On February 6, 2012, the Competition Bureau announced that as part of its efforts to increase transparency in the merger review process it will begin publishing monthly reports of concluded mergers.  The first report, for the month of February, will be published in March and will appear as a table with information on the parties to the transaction, the industry, and the result (i.e. whether the merger was concluded following the issuance of an Advanced Ruling Certificate (ARC) under section 102 of the Competition Act, the issuance of a "No-action Letter", the registration of a consent agreement, or a judicial decision). 

The Bureau's decision to publish a list of completed merger reviews comes after its previously announced decision to discontinue issuing detailed backgrounders on the facts of particular cases. Such backgrounders had been sporadic, and subject to permission by the parties to reveal non-public information, but had been helpful in shedding light on the Bureau's enforcement approach to mergers – no such details of individual cases will be provided in the merger register.

The monthly reports will list all closed mergers where a pre-merger notification was supplied to the Bureau under section 114 of the Act, and/or a request was made for an ARC (or no-action letter and waiver of the requirement to pre-notify).

In a letter to the Senior Deputy Commissioner of Competition, the Canadian Bar Association (CBA) expressed concern with the publication of information that, for various reasons, has not been made public.  

As noted by the CBA, section 29 of the Competition Act establishes a statutory confidentiality scheme designed to protect information supplied to the Bureau in confidence, including the fact that a merger was reviewed by the Bureau. While the Bureau does routinely contact market participants in conducting its review of a proposed transaction, it is not apparent that consent by merging parties to discrete market contacts implies consent to the much broader publication of information envisioned in the merger register.  Indeed, this conclusion is supported by section 10(3) of the Act which requires that all inquiries be conducted by the Commissioner in private.  Whether the merger register will be seen to be necessary for the "administration or enforcement" of the Act (an exception to the confidentiality requirements), appears to be an open question.

We will continue to monitor the Bureau's response (if any) to the concerns expressed by the CBA in relation to the merger register as well as any legal challenges that may arise by parties challenging disclosure of a concluded transaction in the merger register pursuant to section 29 of the Act.

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