Merger control in South Korea: overview
A Q&A guide to merger control in South Korea.
The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in South Korea. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.
For information on restraints of trade, monopolies and abuses of market power in South Korea, visit Restraints of trade and dominance in South Korea: overview.
This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.
Articles 7 and 12 of the Monopoly Regulation and Fair Trade Act (MRFTA) outline the substantive standards for anti-competitive business combinations and notification requirements. The Enforcement Decree of the MRFTA provides additional regulations concerning the authorities and standards for merger control.
Enforcement authority rests with the Korea Fair Trade Commission (KFTC), an administrative body established under the Prime Minister's Office, which, as part of its work, issues numerous standards, notices and guidelines regarding its interpretation and implementation of the relevant legislation.
See box, The regulatory authority.
Business combinations that are subject to merger control include the following transactions (Articles 7(1) and 12(1), MRFTA):
Acquisition or ownership of 20% or more of the shares of another company (or 15% for companies listed on the Korea Exchange). Acquisition of shares means gaining ownership of shares by purchase or transfer of ownership from a former owner of the shares.
Acquisitions of additional shares in a company where the acquiring party already holds 20% or more of the shares in the company (15% for companies listed on the Korea Exchange) and the acquisition results in the acquiring party becoming the largest shareholder.
Interlocking directorate (where an officer or employee holds an officer's position in another company).
Merger with other companies which means the absorption of one company that ceases to exist, into another that retains its own name and identity and acquires the assets and liabilities of the former with the statutory formalities under the Korean Commercial Code.
Acquisition of business (or sometimes substantial assets) which means gaining ownership of a specific business including assets (liabilities and employees) by purchase or transfer of ownership from a former owner of the business.
Participation in the establishment of a new company or a joint venture (see Question 15). Only the investor with the largest stake of a new company or joint venture is required to notify.
The general thresholds for notification are as follows:
One party to the transaction has worldwide assets or annual turnover of KRW200 billion or more.
The other party has worldwide assets or annual turnover of KRW20 billion or more.
In addition to these general thresholds, local thresholds are applied to overseas mergers, including transactions where either:
A foreign company acquires another foreign company.
A Korean company acquires a foreign company.
If each of these merging parties has annual local sales revenues of KRW20 billion or more, notification of the merger is mandatory.
Mandatory or voluntary
Notification is mandatory where the size of the merging parties exceeds the thresholds (see Question 2, Thresholds).
Pre-merger notification is required for certain types of combination where either of the parties to the transaction is a large company that has worldwide assets or annual turnover of KRW2 trillion or more (including the assets and turnover of its affiliates).
If a large company takes part in a transaction, notification can be filed at any time after the date of signing the agreement but before the completion of the transaction, as long as the transaction is not completed before it is cleared by the KFTC.
An interlocking directorate requires a post-merger notification even if one of the parties is a large company (see Question 2, Triggering events). Mergers in which only small companies are engaged require a post-merger notification. For these mergers, notification should be made within 30 days after the completion of the merger.
Pre-notification formal/informal guidance
A system of voluntary prior notification is also in place. A company that plans to merge with another can ask the KFTC to review the planned merger before the ordinary notification period and decide whether the planned merger will substantially restrict competition (see Question 7). The review period is 30 days but can be extended by an additional period of 90 days (up to a total of 120 days) if the KFTC deems further examination necessary.
Responsibility for notification
The acquiring companies must notify. For an acquisition or ownership of another company's shares, the party that acquires or owns at least 20% of another company (or at least 15% for companies listed on the Korea Exchange) must notify the merger. For an establishment of a new joint venture, the largest investor must notify.
All notifications must be made to the Merger and Acquisition Division of the KFTC.
Form of notification
Notification forms can be obtained as attachments to the KFTC Merger Review Guidelines, which are available at the following address of the KFTC website (http://eng.ftc.go.kr/bbs.do?command=getList&type_cd=62&pageId=0401).
There is no filing fee for the KFTC's review or notification.
Obligation to suspend
In the case of pre-notification, a merger cannot be closed or implemented before the KFTC completes its review.
Procedure and timetable
The KFTC Merger Review Guidelines classify merger review procedures into two categories:
Simplified merger review.
Regular merger review.
Under the Guidelines, simplified review mergers are presumed not to be anti-competitive. Such mergers refer to the following:
Mergers between affiliates.
Transactions in which controlling relationship is not established between parties.
Conglomerate mergers by companies other than a large company that has worldwide assets or annual turnover of KRW2 trillion or more (including those of its affiliates).
Conglomerate mergers which are not substitutive or complementary.
Mergers with clear purpose of investment (PEF, ABS, SPC).
In such cases, the KFTC only reviews factual matters of the notified case based on documentation provided and informs the company of the review result, in principle, within 15 days from the date of notification.
Regular review mergers include all mergers other than simplified review mergers. In such cases, the KFTC reviews the cases more thoroughly. The KFTC must finish the review within 30 days from the notification, but it may extend the review period up to an additional 90 days after the lapse of the initial 30-day period. Accordingly, the KFTC may review the cases for 120 days in total for regular merger review. Practically, in regular merger review, the KFTC tends to use 120 days fully due to their heavy workload.
The majority of the notified mergers pass the KFTC review without further requests for information. If the KFTC finds it necessary to request additional information, mostly related to issues raised during its review, it will ask the parties to provide the information within a certain time limit (see Question 3, Formal/informal guidance).
If a merger raises substantial issues, the KFTC can decide to refer the case to a full Commission hearing, before the decision-making body of the KFTC, which comprises nine KFTC commissioners (see Question 5, Procedural stage).
The KFTC will decide at the end of the review to either approve the transaction (conditionally or unconditionally) or prohibit the transaction (see Question 8).
For an overview of the notification process, see flowchart, South Korea: merger notifications.
Publicity and confidentiality
The KFTC does not publicise merger notifications or related information obtained during the review. The KFTC only publicises the result of its review if an anti-competitive merger is brought to the full Commission hearing or if it is in the public interest.
If the KFTC decides that a merger substantially lessens competition in a particular market and refers the case to the full Commission hearing, it will disclose the merger and related issues to the public to ensure transparency in the proceedings.
The KFTC keeps information related to business secrets confidential. If a third party requests disclosure of information on a particular merger, the KFTC will only provide limited information to protect the confidentiality of business secrets.
Confidentiality on request
Any party can request that certain information it provides to the KFTC should be kept confidential.
Rights of third parties
Third parties are not allowed to actively participate in the review process. However, they can submit information and their opinions. Third parties are not required to show a special interest in the transaction. Any class of third party (for example, formal complainant) does not have different rights to those of other third parties.
Third parties can request the KFTC for data relating to measures that the KFTC has taken. The KFTC must comply with such requests if it feels it is in the public interest. The persons providing the relevant data must grant consent.
Third parties can also be heard during the full Commission hearing, if the KFTC grants this.
The MRFTA prohibits a merger which substantially restricts competition in a particular market. A substantial restriction of competition refers to a situation where a certain company or business group influences with a certain degree of freedom (this has an imprecise meaning; it can also be interpreted as "with a considerable degree of freedom") one or more of the following within a particular market (KFTC Merger Review Guidelines):
Other terms of trade.
In assessing whether a horizontal merger substantially restricts competition in a particular market, the KFTC considers multiple factors such as the:
Market concentration before and after the business combination.
Possibility of collusion between competing businesses.
Degree of import competition and the international competition situation.
Possibility of new entrants.
Existence of similar goods and adjacent markets.
A merger is presumed to substantially restrict competition in a particular market if the combined market share of the merging company (Article 7(4), MRFTA):
Meets the requirements for a market dominant company (that is, the market share of a single company is above 50%, or the sum of the market share for no more than three companies is above 75% in a particular market).
Is the largest in the relevant market.
Exceeds the market share of the second-ranking company in the market by more than 25%.
All of these conditions must be satisfied.
A merger is considered not to substantially restrict competition if (Market Share Safe-harbour; section II.1. (5), KFTC Merger Review Guidelines):
For horizontal mergers, one of the following applies:
the post-merger Herfindahl-Hirschman Index (HHI) (that is, an assessment of market concentration made by taking the sum of the squares of individual market shares of all industry participants) is less than 1,200;
the post-merger HHI falls between 1,200 and 2,500 and the HHI increase between the pre- and post-merger positions is less than 250 points; or
the post-merger HHI exceeds 2,500, and the HHI increase is less than 150.
For vertical and conglomerate mergers, either of the following applies:
in each of the relevant markets, the post-merger HHI is less than 2,500 and the market share of the party is less than 25%; or
the parties rank no higher than fourth in each of the relevant markets.
The merging party can counter any apparent reduction of competition caused by the merger and any efficiency (see below) gained from the merger, if the enhancement in efficiency resulting from the merger is greater than the negative effect produced by the restricted competition.
The effect of "enhancing efficiency as a result of a merger" refers to the enhanced efficiency in the areas of production, sales, and R&D or the effect of enhanced efficiency on the national economy as a whole as determined based on the following (KFTC Merger Review Guidelines):
The effect of enhancing efficiency in the areas of production, sales, and R&D can be assessed by taking the following into consideration:
whether production cost can be minimised through economy of scale, integration of production facilities, rationalisation of production process, among others;
whether sales cost can be lowered, or sales or exports can be boosted by integrating or sharing sales network;
whether sales or exports can be boosted by sharing market information;
whether logistics cost can be minimised by sharing transportation and storage facilities;
whether production-related technology and research abilities can be improved by complementing each other's technology or sharing or effectively utilising skillful workforce, organisation, and capital; or
whether other expenses can be reduced considerably.
The effect of enhancing efficiency on the national economy as a whole can be assessed by taking the following into consideration:
whether the enhanced efficiency makes a significant contribution to job creation;
whether the enhanced efficiency makes a significant contribution to the development of regional economies;
whether the enhanced efficiency makes a significant contribution to the development of forward and backward-related markets;
whether the enhanced efficiency makes a significant contribution to the stabilisation of the nation's economy through stable supply of energy, among others; or
whether the enhanced efficiency makes a significant contribution to addressing environmental pollution.
The following requirements must be satisfied for the KFTC to accept the argument on the effect of enhancing efficiency (KFTC Merger Review Guidelines):
Attaining enhanced efficiency through methods other than business combination is difficult as determined based on the following:
attaining the enhanced efficiency through the expansion of facilities, development of technology, or methods other than business combination is difficult; or
cost reduction cannot be realised using competition-restrictive methods (including a decrease in production volume, lowered quality of service, among others).
The effect of the enhancing efficiency will occur at a closing date.
The effect of the enhancing efficiency does not include enhanced efficiency that could be achieved even if there is no merger.
The KFTC may accept arguments that, on a counterfactual basis that the merger is made with a non-viable company (for example, a company whose total capital as indicated in a balance sheet is less than its paid-in capital for a reasonable period of time), meet the following requirements:
It is difficult to use the company's production facilities, among others, on a continuous basis in the relevant market without the merger; or
It is difficult to find another merger that is less likely to restrict competition other than the relevant merger.
The "non-viable company" refers to any of the companies that are in default due to their exacerbated financial position or are deemed to be in default in the near future. In deciding whether a company is a non-viable company, the following must be taken into account (KFTC Merger Review Guidelines):
Whether the company's total equity in its balance sheet is less than the paid-in capital for a considerable period of time.
Whether the company's operating income is less than the interest expense for a considerable time, and the company records ordinary loss during that period of time.
Whether the company filed for bankruptcy or reorganisation.
Whether the company is under the management of its creditor financial institution because the company concerned entered into a contract to delegate management to the financial institution for the disposal of bad assets.
Remedies, penalties and appeal
The KFTC can impose various remedies including:
Prohibition of transactions.
Disposition of all or parts of the shares acquired.
Resignation of an officer.
Transfer of business.
A party publishing that it has received a corrective order.
Restrictions on the business method or business scope of the combined enterprise to prevent the negative effects of restricted competition.
Any other behavioural measures regarding the methods or scope of business activities.
The Guidelines on Imposition of Merger Remedies define general principles of merger remedies and various factors to be taken into account when imposing different remedies.
A prohibition order is imposed only if partial divestiture is impossible or is insufficient to maintain effective competition.
Behavioural remedies are often considered when they are sufficient to eliminate threats to competition.
The KFTC imposes remedies when it makes a decision on the case.
The KFTC can request the parties to make a report confirming compliance with remedies within a certain time period in order for the KFTC to monitor such compliance.
The parties can propose remedies at any stage of the KFTC's review. However, there is no formal procedure of settlement that allows the KFTC to close any case without reaching an infringement decision by accepting commitments offered by the parties (see also Question 16).
Failure to notify correctly
The MRFTA imposes an administrative fine of up to KRW100 million for failure to make a timely and correct notification.
Implementation before approval or after prohibition
The KFTC can impose an administrative fine of up to KRW100 million for implementation of a pre-notified merger before its approval.
Company executives responsible for implementing illegal mergers after prohibition of the merger by the KFTC are subject to either or both of:
Imprisonment of up to three years.
A criminal fine of up to KRW200 million.
Criminal prosecution is possible only when the KFTC files a complaint with the Prosecutor's Office.
Failure to observe
The KFTC can impose an administrative fine of up to 0.03% of the transaction value for each day the parties do not comply with its decisions, including remedial undertakings.
Rights of appeal
Any party engaged in a merger can file an appeal with the KFTC or Seoul High Court if dissatisfied with a decision of the KFTC.
The appellant must file an appeal with the KFTC within 30 days of receiving the decision being challenged. It can also appeal to the court within 30 days for judicial review. If the appellant is dissatisfied with the result of the KFTC's review on its original decision it can still file an appeal to the court for judicial review within 30 days after receiving the KFTC's decision on the administrative complaint.
Third party rights of appeal
Third parties have no right of appeal.
Automatic clearance of restrictive provisions
The MRFTA applies to all economic sectors and industries and it does not have any provision for specific industries. However, in some specifically regulated industries (such as finance, telecommunication, and broadcasting), mergers must be notified to sector-specific regulators. In these industries, sector-specific regulators such as the Korea Communication Commission and the Financial Supervisory Commission have the power to authorise the concerned mergers. However, they are required by the relevant laws, which include the Telecommunications Business Act and the Act on Structural Improvement of Financial Industry, to consult with the KFTC regarding the competitive effect of the merger.
The MRFTA treats joint ventures as business combinations that are subject to merger control (see Question 2). A party in the process of becoming the largest investor of a newly established company (or joint venture) must file a merger notification to the KFTC.
However, some joint ventures formed between competitors may be considered unlawful restrictive agreements or practices if the parties intend to carry out the main part of their business by establishing a joint venture.
The KFTC co-operates with a number of foreign competition authorities including:
Through co-operation agreements (for example, with Australian, EU, Chinese, Indonesian, Russian, Canadian and Mexican authorities).
Without formal agreements (for example, with the US and Japanese authorities).
Based on Article 36-2 of the MRFTA, the KFTC can:
Conclude co-operation agreements with foreign governments.
Provide assistance for enforcement activities of foreign competition authorities (this must not infringe on South Korean national laws or important national interests).
Support a foreign government's law enforcement activities through reciprocity, even though it may not have signed any co-operation agreement with the foreign government.
The level of co-operation has been limited in relation to merger investigations.
In September 2013, Microsoft Corporation executed an agreement with Nokia Corporation to acquire Nokia's mobile phone and service business and filed a merger notification with the KFTC in November 2013. In February 2015, the KFTC decided to initiate the consent decree process with Microsoft to resolve issues in connection with the acquisition. It is the first merger review case that the KFTC decided to initiate the consent decree process.
Proposals for reform
Korea Fair Trade Commission (KFTC)
Description. The KFTC has an official Korean-language website, which provides up-to-date information on the legislation, rules/guidelines, decisions, policies and organisation of the KFTC and summary of relevant judgments by Korean courts.
KFTC (English version)
Description. The KFTC has an official English-language website, which provides limited or summarised information on the legislation, rules/guidelines, decisions, policies and organisation of the KFTC and summary of relevant judgments by Korean courts. Please note that such information is generally for guidance only and may be potentially out-of-date and limited in scope.
The regulatory authority
Korea Fair Trade Commission (KFTC)
Outline structure. The KFTC employs more than 500 people. The KFTC consists of the following:
The Commission (the decision-making body). This consists of nine commissioners who deliberate and make decisions on competition and consumer protection issues.
A secretariat (the working body). This is directly involved in:
drafting and promoting competition policies;
investigating anti-trust issues and presenting them to the Commission; and
handling the issues in line with the Commission's decision.
Responsibilities. The KFTC has four main responsibilities:
Strengthening consumers' rights.
Creating a competitive environment for small- and medium-sized companies.
Restraining concentration of economic power.
The KFTC enforces nine laws including the MRFTA. It formulates and administers competition policies, and deliberates, decides and handles anti-trust cases.
Procedure for obtaining documents. Most of the KFTC's statutes, guidelines, policies, official decisions and other documents are available on its website. It is also possible to access some internal documents under the Public Information Disclosure Act of Korea. Request for such information can be made through the KFTC website.
Jae Young Kim
Yoon & Yang LLC
Professional qualifications. South Korea, 1992; New York, United States, 2004
Areas of practice. Anti-trust and competition; M&A; general corporate; corporate restructuring; international contracts; foreign investment; licensing; financial regulation.
Representing a leading multinational heavy duty commercial vehicle company in the international heavy duty commercial vehicle (truck) cartel investigation by the KFTC.
Representing a leading multinational wireless telecommunications component company in the abuse of dominance investigation by the KFTC.
Representing a leading multinational CRT/TFT-LCD manufacturer in the international CRT and TFT-LCD cartel investigations by the KFTC.
Representing a leading multinational marine hose manufacturer in the international marine hose cartel investigation by the KFTC.
Representing a leading multinational air carrier in the international air cargo cartel investigation by the KFTC.
Representing a leading multinational chemical company in acquiring a competitor's shares and related merger filing in Korea.
Languages. Korean, English
Professional associations/memberships. Lecturer, Korea Productivity Center, Antitrust Law; Awarded Commendation from the Chairman of the Korea Fair Trade Commission.
Immunity, Sanctions, Settlements, the Know-how section of Global Competition Review, 2014
Cartels and Private Litigation, Korean Bar Association, 2012.
South Korea Chapter, Practical Law Cross-border Competition and Cartel Leniency Multi-jurisdictional Guide (co-author), Thomson Reuters, 2008, 2009, 2010, 2011, 2012, 2013.
Commentary on the Case concerning Cartels by Four Toilet Tissue Manufacturers, the Korea Fair Trade Commission, 2011.
Commentary on the Case concerning Predatory Pricing by Hyundai Information Technology, the Korea Fair Trade Commission, 2011.
Cooperation Obligations of Leniency Applicants, the Korea Competition Forum, 2010.
Seoul High Court Rejects Multiple Regression Method in a Follow-on Cartel Damages Litigation (co-author), International Law Office, 2010.
The Korea Fair Trade Commission Amends the Notification on Implementation of Leniency Program, International Law Office, 2009.
Consumer Complaints Management System, the Korea Fair Trade Commission (co-author), 2005.
South Korea Streamlines REITs Act, Asialaw, 2004.
Korea Amended Securities and Exchange Act, Asialaw, 2004.
Economic Analysis on Antitrust Cases, Fair Competition, 2002.
Standard of Unreasonableness in International Contract Notice of Korea Fair Trade Commission, Law Research Institute at Seoul National University, 1996.
Paul S Rhee
Yoon & Yang LLC
Professional qualifications. Connecticut, United States, 1997; District of Columbia, United States, 1998
Areas of practice. Anti-trust and competition; M&A.
Representing a leading multinational elevator manufacturer's Korean subsidiary in follow-on damage action filed by a major customer for damages incurred from a domestic elevator cartel.
Representing a leading multinational machine component manufacturer's Korean subsidiary in a cartel investigation.
Representing a leading multinational IT company in a merger filing for acquisition of mobile device business of another leading multinational IT company.
Representing a leading multinational chemical manufacturer in a merger filing for establishment of a joint venture company with another leading multinational chemical manufacturer.
Representing a leading multinational airline in a follow-on damage action filed by a major customer for damages incurred from an international air cargo cartel.
Languages. Korean, English
Professional associations/memberships. American Bar Association (Section of Antitrust Law); Connecticut Bar Association; District of Columbia Bar Association.
Know-How Private Antitrust Litigation – Korea, Global Competition Review (co-author), 2014.
South Korea: Cartels and its Aftermath, The American Lawyer (co-author), May 2014.
South Korea Section, LexisNexis UK's LexisPSL Practice Note on Competition (International Cartel Enforcement & Merger Control) (co-author), 2012, 2013, 2014.
South Korea Chapter, Practical Law Cross-border Competition and Cartel Leniency Multi-jurisdictional Guide (co-author), Thomson Reuters, 2008, 2009, 2010, 2011, 2012, 2013, 2014.
South Korea Chapter, Global Legal Group's International Comparative Legal Guide to: Cartels & Leniency (co-author), 2010, 2011, 2012, 2013, 2014.
LexisNexis UK's Doing Business in Korea (co-author), 2013, 2014.
Overlapping Regulations by Sector-specific Regulators and the Competition Authority in South Korean Telecommunications and Financial Industries, CUTS Centre for Competition, Investment & Economic Regulation (co-author), November 2013.
South Korea Chapter, Practical Law Cross-border Mergers & Acquisitions Multi-jurisdictional Guide (co-author), Thomson Reuters, 2009, 2010, 2011, 2012/2013.
Korean Antitrust Regulations, South Korea Chapter, The Guide to Competition and Antitrust, International Financial Law Review (co-author), 2008, 2009, 2010.