EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
• clearing the transaction (with or without condi - tions); or • opening a Phase II investigation. The majority of cases are cleared – conditionally or unconditionally – after Phase I. 3% of all notified trans - actions have gone to Phase II, and 2% have been withdrawn before the initiation of Phase II. Phase II Phase II is an exceedingly burdensome process, requiring the notifying parties to reply to detailed requests for information and to produce large volumes of internal documents and data. Phase II runs for 90 working days from the Commis - sion’s decision to open the in-depth investigation. This timeline can be extended as follows: • to 105 working days if the parties offer remedies (provided these are submitted between working days 55 and 65); • by 20 working days at the request of the parties (made by working day 15) or at the initiative of the Commission with the parties’ agreement; and • for a variable period of time, as a result of the “stop the clock” mechanism following a formal Commission decision to request information (see 3.9 Requests for Information During the Review Process ). Engagement with the case team in Phase II follows several major milestones: • a 6 (1)(c) Decision – at the end of Phase I, the Commission issues a detailed decision outlining its reasons to open a Phase II investigation, to which the parties respond in writing; • a Statement of Objections (SO) – if the Commis - sion’s initial doubts are not resolved in the course of its review, it will issue an SO outlining its con - cerns, typically around working day 40 of Phase II, to which the parties respond in writing (the Com - mission must issue an SO if it intends to prohibit a transaction); • access to file – if an SO is issued, the Commission must provide the parties with access to the evi - dence on which the SO relies; and
• an oral hearing – once an SO is issued, the par - ties may request an oral hearing (however, partly because complainants are also invited to partici - pate, notifying parties often choose not to have a hearing). Throughout Phase II, the parties also interact regu - larly with the case team and usually the Commission’s Chief Economist’s team. At the end of Phase II, the Commission must issue a decision either: • clearing the transaction (with or without condi - tions); or • prohibiting the transaction. 3.8 Pre-Notification Discussions With Authorities While parties are not legally obliged to engage in confi - dential pre-notification discussions with the Commis - sion, doing so has become standard practice in nearly all cases, although pre-notification may be very short in simplified procedure cases and may not take place at all in super-simplified procedure cases. Engaging in pre-notification consultations with the Commis - sion reduces the risk of a notification being declared incomplete after submission (see 3.6 Penalties/Con- sequences of Incomplete or Inaccurate Notification ). An extended pre-notification may also reduce the risk of a Phase II investigation (see 3.7 Review Process ). The notifying parties begin by requesting the alloca - tion of a case team using a standard request form available on the Commission’s website. Once a case team is assigned, the parties will often submit a brief - ing paper on the transaction and may have one or more calls and meetings with the case team. This would typically be followed by the submission of one or more drafts of Form CO and responses to any com - ments or requests for information from the case team. As pre-notification is not part of the formal process, it has no fixed timeline. The case team will often wish to ensure that it has a thorough understanding of the markets and competitive issues involved in a transac - tion before the clock officially starts. Once the case
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