Article 45Supplement v1, p. 45

COMMERCIAL LAWS SUPPLEMENT

(2) the type of the transaction;

(3) the markets covered or lines of businesses by the

proposed merger or acquisition; and

(4) the date when the complete notification was received.

(b) When publishing this information, the Commission

shall take into account the legitimate interest of the

entities regarding the protection of their trade secrets

and other confidential information.

SECTION 8. Modifications to Thresholds on Compulsory

Notification. —

The

Commission

shall

publish,

from

time

to

time,

regulations adopting, modifying, rescinding or otherwise

changing:

(a) The transaction value threshold and such other criteria

subject to compulsory notification;

(b) The information that must be supplied for notified

mergers or acquisitions;

(c)

Exceptions

or

exemptions

from

the

notification

requirement; and

(d) Other rules relating to the notification procedures.

SECTION 9. Prohibited Mergers and Acquisitions. —

Merger

or

acquisition

agreements

that

substantially

prevent, restrict, or lessen competition in the Philippines

in the relevant market or in the market for goods or

services, as may be determined by the Commission, shall

be prohibited.

SECTION 10. Exemptions from Prohibited Mergers and

Acquisitions. —

Merger

or

acquisition

agreements

prohibited

under

Section 20 of the Act and Section 9 of this Rule may,

nonetheless,

be

exempt

from

prohibition

by

the

Commission when the parties establish either of the

following:

(a) The concentration has brought about or is likely to

bring about gains in efficiencies that are greater than the

effects of any limitation on competition that result or are

likely to result from the merger or acquisition agreement;

or

(b) A party to the merger or acquisition agreement is

faced with actual or imminent financial failure, and the

agreement

represents

the

least

anti-competitive

arrangement among the known alternative uses for the

failing entity's assets.

Provided, that an entity shall not be prohibited from

continuing to own and hold the stock or other share

capital or assets of another corporation, which it acquired

prior to the approval of the Act, or from acquiring or

maintaining

its

market

share

in

a

relevant

market

through such means without violating the provisions of

the Act and these Rules;

Provided, further, that the acquisition of the stock or

other share capital of one or more corporations solely for

investment and not used for voting or exercising control

and not to otherwise bring about, or attempt to bring

about

the

prevention,

restriction

or

lessening

of

competition

in

the

relevant

market

shall

not

be

prohibited.

SECTION 11. Burden of Proof. —

The burden of proof under Section 10 of this Rule lies with

the parties seeking the exemption. A party seeking to rely

on the exemption specified in Section 21 (a) of the Act or

Section 10 (a) of this Rule must demonstrate that if the

agreement were not implemented, significant efficiency

gains would not be realized.

SECTION

12.

Finality

of

Rulings

on

Mergers

and

Acquisitions. —

Merger or acquisition agreements that have received a

favorable ruling from the Commission, except when such

ruling was obtained on the basis of fraud or false material

information, may not be challenged under the Act or

these Rules.

SECTION 13. Treatment of Confidential Information. —

(a)

Information,

including

documents,

shall

not

be

communicated or made accessible by the Commission,

insofar as it contains trade secrets or other confidential

information, the disclosure of which is not considered

necessary by the Commission for the purpose of the

review.

(b)

Any

entity

or

party

that

supplies

information,

including documents, to the Commission, shall clearly

identify any material that it considers to be confidential,

provide a justification for the request of confidential

treatment of the information supplied and the time

period within which confidentiality is requested, and

provide a separate non-confidential version by the date

set by the Commission.

(c) The Commission may require the parties to the

merger or acquisition and other interested parties to

identify any part of a decision or case summary adopted

by the Commission, if any, which in their view contains

trade secrets or other confidential information. Where

trade

secrets

or

other

confidential

information

are

identified, the parties to the merger or acquisition and

other interested parties shall provide a justification for the

request of confidential treatment and provide a separate

non-confidential

version

by

the

date

set

by

the

Commission.

(d) Whenever the Commission, pursuant to Section 13 (c)

of this Rule, deems that the justification for confidential

treatment provided by the party is insufficient or not

grounded, it shall inform the interested party of its

decision to make the information accessible.

(e) If a merger or acquisition is under review in multiple

jurisdictions, parties to the transaction may waive the

confidentiality protections contained in this Rule, so as to

allow the Commission to exchange otherwise protected

information

with

competition

authorities

in

other

countries.

RULE 5 Determination of the Relevant Market

SECTION 1. For purposes of determining the relevant

market, the following factors, among others, affecting the

substitutability among goods or services constituting

such market, and the geographic area delineating the

boundaries of the market shall be considered:

(a) The possibilities of substituting the goods or services

in question with others of domestic or foreign origin,

considering the technological possibilities, the extent to

which substitutes are available to consumers and the

time required for such substitution;

(b) The cost of distribution of the good or service, its raw

materials, its supplements and substitutes from other

areas and abroad, considering freight, insurance, import

duties,

and

non-tariff

restrictions;

the

restrictions

imposed by economic agents or by their associations; and

the time required to supply the market from those areas;

(c) The cost and probability of users or consumers seeking

other markets; and

(d) National, local or international restrictions which limit

the access by users or consumers to alternate sources of

supply or the access of suppliers to alternate consumers.

RULE 6 Determination of Control

SECTION 1. What Constitutes Control of an Entity. —

Control refers to the ability to substantially influence or

direct the actions or decisions of an entity, whether by

contract, agency or otherwise.

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