On 5 December 2013, the EU Commission (the Commission) published revised versions of the filing forms that companies are required to fill out when asking the Commission to authorize a merger or acquisition under the EU Merger Regulation. Specifically, the Commission has revised (i) the standard “Form CO” filing form, (ii) the “Short Form CO” used in unproblematic cases under the simplified review procedure and (iii) the “Form RS” referral request form that merging companies can use to ask for permission to file a transaction below the EU filing thresholds to the Commission or, vice versa, to file a transaction caught by the EU Merger Regulation to specific Member States.
In parallel, changes to the Simplified Procedure Notice (the Notice) make the Commission’s simplified review procedure available to a greater number of transactions. Smaller changes affect the pre-notification phase and the Implementing Regulation. Finally, the 2003 Best Practice Guidelines and model texts for divestiture commitments and trustee mandates have been updated (but not the “Form RM” used for the submission of remedies). The changes do not affect the EU Merger Regulation itself, the types of transactions covered by it, the substantive test applied or the general conduct and timelines of the Commission’s review process.
The Simplification Package makes EU merger review more user friendly in several respects, notably by expanding the availability of the simplified procedure. But some expanded information requirements will increase the burden on companies. In this respect, the Commission has responded to only some of the criticism voiced by stakeholders on a consultation draft of the Simplification Package that the Commission published in March 2013. Importantly, the final texts have retained the essence of the draft’s proposal to require in all filing forms the submission of information on the basis of “plausible alternative” market definitions; and both the Form CO and the Short Form CO require the submission of significantly more internal company and third party documents even though the draft’s proposal to ask for all internal documents of the notifying parties that discuss potential other transactions has been dropped.
The Simplification Package takes effect on 1 January 2014. Its key elements and their practical implications are set out below.
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