SECTION 1: OVERVIEW
1.1 Please provide a brief overview of your jurisdiction's
merger control legislative and regulatory framework.
The EU merger control regime is governed by Regulation (EC)
139/2004 of January 20, 2004 on the control of concentrations
between undertakings (the EU Merger Regulation). The EU Merger
Regulation applies to the European Economic Area (EEA), ie the
28 EU Member States and Norway, Iceland and Liechtenstein.
The European Commission has issued a number of notices and
guidelines that assist in the interpretation of procedural and
substantive aspects of the EU Merger Regulation. These notices
and guidelines include, for example: the Consolidated
Jurisdictional Notice; the Notice on the Simplified Procedure;
the Notice on Case Referrals; the Notice on Acceptable
Remedies; the Notice on Market Definition; and the substantive
Guidelines on Horizontal and Non-horizontal Mergers. The
Commission also published a series of Best Practices documents,
including Best Practices on merger proceedings, Best Practice
Guidelines on divestiture commitments, and Best Practices on
the submission of economic evidence. All documents are
available on the website of the Commission at
The EU Merger Regulation is enforced by the Directorate
General for Competition of the European Commission (DG
Competition) in Brussels.
1.2 What have been the key recent trends and developments
in merger control?
The Commission has continued its active merger enforcement
policy in 2017. It has been pursuing more aggressive theories
of harm including in relation to non-horizontal, vertical or
conglomerate mergers (e.g., Qualcomm/NXP
Semiconductors, Luxottica/Essilor, and
Bayer/Monsanto) and innovation, where in its decision
on the Dow/DuPont merger it pursued a theory of harm
involving research and development efforts. The Commission has
also shown an increased focus on the effectiveness of merger
remedies, and has continued to aggressively enforce procedural
violations, including gun-jumping and the provision of
misleading information in the context of merger proceedings.
1.3 Briefly, what is your outlook for merger control over
the next 12 months, including any foreseeable legislative
The EU Commission has launched a public consultation that
sought feedback on the effectiveness of purely turnover-based
thresholds in the EU Merger Regulation, the treatment of cases
that typically do not raise competition concerns, and the
referral mechanisms involving member states and is presently
considering stakeholder responses on these issues but has not
yet taken a position.
SECTION 2: JURISDICTION
2.1 What types of transactions are caught by the rules?
What constitutes a merger and how is the concept of control
The EU Merger Regulation applies to a 'concentration,' which
is deemed to arise where a change of control on a lasting basis
results from: (i) the merger of two or more previously
independent undertakings: (ii) the acquisition of direct or
indirect control of the whole or parts of one or more other
undertakings; or (iii) the creation of a joint venture (JV)
performing on a lasting basis all the functions of an
autonomous economic entity (full function JV).
The concept of control is broadly defined and can be based
on rights, contracts or any other means which, either
separately or in combination, de facto or by law,
confer the possibility of exercising decisive influence on an
undertaking's strategic commercial decisions. To that end, the
acquisition of a minority shareholding in another undertaking
may give rise to the acquisition of control if the rights
attached to the minority shareholding confers the ability to
block strategic commercial decisions of the undertaking. These
decisions typically include the adoption of the annual budget
or business plan, the appointment or removal of senior
management and decisions relating to non-extraordinary
'Sole control' refers to a situation in which one
undertaking alone exercises decisive influence over another
undertaking; 'joint control' means a situation in which two or
more undertakings exercise such influence jointly.
A concentration also arises where there is a lasting change
in the quality or nature of control of an undertaking, for
example, a change from joint control to sole control in an
2.2 What are the jurisdictional thresholds for
notification? Can the authorities investigate a merger falling
below these thresholds?
The EU Merger Regulation applies to all concentrations with
a community dimension. There are two alternative notification
thresholds under the EU Merger Regulation.
A concentration has a community dimension where: (i) the
combined aggregate worldwide turnover of all the undertakings
concerned is more than €5 billion (around $6.2 billion);
and (ii) the aggregate EU-wide turnover of each of at least two
of the undertakings concerned is more than €250 million,
unless each of the undertakings concerned achieves more than
two-thirds of its aggregate EU-wide turnover within one and the
same member state.
A concentration that does not meet the above thresholds has
a community dimension where: (i) the combined aggregate
worldwide turnover of all the undertakings concerned is more
than €2.5 billion; (ii) in each of at least three EU
member states, the combined aggregate turnover of all the
undertakings concerned is more than €100 million; (iii) in
each of at least three EU member states included for the
purpose of point (ii), the aggregate turnover of each of at
least two of the undertakings concerned is more than €25
million; and (iv) the aggregate EU-wide turnover of each of at
least two of the undertakings concerned is more than €100
million, unless each of the undertakings concerned achieves
more than two-thirds of its aggregate community-wide turnover
within one and the same member state.
The EU Merger Regulation provides for a one-stop-shop
system, which means that concentrations with a community
dimension must be notified to the Commission which has
exclusive jurisdiction pre-empting jurisdiction of the EU
member states and, based on the European Economic Area (EEA)
Agreement, also the three additional EEA member states Norway,
Iceland and Liechtenstein. Conversely, if a transaction does
not qualify as a concentration with an EU dimension, the EEA
Member States are competent to investigate the transaction
subject to their respective national laws.
The allocation of jurisdiction in the EU according to the
above principles is complemented by the possibility of pre- or
post-notification case referrals from the Commission to the
member states or vice versa. Details on case referrals are
provided for in the Notice on Case Referrals.
2.3 Are foreign-to-foreign transactions caught by the
rules? Is a local effect required to give the authority
jurisdiction to review it?
The EU Merger Regulation applies to all concentrations that
have a community dimension.
SECTION 3: Notification
3.1 When the jurisdictional thresholds are met, is a filing
mandatory or voluntary? What are the risks/sanctions for
failing to notify a transaction and closing prior to
A pre-closing notification to the Commission is mandatory if
the transaction qualifies as a concentration with a Community
The concentration cannot be implemented before its
notification or until it has been declared compatible with the
common market under the EU Merger Regulation, except for the
following situations: in a public bid or a series of
transaction in securities listed on a stock exchange 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 its investments based on a derogation granted by
the Commission; or where the Commission has granted a
derogation on the basis of a reasoned request from the parties.
Such derogations, however, are very rare in practice.
Violations of the standstill obligation are aggressively
enforced by the Commission and are subject to a statutory
maximum fine of up to 10% of the aggregate turnover of the
undertaking concerned. On October 26 2017, the General Court
upheld a €20 million fine imposed by the Commission for
implementing a transaction before obtaining clearance
(Marine Harvest v Commission).
3.2 Who is responsible for filing? Do filing fees
Responsible for making the filing are for mergers, the
merging parties; for acquisitions of sole or joint control, the
respective acquirer(s) of control; and for the creation of a
full-function JV, the undertakings that will have joint control
over the JV.
There are no filing fees under the EU Merger Regulation.
3.3 Is there a deadline for filing? What are the filing
requirements and how onerous are they?
There is no filing deadline under the EU Merger Regulation.
Concentrations with a Community dimension can be notified to
the Commission following the conclusion of the transaction
agreement, the announcement of the public bid, or the
acquisition of a controlling interest. The notification can
also be made earlier where the undertakings concerned
demonstrate to 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,
provided that the intended agreement or bid would result in a
concentration with a community dimension.
The notification is made to DG Competition using a standard
form notification: a Form CO. In the Form CO, the parties are
required to provide detailed information on the competitive
effects of the transaction, including descriptions of the
undertakings concerned, their respective activities, the
definition of relevant product and geographic markets, a
competitive analysis of the effect of the transaction with
respect to affected markets, including market shares, and
information on competitors and customers, efficiencies arising
from the transaction, and copies of internal strategic
documents. In complex cases, the completion of a Form CO may
require the provision of a significant amount of information
and documents, including of economic evidence.
Transactions that qualify for the simplified procedure
according to the criteria set out in the Notice on the
Simplified Procedure can be notified using a Short Form CO,
which requires less detailed information.
3.4 Are pre-notification contacts available, encouraged or
required? How long does this process take and what steps does
Pre-notification discussions with the Commission are a
standard procedure under the EU Merger Regulation, including
for cases that qualify for assessment under the simplified
procedure. Parties should anticipate a pre-notification process
of at least two weeks in straightforward cases. In complex
cases, pre-notification can be considerably longer and extend
to several months. There are no strictly defined steps for
pre-notification but the parties typically start
pre-notification by submitting a draft of the Form CO to the
case team once the case team has been set up on the basis of a
case team allocation request to be submitted by the
SECTION 4: Review process and timetables
4.1 What is the standard statutory timetable for clearance
and is there a fast-track procedure? Can the authority extend
or delay this process? What are the different steps and phases
of the review process?
The review period in phase I is 25 working days from the
receipt of a complete notification. This period is extended to
35 working days if commitments are offered by the parties, or a
member state makes a referral request.
Where the Commission finds that the concentration raises
serious doubts as to its compatibility with the common market,
it shall decide to initiate phase II proceedings. If the
Commission opens a phase II investigation, the review period is
extended by an additional 90 working days from the day that
follows the decision to initiate phase II proceedings. The
phase II review is extended to 105 working days if the parties
offer commitments unless these commitments are offered less
than 55 working days after the initiation of proceedings. The
phase II review period can be extended further if the parties
request a one-off extension, which has to be made no later than
15 working days after the opening of phase II, or if the
Commission decides to extend the phase II proceedings in
agreement with the notifying parties. The cumulative extension
cannot exceed 20 working days, i.e. the maximum phase II review
period is 125 working days. However, the review period may be
suspended if, for circumstances for which one of the
undertakings involved in the concentration is responsible, the
Commission has to issue a formal decision requesting
information or ordering an inspection (stop-the-clock).
There is no formal fast-track procedure available.
4.2 What is the substantive test for clearance? What are
the theories of harm the authorities will investigate? To what
extent does the authority consider efficiencies arguments?
Under the EU Merger Regulation, a concentration which would
significantly impede effective competition, in the EEA or in a
substantial part of it, in particular as a result of the
creation or strengthening of a dominant position, shall be
declared incompatible with the common market. In its
assessment, the Commission must take into account substantiated
claims of efficiencies brought about by the transaction. With
respect to full-function JVs, the Commission will in addition
assess whether the creation of the JV has as its object or
effect the coordination of the competitive behaviour of the
parent companies of the JVs.
In its assessment, the Commission will assess whether the
concentration results in non-coordinated (or unilateral) or
coordinated anti-competitive effects in accordance with the
Commission's detailed Guidelines on Horizontal and
4.3 Are remedies available to address competition concerns?
What are the conditions and timing issues applicable to
Remedies are available to address competition concerns in
phase I and phase II. The basic condition for a remedy is that
the commitments must be capable of rendering the concentration
compatible with the common market so that they will prevent a
significant impediment of effective competition. Remedies can
take the form of structural commitments, including
divestitures, and/or behavioural commitments. The Commission
has a preference for structural commitments but behavioural
commitments may be suitable and have been accepted by the
Commission in certain circumstances, for example, to
remedy vertical or conglomerate concerns. According to the
Commission, for remedies to be accepted in phase I, they need
to be clear-cut so that it is not necessary to enter into an
in-depth investigation and that the commitments are sufficient
to clearly rule out serious doubts as to the concentration's
compatibility with the common market.
If the Commission clear the transaction subject to
commitments, in phase I or phase II, the parties commit that,
within a specified time-period following the Commission's
decision, they will implement the commitment, for example, sell
the divestment business to a purchaser. This standard remedy
procedure allows the parties to implement the transaction
immediately upon receipt of the clearance decision. However, in
the event that the Commission requires an up-front buyer, the
parties cannot implement the concentration unless and until the
parties have entered into a binding agreement with a suitable
purchaser, both of which must be approved by the Commission
before closing of the transaction can occur.
The Commission's decision to clear a transaction subject to
commitments typically involves the appointment of a Monitoring
Trustee by the parties to monitor compliance with the
commitments and, in case of divestiture commitments, a
divestiture trustee to divest the divestment package, at no
minimum price, if the parties are unable to find a suitable
purchaser within the specified time period.
SECTION 5: Judicial review
5.1 Please describe the parties' ability to appeal merger
control decisions and the time-limits applicable. What is the
typical time-frame for appeals.
The Commission's decision under the EU Merger Regulation can
be appealed to the EU's General Court within two months of the
notification of the decision. Appeals can be brought by the
parties as well as third parties to the extent they are
directly and individually concerned by the Commission's
decision. The filing of an appeal does not suspend the effects
of the Commission's decision but the parties may apply to the
General Court for the decision to be suspended and other
The judgments of the General Court may, within two months,
be subject to an appeal before the Court of Justice, limited to
points of law.
The average time for appeal proceedings before the General
Court is two to three years but can be longer in individual
cases. If the General Court assesses the appeal under the
expedited procedure, the duration of the appeal proceedings can
be less than one year (in one case, the General Court rendered
its judgment after seven months) but generally the time-frame
is between one and two years. Appeal proceedings before the
Court of Justice generally take more than two years.
Partner, Skadden Arps Slate Meagher &
T: +32 2 639 0314
Giorgio Motta is a partner in Skadden's Brussels
office. Motta has a wide-ranging experience in European
Union (EU), Italian and international antitrust merger
control and cartel enforcement. Motta advises clients
on antitrust aspects of mergers, acquisitions and
joint-ventures. He has worked on numerous transactions
requiring international antitrust merger control
approvals both in Europe and on a worldwide basis for
companies in the energy, telecommunications, financial
services, pharmaceutical, consumer goods, and many
Motta also advises clients in cartels, as well as EU
and Italian competition law issues relating to vertical
restraints and dominance, and on a broad range of other
EU law issues, including in the area of EU State aid.
Motta is also a Non-Governmental Advisor (NGA) of the
Italian Competition Authority for the activities of the
International Competition Network (ICN).
European counsel, Skadden Arps Slate
Meagher & Flom
Frankfurt, Germany / Brussels, Belgium
T: +49 69 74220 167 / +32 2 639 0300
Thorsten Goetz is a European counsel dividing his
time between Skadden's Frankfurt and Brussels offices.
He has wide-ranging experience in European Union and
international merger control cases, as well as cartel
enforcement and abuse of dominance matters. Goetz
advises clients on antitrust aspects of complex
cross-border M&A and joint-ventures in a broad
range of industries, including agriculture, chemicals,
pharmaceutical/life sciences, financial services,
energy, travel and telecommunications, among others.
Goetz has worked on numerous transactions requiring
international antitrust merger control approvals both
in Europe and on a worldwide basis. He also advises
clients in cartel cases, as well as competition law
issues relating to vertical agreements and dominance.
He has represented clients in Article 101
investigations in relation to cartels, strategic
alliances, distribution arrangements and other vertical
agreements, as well as in Article 102 investigations,
both before the European Commission, the European
Courts and national competition authorities.