EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
essary to the implementation of the concentra - tion” (otherwise known as ”ancillary restraints”). The Commission’s Notice on Ancillary Restraints provides guidance on the types of restrictions that commonly arise (eg, licensing arrange - ments, 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 Com - mission’s review process, and the Commission will actively solicit their feedback (see 7.2 Con- tacting Third Parties ). Third parties that are able to show “sufficient interest” 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 par - ties may be given access to a non-confiden - tial copy of the SO (under the Best Practices on Merger Control Proceedings, such access is only granted at the Commission’s discre - tion 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 nor - mally have actively participated in the Commis - sion’s investigation. 7.2 Contacting Third Parties The Commission actively seeks input from third parties, which can decisively affect the outcome 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 investiga - tion early in Phase I (or even during pre-notifica - tion with the agreement of the notifying parties) by sending detailed electronic questionnaires to these third parties (especially customers and competitors). Answering these questionnaires can be extremely burdensome, especially for smaller companies or those with little or no inter - est in the transaction. The Commission will also publish the announcement of the notification on its website, inviting any interested parties to pro - vide their views on the concentration. of its review. Investigation The Commission will continue to solicit views from third parties throughout its investigation, including through the use of additional question - naires. Third parties may engage with the Com - mission in writing, through meetings, or at the oral hearing (see 7.1 Third-Party Rights ). In practice, it will be very difficult for a transac - tion to be approved if it faces strong opposi - tion from the market (particularly from custom - ers). Likewise, the Commission is less likely to challenge a transaction if third parties have not voiced significant opposition.
206 CHAMBERS.COM
Powered by FlippingBook