EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
3.11 Accelerated Procedure A “simplified procedure” may apply for transac - tions that are unlikely to give rise to any com - petitive concerns. The criteria are outlined in the Commission’s Notice on Simplified Procedure and include: • JVs with no, or negligible, actual or foreseen activities in the EEA (ie, the JV generates turnover or 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 Commission’s discretion, transactions where the parties’ combined market shares do not exceed 25% on any markets where both are active, and the parties’ 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 Commission’s discretion, two or more parties acquire joint control over a JV with annual turnover/assets in the EEA of less than EUR150 million. Concentrations that qualify for the simplified procedure may be notified using Short Form CO, which requires less detailed information than the standard Form CO. The Implementing Regula -
tion provides a template to be used in complet - ing Short Form CO. The length of the review period is the same for both a standard case and a simplified procedure case. In practice, however, transactions notified under the simplified procedure are sometimes cleared in advance of the 25-working day dead - line.
4. Substance of the Review 4.1 Substantive Test
The Commission will assess whether a transac - tion would “significantly impede effective com - petition in the internal market, or a substantial part of it, in particular as a result of the creation or strengthening of a dominant position”. This is known as the ”significant impediment to effec - tive competition” or “SIEC” test. The Commis - sion must: • clear any transaction that does not give rise to an SIEC; • open a Phase II investigation if it has “serious doubts” that the concentration is compatible with the internal market at the end of Phase I; or • prohibit any transaction that gives rise to an SIEC (after a Phase II investigation). The Commission provides guidance on how this test is applied in its Horizontal and Non-Hori - zontal Merger Guidelines (see 4.4 Competition Concerns ). 4.2 Markets Affected by a Transaction Markets can be:
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