Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
There is no deadline to submit a notification under the EU Merger Regulation (EUMR). According to article 4 of the EUMR, the concentrations that are caught ‘shall be notified to the [European] Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid or the acquisition of a controlling interest’.
A notification may also be made where the undertakings demonstrate to the European Commission (the Commission) a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make such a bid.
The proposed concentration must be notified and cleared prior to implementation (the suspensory effect of the EUMR or the standstill obligation). The Commission can impose fines of up to 10 per cent of the aggregate worldwide turnover on the notifying party if it intentionally or negligently fails to notify a transaction with an EU dimension (eg, Illumina/GRAIL, 2022; Canon/Toshiba, 2019; and Altice/PT Portugal, 2018).
In EY/KPMG (C-633/16, 2018), the EU Court of Justice provided guidance on what constitutes gun jumping in response to a reference for a preliminary ruling by stating that ancillary and preparatory steps in a merger context only breach the standstill obligation if they contribute to the change of control of the target undertaking.
In May 2022, the EU General Court dismissed Canon’s appeal against the Commission’s 2019 decision that fined Canon €28 million for breaching the EU notification and standstill obligations by partially implementing a transaction through a warehousing structure. The EU General Court reconfirmed that transaction steps that do not confer to the buyer early control over the target can still constitute partial implementation if they contribute to a change of control.
Which parties are responsible for filing and are filing fees required?
In the case of an acquisition of sole control, the acquirer alone must notify. In the case of either the acquisition of joint control or a merger, the notification must be jointly submitted by the parties to the merger or by the undertakings acquiring joint control. No filing fees are required.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
Notification under the EUMR has a suspensory effect, meaning that a transaction that is subject to notification may not be implemented until clearance is obtained. Public takeover bids, however, are exempted from the suspension obligation provided that the concentration is notified to the Commission and that the acquirer does not exercise the voting rights in the target until clearance.
The Commission investigates transactions that have closed without prior notification and can order the unwinding of any notifiable transaction that has been implemented prior to clearance. Where a non-notifiable transaction has been referred to the Commission under article 22 of the EUMR, the suspension obligation applies to the extent that the concentration has not yet closed on the date on which the Commission informs the undertakings concerned that a referral request has been made. The suspension obligation ceases if the Commission subsequently decides not to examine the concentration.
The Commission has in recent years conducted several gun-jumping investigations into the early implementation of notifiable concentrations. The EUMR empowers the Commission to conduct inspections (ie, dawn raids) if it suspects that the parties have implemented the transaction prior to clearance (eg, Ineos/Kerling, 2008; and Caterpillar/MWM, 2011).
In exceptional circumstances, the Commission may grant a derogation from the suspension obligation if it is satisfied that the detriment to the notifying parties or to a third party resulting from the suspension exceeds the threats to competition posed by the transaction. The applicant must demonstrate that the standstill obligation poses a real threat to the business, not merely a hypothetical one (eg, SCJ/Sara Lee, 2011).
The Commission has recognised that undue delay to closing a transaction could have significant negative effects and has granted derogations on a limited number of occasions – mostly during the financial crisis in 2008 and 2009. Since 2020, the Commission has granted derogations on five occasions (UBS/Credit Suisse, 2023; ICG/Scopelec/Setelen, 2023; Apollo/Missguided, 2022; Liberty/Ascoval/Hayange, 2020; and Jingye/Ascoval/Fri, 2020).Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
The Commission may impose fines on companies (of up to 10 per cent of the aggregate worldwide turnover) for closing a transaction before clearance has been obtained, irrespective of whether clearance is ultimately obtained. In Marine Harvest (C-10/18 P, 2020), the EU Court of Justice confirmed that the EUMR allows the Commission to impose two separate fines for implementing a concentration before it has been notified and implementing a concentration before it has been authorised. The EU General Court recently applied Marine Harvest in Altice (T-425/18, 2021).
The Commission may also order interim measures to restore or maintain conditions of effective competition. For example, in October 2021 the Commission ordered Illumina to hold GRAIL separate by way of interim measure, following Illumina’s decision to proceed with closing the acquisition of GRAIL pending the Commission’s review.
The EU General Court has confirmed that the fact that a concentration has no adverse effect on competition and is ultimately cleared by the Commission is pertinent only insofar as it may be a relevant factor in determining the amount of the fine (see Electrabel/Compagnie Nationale du Rhône, 2009). Similarly, the Court took the view that a finding that an infringement was committed negligently, rather than intentionally, does not prevent the infringement from being characterised as grave or serious.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The Commission has the same powers to impose sanctions in cases involving closing before clearance in foreign-to-foreign transactions as it does in transactions related to companies active in the European Economic Area (EEA).
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
A foreign-to-foreign transaction cannot be implemented outside the European Union (ie, by way of a carve-out) without breaching the EUMR notification and suspension obligations unless the Commission grants a derogation.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
The EUMR does not prevent the implementation of a public bid that has been notified to the Commission, provided that the acquirer does not exercise the voting rights attached to the securities or does so only to maintain the full value of those investments and on the basis of a derogation granted by the Commission.
These derogations are difficult to obtain and do not apply in cases where a controlling stake is acquired by the purchaser through the acquisition of a single package of shares from one seller only (Yara/Kemira Growhow, 2007).
In 2008, the Commission exceptionally granted such a derogation in the context of a Phase II investigation (STX/Aker Yards, 2008). In Marine Harvest (C-10/18 P, 2020), the EU Court of Justice stressed that the exception for public takeover bids must be interpreted strictly and that it cannot be used to cover a prior transaction that has already caused a change of control.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
Notification is made to the Directorate-General for Competition using Form CO (the official form for standard merger notifications). The parties must provide the Commission with detailed information regarding:
- the transaction;
- the undertakings involved (corporate details and structure);
- the definition of the relevant markets;
- the markets on which the activities of the parties to the transaction may overlap either horizontally or vertically, or may otherwise be related;
- the effect of the transaction on the affected markets, including information on the parties’ and competitors’ presence and market shares, and customers, as well as economic evidence in more complex cases; and
- possible efficiencies arising from the transaction.
Supporting documentation must be submitted along with Form CO, including:
- transaction documents;
- audited accounts; and
- relevant internal documents, such as:
- board presentations;
- the parties’ ordinary course analyses and reports; and
- strategic plans relating to any potentially affected market.
The filing must be complete for the review clock to start running. To ensure that the filing is complete, a draft Form CO is typically discussed with the Commission in the pre-notification phase before it is formally notified.
Since the covid-19 pandemic, the Commission has been accepting electronic rather than hard copy submissions. The Commission recently codified this practice in a revised version of the Merger Implementing Regulation. Notification can be made in any of the European Union’s official languages.
Although the Commission can grant waivers from the obligation to provide information, the significant amount of detail and senior management time required to complete Form CO should not be underestimated. In complex cases, it is not uncommon for the formal review process to last for seven to eight months. This is in addition to the time it takes to complete pre-notification discussions, which are not subject to any statutory time limits but can last for several months.
Transactions that qualify for assessment under the simplified procedure (ie, when the transaction is unlikely to raise competition concerns, according to prescribed criteria set out in the Notice on the Simplified Procedure) are notified through the submission of Short Form CO (the official form for simplified merger notifications), which requires less detailed information from the parties.
On 20 April 2023, the Commission adopted a merger simplification package including a revised Notice on the Simplified Procedure, and a revised Merger Implementing Regulation and notification templates. The package aims to streamline the notification process and reduce the administrative burden on notifying parties, and will be applicable as of 1 September 2023.
The revised Short Form CO template has been streamlined and adopts a tick-box approach for certain categories of information; however, the template now also requires notifying parties to answer additional questions, for example in relation to whether:
- the parties have significant (10 per cent or more) non-controlling shareholdings or cross-directorships in companies active in the same market as any of the other parties involved in the transaction, or in vertically related markets;
- the parties have competitors that have a significant (10 per cent or more) non-controlling shareholding in any of the undertakings concerned;
- one of the parties has plans to expand in product or geographic markets (or both) in which the other party is active or that are in a vertical relation with products in which the other party is active; and
- the parties are important innovators in the overlapping markets.
The Commission may require the submission of Form CO where it appears from the responses to these questions that the conditions for using Short Form CO are not met or, exceptionally, where they are met but the Commission nonetheless determines that a full Form CO notification is required for an adequate investigation of possible competition concerns.
The new simplification package also introduces a flexibility clause that allows the notifying parties, in certain conditions, to request simplified treatment even if the parties combined market shares exceed 20 per cent for horizontal overlaps or 30 per cent for vertical overlaps.
The revised Notice on the Simplified Procedure also introduces the new super-simplified procedure, which allows the parties to formally notify the transaction without any pre-notification contacts. This has the potential to significantly reduce the review period of the simplest cases, such as extra-EEA joint ventures.
The Commission can impose a fine of up to 1 per cent of the aggregate worldwide turnover if incorrect or misleading information is supplied during its review. Periodic penalty payments not exceeding 5 per cent of the average daily turnover can also be imposed for each day that the infringement persists.
The EUMR empowers the Commission to conduct inspections (ie, dawn raids) if it suspects that the parties have provided incorrect or misleading information. The Commission has actively penalised procedural infringements by imposing sizable fines in Merck/Sigma-Aldrich (2021), General Electric/LM Wind (2019) and in Facebook/WhatsApp (2017).
The Commission’s Best Practices on the Conduct of Merger Proceedings (2004) (the Best Practice Guidelines) and the Notice on the Simplified Procedure summarise key aspects of the notification procedure, in particular the desirability (and usually the necessity) of pre-notification contact with the Commission.Investigation phases and timetable
What are the typical steps and different phases of the investigation?Pre-notification
Most (if not all) proceedings begin with pre-notification contact with the Commission, with the exception of those notified under the super-simplified procedure that will apply as of September 2023. This contact is not strictly mandatory but is nonetheless highly advisable and, in practice, essential even for simplified procedure cases.
Depending on the complexity of the transaction, this pre-notification stage typically involves the submission of various drafts of (Short) Form CO and may involve meetings with Commission officials. The Best Practice Guidelines also provide that the Commission may undertake informal fact-finding exercises in the pre-notification period, provided that the transaction is in the public domain and the merging parties have had the opportunity to express their views on those measures. With the parties’ agreement, the Commission can also reach out to third parties for views.
Pre-notification can last anywhere from one to three weeks in the simplest cases (but can be considerably longer even for relatively straightforward cases) to more than six months in more complex cases.
Following the formal notification, the Commission will initiate a Phase I review. It will contact relevant third parties (eg, customers, suppliers and competitors) to collect their views on the transaction and may require them to complete detailed questionnaires on the relevant markets.
During the course of the investigation, the Commission will often demand further information at short notice. Calls and meetings are also often held with the case team for transactions raising substantive issues. As explained in the Best Practice Guidelines, state-of-play meetings may be held with the parties at various key stages of the investigation, and the Commission may also instigate tripartite meetings with the merging parties and interested third parties to allow points of concern to be discussed.
In complex transactions, the Commission often issues extensive and tailored requests for internal documents, which require extensive efforts to collect and review before submission.
Following the Phase I investigation, the Commission may decide to clear the transaction unconditionally, clear the transaction subject to conditions and obligations offered by the parties or initiate an in-depth Phase II investigation if it considers that the transaction raises serious doubts as to whether it may give rise to a significant impediment to effective competition. The Commission issues a decision initiating a Phase II review to which the parties have the right to respond.
A Phase II inquiry involves a large number of requests for often very detailed information, including for large volumes of ordinary course of business documents in relation to the markets where the Commission has identified serious doubts. If such doubts are confirmed during the Phase II market investigation and the parties do not propose remedies to address those concerns early in Phase II, the Commission will issue a statement of objections that describes in detail the competition concerns arising from the transaction. If a statement of objections is issued, the parties will be granted access to the Commission’s file and, at the request of the parties, an oral hearing will take place (often involving complainants). The oral hearing is organised and conducted by a hearing officer.
Following the Phase II investigation, the Commission may decide to clear the transaction unconditionally, clear the transaction subject to conditions and obligations or prohibit the transaction.
What is the statutory timetable for clearance? Can it be speeded up?
The Commission must reach a Phase I decision within 25 working days of the effective date of notification. This period may be increased to 35 working days if the Commission receives a referral request from a member state or the parties submit commitments (remedies) to resolve potential competition issues. The review period under the simplified procedure is also 25 working days.
Should the Commission initiate a Phase II investigation, it must take its final decision within 90 working days of the date on which the Phase II proceedings were initiated. This period may be extended to 105 working days if the parties offer commitments after the 55th day of Phase II proceedings. The investigation period may also be extended if the parties request a one-off extension of the investigation period (they must do so within 15 working days of the initiation of Phase II proceedings) or if the Commission decides to extend the Phase II investigation period with the consent of the parties. In both cases, the extension cannot cumulatively exceed 20 working days.
These periods may be suspended (thereby stopping the clock) if the parties fail to respond to a formal (article 11(3) of the EUMR) information request before the deadline.
There are no formal means of accelerating the review under the EUMR; however, the Commission has shown some flexibility in certain rare cases, notably by issuing accelerated clearance decisions during the 2008–2009 financial crisis, even in cases that raised significant competition concerns and required remedies (eg, BNP Paribas/Fortis, 2008).