On 7 October 2016, the European Commission published a questionnaire seeking feedback on certain procedural and jurisdictional aspects of the EU merger control regime. This initiative follows the Commission’s 2014 White Paper “Towards More Effective EU Merger Control” which set out proposals to simplify and make the regime more effective. This new consultation seeks to build on the work undertaken in the context of the White Paper as well as to address new issues which have since arisen (in particular in relation to the turnover-based thresholds).
The Commission’s consultation focuses on four key issues addressed in turn below.
The Commission adopted a package of measures to simplify merger notifications in December 2013 which, in particular, widened the scope of the application of the simplified procedure and sought to streamline and simplify the notification forms. The Commission notes that the use of the simplified procedure has increased about 10 percentage points to approximately 69% of all notified transactions from January 2014 to September 2016.
The Commission is now seeking views on the effect of the 2013 simplification package and considering whether to further simplify EU merger control, in particular:
- In relation to cases that do not generally raise competition concerns, and which are currently notified under the simplified procedure, the Commission is seeking feedback on stakeholders’ experience of the simplified procedure following the 2013 simplification package. It is also consulting on whether one or several of these “non-problematic” cases should be:
- Exempted altogether from the notification requirement;
- Subject to lighter information requirements, i.e. subject only to an initial short information notice, on the basis of which the Commission could decide whether or not to examine the case; or
- Subject to a self-assessment system, which would effectively make merger notification voluntary, with the Commission reserving the right to investigate on its own initiative or following a complaint (similar to the system in the UK).
- In relation to joint ventures that operate outside the EEA and with no effect on competition on EEA markets, the effect of the 2013 simplification package and whether it is appropriate to:
- exclude such joint ventures from the EU merger regime altogether; or
- exempt them from notification, subject them to fewer information requirements / a short information notice or a self-assessment system.
The Commission notes that whether turnover-based jurisdictional thresholds are effective in certain contexts has recently been the subject of debate, in particular for mergers involving companies with high market value but no or little turnover. For example, Germany is currently considering new thresholds in light of such cases. The Commission is concerned there may be a legal gap in EU merger control since the current regime may not capture such cases – a well-known example cited in the consultation is Facebook’s acquisition of WhatsApp in 2014, which the Commission was only able to review following Member State referral. The Commission is specifically inviting feedback from respondents in the digital economy and pharmaceutical industries as it notes that these industries may be particularly prone to such cases (although it is also seeking wider views from other industry sectors).
The Commission is consulting in particular on:
- whether the current case referral system from Member States to the Commission sufficiently addresses the perceived legal gap and shortcomings of turnover-based thresholds; and
- whether there should be a complementary deal size threshold and if so, the features of such a threshold including:
- what level of transaction value would be an appropriate threshold;
- whether such a threshold should operate only in the presence of a local nexus / significant economic link with the EEA; and
- whether (and what) additional criteria are needed to limit the scope of the application of this deal size threshold to ensure cost effectiveness.
The Commission is consulting on proposals made in the White Paper to make the case referral mechanism more business-friendly and effective, in particular:
- Abolishing the two step procedure under Article 4(5) of the EU Merger Regulation (EUMR), which requires that parties first file a Form RS and then the Form CO, if they would like the Commission to deal with a case that is notifiable in at least three Member States but which does not meet the EUMR jurisdictional thresholds;
- Amending the post-notification referral to the Commission under Article 22 of the EUMR so that, where it accepts jurisdiction, the Commission has jurisdiction over the entire EEA (as opposed to only Member States joining the referral request as is currently the case) and similarly renouncing jurisdiction over the entire EEA if one or more Member States oppose the referral request; and
- The removal of the perceived “element of self-incrimination” by removing the requirement under Article 4(4) of the EUMR for parties to assert that the transaction may "significantly affect competition in a market" before their case may qualify for a referral. Instead, it is proposed that parties would only need to show that the transaction is likely to impact a distinct market in the Member State in question in order to qualify.
Finally the Commission is seeking views on proposals made in the context of the White Paper to improve technical, i.e. housekeeping, aspects of the procedural and investigative framework for the assessment of mergers, and is also inviting views on additional technical improvements. These proposals include building in more flexibility around the filing of merger notifications in the context of public bids and in time limits in Phase II proceedings, as well as dealing with the use (by the parties or third parties) of non-public information acquired in the context of a merger control filing.
All feedback must be submitted by 13 January 2017. The Commission will carefully analyse the outcome of this consultation (as well as previous consultations) before deciding whether it should take further action.