On 5 December 2013, the European Commission adopted a package of reforms to simplify the EU merger control process by reducing red tape. This follows a consultation launched by the Commission on 27 March 2013, proposing changes to the Merger Implementing Regulation, the merger notification forms (Form CO and Short Form), and the Notice on the simplified procedure (see VBB on Competition Law, Volume 2013, No. 4, available at www.vbb.com). Following the consultation, the Commission has now adopted most of these changes.
Changes to the Notice on the simplified procedure are largely as proposed in the consultation. Most notably, market share thresholds below which transactions are eligible for the simplified procedure have been adjusted upwards: from 15% to 20% combined share in markets with horizontal overlaps, and from 25% to 30% individual or combined share in the case of markets with vertical relationships. In addition, as proposed, concentrations are also eligible where the parties' combined market share is below 50% and the resulting increase in market concentration is minimal (as measured by a Herfindahl-Hirschman Index change of less than 150).
The amendments to Form CO have changed the information required of notifying parties in some respects. Consistent with the Commission's proposal, many burdensome questions and details regarding upstream and downstream markets have been eliminated. In addition, the market share thresholds used to identify "affected markets" (i.e., markets that have to be discussed in detail in Form CO) have increased. For example, markets where there is a horizontal overlap now only qualify as an "affected market" if the parties have a combined market share of 20% or more, instead of 15% or more as was the case under the old Form CO. As a result, information will have to be submitted regarding fewer "affected markets" under the new Form CO. However, although the Commission has amended some of its proposed modifications that appeared the most onerous, some changes may still increase the burdens on notifying parties. For instance, the Commission has included in Form CO a requirement that most information (including market share data) be submitted in Form CO with respect to "all plausible alternative market definitions". The old Form CO did not contain such a requirement, although it was already the Commission's practice to request share data for different market permutations.
Changes to the Short Form mainly reflect the changes to the Notice on the simplified procedure. Moreover, as with Form CO, parties must now provide information (including market share data) in the Short Form for all "plausible alternative relevant markets".
In Form RS, the Commission has extensively restructured the contents of the form, but has retained most information requirements. As in Form CO, notifying parties must address all plausible alternative market definitions. Also as in Form CO, turnover thresholds defining affected markets have been adjusted upwards, from 15% to 20% combined share in the case of markets with horizontal overlaps, and from 25% to 30% in the case of markets with vertical relationships.
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