EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
3. Procedure: Notification to Clearance 3.1 Deadlines for Notification
3.5 Information Included in a Filing Information Required The notification must be made by completing the official notification form, “Form CO”, which is annexed to the Implementing Regulation. It is generally recognised that the amount of time and detail required to complete Form CO is unparalleled by any other merger control regime worldwide. Completed Form COs are frequently longer than 100 pages and can easily eclipse 1,000 pages – excluding annexes – in complex cases involving numerous markets. The pro - cess is front-loaded, requiring parties to submit detailed information regarding, for example: • the transaction and its rationale (including extensive internal documentation of the deal); • the corporate structure, turnover and activi - ties of the parties; • the definitions of the relevant markets; • competitive overlaps and vertical relation - ships, including details of any affected mar - kets (see 4.2 Markets Affected by a Transac - tion ); • contact details for market participants; • any merger-specific efficiencies; and • any co-operative effects resulting from a JV (where applicable). Even in Phase I cases (see 3.8 Review Process ), the Commission often requires parties to turn over huge volumes of internal documents con - cerning either the transaction or the markets at issue, from board presentations and minutes to emails of key individuals. Certain transactions may be notified under a simplified procedure using “Short Form CO” (see 3.11 Accelerated Procedure ), which is less burdensome to complete than the stand - ard Form CO, although still hefty compared to
There is no deadline by which to notify a trans - action to the Commission. However, notification must be made (and clearance granted) before a transaction with an EU dimension can be imple - mented (see 2.12 Requirement for Clearance Before Implementation ). 3.2 Type of Agreement Required Prior to Notification A notification may be made following the con - clusion of a binding agreement. However, the EUMR also allows parties to notify a transaction if they can demonstrate a good faith intention to conclude a binding agreement – eg, through a letter of intent or memorandum of understand- ing. Public bids may be notified once the parties have publicly announced an intention to make a bid. 3.3 Filing Fees There are no filing fees to notify a concentration to the Commission. 3.4 Parties Responsible for Filing In the case of an acquisition, the acquirer is solely responsible for notifying the transaction. Neither the seller nor the target is required to make a notification, although in practice both may co-operate with the acquirer to ensure that the acquirer can make a complete filing. Where the transaction involves the acquisition of joint control, all parties acquiring control are responsible for making the notification. In the case of a merger, both merging parties are responsible for filing the notification.
195 CHAMBERS.COM
Powered by FlippingBook