Moroccan Merger Control: How to Obtain Competition Council Clearance

Reading time: approximately 17 minutes. Legal position reviewed in September 2026.

Moroccan merger control is no longer a formality

When the Moroccan Competition Council announces the approval of several new concentrations, as it did in decisions reported by Medias24 in 2024, the news may appear routine. It is not. Each clearance reflects a legal process that can affect the timetable, price and even feasibility of a merger or acquisition in Morocco.

Activity has intensified since the Competition Council resumed its institutional role and began publishing merger decisions more regularly. Moroccan family groups are restructuring, private equity funds are increasingly active, and international investors continue to target Moroccan businesses in logistics, healthcare, agriculture, industry, tourism and digital services. As a result, Moroccan merger control has become a central workstream in M&A transactions structured in Casablanca, Rabat, Tangier and elsewhere.

The most expensive mistake is also one of the most common: signing and completing an acquisition before checking whether prior clearance is required. Some executives assume that notification can wait because the target is modest, the purchaser is foreign, or the acquisition concerns less than 50% of the shares. None of these assumptions is legally safe.

Moroccan merger control is principally governed by Law No. 104-12 on freedom of prices and competition, promulgated by Dahir No. 1-14-116 of 30 June 2014, as amended in particular by Law No. 40-21, together with its implementing decrees. Institutional and procedural rules are also found in Law No. 20-13 relating to the Competition Council, as amended by Law No. 41-21.

This article explains the concentration economic definition under Moroccan law, the current filing thresholds, the authorisation procedure, review periods, substantive assessment, possible remedies and exposure for non-notification. One preliminary warning is necessary: older publications still quote the former MAD 750 million threshold established by Decree No. 2-14-652. Those figures are no longer the proper starting point for transactions assessed under the revised regime.

1. What is an economic concentration under Moroccan law?

1.1 The statutory definition in Article 11 of Law No. 104-12

Article 11 of Law No. 104-12 identifies the transactions capable of constituting a concentration. Broadly speaking, a concentration arises when previously independent undertakings merge, when one or more persons already controlling an undertaking acquire control over another undertaking, or when one or more undertakings acquire direct or indirect control over all or part of another undertaking.

Under Article 11, control results from rights, contracts or other means which, separately or in combination and having regard to the relevant factual or legal circumstances, confer the possibility of exercising decisive influence over an undertaking.

The concept is economic rather than purely corporate. The Competition Council therefore looks beyond the percentage printed on a share certificate. Voting rights, vetoes, shareholders’ agreements, financing arrangements, board appointment rights and access to strategic information may all be relevant.

1.2 Mergers, acquisitions, assets and joint ventures

A statutory merger between two independent companies is the obvious case. A conventional share acquisition is another. An asset deal can also qualify when the acquired assets constitute a business or a substantial operational part of one: a factory, customer portfolio, brand and distribution network transferred together may give the purchaser control of an economic activity even though no company shares change hands.

A minority investment may likewise be caught. Suppose an investor purchases 35% of a Moroccan food producer while the remaining shares are dispersed. If the investor can appoint senior management or veto the budget, business plan, major investments and market strategy, it may hold decisive influence. In practice, reserved matters deserve as much attention as the nominal shareholding.

This frequently surfaces late in due diligence. In one representative agro-industrial scenario, management initially describes a transaction as a passive minority investment. The shareholders’ agreement then reveals that the investor must approve annual budgets, new production lines, borrowing and appointments to general management. The competition analysis changes immediately: what looked like portfolio protection may amount to joint or sole control.

A full-function joint venture is also a concentration when it performs, on a lasting basis, all the functions of an autonomous economic entity. It normally needs its own management, personnel, financial resources and access to the market. A joint vehicle that merely supplies its parent companies, lacks commercial autonomy or coordinates their conduct may instead fall under the rules on restrictive agreements, notably Article 6 of Law No. 104-12.

1.3 Transactions that normally fall outside merger control

A genuine internal reorganisation within a single group generally does not alter control and therefore does not constitute a concentration between independent undertakings. A temporary holding by a financial institution may also benefit from narrowly interpreted treatment where the securities are acquired for resale and voting rights are not used to determine competitive conduct.

Purely contractual cooperation, ordinary distribution agreements and non-controlling investments are not automatically concentrations. They may nevertheless be reviewed under Articles 6 and 7 of Law No. 104-12, which address anticompetitive agreements and abuse of a dominant position. In clear terms, being outside merger control does not mean being outside competition law.

2. Moroccan merger notification thresholds: is your transaction caught?

2.1 The current thresholds, not the former MAD 750 million test

The monetary thresholds were revised by Decree No. 2-23-273 of 15 September 2023, adopted for the application of Article 12 of Law No. 104-12. The reform replaced the older figures associated with Decree No. 2-14-652.

Under the revised turnover test, notification must be examined where:

• the parties’ combined worldwide turnover, excluding tax, exceeds MAD 1.2 billion, or their combined turnover generated in Morocco exceeds MAD 400 million; and
• at least two of the undertakings concerned each generated turnover exceeding MAD 100 million in Morocco.

In addition, Article 12 retains a market-share route: a transaction may be notifiable where the undertakings concerned, or undertakings economically linked to them, achieved more than 40% of sales, purchases or other transactions on a national market for substitutable products or services, or on a substantial part of that market.

Practical rule: do not stop after calculating turnover. The 40% market-share criterion must be screened separately, particularly in concentrated local sectors where reliable public revenue data may be scarce.

The exact application of the monetary limbs should be checked against the current Arabic or French official text and the Competition Council’s filing practice. Cross-border structures, recent acquisitions, joint control and carve-outs can alter both the undertakings concerned and the turnover attributable to them.

2.2 Calculating turnover correctly

Turnover is not limited to the legal entities signing the sale agreement. The analysis normally follows the economic groups to which the undertakings concerned belong. Depending on the transaction, this can require consolidation of parent companies, controlled subsidiaries and other entities under common control, while eliminating internal group sales where the applicable rules require it.

For an acquisition of sole control, the purchaser-side calculation usually captures the purchaser’s group, while the seller’s turnover is ordinarily excluded unless it retains joint control. On the target side, turnover attributable to the acquired business must be identified. A carve-out from a multinational group can therefore require management accounts allocating Moroccan sales to the transferred activity.

Banks, credit institutions and insurance undertakings require sector-specific calculations rather than a mechanical use of ordinary sales revenue. Financial income, premiums and other regulated accounting aggregates may be relevant. This is an area where competition counsel should coordinate with the undertaking’s auditors and, where appropriate, Bank Al-Maghrib or the Insurance and Social Welfare Supervisory Authority, ACAPS.

2.3 Foreign acquisitions with a Moroccan nexus

Nationality is not decisive. A foreign company acquiring a Moroccan business must file if the statutory conditions are met. The same can be true of an offshore transaction between two foreign groups if their activities satisfy the Moroccan turnover or market-share nexus.

Conversely, the mere fact that the purchaser has substantial worldwide turnover does not dispense counsel from analysing the local limbs carefully. The revised rules were designed to create a clearer Moroccan nexus, but group sales, distributors, online business and indirect sales can still produce difficult allocation questions.

2.4 Threshold summary

The safest practice is to prepare a short notification screening memorandum before signing. It should identify the transaction type, control structure, parties’ groups, turnover by jurisdiction and plausible affected markets. For a straightforward transaction this may take a few days; a multinational carve-out or market-share case may require several weeks.

3. The Moroccan Competition Council clearance procedure

3.1 Who files?

Article 13 of Law No. 104-12 establishes prior notification. In a merger, the merging parties ordinarily notify jointly. For an acquisition of control, the obligation generally falls on the person or undertaking acquiring control. In a joint-control transaction, the acquirers normally coordinate a joint filing.

The parties may sign a share purchase agreement before clearance, but completion must be conditional. The agreement should contain a condition precedent covering Moroccan Competition Council authorisation, cooperation obligations, allocation of responsibility for information requests and remedies, and a realistic long-stop date.

3.2 The standstill obligation

The core rule is simple: do not implement the transaction before clearance. This is commonly called the standstill obligation. Completion includes more than registration of the transfer. Early payment of the price, transfer of operational control, appointment of the purchaser’s managers, integration of IT systems, coordination of prices or customers, and premature exercise of voting rights may all raise gun-jumping concerns.

During the interim period, the purchaser may protect the value of the target through proportionate covenants. It should not run the target as if it already owned it. Clean teams, restricted information channels and carefully drafted ordinary-course clauses are especially useful where purchaser and target are competitors.

3.3 What goes into the notification file?

A Moroccan Competition Council file typically combines corporate documents, transaction agreements, financial information and a competition analysis. The filing should explain the control structure before and after completion, the commercial rationale, the parties’ activities, relevant product and geographic markets, market shares, competitors, customers, suppliers, barriers to entry and possible efficiencies.

Supporting documents commonly include:

• constitutional documents and current commercial-register information;
• group organisation charts showing control links;
• the signed transaction agreement, offer or sufficiently advanced project documents;
• annual accounts and turnover calculations;
• board presentations, investment memoranda and strategic studies discussing the transaction;
• market studies, customer data and competitor information;
• ancillary non-compete, supply, licensing or transitional-services agreements; and
• powers of attorney for Moroccan counsel.

A routine filing may already run to dozens of pages excluding annexes. A complex horizontal case can easily produce several hundred pages of submissions, data tables and supporting materials. The governing filing form and documentary requirements must be checked in the current implementing instruments and on the Council’s official website before submission.

3.4 Pre-notification

Law No. 104-12 does not establish a fully codified pre-notification procedure comparable to that of some mature jurisdictions. Nevertheless, confidential preliminary engagement with the Council’s investigation services is a valuable practical tool. It can clarify jurisdiction, identify missing documents and test whether the proposed market definition is realistic.

Pre-notification is particularly helpful where turnover is difficult to allocate, a joint venture’s autonomy is debatable, or the parties intend to propose remedies. It does not start the formal statutory clock. That clock starts only once a formally notified file is regarded as complete.

3.5 Filing, publication and third-party input

After formal submission, the Council examines completeness and may request additions. A public notice may identify the parties, the nature of the operation and the sectors concerned, allowing interested third parties to submit observations. Customers, competitors, professional associations and sector regulators may be contacted during market testing.

Confidentiality claims must be specific. Marking an entire annex as confidential is rarely persuasive. Parties should provide reasoned requests identifying business secrets and, where requested, non-confidential versions suitable for publication or third-party consultation.

4. Phase I, in-depth review and statutory deadlines

4.1 The initial 60-day review

Article 15 of Law No. 104-12 provides the framework for the initial examination. The headline period is 60 days from receipt of a complete notification. Older summaries sometimes describe this automatically as 60 working days; transaction documents should not rely on that shorthand without checking the current official text and the Council’s method of computation.

At the end of the initial review, the Council may find that the transaction falls outside the regime, authorise it unconditionally, clear it subject to commitments, or open an in-depth examination where serious competition concerns remain.

4.2 In-depth examination: allow for up to 90 further days

The detailed examination is governed by Article 17 of Law No. 104-12. The statutory framework provides a period of up to 90 days from the opening of the in-depth review, subject to the suspension and extension mechanisms contained in the law. This is a critical correction to the frequently repeated claim that Moroccan Phase II simply adds another 60 working days.

Commitments offered late in the process, incomplete responses and justified requests from the parties can affect the timetable. Sector-regulator consultation and extensive third-party market testing also make a complex case slower in practice.

4.3 Information requests and the completeness trap

The headline deadline is only useful if the filing is complete. When the Council asks for missing turnover data, internal documents or reliable market-share estimates, the review timetable may not progress as management expected. In Morocco, the challenge is often not legal doctrine but data: sector figures may be fragmented among the HCP, customs statistics, trade associations and private studies.

Consider a representative pharmaceutical transaction. The parties initially provide national sales but cannot reconcile hospital sales, wholesaler data and therapeutic-category shares. Several rounds of questions follow, and the overall timetable approaches a year. The lesson is not that every pharmaceutical case lasts 11 months; it is that poor data preparation can consume more time than the legal analysis itself.

4.4 Contractual planning

A well-drafted SPA should rarely assume clearance in exactly 60 days. For an uncomplicated filing, parties commonly plan several months from preparation to decision. For a difficult horizontal case, a six-to-eight-month long-stop period, or longer where other regulators are involved, may be prudent.

The contract should also state who controls the filing strategy, what level of remedies the purchaser must accept, whether a divestiture obligation is capped, and what happens if clearance is refused. Expressions such as “best efforts” or “all necessary actions” carry real financial consequences when the Council asks for structural remedies.

5. How the Competition Council assesses a concentration

5.1 The central competition test

The Council assesses whether the transaction is likely to harm competition, notably by creating or strengthening a dominant position or increasing buyer power. It also considers whether economic progress is sufficient to compensate for competitive harm. Merger control is preventative: the question is what the market is likely to look like after completion.

Article 7 of Law No. 104-12, which prohibits abuse of a dominant position, must not be confused with merger review. Dominance is not unlawful in itself, and a merger involving a strong undertaking is not automatically prohibited. The Council examines whether the structural change will significantly weaken competitive constraints.

5.2 Product and geographic market definition

The relevant product market includes products or services considered substitutable by customers because of characteristics, price and intended use. Supply-side substitution may also matter where suppliers can switch production quickly and without substantial cost.

The geographic market is the area in which competitive conditions are sufficiently homogeneous. Many Moroccan consumer markets are national, but this is not automatic. Cement, aggregates, retail catchment areas, port services and certain healthcare markets may be regional or local because transport costs, licensing constraints or customer behaviour limit geographic substitution.

Parties should not define the market merely to produce a low share. An implausibly broad “all food products” market, for example, will attract questions if customers do not view the products as substitutes. A persuasive filing generally presents a primary market definition, reasonable alternatives and shares under each scenario.

5.3 Market shares, concentration and HHI

Market shares indicate relative strength but do not decide the case alone. The Council may examine changes in the Herfindahl-Hirschman Index, or HHI, calculated by adding the squares of firms’ market shares. A market with four firms holding 40%, 30%, 20% and 10% has an HHI of 3,000. The post-transaction level and the increment caused by the merger can help identify cases requiring closer scrutiny.

There are no universally safe Moroccan HHI figures that replace the statutory assessment. European and international guidance may be persuasive by analogy, but it is not Moroccan legislation. Actual rivalry, imports, entry, buyer power, innovation and capacity constraints remain central.

5.4 Unilateral, coordinated and vertical effects

In a horizontal merger, the Council asks whether the merged business could profitably raise prices, reduce output, lower quality or slow innovation because a close competitor disappears. Coordinated effects arise where the transaction makes tacit alignment among the remaining firms easier.

Vertical transactions can create foreclosure concerns. A business controlling an essential input might restrict access to downstream rivals; a strong distributor might disadvantage competing suppliers. Conglomerate deals usually pose lower risks but can raise tying, bundling or ecosystem concerns in digital and financial markets.

5.5 Efficiencies and failing-firm arguments

Efficiencies should be verifiable, transaction-specific and likely to benefit customers. General statements about “synergies” are not enough. Parties should quantify reduced logistics costs, improved capacity utilisation, lower procurement costs or faster innovation and explain why comparable benefits cannot be achieved through a less restrictive arrangement.

A failing-firm defence is demanding. Financial difficulty alone does not establish that the target would exit, that no less anticompetitive purchaser exists, or that its assets would inevitably leave the market. The claim requires contemporaneous evidence, not a post-signing narrative.

6. Conditional clearance and remedies

The Council can authorise a transaction subject to commitments designed to eliminate identified harm. Parties may offer commitments during the initial review or in-depth examination, and proposals are often market-tested with competitors and customers.

6.1 Structural remedies

Structural remedies change the shape of the transaction or the merged business. They include divestiture of a subsidiary, production site, brand, customer portfolio or distribution network. Competition authorities generally regard a clean and viable divestiture as easier to monitor than a long-term promise about commercial behaviour.

The divested business must be capable of competing independently. A collection of outdated assets without personnel, licences, customers or intellectual property will not solve the problem. The identity and independence of the purchaser may also require approval.

6.2 Behavioural remedies

Behavioural commitments may require non-discriminatory infrastructure access, transparent supply terms, separation of sensitive information, continuation of interoperability or limits on exclusivity. They can be appropriate in vertical or regulated markets but require monitoring and a precise duration.

Price-maintenance commitments should be treated cautiously. They can protect consumers temporarily, yet they risk replacing competition with regulation and may become obsolete as costs change. A remedy package must address the mechanism of harm rather than simply create an attractive headline.

7. Non-notification and gun-jumping sanctions

7.1 Financial penalties

The sanctioning provisions of Law No. 104-12 allow serious consequences where a notifiable concentration is not filed or is implemented before authorisation. For legal persons, the financial exposure can reach 5% of pre-tax turnover generated in Morocco during the latest completed financial year, subject to the precise statutory basis applicable to the infringement and the entities responsible.

Some older commentary attributes all merger sanctions to Article 24. That is misleading. The original structure of Law No. 104-12 places core merger-control sanctions in the concentration chapter, including Articles 19 and following, as subsequently amended. Counsel should cite the consolidated text rather than rely on an outdated article number.

7.2 Orders to notify, unwind or divest

A fine may be only the beginning. The Council can order the parties to notify, restore the situation existing before implementation, modify the transaction or comply with conditions within a specified period. Periodic penalty payments may support an injunction. Forced divestment is the outcome purchasers fear most because it can destroy integration planning and oblige a sale under severe time pressure.

Claims that every gun-jumped transaction is automatically void should also be approached carefully. Corporate validity, competition-law unenforceability and the Council’s remedial powers are distinct questions. The law clearly exposes parties to orders affecting implementation; the civil consequences for contracts, employees, creditors and third parties depend on the facts and the applicable statutory provisions.

7.3 What counts as early implementation?

Gun-jumping does not require a formal share transfer. Risk may arise if the purchaser starts directing pricing, approves ordinary commercial contracts, reallocates customers, combines sales teams or receives competitively sensitive information without safeguards.

A distribution group, for example, cannot treat a signed acquisition as permission to negotiate jointly with suppliers or redesign the target’s store network. Even if the parties intend to regularise the filing later, competitive integration before clearance may constitute a separate infringement.

7.4 Regularisation is not immunity

If a missed filing is discovered, the parties should stop further integration, preserve documents, assess whether interim measures are needed and approach the Council through counsel. Voluntary cooperation may be relevant to enforcement discretion, but Morocco has no merger-control leniency programme guaranteeing immunity. Quietly waiting for the issue to disappear is usually the worst option.

8. Preparing an effective Competition Council file

8.1 Start during due diligence

Preparation should begin before signing, not after. The legal team needs turnover by entity and country, while economists need product-level sales, customer locations and credible market-size estimates. The transaction team should also identify internal documents that discuss competitors, pricing power or market consolidation; the Council may request them.

A disciplined process usually has four workstreams:

1. jurisdictional screening and control analysis;
2. collection and reconciliation of financial data;
3. market definition and competitive assessment; and
4. contractual protection for the clearance period.

8.2 Moroccan market data

Reliable information is sometimes difficult to obtain. Useful sources include the Haut-Commissariat au Plan, the Office des Changes, customs data, ministries, sector regulators, public tenders and professional federations. Private market studies may help, but their methodology should be disclosed.

Where no authoritative market size exists, a bottom-up calculation may be stronger than an unsupported estimate. Parties can aggregate supplier revenues, import volumes, production capacity or customer purchases and then test the result against independent indicators.

8.3 Costs

Morocco does not generally impose a formal merger filing fee comparable to the administrative fees charged in certain other jurisdictions. The real cost lies in legal and economic preparation.

As a non-binding market indication, specialist legal fees for a conventional filing may fall between MAD 150,000 and MAD 400,000, with complex cross-border or remedy cases costing more. An economic analysis may add roughly MAD 50,000 to MAD 150,000 or substantially more if surveys, econometric work or extensive market reconstruction are required. These figures are not regulated tariffs and vary by scope, urgency, language, data quality and review phase.

9. Sectors subject to parallel supervision

9.1 Banking and financial services

Competition clearance does not replace sector approval. Acquisitions involving credit institutions may require authorisation or non-objection under Law No. 103-12 relating to credit institutions and similar bodies, with Bank Al-Maghrib examining prudential ownership, governance and financial soundness. A transaction may therefore have separate competition and banking conditions precedent.

9.2 Telecommunications

In electronic communications, the National Telecommunications Regulatory Agency, ANRT, may need to address licences, spectrum, infrastructure or regulatory obligations. The Competition Council examines market structure under competition law, while the ANRT applies sector legislation. Their tests overlap but are not identical.

9.3 Insurance, energy and regulated activities

Insurance transactions can engage ACAPS. Capital-market transactions may involve the Moroccan Capital Market Authority, AMMC. Energy projects may require consultation with the competent ministry or the National Electricity Regulatory Authority, ANRE, depending on the activity.

The practical solution is an authority map prepared at the beginning of the deal. Filing sequences, information consistency and confidentiality must be coordinated. Contradictory market-share figures submitted to two Moroccan authorities create avoidable credibility problems.

9.4 Retail and agri-food markets

Food prices, distribution margins and purchasing power are politically sensitive. The Council’s sector opinions and studies show close attention to supply chains, buyer power and access to distribution. Transactions in grocery retail, fuel, agricultural inputs or staple products should expect detailed questions even when the legal theory looks straightforward.

10. Appeals against Competition Council decisions

Appeal rights must be determined from the consolidated versions of Laws No. 104-12 and 20-13 and from the notification of the decision itself. Moroccan competition procedure distinguishes between categories of decisions; practitioners should not assume that every dispute follows the same route as an ordinary commercial judgment before a court of first instance.

Merger decisions have historically been associated with review before the competent administrative formation of the Court of Cassation, whereas parts of the sanctioning litigation are subject to the specialised route established by Law No. 20-13. Time limits are short and are commonly calculated from notification of the decision. The decision’s appeal notice should therefore be checked immediately rather than relying on the frequently repeated but overbroad statement that Article 25 always grants a one-month appeal before the Rabat Court of Appeal.

An appeal should not be assumed to suspend the decision automatically. For an urgent transaction, negotiated commitments are often more commercially useful than years of litigation. That does not make judicial review irrelevant; it simply explains why published Moroccan merger case law remains limited compared with the growing body of administrative clearance decisions.

11. The transaction team’s practical checklist

1. Identify control. Review voting rights, vetoes, board rights and all shareholders’ agreements.
2. Calculate current thresholds. Use Decree No. 2-23-273, not the superseded MAD 750 million figure.
3. Test the 40% share threshold. Turnover is not the only jurisdictional route.
4. Prepare before signing. Collect accounts, Moroccan sales and market data during due diligence.
5. Insert a condition precedent. No closing before Competition Council clearance.
6. Prevent gun-jumping. Use clean teams and preserve the target’s commercial independence.
7. Map other regulators. Consider Bank Al-Maghrib, ANRT, ACAPS, AMMC and ANRE.
8. Use a realistic long-stop date. Account for completeness questions and possible in-depth review.
9. Define remedy obligations. Do not leave the purchaser’s divestment exposure ambiguous.
10. Monitor publication and compliance. Clearance commitments continue after closing.

Conclusion: clearance should shape the deal from day one

The three costliest errors in Moroccan merger control are easy to identify: using obsolete notification thresholds, confusing a minority investment with the absence of control, and integrating the target before authorisation. Each can expose the parties to delay, financial penalties and orders affecting the transaction itself.

Concretely, every Moroccan or cross-border M&A project with local activity should undergo a competition screening before signing. If filing is required, the parties should prepare a complete economic record, preserve their operational independence and allow enough time for the Council’s review.

The Moroccan system has become more credible and active, but it still presents practical weaknesses: no fully codified simplified procedure, limited published judicial precedent and uneven availability of market data. Even so, the direction is clear. Prior merger clearance in Morocco is now a genuine closing condition, not an administrative afterthought.

This article provides general information and does not constitute legal advice. Threshold calculations and procedures should be verified against the consolidated official texts and the facts of the proposed transaction.