Yes, there is a regulatory regime applicable to mergers and similar transactions.  

The Israel Competition Authority ("ICA") reviews all merger applications. Its decisions are subject to an appeal proceeding before the Competition Tribunal ("Competition Tribunal").

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

Yes. The merger filing requirements are set out under the Israeli Economic Competition Law, 5748-1988 ("Competition Law"), and in the Restrictive Trade Practices Regulations (Registration, Publication and Reporting of Transactions) 2004.

Acquisitions, mergers, JVs, etc., as long as they fall under the definition of "Mergers of companies", as set under the Competition Law as follows:

"Including -

• The acquisition by one entity of most of the assets of another entity; or
• The acquisition by one entity of shares in another entity, which gives the acquiring entity any of the following:
  • more than 25 percent of the nominal value of the target's issued capital or more than 25 percent of the voting power; or
  • the right to appoint more than 25 percent of the target's directors; or
  • the right to participate in more than 25 percent of the target's profits."

An acquisition can be made directly or indirectly, and can be made through rights appointed in a contract. It can also include a long-term lease of an asset or the rights to operate such an asset. An exception to the above may be internal restructuring which is formally caught under this definition, however, the ICA policy would usually be to exclude a filing in relation to such transactions, under certain conditions.

Yes. Minority investments of more than 25 percent may be subject to a notification requirement (provided that the thresholds for a filing are met). In addition, the ICA's Guidelines for Reporting and Evaluating Mergers Pursuant to the Competition Law specify that minority investments of less than 25 percent can be notifiable, in exceptional (and therefore few) cases where the remaining holdings in the company are distributed among a large number of shareholders, or when the purchaser receives additional preferred rights. This will also be the case when different purchasers each acquire less than 25 percent of the target, however, they are perceived as "joint purchasers" (for example, due to cooperation agreements between them) and their joint investment rate in the target result in more than 25 percent.

Yes. A foreign-to-foreign transaction, that falls within the definition of ‘Merger of Companies’ under the Competition Law, and regarding to which one or more of the thresholds for a filing which are set under the Competition Law is met, is captured under the merger control regime, provided at least two of the parties to the transaction have a "local presence" in Israel (nexus). According to the "local presence" requirement at least two of the merging parties should have a sufficient ‘local presence' in Israel (for example, either by a subsidiary, branch, office, or a third party local distributor/importer etc., where the foreign entity exercises a sufficient level of control or influence over its legal or commercial conduct). The local effects test, however, is not applied at the preliminary stage of determining jurisdiction.

An acquisition that falls within the definition of ‘Merger of Companies’ under the Competition Law must be notified if any of the following conditions are met: 

• As a result of the merger, the merged entity would be regarded as a monopoly (the concentration of more than half of the total supply or acquisition of an asset, or more than half of the total provision or acquisition of a service, in the hands of one person, is deemed to be a monopoly for the purposes of this section) in Israel.
• In the fiscal year preceding the merger, both the:
• merging entities' aggregate sales turnover in Israel exceeded NIS 387.35 million; and
• sales turnover in Israel of at least two of the merging entities exceeded NIS 21 million each.
• One of the merging entities already has a monopoly in any relevant (product and geographic) market in Israel.

All thresholds are reviewed on a “group” level, i.e., including any controlled by or controlling entities/shareholders.

When a merger filing is triggered, notification to the ICA is mandatory.

The filing must be made before the closing, the execution or prior to the actual implementation of the merger (any 'gun jumping' activities), i.e. there are no defined time-frames or deadlines for filing.

Yes. Parties to a notifiable merger must wait with the closing of the transaction or with any proactive implementation of the merger until a clearance decision is granted by the ICA (see our response to "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?" for more details).

Notification must be submitted in writing and in Hebrew (or English with a translation into Hebrew), and as of May 2022 on a new elaborate merger notice form (Restrictive Trade Practices Regulations (Registration, Publication and Reporting of Transactions) 2004. The form shall include, for example, the following information (depending, inter alia, on the type of merger at hand – horizontal, vertical, or conglomerate), which is not an exhaustive list:

• description of the transaction;
• relevant product markets;
• detailed information on horizontally competing and vertically related products, the parties' activities, quantitative and turnovers and market shares, sales and turnovers, competitors, suppliers and the market in general (and greater details in what are defined as markets under increased reporting duty);
• information on conglomerate products (which may be broadly defined);
• arrangements with third-party competitors in the relevant markets under certain conditions;
• (under certain conditions) barriers to entry or to expend in the relevant market, exits and entries of competitors to the relevant markets, regulatory barriers, competition from imports, and information on loss of potential competition;
• Efficiencies resulting from the merger transaction;
• Information on shareholders and controlling shareholders in each merging party, and details on any competitive affiliation they may have to other merging parties;
• Filings in other jurisdictions.

It should be noted that certain parts of the information described above would be required, depending on the parties' market shares in the relevant markets (i.e., if certain horizontal or vertical markets would qualify as markets under increased reporting duty – 20% share in horizontal markets and 30% share in vertical markets). Information on conglomerate products is also subject to a threshold market share of 30%.

The new form no longer allows a notifying party to apply for an exemption from the ICA for ancillary restraints contained in the merger transaction agreement (if such are not covered by the block exemption for restraints ancillary to merger transactions).

The new merger notification form can be found on the ICA's website (https://www.gov.il/he/departments/general/mergerform-new).

Merger notifications are generally filed with the ICA online, via a designated email address.

There is no filing fee at present.
 

Once all merger notifications are duly submitted to the ICA, the ICA has a statutory period of 30 calendar days to review the merger and to render its decision. The ICA may extend this period by two additional periods of 30 days each. Thereafter, the ICA may further extend its review period by an additional 60 days, following its consultation with the Merger and Exemption Committee. Further extensions beyond the above accumulative 150 days can only be made based on the merging parties’ consent or a judicial order by the Competition Tribunal. Such extensions may be required, in particular, in relation to mergers that involve horizontal overlaps between the parties or that raise local competition concerns. This general time-frame cannot be shortened by the parties, however, when no local competitive concerns arise, filing can be made through the ICA's expedited "bright-green" filing (this channel could generate an approval decision within a time-frame of several days from filing).

During the review process, the ICA team may contact the parties in order to obtain further details regarding the relevant activities and to better understand the transaction and the relevant markets. The ICA team may as well contact local third parties (customers and suppliers) to ask for their views regarding the transaction. In cross-border mergers, the ICA may also contact relevant foreign agencies.

If local concerns arise in cross-border mergers, the ICA may either investigate them further itself or defer its decision until the US/EU authorities (as applicable) will decide on the merger.

A merger is approved, unless the General Director of the ICA believes there is a reasonable risk that, as a result of the merger, either:

• the competition will be substantially lessened; and/or
• the public will be harmed by the price level, quality, quantity, regularity or terms of supply of a particular asset or service.

The ICA can approve the notified merger, approve it with local conditions/remedies or prohibit the merger. As for the approval with conditions/remedies, the ICA can impose various conditions on the merging parties. Alternatively, it can suggest remedies to the parties for their acceptance during the review process and before reaching a decision. The conditions can include:

• structural remedy (such as the divestiture of certain assets or areas of activities); and/or
• behavioral undertakings. It is important to state that the ICA would prefer imposing structural remedies, rather than behavioral ones.

Yes, parties can proactively offer commitments to the agency to remedy identified competition concerns. 

Failure to file, or to notify correctly, implementation before approval (gun-jumping) or failure to observe a decision of the ICA constitutes a criminal offense, the punishment for which is either:

• a criminal fine of up to NIS 2.26 million plus an additional fine of up to NIS 14,000 for every day the offense continues for an individual (and if the General Director of the ICA has rendered its decision and it was violated, then such fine for every day the violation continues), or double any of these sums for a corporate entity; or 
• up to three years of imprisonment for an individual (or up to five years of imprisonment if the offense was committed under aggravating circumstances).

The Competition Law also sets a criminal liability, of up to one year of imprisonment (and the same fine to be specified as follows for an individual), for officeholders who did not inspect and do everything in their power to prevent the company from violating the above offense (the Law also sets a legal presumption according to which if a merger offense was made by a company or by one of its employees, an officeholder violated his above duty, unless he proved that he had done everything in his power to fulfill it). Criminal sanctions are only imposed by court order following a criminal conviction.

Failure to notify does not invalidate the transaction, which remains valid under civil law unless the ICA applies to the Tribunal to invalidate it (Section 25 of the Competition Law).

The failure to duly notify a merger to the ICA or a premature implementation of the merger prior to an approval decision (gun-jumping) may also constitute grounds for the imposition by the ICA of administrative fines not exceeding NIS 1.11 million for a corporation whose turnover in the preceding year did not exceed NIS 10 million or for a violating person; and with respect to a violating corporation whose turnover in Israel in the preceding year exceeded NIS 10 million - up to 8 percent of its turnover; in any event, the maximum fine to be imposed on such corporation will not exceed NIS 111.33 million.

Lastly, failure to duly notify or implementation before approval (gun-jumping) can also be liable to private enforcement proceedings (such as class actions).

See our response to "Describe the sanctions for not filing or filing an incorrect/incomplete notification" .

No. Once merger filing is not triggered, the ICA has no authorization to review a merger under the merger regulation. However, the ICA may regard such transaction as a 'restrictive arrangement', and may investigate such non-notifiable transactions under the restrictive arrangements regulation.

See our response to "Can the agency review and/or challenge mergers that are not notifiable?".

The merger control regulation in Israel is considered relatively strict and there is a relatively high number of notified mergers, of both local entities and foreign entities (the majority of which are approved). The reason for this over-regulation lies mostly in the low thresholds and the wide definitions set under the Competition Law. This was improved in recent amendments made to the Competition Law, where the turnover threshold was raised from NIS 150 million to (now) NIS 387.35 million, and by also raising the minimum threshold required for filing from NIS 10 million to (now) NIS 21 million. However, in practice, it seems that the number of merger filings per annum did not significantly decrease, if at all. In addition, the ICA applied a new and much more burdensome merger notification form as of May 2022, which significantly broadens the scope of information, data, and analysis to be provided by the parties regarding their own activities, their shareholders, and related entities activities, and the marked concerned. This new form prolongs the preparation of the merger notices by the parties and makes filing in Israel more expensive.

Other than that, we have observed several changes and developments that concern the ICA's approach regarding merger control. Firstly, as mentioned in "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?", The ICA launched its "bright-green" filing channel, which is relevant to mergers that raise no local competitive concerns. Secondly, in recent years, the ICA changed its approach to the review process of major cross-border mergers. The ICA now holds the view that when local competitive concerns arise in Israel as a result of such mergers, it tends to delay its decision (or even its further in-depth review) and defer it until a decision is granted by the foreign competition authorities, such as the DOJ or the EU Commission (whichever would be more relevant to the particular case). If the merger is approved in the EU and/or the U.S. it will also be approved in Israel by the ICA. If structural remedies are imposed abroad, the ICA may settle for them and issue a "clean" approval, but if behavioral remedies are imposed abroad the ICA may wish to duplicate all or some of them, as the case may be, in order to satisfy its local concerns as well. Thirdly, the law in Israel was dramatically amended recently with respect to merger review waiting periods (see the new periods listed in "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?"). The ICA may now unilaterally extend the initial 30-day review period by an additional 120 days. This, combined with new and much broader theories of harm in merger cases that the ICA is recently pursuing (and, in particular, conglomerate, and unilateral effects), is prolonging in practice the review period by the ICA of merger submissions in Israel. The “bright green” fast track is still applicable even after the amendment to the law, but its applicability has been deteriorated by the ICA and even cases that qualify to this fast track take longer in practice to be approved. The ICA's approach towards restraints ancillary to mergers was also changed, as reflected by the recent amendment made in the respective block exemption, which now allows parties, under certain conditions, to "self-assess" the necessity of the restraints included in their agreement and their impact over the competition in Israel. With respect to enforcement trends, we are also facing a trend of imposing administrative fines on parties to mergers that were not duly notified, however, to date this was only done with respect to local mergers and Israeli companies, and not yet in cross-border or foreign to foreign transactions (although one "semi-foreign" case is apparently still at a hearing stage before the ICA).

Not applicable.