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Content last updated: 25-01-2020

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1. What type of transactions are caught by the merger control regime?

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

Applicable for transactions involving telecommunications and broadcasting licensees only:

Change of control is defined as occurring when an undertaking concerned, either alone, or in conjunction with an affiliated company:

(i) acquires a voting share in a licensee over 30% (or increases its voting share to above 30%);

(ii) acquires a voting share in a licensee over 15% (or increases its voting share to above 15%) and either it has de facto control over another licensee or it has a voting share of over 5% in another licensee;

(iii) acquires control over a licensee, whether through the acquisition of voting rights or otherwise, to ensure that strategic decisions of the licensee are conducted in accordance with that party’s wishes (referred to as de facto control).

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Generally not applicable. For transactions involving telecommunications and broadcasting licensees only please see Section 1.3.1 above.

2. Establishing jurisdiction for notification of mergers

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

There is no general merger control regime in The Bahamas.

The electronic communications sector (telecommunications and broadcasting) and energy sector are subject to merger control. Please see Section 2.4.1 below.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

The electronic communications sector (telecommunications and broadcasting) and energy sector are subject to merger control. The merger control provisions of the Communications Act 2009 (CAA) apply whenever a transaction leads to a change of control (please see Section 1.3.1 above). In the case of such a change, the Utilities Regulation and Competition Authority (URCA) determine:

  • Whether the change of control would have, or would be likely to have, the effect of substantially lessening competition in a market in The Bahamas.
  • Whether the change of control would have an effect or would be likely to have an effect in cases of a change of control that involve a media public interest.

There are no jurisdictional thresholds. Any transaction in the electronic communications sector leading to a change of control must be filed.

Foreign-to-foreign acquisitions are subject to the above merger control law. No exemptions apply.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Please see Section 2.4.1 above.

1. Practical information

1.2 Deadlines for filing

1.2.3 What are the sanctions for not filing a notifiable transaction?

Failure to file a notifiable transaction in the electronic communications industry is sanctionable by a fine of up to 10% of the infringing party’s relevant turnover, i.e. the licensee, or any person in respect of whom an exemption determination has been made, attributable to: (a) the provision of a network or carriage service or use of radio spectrum under any license or exemption determination; and (b) a content service.

For the purpose of calculating the amount of the fine, turnover is defined as “the gross receipts in money or money’s worth, including associated advertising revenue and other ancillary revenue, but after the deduction of sales rebates, in The Bahamas during the relevant financial year.”

The competition authority’s official guidelines is available at:

https://www.urcabahamas.bs/wp-content/uploads/2017/01/Consolidated-Competition-Guidelines-ECS-Comp-4-ECS-Comp-9-3.pdf

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Legal Cross Border has itself provided all input about merger control in the Bahamas. This information has been gathered and validated by our in-house lawyers to guarantee the highest quality outcome. This said, we are currently looking for a local partner to cover Merger Control Bahamas - please contact us if you would like to be our new partner.