The Canadian Competition Bureau Merger review filing fee increasing to $72k from $50k

02 May 2018

The Canadian Competition Bureau has announced that it is increasing its merger review filing fee to $72,000 from $50,000 effective May 1, 2018.  The new filing fee is subject to inflation and will be reviewed and adjusted annually. 

In announcing the increase, the Bureau noted that the current fee has remained unchanged since 2003, and that the increase is necessary to ensure that the Bureau has adequate resources to fulfill its merger review mandate.  Set out below is a summary of the deficits the Bureau has been running in relation to merger review over its last three fiscal years:

 

2014-15

2015-16

2016-17

Revenue ($M)

11.9

10.5

10.8

Costs ($M)

12.1

13.4

13.6

Deficit ($M)

0.2

2.9

2.8

 

Who pays the filing fee is a matter of business negotiation as between the buyer and the seller.  Typically, the buyer pays 100%.  However, it is not uncommon for the parties to split it 50:50.  The increased fee may make this a marginally more important negotiation topic.

Prior to announcing the fee increase, the Bureau considered other fee structures, including tiered fees, but ultimately decided to stick with a flat fee.  There are pros and cons to any fee structure.  While the Bureau considers a flat fee to be “a simple, efficient and transparent way they charge fees for merger reviews,” it effectively results in non-complex mergers that can be cleared quickly without significant resources subsidizing the costs of reviewing more complex mergers.  There is no easy solution to this problem.  For example, tiered fees are generally based on the transaction value or the value of the target’s revenues, but those factors may not correlate with the level of competition law complexity associated with the merger.  

Notably, the fee increase has not been accompanied by a corresponding increase in the thresholds above which a merger is reviewable, and there is no current discussion of increasing those thresholds (other than the annual GDP based increases).  For reference, a summary of the current thresholds is set out below:

The Competition Bureau must generally be given advance notice of a proposed transaction if both of the following thresholds are exceeded:

  1. Party Size: the parties, together with their affiliates, have assets in Canada or annual gross revenues from sales in, from (exports) or into (imports) Canada that exceed $400 million; and
  2. Transaction Size:  the aggregate value of the assets in Canada to be acquired or the annual gross revenues from sales in or from Canada generated by such assets, exceed $92 million.

Additional thresholds may apply depending on the type of transaction (e.g. acquiring shares of a public company, acquiring shares of a private company, amalgamation, acquiring an interest in a non-corporate entity).

The threshold analysis is based on the value of the assets/revenues set out in the applicable entity’s financial statements, not on the transaction purchase price.  


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