The European Commission (“Commission”) has recently published statistics concerning the European Union (“EU”) merger control review process. Typically, the Commission examines larger mergers with an EU dimension, meaning that the merging firms’ level of sales must reach certain turnover thresholds globally and in the EU to trigger the filing obligation. While the vast majority of transactions are not problematic from a merger control perspective and are unconditionally cleared by the Commission, it is interesting to note whether certain enforcement trends can be discerned.

2015

2016*

Number of notified cases

337

276

Phase I with remedies

13

12

Phase II with remedies

7

5

Prohibition

0

1

Withdrawn

2

1

* Until October 2016

This translates into intervention rates of approximately 6.5% and 6.9%, respectively, for these two years which does not suggest a significant increase in the Commission’s interventionism.

As far as the Commission’s substantive assessment is concerned, it is interesting to note that the Commission has reviewed transactions mainly on the basis of the unilateral effects on price. A theory of harm based on unilateral effects focuses on the extent of the loss of competition between the merging parties as a result of the transaction. Typically, the merger assessment will look into elements such as the structure of the market and its functioning before the transaction, how close competitors the merging parties are, elimination of an important competitive constraint, the role of third parties, dominance, qualitative evidence and economic techniques. Unilateral effects were scrutinized in 95% of intervention cases in the past two years. In addition to unilateral effects, the Commission can review possible coordinated effects stemming from the transaction. Coordinated effects may give rise to coordination concerns as a result of transparency in concentrated markets. The Commission investigated coordinated effects in 3 cases only (on top of unilateral effects) during the past two years.

Finally, concerning the merger review process, a significant trend is that internal documents and data have become more and more important.

This poses a number of challenges to the merging parties who should ensure that internal documents are reviewed by external counsel before any production (also to ensure that privilege is not involuntarily waived). Also, transactions have become increasingly global and subject to review by a number of jurisdictions. This has led to more international cooperation between the Commission and its key counterparts globally such as the United States, Canada, Brazil, China, Australia etc. This is something that the merging parties have to carefully consider when they negotiate and finalize their transaction timeline.