EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
• access to file – if an SO is issued, the Com - mission must provide the parties with access to the evidence on which the SO relies; and • an oral hearing – once an SO is issued, the parties may request an oral hearing (however, partly because complainants are also invited to participate, notifying parties often choose not to have a hearing). Throughout Phase II, the parties also interact regularly 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 con - ditions); or • prohibiting the transaction. 3.9 Pre-Notification Discussions With Authorities While parties are not legally obliged to engage in confidential pre-notification discussions with the Commission, doing so has become standard practice in nearly all cases, although pre-notifi - cation may not take place (or may be very short) in simplified procedure cases. Engaging in pre- notification consultations with the Commission reduces the risk of a notification being declared incomplete after submission (see 3.6 Penalties/ Consequences of Incomplete Notification ). An extended pre-notification may also reduce the risk of a Phase II investigation (see 3.8 Review Process ). The notifying parties begin by requesting the allo - cation 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 briefing paper on the transaction and may have one or more calls and meetings
with the case team. This would typically be fol - lowed by the submission of one or more drafts of Form CO and responses to any comments or requests for information from the case team. As pre-notification is not part of the formal pro - cess, 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 transaction before the clock officially starts. Once the case 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 3.11 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. 3.10 Requests for Information During the Review Process The Commission normally first issues requests for information to parties involved in the trans - action 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 impos - ing periodic penalty payments on the addressee until the information is provided. The Commission may impose fines if incorrect or misleading information is supplied in response to either type of request (see 3.7 Penalties/Con- sequences of Inaccurate or Misleading Infor- mation ).
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