EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
team deems the draft to be complete, it will signal to the parties that they may file the formal notification. As indicated above, in “simplified procedure” cases (see 3.10 Accelerated Procedure ), the pre-notification period may be brief, perhaps a week or two. In more complex cases, the pre-notification process can last many months. 3.9 Requests for Information During the Review Process The Commission normally first issues requests for information to parties involved in the transaction and to third parties by “simple request”. Where necessary, the Commission can also issue information requests “by decision”. In such cases, if the addressee is a party and it fails to provide the information requested within the time limit specified in the request, the review clock is stopped until that information is provided. The Commission may also issue a decision imposing periodic penalty payments on the addressee until the information is provided. The Commission may impose fines if incorrect or mis - leading information is supplied in response to either type of request (see 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification ). 3.10 Accelerated Procedure A “simplified procedure” may apply for transactions that are unlikely to give rise to any competitive con - cerns. The criteria are outlined in the Commission’s Notice on Simplified Procedure and include: • JVs with no, or negligible, actual or foreseen activi - ties in the EEA (ie, the JV generates turnover and has assets in the EEA of under EUR100 million); • transactions in which the parties are not active on the same product and geographic market or in markets upstream/downstream from one another, or if they are, their market shares are too low for these to be considered “affected” markets (see 4.2 Markets Affected by a Transaction ); • acquisitions of sole control of an undertaking by a party already having joint control over that same undertaking;
• on request of the notifying parties and at the Com - mission’s discretion, transactions where the par - ties’ combined market shares do not exceed 25% on any markets where both are active, and the par - ties’ market shares do not exceed 35% on markets that are upstream/downstream from one another (or are less than 50% on one market and less than 10% on all markets that are upstream/downstream from that market); or • on request of the notifying parties and at the Com - mission’s discretion, two or more parties acquire joint control over a JV with annual turnover/assets in the EEA of less than EUR150 million. A further streamlined “super-simplified procedure” – where pre-notification contacts are not required (see 3.8 Pre-Notification Discussions With Authorities ) – may apply for transactions that meet the following criteria: • JVs with no current or expected turnover or assets in the EEA; and • transactions in which the parties are not active on the same product and geographic market or in markets upstream/downstream from one another. Concentrations that qualify for the (super-)simplified procedure may be notified using Short Form CO, which requires less detailed information than the standard Form CO. The Implementing Regulation provides a template to be used in completing Short Form CO. The length of the review period is the same for both a standard case and a (super-)simplified procedure case. In practice, however, transactions notified under the (super-)simplified procedure are sometimes cleared in advance of the 25-working day deadline.
4. Substance of the Review 4.1 Substantive Test
The Commission will assess whether a transaction would “significantly impede effective competition in the internal market, or a substantial part of it, in par - ticular as a result of the creation or strengthening of a dominant position”. This is known as the “significant
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