this information should not or published.

In the case of mergers orjoint acquisitions, or in other cases notification is completed by more than one of the parties, business submitted under separate cover, and referred to in the notification as such annexes must be included in the submission in order for a notification considered complete.

G. Definitions and instructions for purposes of this Form Notifying party or parties: in cases where a notification is submitted one of the undertakings party to an operation, "notifying parties" is only to the undertaking actually submitting the notification.

Party (parties) to the concentration: these terms relate to both and acquired parties, or to the merging parties, including all undertakings controlling interest is being acquired or which is the subject of a public Except where otherwise specified, the terms "notifying party "party (parties)" to the concentration include all the undertakings which the same groups as those "parties". Affected markets: Section 6 of this Form requires the notifying define the relevant product markets, and further to identify which of markets are likely to be affected by the notified operation. This definition market is used as the basis for requiring information for a number of contained in this Form. The definitions thus submitted by the notifying referred to in this Form as the affected market(s). This term can refer up either of products or of services.

all references to the word "year" in this Form should be read as calendar year, unless otherwise stated. All information requested in this unless otherwise specified, relate to the year preceding that of the references contained in this Form are to the relevant regulations of the Control of Concentrations, unless otherwise stated. Commitments after notification notifying parties may after notification, up to the end of the fifth week day of the receipt of notification, submit commitments to the Director a view to rendering the concentration lawful in terms of the provisions regulations. Following the end of this five-week period they may request be stopped for a period of three weeks to discuss a new or substantially commitment proposal but it shall be at the discretion of the Director General to accede to this request. They may also submit commitments to the General during the second phase of investigations after he decides that the raises serious doubts as to its lawfulness in terms of the provisions of regulations and initiates proceedings but by not later than the end of the third following the initiation of proceedings. During this period they may also the clock be stopped for up to one month for proper consideration of commitments, which request the Director General may only refuse in circumstances. Administrative Fee notification fee of €163.06 must be paid by the notifying party or parties of the duly completed notification form.

SECTION 1

Background information * Information on notifying party (or parties) of:

and address of undertaking; nature of the undertaking’s business; address, telephone number, fax number and/or telex of, and position appropriate contact person. Information on other parties to the concentration each party to the concentration (except the notifying party or parties)

and address of undertaking; nature of undertaking’s business; address, telephone number, fax number and/or telex of, and position appropriate contact person. Address for service the target company in the case of a contested bid, in which case the details should be as is possible. Give an address to which all communications may be made delivered. 1.4. Appointment of representatives

Where notifications are signed by representatives of undertakings, representatives must produce written proof that they are authorized to

If ajoint notification is being submitted, has ajoint representative appointed?

If yes, please give the details requested in Sections 1.4.1 to If no, please give details of information tþf any representatives been authorized to act for each of the parties to the concentration, indicating they represent:

1.4.1. name of representative; 1.4.2. address of representative; 1.4.3. name of person to be contacted (and address, if different from

1.4.4. telephone number, fax number and/or telex.

SECTION 2

Details of the concentration 2.1. Describe the nature of the concentration being notified. In doing

(a) whether the proposed concentration is a full legal merger, of sole orjoint control, a full-function joint venture within of the first proviso to regulation 2(d) of the Regulations Concentrations or a contract or other means of conferring indirect control within the meaning of regulation Regulations on Control of Concentrations;

(b) whether the whole or parts of parties are subject to the concentration;

(c) a brief explanation of the economic and financial structure concentration;

(d) whether any public offer for the securities of one party by has the support of the former’s board of directors or other representing that party;

(e) the proposed or expected date of any major events designed about the completion of the concentration;

(f) the proposed structure of ownership and control after the the concentration;

(g) any financial or other support received from whatever source public authorities) by any of the parties and the nature this support. 2.2. List the economic sectors involved in the concentration 2.3. For each of the undertakings concerned by the concentration following data for the last financial year: 2.3.1. world-wide turnover;

2.3.2. turnover in Malta. SECTION 3

Ownership and control each of the parties to the concentration provide a list of all belonging to the same group.

list must include: undertakings or persons controlling these parties, directly or indirectly; undertakings active on any affected marketthat are controlled, directly these parties; any other undertaking identified in 3.1.

each entry listed above, the nature and means of control should be information sought in this section may be illustrated by the use of charts or diagrams to show the structure of ownership and control of the

SECTION 4

Personal and financial links and previous acquisitions respect to the parties to the concentration and each undertaking or identified in response to Section 3, provide:

of all other undertakings which are active on affected markets markets are defined in Section 6)* in which the undertakings, or persons, of individually or collectively 10% or more of the voting rights, issued or other securities; each case identify the holder and state the percentage held; for each undertaking of the members of their boards of directors who members of the boards of directors or of the supervisory boards of any other which is active on affected markets; and (where applicable) for each list of the members of their supervisory boards who are also members of directors of any other undertaking which is active on affected each case identify the name of the other undertaking and the positions details of acquisitions made during the last three years by the groups above (Section 3) of undertakings active in affected markets as defined in

Information provided here may be illustrated by the use of organization diagrams to give a better understanding.

SECTION 5

Supporting documentation Notifying parties must provide the following:

the definition of affected markets. 5.1. copies of the final or most recent versions of all documents the concentration, whether by agreement between the parties to the acquisition of a controlling interest or a public bid; 5.2. in a public bid, a copy of the offer document; if it is unavailable of notification, it should be submitted as soon as possible and not later is posted to shareholders;

5.3. copies of the most recent annual reports and accounts of all the concentration;

5.4. where at least one affected market is identified: copies of analyses, reports, studies and surveys submitted for any member(s) of the board of directors, the supervisory shareholders’ meeting, for the purpose of assessing or analysing the with respect to competitive conditions, competitors (actual and potential), market conditions.

SECTION 6

Market definitions The relevant product and geographic markets determine the which the market power of the new entity resulting'from the concentration assessed. The notifying party or parties must provide the data requested regard to the following definitions: I. Relevant product markets A relevant product market comprises all those products and/or which are regarded as interchangeable or substitutable by the consumer, the products’ characteristics, their prices and their intended use: A relevant market may in some cases be composed of a number of individual products services which present largely identical physical or technical characteristics interchangeable. Factors relevant to the assessment of the relevant product the analysis of why the products or services in these markets are included others are excluded by using the above definition, and having regard to, substitutability, conditions of competition, prices, cross-price elasticity other factors relevant for the definition of the product markets. II. Relevant geographic markets The relevant geographic market comprises the area undertakings concerned are involved in the supply and demand of relevant or services, in which the conditions of competition are sufficiently homogeneous which can be distinguished from neighbouring geographic areas particular, conditions of competition are appreciably different in those Factors relevant to the assessment of the relevant geographic include the nature and characteristics of the products or services existence of entry barriers, consumer preferences, appreciable differences undertakings’ market shares between neighbouring geographic areas price differences. III. Affected markets

For purposes of information required in this Form, affected product markets where, in the Maltese territory or a relevant part thereof:

two or more of the parties to the concentration are engaged in business activities in the same product market and where the concentration will lead to a combined market share of 15% or more. These are horizontal relationships; one or more of the parties to the concentration are engaged in business activities in a product market, which is upstream or downstream of a product market in which any other party to the concentration is engaged, and any of their individual or combined market shares is 25% more, regardless of whether there is or is not any existing supplier/ customer relationship between the parties to the concentration. These are vertical relationships. the basis of the above definitions and market share thresholds, identify market within the meaning of Section III. Markets related to affected markets within the meaning of Section III Describe the relevant product and geographic markets concerned by the operation, which are closely related to the affected market(s) (in upstream, and horizontal neighbouring markets), where any of the parties to the are active and which are not themselves affected markets within the Section III. Non-affected markets case there are no affected markets in the meaning of Section 6.1, product and geographic scope of the markets on which the notified would have an impact.

SECTION 7

Information on affected markets each affected relevant product market, for each of the last three provide the following:

estimate of the total size of the market in terms of sales value (in euro) (units)*. Indicate the basis and sources for the calculations and provide where available to confirm these calculations; sales in value and volume, as well as an estimate of the market shares, parties to the concentration; estimate of the market share in value (and where appropriate volume) of (including importers) having at least 10% of the geographic market consideration. Provide documents where available to confirm the calculation shares and provide the name, address, telephone number, fax number appropriate contact person, of these competitors; estimate of the total value and volume and source of imports into Malta the proportion of such imports that are derived from the groups to which the parties to the concentration belong; estimate of the extent to which any quotas, tariffs or non-tariff volume of a market should reflect output less exports plus imports for the geographic areas consideration. bairiers to trade, affect these imports, and

(c) an estimate of the extent to which transportation and other these imports; 7.5. the manner in which the parties to the concentration produce products and/or services; for example, whether they manufacture through local distribution facilities; 7.6. the nature and extent of vertical integration of each of the concentration compared with their largest competitors.

SECTION 8

General conditions in affected markets 8.1. Identify the five largest independent* suppliers to the parties individual shares of purchases from each of these suppliers (of raw goods used for purposes of producing the relevant products). Provide address, telephone number, fax number and appropriate contact person, suppliers. Structure of supply in affected markets

8.2. Explain the distribution channels and service networks that affected markets. In so doing, take account of the following where appropriate:

(a) the distribution systems prevailing on the market and their To what extent is distribution performed by third undertakings belonging to the same group as the parties Section 3?

(b) the service networks (for example, maintenance and repair) and their importance in these markets. To what extent are performed by third parties andlor undertakings belonging group as the parties identified in Section 3? 8.3. Where appropriate, provide an estimate of the total Malta-wide the last three years. Over this period what proportion of this capacity for by each of the parties to the concentration, and what have been their rates of capacity utilisation. 8.4. If you consider any other supply-side considerations to be should be specified. Structure of demand in affected markets

8.5. Identify the five largest independent customers of the parties affected market and their individual share of total sales for such products for by each of those customers. Provide the name, address, telephone number and appropriate contact person, of each of these customers. 8.6. Explain the structure of demand in terms of:

(a) the phases of the markets in terms of, for example, take-off, maturity and decline, and a forecast of the growth rate of

(b) the importance of customer preferences, in terms of

*That is suppliers which are not subsidiaries, agents or undertakings forming part of the group question. In addition to those five independent suppliers the notifying parties can, necessary for a proper assessment of the case, identify the infra-group suppliers. The same in relation with customers. products differentiation and the provision of a full range of products; the degree of concentration or dispersion of customers; segmentation of customers into different groups with a description of the "typical customer" of each group; the importance of exclusive distribution contracts and other types of long-term contracts; the extent to which public authorities, government agencies, State enterprises or similar bodies are important participants as a source of demand. Market entry the last five years, has there been any significant entry into any markets. If the answer is "yes", where possible provide their name, address, number, fax number and appropriate contact person, and an estimate of market shares. the opinion of the notifying parties are there undertakings (including present operating only outside the Maltese market) that are likely to enter the answer is "yes", please explain why and identify such entrants by telephone number, fax number and appropriate contact person, and an time within which such entry is likely to occur. Describe the various factors influencing entry into affected markets that present case, examining entry from both a geographical and product so doing, take account of the following where appropriate:

the total costs of entry (R&D, establishing distribution systems, promotion, advertising, servicing, etc.) on a scale equivalent to a significant viable competitor, indicating the market share of such a competitor; any legal or regulatory barriers to entry, such as government authorization or standard setting in any form; any restrictions created by the existence of patents, know-how and other intellectual property rights in these markets and any restrictions created licensing such rights; the extent to which each of the parties to the concentration are licensees licensors of patents, know-how and other rights in the relevant markets; the importance of economies of scale for the production of products in the affected markets; access to sources of supply, such as availability of raw materials. Research and development an account of the importance of research and development in the firm operating on the relevant market(s) to compete in the long term. nature of the research and development in affected markets carried out to the concentration.

doing, take account of the following, where appropriate: * trends and intensities of research and development in these markets development intensity is defined as research development expenditure as a proportion of and for the parties to the concentration;

(b) the course of technological development for these markets appropriate time period (including developments in products services, production processes, distribution systems, etc.);

(c) the major innovations that have been made in these markets undertakings responsible for these innovations;

(d) the cycle of innovation in these markets and where the parties cycle of innovation. Co-operative Agreements

8.11. To what extent do cooperative agreements (horizontal or vertical) the affected markets?

8.12. Give details of the most important cooperative agreements the parties to the concentration in the affected markets, such as development, licensing,joint production, specialization, distribution, supply and exchange of information agreements. Trade associations 8.13. With respect to the trade associations in the affected markets:

(a) identify those in which the parties to the concentration are

(b) identify the most important trade associations to which and suppliers of the parties to the concentration belong.

Provide the name, address, telephone number, fax number and contact person of all trade associations listed above.

SECTION 9

General market information Market data on conglomerate aspects Where any of the parties to the concentration hold individually share of 25% or more for any product market in which there is no vertical relationship as described above, provide the following information: 9.1. a description of each product market and explain why the products services in these markets are included (and why others are excluded) their characteristics, prices and their intended use;

9.2. an estimate of the value of the market and the market shares groups to which the parties belong for each product market identified last financial year:

(a) for the Maltese territory;

(b) and, where different, for the relevant geographic market.

Overview of the markets 9.3. Where applicable, describe the world wide context of concentration, indicating the position of each of the parties to the outside of the Maltese territory in terms of size and competitive strength.

9.4. Describe how the proposed concentration is likely to affect intermediate and ultimate consumers and the development of technical progress. SECTION 10

Co-operative effects of a joint venture the purpose of regulation 4(3) of the Regulations on Control of please answer the following questions:

Do two or more parents retain to a significant extent activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market * closely related to this market ? the answer is affirmative, please indicate for each of the markets referred to here: - the turnover of each parent company in the preceding financial year; - the economic significance of the activities of the joint venture in relation to this turnover; - the market share of each parent. the answer is negative, please justify your answer. the answer to (a) is affirmative and in your view the creation of the joint venture does not lead to coordination between independent undertakings that restricts competition within the meaning of article 5 the Competition Act , give your reasons.

SECTION 11

General matters Ancillary restraints parties to the concentration, and/or other involved parties (including minority shareholders), enter into ancillary restrictions directly related to the implementation of the concentration, these restrictions may be conjunction with the concentration itself. Identify each ancillary restriction in the agreements provided with the notification for which you request an assessment in conjunction with the concentration; and explain why these are directly related and necessary to the implementation of the concentration.

SECTION 12

Declaration

Where notifications are signed by representatives of undertakings, such representatives must produce written proof that they are authorized to act. Such authorization must accompany the notification. notification must conclude with the following declaration which is to or on behalf of all the notifying parties: undersigned declare that, to the best of their knowledge and belief, the given in this notification is true, correct, and complete, that complete definitions refer to Section 6. copies of documents required by Form CN, have been supplied, estimates are identified as such and are their best estimates of the underlying and that all the opinions expressed are sincere. They are aware of the provisions of regulation 13(1) of the Control of Concentrations. Place and date: Signatures:

Names: On behalf of: