Simplified and Fast-track Merger Control Review in Morocco

In December 2023, the Moroccan Competition Council issued updated merger guidelines. Central to these guidelines was the introduction of a—be it rudimentary—local nexus test (for an overview of the Moroccan local nexus test see our client brief from 21 January 2024). The guidelines also provided some welcome clarification on the simplified and expedited merger control review procedures introduced as part of the most recent amendment of the Moroccan competition law. In particular, the guidelines expand on which transactions qualify for simplified review and clarify that no specific requirements must be met for a transaction to be addressed in expedited review.

‍Simplified procedure

The simplified procedure applies to transaction that pose no or minor competition concerns in Morocco. The guidelines include a non-exhaustive catalogue of transactions that qualify for simplified review such as the acquisition of sole control in cases where the acquirer had joint control over the target prior to the transaction.

Where parties believe their transaction qualifies for simplified review, they may request the Moroccan Competition Council to apply the simplified procedure. This application must provide relevant details on the transaction and the parties as well as the expected impact on competition in Morocco and other reasons that would support the transaction being considered in simplified review procedure. The Competition Council shall decide on this request within five days from receiving the request. Once approved the Competition Council will publish a non-confidential version of their decision to review the transaction in simplified procedure on their website. The Competition Council will necessarily have to provide some details on the transaction with their decision to apply the simplified procedure. Hence, parties applying for simplified procedure should make sure they clearly communicate in their application, which information should be treated confidential and what information may be released. Should during the review process members of the public raise relevant concerns about the transaction or should the Competition Council find that the transaction does in fact pose relevant competition concerns, the Competition Council may initiate standard merger control review.

Where the Competition Council approves review in simplified procedure, the parties may submit a simplified filing. In this simplified filing the parties can limit the information they provide on the market relevant to the transaction, forgo a precise market definition, and restrict input on customers and competitors of the parties. Still, ultimately the scope and detail of information required is within the discretion of the Competition Council. The Competition Council is free to require additional information or clarification on individual points where they see fit. No strict statutory limits apply to such requests for additional information under the simplified procedure.

Expedited procedure 

Unlike the simplified procedure under which information on the transaction and parties can be limited, the expedited procedure requires the same scope and detail of information to be provided as in a standard filing. However, the review time for the expedited procedure is reduced. Furthermore, while the simplified review track is only available for transactions that do not pose relevant competition concerns, there are no such requirements for the expedited review procedure. Any transaction may be approved for expedited review. What standards the Competition Council will apply when determining whether to review a transaction in expedited procedure or not is still unclear. However, the law gives the Competition Council authority to revert to the standard review process, should it prove infeasible to review the transaction in expedited procedure. This authority suggests that the complexity of the transaction and its impact on competition may be the decisive factor for the authority to assess whether to apply the expedited procedure.

The filing fee cap for the expedited review procedure is doubled compared to the standard review process. Thus, the filing fee for the expedited review is capped at MAD 300,000 (approx. USD 30,000) instead of MAD 150,000 (approx. USD 15,000) for the standard review process.

Since there are no strict guidelines on the when expedited procedure may be applied, the parties can make an application to the Competition Council for their transaction to be reviewed in expedited procedure for any transaction. There are, however, some indications that the Competition Council would refuse to review a transaction in expedited procedure, if they deem the review to require more time due to the complexity of the transaction and its effects on competition. The Competition Council shall decide on an application for review in expedited procedure within five days. The review time under the expedited review procedure is not defined by law. The law only provides that the review period shall be at least 21 days. An indication of the review timeline will be provided in the Competition Council’s decision on whether to allow review in expedited procedure.

Implications for parties

The possibility to have transactions reviewed in simplified or expedited procedure is welcome. It allows parties to transactions with no or minor effect on competition in Morocco to limit the information they need to disclose to the Competition Council. This reduce the burden on parties when notifying a transaction with limited impact on competition in Morocco. However, the simplified procedure will likely not only benefit the parties. Since the expedited procedure will reduce burdens on parties to transactions with no or low impact on competition, they may be more open to making a filings. Hence, the simplified procedure may increase compliance with the Moroccan merger control regime.

The expedited procedure provides parties with an option to reduce review times. However, since neither the law nor the guidelines define the review time for the expedited procedure, there remains ambiguity as to how beneficial the expedited review procedure will be. Also, the question of when the Competition Council would approve expedited review remains unanswered. This further reduces the effectiveness of the expedited procedure. Additional guidance—whether through regulations, guidelines, or practice—will be needed to allow the expedited procedure to unfold its potential.