EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
Notifications may be submitted in any of the EU offi - cial languages, although the overwhelming majority of notifications are in English. Any supporting docu - ments not in an official language must be translated. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification Consequences of Incomplete Notification The Commission has the discretion to reject a noti - fication as incomplete. In this case, Phase I of the Commission’s review will begin only once the parties have submitted a notification that the Commission considers complete. For this reason, it is standard practice for parties to submit a draft of Form CO during pre-notification and to wait until the Commission has indicated that the notification appears complete (see 3.8 Pre-Notifica - tion Discussions With Authorities ) before formally filing. Consequences of Inaccurate Notification Fines and penalties The Commission can impose fines of up to 1% of aggregate annual turnover on a party that intentionally or negligently supplies incorrect or misleading infor - mation, whether in the notification form or in response to a request for information. The Commission can also impose periodic penal - ty payments of up to 5% of a party’s average daily aggregate turnover for non-compliance with certain Commission decisions, including failing to provide complete and correct information in response to a formal request for information. The Commission has become more active in impos - ing fines on merging parties that supply incorrect or misleading information. In 2017, it imposed a EUR110 million fine on Facebook relating to its acquisition of WhatsApp. The Commission also imposed a fine of EUR52 million on General Electric in 2018 and a fine of EUR7.5 million on Sigma-Aldrich in 2021; each of these fines related to failure to fully disclose products or capabilities still in development. The Commission is currently reviewing at least two transactions ( King- span / Trimo and KKR / NetCo ) for possible infringe -
ments concerning supplying incorrect or misleading information. Revoking clearance The Commission has the power to revoke a previ - ously granted clearance decision if it discovers that said decision was based on incorrect information for which one of the parties was responsible, or where the clearance was obtained by deceit. In practice, the Commission has only revoked one clearance decision on this basis ( Sanofi / Synthelabo in 1999, although this merger was ultimately conditionally cleared following a new notification and review process). 3.7 Review Process The Commission’s review process consists of two phases: a standard Phase I review and, if necessary, an in-depth Phase II investigation. Phase I The Phase I review process begins once a complete notification is formally submitted to the Commission. As the length of the statutory period is fixed regardless of the complexity of the case, the Commission tends to front-load the review process in pre-notification (see 3.8 Pre-Notification Discussions With Authori - ties ), to avoid running out of time in Phase I. Phase I lasts 25 working days, running from the work - ing day following notification. This timeline may be extended by an additional ten working days if either: • the Commission receives a referral request from a member state; or • the parties offer remedies to address a competition concern. During Phase I, the Commission will normally solicit views from the market (see 7.2 Contacting Third Par- ties ) and may also receive spontaneous feedback in response to its public announcement of the notifica - tion. At the end of Phase I, the Commission must issue one of the following decisions: • finding that the transaction does not fall within the scope of the EUMR;
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