The European Commission has adopted a package to simplify its administrative procedures for merger control. The merger simplification package expands the scope of the Commission's review process of unproblematic mergers and also simplifies the notification process itself. Below, you can read more about the simplification package and its practical implications.

On 20 April 2023, the Commission adopted a number of measures to simplify the administrative procedures for merger control. The measures are aimed at reducing the amount of information required, optimising the transmission of documents, and lowering merger control costs in general.

The package seeks to speed up the EU merger control procedure and release resources, thus allowing the Commission to focus on the transactions that may actually give rise to competition concerns. The merger simplification package has been adopted as part of the Commission's objective to reduce reporting requirements by 25% by reducing the amount of information required for notifying transactions.

Most important changes

The merger package contributes to streamlining both the simplified and the normal merger control procedure and includes i.a. the following changes:

More cases can be reviewed under the simplified procedure

First, two new categories of transactions now qualify for treatment under the simplified procedure. These are transactions where:

  • The parties' individual or combined upstream market share is below 30%, and their combined purchasing share is below 30%.
  • The parties' individual or combined upstream and downstream market share is below 50%, the market concentration index ("HHI delta") is below 150, and the company with the lowest market share is the same in the upstream and downstream markets.

Second, the package introduces so-called "flexibility clauses", which grant the Commission discretion to review certain transactions under the simplified procedure, even if they do not fall under any of the default categories for such treatment. This includes the following transactions:

  • Horizontal transactions where the merging parties' combined market shares are 20-25%.
  • Vertical transactions where (i) the merging parties' individual or combined market shares in the upstream and downstream markets are 30-35 %, or where (ii) the merging parties' individual or combined market shares do not exceed 50 % in one market and 10% in the other vertically related market.
  • Joint ventures with turnover and assets of EUR 100-150 million in the EEA.

At the pre-notification stage, the parties will - as under the current rules - have to explain why the transaction qualifies for review under the simplified procedure according to the general rules or the flexibility clauses. Thus, the parties must demonstrate that the transaction qualifies for simplified treatment under all plausible market definitions.

Third, the package includes a clearer and more detailed list of circumstances in which the Commission may apply the normal review procedure, even if the case technically qualifies for simplified treatment. This limits the scope of the Commission's discretion.

A more streamlined review of simplified cases

With the merger package, the Commission also introduces a so-called "super-simplified" procedure for certain types of transactions. This procedure may be applied in two categories of transactions, where the parties are invited to notify directly without prior pre-notification discussions with the Commission. The two categories are:

  • transactions without horizontal overlaps or vertical relationships between the merging parties' activities
  • joint ventures with no current or expected turnover or assets in the EEA.

Further, a new notification form is introduced, consisting primarily of multiple-choice questions and tables. The form seeks to streamline questions that are relevant to both the legal and factual assessment of the case.

A more streamlined review of non-simplified cases

The Commission has also reduced and clarified the information requirements in the notification form for non-simplified cases. The form now includes clearer information on waiver possibilities, introduces tables for information on affected markets, and eliminates certain information requirements.

The merger simplification package will enter into force shortly

The new merger simplification package will enter into force on 1 September 2023. The changes are expected to make merger control procedures less burdensome and thus facilitate unproblematic mergers. This requires, however, that the Commission's cases officers exercise their new powers in accordance with the intention of the package.

The Danish Competition and Consumer Authority is, as far as we know, not planning to introduce a similar process to allow more transactions to be reviewed under the simplified procedure in Denmark or to reduce the information requirements in general.

Our competition group monitors the situation closely and is ready to answer any questions you may have in relation to the new rules and their consequences for your business.

Read the Commission's press release on the new merger simplification package.

Originally published 09 May, 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.