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 specific deadline for making a filing under the EU Merger Regulation (EUMR). According to article 4 of the EUMR, proposed concentrations (with a Union dimension) ‘shall be notified to the 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 concerned demonstrate to the European 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.
However, the proposed concentration must be notified and cleared prior to implementation (this is known as the ‘suspensory effect’ of the EUMR). The EUMR provides the Commission with powers to impose fines of up to 10 per cent of aggregate worldwide turnover on the parties if they intentionally or negligently fail to notify a merger with a Union dimension. In 2014, the Commission imposed a fine of €20 million on Marine Harvest for acquiring de facto sole control of Morpol prior to formal notification (M.7184 (2014)). This decision was upheld by the General Court (T-704/14 (2017)) and the Court of Justice (C-10/18 P (2020)). In 2018, the Commission issued two decisions imposing fines for infringing the standstill obligation. In Altice/PT Portugal, the Commission imposed a fine of €125 million on Altice for implementing the acquisition of PT Portugal before obtaining the Commission’s clearance. In Canon/Toshiba, the Commission imposed a €28 million fine on Canon for partially implementing the acquisition of Toshiba’s medical equipment business prior to obtaining clearance. Appeals against both decisions are pending before the General Court.
In EY/KPMG (C-633/16 (2018)), the 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, as such, to the change of control of the target undertaking. However, the Commission in practice seems to interpret EY/KPMG narrowly.
Which parties are responsible for filing and are filing fees required?
In the case of either the acquisition of joint control or of a merger that creates a new undertaking, the notification must be jointly submitted by the parties to the merger or by the undertakings acquiring joint control. In the case of acquisition of sole control, the acquirer alone must notify. 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 not subject to the full suspension obligation. The Commission can and will investigate any mergers that have closed without prior notification, and could order the unwinding of any notifiable merger that has been implemented prior to clearance. The Commission has shown its willingness to prevent ‘gun jumping’ in the form of early implementation between the merging parties. The EUMR empowers the Commission to conduct inspections (ie, dawn raids) if it suspects that the parties have implemented the transaction prior to clearance. The Commission carried out dawn raids at the premises of merging parties suspected of gun jumping in the Ineos/Kerling case in 2008 and in the Caterpillar/MWM case in 2011 (these acquisitions were ultimately cleared without conditions, and no finding of gun jumping was reached).
In exceptional circumstances, the Commission may grant a derogation from this 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. According to the Commission, an 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 could potentially be fatal to a proposed emergency rescue package and has granted derogations on a limited number of occasions – mostly during the global economic downturn in 2008 and 2009. In 2020, the Commission published three decisions granting derogation from the suspension obligation: Liberty/Ascoval/Hayange (M.9917), Jingye/Ascoval/Fri (M.9887) and Connect Airways/Flybe (M.9287).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 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 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 Commission may also order interim measures to restore or maintain conditions of effective competition.
The 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 to be imposed (see Electrabel/Compagnie Nationale du Rhône). Similarly, the Court also took the view that a finding that an infringement was committed negligently, rather than intentionally, does not prevent a characterisation of that infringement 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 mergers as in mergers of domestic (ie, European Economic Area (EEA) or European Free Trade Association (EFTA) companies). To date, there are no examples of such sanctions having been applied in foreign-to-foreign mergers, but most companies take care not to breach the notification obligations in such cases.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
A foreign-to-foreign merger cannot be implemented outside the EU without breaching the EUMR suspension obligation unless the Commission grants a derogation. At a late stage in the investigation, the Commission may be prepared to grant a derogation to allow the closure of a transaction if the competition issues have been resolved. However, these situations are rare, and parties must usually await clearance before closing. It is not permissible under EU merger control rules to close a transaction globally while suspending implementation of closing in the European Union (ie, by way of a carveout).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 in question 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 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 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 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 Directorate-General for Competition of the European Commission (DG Comp) using a Form CO. The parties are required to provide the Commission with:
- detailed information regarding the transaction;
- the undertakings involved (corporate details and structure);
- the definition of the relevant markets;
- the effect of the merger on the affected markets (including information on competitors and customers and economic evidence in more complex cases) and
- possible efficiencies arising from the transaction.
Supporting documentation needs to be submitted along with the 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. As a result of the covid-19 pandemic, the Commission is accepting electronic rather than hard copy submissions. 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 (a process that has been formalised and clarified) the significant amount of detail and senior management time required to complete a Form CO should not be underestimated. In complex cases, it is not uncommon for the review process to last 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. The Commission has implemented changes as part of a ‘merger simplification project’ with the aim of streamlining the notification process and reducing the administrative burden on notifying parties.
Mergers that qualify for assessment under the simplified procedure (broadly, when the merger 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 a Short Form CO, which requires less detailed information from the parties. Recent amendments to the notice on the simplified procedure and the Short Form CO have extended the categories of merger cases suitable for the simplified procedure. The Commission may, however, require the submission of a full Form CO where it appears either that the conditions for using the 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 Commission is evaluating whether to expand the scope of the simplified regime to additional categories of transactions and to further reduce the administrative burden for the notification of non-problematic transactions, such as by introducing a tick-box type notification form for simplified notifications.
The Commission can impose a fine of up to 1 per cent of aggregate worldwide turnover if incorrect or misleading information is supplied during its review. Periodic penalty payments not exceeding 5 per cent of average daily turnover can also be imposed for each day that the infringement persists. For these purposes, 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 recently been active in penalising procedural infringements, imposing sizable fines in Facebook/Whatsapp (2017) and in General Electric/LM Wind (2019).
The Commission’s Best Practice Guidelines 2004 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 contacts with the Commission.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Most (if not all) proceedings begin with pre-notification contacts with the Commission. These contacts are not strictly mandatory, but are nonetheless highly advisable and, in practice, essential, even for simplified procedure cases. Depending on the complexity of the transaction, this pre-notification stage may involve the submission of a finalised draft Form CO or a briefing memorandum for the Commission’s consideration and possibly attending a meeting with Commission officials. The Best Practice Guidelines also provide that the Commission may undertake informal fact-finding exercises in the pre-notification period, so long as the transaction is in the public domain and the merging parties have had the opportunity to express their views on such measures.
Following the formal notification, the Commission will initiate a Phase I review. In this context, the Commission will contact relevant third parties such as 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 frequently held with the case team. 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 (or triangular) meetings with the merging parties and interested third parties to allow points of concern to be discussed. In complex merger cases, the Commission commonly issues extensive and tailored document requests. Following the Phase I investigation, the Commission may decide to clear the merger unconditionally, to clear the merger subject to conditions and obligations offered by the parties, or to initiate an in-depth investigation if it considers that the transaction raises serious doubts as to whether it may give rise to a significant impediment to effective competition (Phase II).
For the notifying parties, a Phase II inquiry will involve responding to many requests for information and may lead to a statement of objections. If a statement of objections is issued, the parties will be granted access to the Commission’s file and with the agreement of the parties, an oral hearing will take place (often involving complainants). The oral hearing is organised and conducted by one of the two hearing officers. Following the Phase II investigation, the Commission may decide to clear the merger unconditionally, to clear the merger subject to conditions and obligations or to prohibit the merger.
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 competition issues. The review period under the simplified procedure is also 25 working days.
Should the Commission initiate a Phase II investigation, the decision must be taken within 90 working days of the date on which the proceedings were initiated (ie, from the beginning of Phase II). This period may be extended to 105 working days if the parties offer commitments after the 55th day of Phase II proceedings. Further, the investigation period may be extended if the parties request a one-off extension of the investigation period (they must do so within 15 working days of 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 cumulative extension cannot exceed 20 working days.
These time periods may be suspended (thereby stopping the clock) if, for circumstances imputable to one of the undertakings involved, the Commission has to issue a decision to request information or to order an inspection.
Pre-notification discussions with the Commission are a standard part of all merger review processes (including simplified cases) and can be expected to take a minimum of two weeks. This period can be considerably extended even for relatively straightforward cases.
There are no formal means of accelerating the review under the EUMR. However, the Commission has shown some flexibility in certain cases, notably by issuing ‘accelerated’ clearance decisions during the financial crisis even in cases that raised significant competition concerns and required remedies (eg, BNP Paribas/Fortis (2008)).
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26 June 2020