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- Merger Control Regime
- Merger Screening
- Merger Filing
1.1 Membership of Supranational Organization
1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?
1.1.2 Is the jurisdiction itself a supranational jurisdiction?
1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?
2. Nature of merger control regime
2.1 Mandatory or voluntary
2.1.1 Is filing mandatory or voluntary?
2.2 Suspensory effect
2.2.1 Must completion of the transaction await clearance by the relevant authorities?
1. What type of transactions are caught by the merger control regime?
1.1.1 Type of transactions that are caught by the merger control rules?
The following transactions are regarded as a “concentration”:
- mergers of two or more independent undertakings;
- the acquisition of control by an undertaking, or several undertakings, over all or part of another undertaking (or several undertakings), by the acquisition of shares or assets, or by entering into a contract. Control may result from rights, contracts or any other means (considered alone or collectively), which confer, having consideration to circumstances of fact or law, the ability to exert a decisive influence on an undertaking’s activities; and
- the creation of a joint venture.
1.2 Joint ventures
1.2.1 What types of joint ventures are caught by the merger control rules?
The creation of a joint venture performing on a lasting basis all the functions of an economic entity constitutes a concentration.
1.4 Minority shareholdings
1.4.1 Are minority and other interests less than control caught by the merger control rules?
Acquisition of a minority or other interest that does not lead to an acquisition of control is not caught by the merger control rules, unless they grant the acquirer decisive influence over the target.
Decisive influence is the possibility of exercising control over the target, e.g. due to veto rights related to certain strategic commercial decisions of the undertaking, regardless of whether control has actually been exercised.
2. Establishing jurisdiction for notification of mergers
2.3 General thresholds
Merger filing is needed if:
- the combined global turnover of the undertakings concerned was at least MAD 750,000,000; or
- the turnover of each of at least two of the undertakings concerned was at least MAD 250,000,000 in Morocco; or
- the undertakings taking part in the concentration or that are the “subject of the concentration” or the “undertakings that are economically linked to them”, have a combined market share exceeding 40% in the last calendar year, even if the market share is not increased as a consequence of the concentration.
2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)
3. Calculation and allocation of turnover, asset value, transaction value etc.
3.3 Relevant undertakings for the calculation of turnover
3.3.1 The undertakings whose turnover is taken into account?
The turnover of the undertakings or groups of natural or legal persons that are parties to the concentration is taken into consideration.
The Competition Act does not elaborate further on which companies’ turnover should be included but it is commonly considered that the market share under the market share rules should be calculated on a group level, which is an indication that turnover should be calculated the same way. See Section 3.6.1 below.
3.6 Calculation of other thresholds
3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?
Markets share is defined as 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.
The Competition Act does not define what is meant by “the undertakings that are the “subject of the concentration” or the “undertakings that are economically linked to them””. It is commonly interpreted to mean that turnover should be counted on a group level, including subsidiaries and parent and sister companies.
1. Practical information
1.2 Deadlines for filing
1.2.3 What are the sanctions for not filing a notifiable transaction?
Not filing a transaction and closing without clearance from the competition authority are sanctionable by a fine in amount of up to 5% of the turnover achieved by the undertakings concerned in Morocco during the last full financial year.
For natural persons responsible for filing a fine may be imposed of up to MAD 5,000,000.
The Competition Council may order the parties to roll back the transaction if completed without a clearance.
and last updated on 27-01-2021 by
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