8 February 2021
The new Moroccan merger control framework (Law n°104-12 and implementing decree) has fully entered into force following the appointment of the members and the President of the Moroccan Competition Council ("the Council") respectively on November and December 2018.
The Competition Council issued in 2019 and 2020 more than a hundred merger decisions (more than 50 decisions each year), among them:
Since the adoption of Law n°104-12 and even before the reactivation of the Council, our firm has set up a mixed team that combines the in-depth technical expertise in competition law of the Brussels office with that of the Casablanca office. The team has been involved in many of these transactions notified to the Competition Council on behalf of Moroccan operators, European and non-EU such as US groups alike.
We have summarized below the main findings that can be drawn from these decisions and our experience so far, in particular concerning:
The Moroccan merger control regime covers mergers, acquisitions of control (sole or joint) and creation of joint ventures which perform on a lasting basis all the functions of an autonomous economic entity.
Pursuant to Article 12 of Law n°104-12, the Moroccan merger control regime covers transactions that achieve one of the following thresholds:
Please note that these thresholds are alternative which means that if one of them is met, a prior notification is in principle required.
Based on the jurisprudence, it appears that the Moroccan threshold is considered by the Council to be met if two parties at least together exceed the threshold of MAD 250 million; i.e. it can be met by one party achieving MAD 245 million and the other achieving MAD 5 million for example.
The Council confirmed in a few recent decisions that only full function ventures, i.e. joint ventures operating autonomously on a market constitute a concentration and therefore trigger a notification requirement.
The decisional practice of the Council provides guidance on how the "full functionality" criteria is assessed, in particular in the energy sector:
The Council also confirmed in a Decision no. 01/D19 that internal re-organisations or restructuring are not subject to merger control since they do not imply a change of the structure of control over an entity which will remain within the same group after the transaction.
A few other decisions in 2020 also confirmed this analysis
The Council has concluded in limited cases that transactions were not subject to merger filing requirement relying on Article 1(1) of Law no. 104-12 which states that the Law applies to transactions which may have an object or effect on competition in Morocco (or a substantial part thereof).
So far, this exception has only been accepted in the following limited circumstances:
The Council’s review is split into two phases (Phase I and Phase II). Transactions not raising competition concerns would be expected to be cleared during Phase I.
The deadline for a Phase 1 clearance decision without commitment is maximum 60 calendar days after receipt of a complete file.
The review process and timing for a clearance decision in Phase 1 without commitments is in principle and so far as follows:
Subject to the Government’s right to intervene (see below), if the Council does not issue a decision within the 60 days review period either clearing the transaction, considering that it is not competent or opening a Phase 2, the transaction is deemed approved (tacit approval).
The administration may, within 20 calendar days of the Council’s Phase I decision or expiry of the Phase I waiting period, intervene to request the Council initiate a Phase II review.
To our knowledge, this right has never been used so far by the administration.
According to Article 13 of Law 104-12 and the relevant decree the publication of a summary of the transaction shall intervene within 5 days following the receipt of the notification on the council's website and official legal journal.
This summary, prepared by the parties in Arabic and French, is submitted together with the filing.
In practice, so far, it is published on the Council's website and in a local newspaper ("Le Matin") only after the file has been declared complete and the declaration of completeness has been issued (i.e. a few weeks after the notification). (see section above)
This publication triggers a 10 days period for potential third party comments.
Pursuant to Article 14 of Law n°104-12, the parties are not entitled to implement their concentration plan as long as the Council (or the administration) has not cleared the transaction ("suspension principle"').
Any party with a notification obligation is liable to fines in case of failure to notify or breach of the suspension principle (up to 5% of the Moroccan turnover of the undertaking’s most recently completed financial year).
Article 14 adds that in case of "duly motivated need", the parties can apply for an exemption to the standstill obligation, allowing them to actually implement all or part of the transaction without waiting for the decision of the Competition Council.
To our knowledge this exemption has to date only been granted once by the Council in the context of the acquisition of companies in financial distress.
Law no. 104-12 does not provide for an exemption to the standstill obligation in the context of public takeover bids. Guidance could however be expected on this question in the near future.
The Competition Council has proven to be a very active authority since its reactivation with many decisions adopted pursuant to merger control rules.
It has opened phase 2 proceedings and regularly receives complaints or third party comments on transactions notified to it.
It will be interesting to continue analyzing its merger control decisions notably with respect to market definitions and competition analysis, pending the publication of guidelines which could be soon published on these matters.
 Decision of 12 September 2019 on the creation of a joint venture between Nareva Enel Green Power Morocco and ONEE.
 Decision of 26 December 2019 on the creation of two joint ventures respectively by EDF Renouvelables / Masdar / Green of Africa Investment and EDF Renouvelables / Masdar / Masen Capital.
 Decision of 30 January 2019 on the merger between Al Omrane Meknès and Al Omrane Fès.
 See notably Decision no. 100/D/19 of 24 December 2019 on the acquisition by Caisse des dépôts et consignations and Total Quadran of joint control of JMB Solar Nogara and Quadran Nogara; Decision no. 102/D19 of 26 December 2019 on the creation of a joint venture between Saudi Aramco Development Company and Korea Shipbuilding & Offshore Engineering; Decision no. 91/D/19 of 25 November 2019 on the acquisition by Caisse des dépôts et consignations of 77% in La Poste et indirect sole control in CNP Assurances.
 Decision of 31 August 2020 on the acquisition by Delfingen Industries S.A »,of sole control of Schlemmer Iberica S.A. U., Schlemmer Romania S.r.l., Schlemmer Russland, Schlemmer Italia S.r.l., Schlemmer Maroc SARL and Schlemmer Tunisie SARL and of the assets of Schlemmer Holding GmbH, Schlemmer GmbH and Schlemmer Münchingen GmbH & Co KG.