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

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 Intellectual Property and Commercial Court may be appealed to the Supreme Administrative Court.

N/A

A merger notification is mandatory if the transaction constitutes a “merger” within the meaning of Article 10 of the TFTA and meets any of the filing thresholds set out in Article 11 of the TFTA.

According to Article 10 of 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 1/3 or more of the voting shares or capital contribution 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.

A transaction meeting the thresholds 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 contribution 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 contribution 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 hold 100% of the shares or capital contribution of such subsidiary; or
6. Any other circumstance designated by the TFTC.

Minority investment may be notifiable if it results in acquisition of 1/3 or more of the voting shares or capital contribution, or direct/indirect control.

Regardless of the geographic dimension of the affected markets, mergers shall be notified to the TFTC if any of the thresholds is triggered.  The TFTC may, subject to its discretion, decide not to exercise jurisdiction over an extraterritorial merger considering factors such as whether the extraterritorial merger will cause a direct, substantial and reasonably foreseeable impact on the Taiwan markets.

1. 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 two of the merging parties’ local turnovers exceed NTD 2 billion respectively.

2. 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’ aggregate local market share in any market (relevant or irrelevant to the proposed transaction) amounts to 1/3 or more.

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

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

Yes.  30 business days from the next business day when all the information requested by the TFTC is provided.  However, if the merger is complicated or raises anti-competitive concerns, the waiting period may be extended up to another 60 business days.

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

No.

1. Assessment of completeness of notification (normally 2-3 months, may be even longer in complicated cases)

After the merger notification has is submitted, the TFTC will issue several RFIs to request additional information that the TFTC deems necessary until all the requested information is provided.

For an extraterritorial merger, if all the requested information is provided and the TFTC decides not to exercise its jurisdiction, the TFTC will issue a waiver-of-jurisdiction letter to the parties.  The transaction can be closed after receiving such letter.  In such case, the waiting period will not apply.

2. Phase I (i.e. 30 business days from the next business day after the filing is completed)

Except for the waiver-of-jurisdiction decision in an extraterritorial merger, after all the requested information is provided, the TFTC will issue a letter confirming the completing of the filing and the beginning of the 30 business days from the next business day of the last submission.  Unless the TFTC decides to clear the merger by shortening the waiting period, extend the waiting period, or oppose the merger, the merger is allowed to be closed after the expiration of the 30-business-day waiting period.

3. Phase II (i.e. Up to 60 business days after the expiration of the Phase I waiting period)

In complicated cases or cases tat raise anti-competition concerns, the TFTC may decide to extend the waiting period for up to 60 business days.

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 markets; (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 technology innovation; and (3) whether participating parties have any original plan of cross-industry operation before the merger.

A merger may be cleared with or without conditions, or prohibited. 

Yes.

The amount of the fine is NTD200,000 to 50,000,000.

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

If a merger is implemented without clearance, the TFTC may impose a fine, prohibit the merger, order a separation of business, or impose any other measure necessary for restoring competition.

No.

The TFTC will conduct an investigation and request the parties to provide information necessary for the TFTC’s assessment of the notifiability of the transaction and impact of the transaction on the relevant market.

The TFTC tends to request a lot of information during the RFI process.  Compared to other jurisdictions, the RFI process in Taiwan may take more time before the TFTC confirms the completion of the filing.  Therefore, to avoid the risk of delaying the closing of the transaction, it is encouraged to notify as early as possible.

Since semiconductor is a key industry for Taiwan, if a merger involved the semiconductor industry, the TFTC will ask more questions during the RFI process.  Parties should file in Taiwan as soon as possible.

The TFTC is in the process of reviewing its merger regulations.  There may be some changes to the current merger review procedure in the near future.