EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Commission merger decisions can be appealed to the General Court for annulment on proce - dural or substantive grounds under Article 263 of the TFEU. The General Court’s rulings may be further appealed to the Court of Justice on points of law. 8.2 Typical Timeline for Appeals An application for annulment may be lodged by the notifying parties or any other sufficient - ly interested third party (see 7.1 Third-Party Rights ). Such actions must be filed within two months and ten days of: • the date of notification of the decision (if filed by an addressee of the decision); or • the date the party is made aware of the deci - sion (if filed by a third party). It normally takes two to three years for the Gen - eral Court to issue a judgment. However, an expedited procedure is available, which can shorten the timeline to less than a year. The court has discretion about whether to use the expe - dited process and will tend to do so where the parties can show urgency and where the case revolves around a small number of clear legal issues. The General Court is willing to engage in a rigor - ous review of Commission decisions, although the Commission enjoys a considerable margin of deference, particularly in matters involving complex economic analyses. Ultimately, only a dozen Commission merger decisions have ever been annulled. As the appeals process is lengthy, costly and rarely successful, few merger decisions are appealed. Nevertheless, the Com -
mission carefully considers the likelihood of an appeal when issuing its decisions. If a Commission decision is annulled, the case reverts to the Commission, which is obliged to reassess the concentration. The annulment of a prohibition decision does not automatically result in the clearance of the transaction, nor does the Commission have the discretion to avoid undertaking a second review. 8.3 Ability of Third Parties to Appeal Clearance Decisions Sufficiently interested third parties may appeal a clearance decision (see 7.1 Third-Party Rights and 8.2 Typical Timeline for Appeals ). 9. Foreign Direct Investment/ Subsidies Review 9.1 Legislation and Filing Requirements Foreign Subsidies On 12 January 2023, Regulation 2022/2560 on Foreign Subsidies (FSR) came into effect. The FSR includes notification requirements in cer - tain concentrations and public procurement processes, and also allows the Commission to investigate potentially distortive foreign subsi - dies ex officio. As of 12 October 2023, the FSR requires manda - tory, ex ante notification to the Commission of any concentration in which: • the target, JV or at least one of the merging parties is established in the EU and generates an aggregate turnover in the EU of at least EUR500 million; and • all undertakings involved (ie, the merging parties, acquirer and target, or the JV and its parents) received combined aggregate finan -
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