EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
3.8 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 3.9 Pre-Notification Discussions With Authorities ), to avoid running out of time in Phase I. Phase I lasts 25 working days, running from the working 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 com - petition concern. During Phase I, the Commission will normally solicit views from the market (see 7.2 Contacting Third Parties ) and may also receive spontaneous feedback in response to its public announce - ment of the notification. 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; • clearing the transaction (with or without con - ditions); or • opening a Phase II investigation. The majority of cases are cleared – conditionally or unconditionally – after Phase I. Fewer than
4% of all notified transactions go to Phase II, and 2% are withdrawn before the initiation of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 Com - mission’s decision to open the in-depth investi - gation. This timeline can be extended as follows: • to 105 working days if the parties offer rem - edies (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 infor - mation (see 3.10 Requests for Information During the Review Process ). Engagement with the case team in Phase II fol - lows several major milestones: • a 6 (1)(c) Decision – at the end of Phase I, the Commission issues a detailed decision outlin - ing its reasons to open a Phase II investiga - tion, to which the parties respond in writing; • a Statement of Objections (SO) – if the Com - mission’s initial doubts are not resolved in the course of its review, it will issue an SO outlin - ing its concerns, typically around working day 40 of Phase II, to which the parties respond in writing (the Commission must issue an SO if it intends to prohibit a transaction);
197 CHAMBERS.COM
Powered by FlippingBook