EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The Commission’s clearance decision covers restric - tions that are “directly related and necessary to the implementation of the concentration” (otherwise known as “ancillary restraints”). The Commission’s Notice on Ancillary Restraints provides guidance on the types of restrictions that commonly arise (eg, licensing arrangements, non-compete clauses, and purchase or supply obligations). Any restrictions that do not qualify as ancillary restraints are reviewable under Article 101 of the TFEU. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties play an important role in the Commis - sion’s review process, and the Commission will active - ly solicit their feedback (see 7.2 Contacting Third Par- ties ). Third parties that are able to show “sufficient inter - est” in the proceedings (eg, competitors, customers, suppliers, or recognised workers’ representatives of the undertakings concerned) may be granted specific participation rights, including: • the right to be heard – interested third parties may give oral or written evidence, including in an oral hearing if one is held in Phase II; • access to documents – interested third parties may be given access to a non-confidential copy of the SO (under the Best Practices on Merger Control Proceedings, such access is only granted at the Commission’s discretion in “appropriate cases”); and • the right to appeal – interested third parties can appeal Commission clearance decisions to the General Court. In order to have standing, third parties must normally have actively participated in the Commission’s inves - tigation.
7.2 Contacting Third Parties The Commission actively seeks input from third par - ties, which can decisively affect the outcome of its review. Investigation Form CO requires parties to supply contact details for their top customers, competitors and any relevant trade unions/worker associations. The Commission will begin its market investigation early in Phase I (or even during pre-notification with the agreement of the notifying parties) by sending detailed electronic questionnaires to these third parties (especially cus - tomers and competitors). Answering these question - naires can be extremely burdensome, especially for smaller companies or those with little or no interest in the transaction. The Commission will also publish the announcement of the notification on its website, inviting any interested parties to provide their views on the concentration. The Commission will continue to solicit views from third parties throughout its investigation, including through the use of additional questionnaires. Third parties may engage with the Commission in writing, through meetings, or at the oral hearing (see 7.1 Third- Party Rights ). In practice, it will be very difficult for a transaction to be approved if it faces strong opposition from the market (particularly from customers). Likewise, the Commission is less likely to challenge a transaction if third parties have not voiced significant opposition. Remedies The Commission will market-test proposed remedies in order to ensure that they will resolve the compe - tition concerns at issue and can be implemented effectively. The Commission will send third parties a questionnaire and a non-confidential version of the proposed commitments. If the market response is strongly negative, the Commission may not accept the remedies offered (see 5.4 Negotiating Remedies With Authorities ). 7.3 Confidentiality Form CO requires the parties to supply a non-confi - dential summary of the transaction, which the Com -
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