Moroccan merger control rules are set out in Law No. 104-12 of 30 June 2014 ("Dahir No. 1-14-116") on free pricing and competition (the "Competition Law") and its Enforcement Decree No. 2-14-652 of 1 December 2014 (the "Decree") and in Law No. 20-13 relating to the Competition Council of 30 June 2014 (Dahir No. 1-14-117) and its Enforcement Decree No. 2-15-109 of 4 June 2015.

An independent administrative authority, the Competition Council, has jurisdiction over merger control cases in Morocco and enforces the relevant merger control provisions. 

The Chief of Government can intervene at two stages of the merger control process:

• it may request the Competition Council to open an in-depth investigation within 20 days after a decision of the Competition Council following a Phase I review; 
• within 30 days following a decision of the Competition Council, the Chief of Government has the possibility to rule out the decision and either authorize or prohibit the merger for reasons of public interest other than competition (such as industrial development, competitiveness of the companies within the international context or job creation).

No, there is no supranational regulatory agency with exclusive competence. 

Provided certain turnover thresholds set out in the Competition Law are fulfilled, notification to the Competition Council is mandatory.

According to article 11 of the Competition Law, a concentration occurs where:

• two or more previously independent undertakings merge;
• one or more persons, already controlling at least one undertaking, acquire, directly or indirectly, whether by purchase of securities or assets, by contract or by any other means, control of the whole or parts of one or more undertakings; and
• one or more undertakings acquire, directly or indirectly, whether by purchase of securities or assets, by contract or by any other means, control of the whole or parts of one other or more other undertakings.

The Competition Law also states that the creation of a joint venture performing on a lasting basis all the functions of an economic entity shall constitute a concentration within the meaning of the Moroccan merger control law.

Joint ventures might fall under the scope of the Competition Law provided that they perform on a lasting basis all the functions of an economic entity (article 11 of the Competition Law).

Acquisition of a minority shareholding amounts to a merger only if it leads to a change of control within the meaning of the Competition Law.

A transaction between parties outside Morocco which is qualified as a concentration pursuant to Article 11 of the Competition Law, and which meets the relevant turnover thresholds must be notified. 

Nevertheless, according to Article 1, the Competition Law applies to an operation that may have an effect on competition on the Moroccan market or a substantial part of it.

The Competition Council has clarified its interpretation of the aforementioned article in its recent decision-making practice. It has concluded in a few cases that transactions were not subject to merger filing requirement in Morocco when: 

• the target did not generate any revenues and had no presence in Morocco; and
• the shareholders were not present in Morocco (via their subsidiaries and controlling stakes) on the same markets as the target and did not have any further development plans on these markets in Morocco. 

Under the Competition Law, a concentration must be notified to the Competition Council when one of the three following conditions is fulfilled:

• the combined aggregated worldwide turnover, excluding taxes, of all undertakings or groups of legal or natural persons party to the contemplated concentration exceeds 750 million dirhams (i.e. approx. 70 million euros)
• the combined aggregated turnover, excluding taxes, achieved in Morocco by at least two undertakings or groups of legal or natural persons party to the contemplated concentration exceeds 250 million dirhams (i.e. approx. 23 million euros); or
• the undertakings that are parties to the concentration, or that are the subject of the concentration, or the undertakings that are economically linked to them, have generated altogether, during the previous calendar year, more than 40 percent of the sales, purchases or other transactions on a national market of identical or substitutable goods, products or services, or on a significant part of such market.

These three criteria are alternative, which means that if one of them is met, the Parties are required to notify the contemplated concentration in Morocco, even if there is no overlap.

Under article 12 of the Competition Law, the filing is mandatory.

The transaction must be filed as soon as the parties are able to present a "sufficiently advanced project" allowing the investigation of the case.

Under article 12 of the Competition Law, the filing has a suspensive effect. The parties are thus not entitled to implement their concentration plan as long as the Competition Council has not authorized the transaction.

Nevertheless, pursuant to article 14, in case of duly motivated need, the parties can ask the Competition Council for an exemption to this suspensive effect, allowing them to actually complete all or part of the transaction without waiting for an authorization decision of the competition authorities and without prejudice of this decision.

The notification file submitted to the Competition Council must contain specific information and documents listed in the Decree as regards:

• the contemplated operation;
• the undertakings concerned and the groups to which they belong (including, in particular, their annual accounts, a list of their main shareholders, a list of subsidiaries, etc);
• a presentation of the relevant product and geographic markets concerned (including the markets shares of the parties and of their competitors); and
• when a market is affected, a detailed presentation of this market and of the firms active in this market.

A market is considered to be affected when:

• one or more undertakings operate on the concerned market and have an aggregated market share reaching 25 percent or more;
• at least one of the concerned undertakings operates on the concerned market and another of the concerned undertakings operates on the upstream, downstream or associated market, whether or not there exist supplier relations, as long as all the concerned undertakings reach a 25 percent market share; or
• the operation leads to the eviction of a potential competitor on the market.

There are no filing fees. 

The timetable for clearance is as follows:

To date, the practice is to notify directly (i.e. no prenotification discussions).

Phase I (60 days)

• According to article 15 of the Competition Law, the Competition Council must rule on the transaction within 60 days of receipt of the declaration of completeness (i.e., after the meeting with the case handler has been held and any requested additional information has been sent, as the case may be).
• If commitments are offered by the parties, this 60-day time-limit is extended by 20 days.
• In case of particular necessity, such as the finalization of the commitments, the parties may ask the Competition Council to suspend the deadline for a maximum of 20 days.

Phase II (90 days)

• According to article 17 of the Competition Law, the Competition Council must determine within 90 days whether the transaction is likely to infringe competition, notably by creating or strengthening a dominant position or a buying power that places suppliers in a position of economic dependency. The Competition Council also assesses whether the contemplated transaction brings a sufficient contribution to economic progress to offset the competition infringements.
• If the notifying parties offer commitments to remedy the anticompetitive effects of the contemplated operation less than 30 days before the end of the 90-day deadline, the deadline will then expire 30 days after the reception of the commitments. Moreover, the 90-day deadline may be suspended for up to 30 days at the parties’ request in case of particular necessity, notably to finalize their commitments.
• The deadline may also be suspended by the Competition Council, in particular when the notifying parties have failed to provide it with the requested information or to inform it of the occurrence of a new material event. The time limit resumes when the cause of the suspension has been addressed.

The Moroccan competition legislation does not contain at this stage any accelerated procedure.

The substantive test for clearance is whether the planned concentration is likely to infringe competition, notably by creating or strengthening a dominant position or a buying power that places suppliers in a position of economic dependency.

At the end of Phase I, the Competition Council may either:

• decide that the notified transaction does not fall under the scope of the merger control; 
• authorize the operation subject, where applicable, to the effective implementation of the remedies proposed by the notifying parties; 
• open an in-depth analysis of the transaction; or
• refrain from adopting any of the above decisions.

The Competition Council may, at the end of Phase II, either:

• authorize the operation subject to, where applicable, the effective implementation of commitments offered by the notifying parties;
• authorize the operation, while requiring the parties to take all appropriate measures to ensure sufficient competition or to comply with instructions destined to provide a sufficient contribution to economic progress to offset the competition infringements; or
• prohibit the concentration and require the parties, when applicable, to take all appropriate measures to re-establish sufficient competition.

The parties can offer remedies (of a structural or behavioral nature). 

Article 19 of the Competition Law indicates that in case of a failure to file a notification before the Competition Council, the latter orders the parties to notify the transaction, subject to a daily penalty payment (within the limits of a maximum of 5 percent of their average daily turnover) unless they revert to the situation prior to the transaction.

Moreover, the Competition Council may impose:

• for legal entities responsible for filing: a fine of up to 5 percent of the turnover achieved in Morocco during the last financial year, increased, if applicable, by the turnover achieved by the target during the same period
• for a natural person responsible for filing: a fine of a maximum amount of 5 million dirhams. 

The Competition Council may impose, upon the parties who have completed a notified concentration prior to clearance the same fines that are applicable for a failure to file.

See response to "Describe the procedures if the agency wants to challenge an unnotified transaction". 

According to article 20 of the Competition Law, if an undertaking abuses its dominant position or a state of economic dependency, the Competition Council may enjoin the undertakings concerned to modify, complete or terminate all of the agreements and measures that gave rise to the concentration of economic power that enabled these abuses.

The members of the decision-making college of the Competition Council were appointed in December 2018. Following these appointments, the Competition Council is now in a position to fully apply Law n°104-12 (the "Moroccan Competition Law") and in particular to adopt decisions on merger notifications (and possibly failure to notify). The new Competition Law has substantially reinforced the prerogatives of the Competition Council.

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