On 27 March 2013, the European Commission published for consultation a new proposal to simplify and limit the burden associated with merger control filings to the European Commission. The principal change is to extend the scope of the simplified procedure for non-problematic cases, which means that more transactions can be notified using the abbreviated notification form, the Short Form CO. The European Commission considers that its proposed changes could allow up to 70% of all notified mergers to qualify for review under the simplified procedure, which is about 10% more than today.
The European Commission is also proposing various streamlining amendments to all its notification forms.
The proposed changes are welcome news for business and should reduce the workload and costs involved in seeking clearance for transactions which require notification to the European Commission but do not raise competition law issues.
What is the simplified procedure?
A simplified procedure was introduced by the European Commission in 2000 for the assessment of transactions which do not raise significant competition concerns. Under this procedure transactions can be notified using a Short Form CO which involves the provision of less extensive information than the standard notification form, the Form CO. The simplified merger procedure may also lead to a quicker review process. The European Commission states that it "will endeavour" to adopt a short-form decision as soon as practicable after 15 working days (it generally has a total of 25 working days to decide whether to grant approval or open a Phase II in-depth investigation).
At present, under the European Commission's Notice on a simplified procedure for the treatment of certain concentrations under Council Regulation (EC) No 139/2004 (the "Notice"), transactions can be dealt with under the simplified procedure in the following circumstances:
- The parties' combined markets shares are small (below 15% for horizontal overlaps and below 25% for vertical relationships)
- A joint venture, which has no, or de minimis, actual or foreseen activities within the European Economic Area (EEA). A turnover and asset transfer test of less than EUR100 million is used to determine this.
Proposed expansion of scope for simplified procedure
The European Commission is proposing to increase the currently applicable market share thresholds by 5%. The proposed new Notice states that the simplified merger procedure will apply to transactions with horizontal overlaps where the combined market shares are less than 20%, and to vertical relations where the individual or combined market shares are less than 30%.
In addition, the European Commission is proposing to add a new category of transaction that can benefit from the simplified procedure. This will be for horizontal mergers which only lead to small increments in market shares. This will apply where under all the plausible market definitions the combined horizontal market shares are less than 50% and the increment ("delta") of the Herfindahl-Hirschman Index ("HHI") resulting from the transaction is below 150. The European Commission, however, notes in the new proposed Short Form CO that it will "decide on a case-by-case basis whether, under the particular circumstances of the case at hand, the increase in market concentration level indicated by the HHI delta is such that a Short Form CO can be accepted. The Commission is less likely to accept a Short Form CO if any of the special circumstances mentioned in the Commission's guidelines on the assessment of horizontal mergers are present; for instance – but not limited to – where the market is already concentrated, in the case of a concentration that eliminates an important competitive force, in the case of a concentration between two important innovators, or in the case of a concentration involving a firm that has promising pipeline products".
With respect to joint ventures, the proposed new Notice also notes that in some situations it may carry out a full assessment under the normal first phase merger procedure of joint ventures with turnover of less than EUR100 million. It states that this "includes but is not limited to situations where the proposed joint venture is active outside the EEA, but its products and/or services constitute important inputs for products and/or services that are sold in the EEA, and/or where the proposed joint venture is likely to achieve significant sales, including in the EEA, in the foreseeable future."
Amendments to merger notification forms
The European Commission has proposed a number of "streamlining" amendments to all the notification forms, namely the Form CO, the short Form CO, and Form RS (the form in which parties can request a referral back to one or more EU member states or for the European Commission to consider the case rather than individual EU member states).
Amendments to the Form CO include:
The definition of "affected markets" has been revised in accordance with the proposed new Notice. Parties now only have to submit detailed information for "affected markets" where there are horizontal overlaps of more than 20% (previously 15%) and vertical overlaps of more than 30% (previously 25%). The form no longer requires detailed information about each affected market to be provided for the EEA territory, for the EU, for EFTA and for each Member State. The information must, however, be provided for other markets where the notification may have a significant impact.
Further guidance regarding the possibility to request waivers from providing certain information. The proposed Form highlights the specific categories of information in the form that the parties may want to seek a waiver from providing. These include (i) acquisitions made during the last three years by group undertakings active in affected markets; (ii) analyses, reports, studies, surveys and any comparable documents for the purpose of assessing or analysing the transaction; (iii) analyses, reports, studies, surveys and any comparable documents of the last three years for the purposes of assessing any of the affected markets; (iv) identification of all affected markets, including all plausible market definitions; (v) estimate of the total size of the market in terms of sales value and volume; (vi) estimate of the total EU-wide and EEA-wide capacity for the last three years; (vii) details of the most important cooperative agreements engaged in by the parties to the transaction in the affected markets; and (viii) details of trade associations in the affected markets.
A request for a description of quantitative economic data. The proposed form asks the parties to briefly describe the data that each of the parties "collects and stores in the ordinary course of it business operations" in cases where quantitative economic analysis for the affected markets is likely to be useful. It notes that this information is not required for the Form CO to be considered complete, but that "given the statutory deadlines for Union merger control, notifying parties are encouraged to provide such descriptions as early as possible in cases and for the markets in which quantitative analysis is likely to be useful".
Encouragement to submit together with the Form CO a list of those jurisdictions outside the EEA where the transaction is subject to merger control clearance before closing, as well waivers of confidentiality that would enable the European Commission to share information with other competition authorities outside the EEA about the transaction.
Additional supporting documentation. The proposed Form adds some additional requirements for supporting documentation. The current Form asks for "copies of all analyses, reports, studies, surveys, and any comparable documents prepared by or for any member(s) of the board of directors, or the supervisory board, or the other person(s) exercising similar functions (or to whom such functions have been designated or entrusted), or the shareholders' meeting, for the purpose of assessing or analysing the concentration with respect to market shares, competitive conditions, competitors (actual and potential), the rationale of the concentration, potential for sales growth or expansion into other product or geographic markets, and/or general market conditions". The proposed Form in addition now asks for copies of "minutes of the board of management, board of directors, supervisory board and shareholders' meeting at which the transaction has been discussed", "presentations analysing different options for acquisitions including but not limited to the notified transaction", and any analyses or reports of the last three years for the purposes of assessing any of the affected markets.
Alternative market definitions. The proposed Form states that, when presenting relevant product and geographic markets, the parties must submit, in addition to any product and geographic market definitions they consider relevant, all plausible alternative product and geographic market definitions (in particular but not limited to alternative product and geographic market definitions that were considered in previous Commission decisions).
Other markets in which the notified operation may have a significant impact. The Form continues to require information regarding these markets, but has amended the market share thresholds for when this information may be required as follows: from 25% to 20% for markets in which the parties are potential competitors; from 25% to 30% for markets where the other party holds important IP rights; and from 25 % to 30% for neighbouring markets.
The European Commission's initiative to simplify and decrease the notification burden under the EU Merger Regulation is to be welcomed. It is yet to be seen whether in practice the initiative will radically reduce overall information requirements and expenses. Information required for the Short Form CO is still onerous and extensive pre-notification discussions may be required to establish whether is a merger is suitable for simplified treatment. Furthermore, at all times the European Commission has the power to require a full Form CO, rather than a Short Form CO where it considers that this is necessary for an adequate investigation of possible competition concerns.
The European Commission has invited comments on its proposals by 19 June 2013.