On 7 October 2016, the Commission published an online survey to
collect views on certain procedural and jurisdictional aspects of
EU merger control (available here). According to the Commission, the
purpose of the survey is to gather information on particular
aspects of the performance of EU merger control. The
consultation invites citizens, businesses, associations, public
authorities and other stakeholders to provide feedback on their
experience of merger control issues. The Commission will
analyse the outcome of the survey before deciding whether any
legislative or procedural changes are needed.
The survey follows on from assessments conducted by the
Commission in 2009 and 2013, where the Commission previously
analysed the functioning of different aspects of EU merger control
and identified possible areas for refinement, improvement and
simplification. Following those reviews, the Commission
adopted a White Paper in 2014 which broadly confirmed that EU
merger control works well and that no fundamental overhaul of the
system was needed. However, the Commission considers that a
debate has recently emerged as to the effectiveness of the current
turnover-based jurisdictional thresholds of EU merger
control. In particular, there is a concern amongst Commission
staff of whether the turnover-based jurisdictional thresholds
capture all deals which could potentially have an impact in the
internal market. These concerns stem, at least in part, from
an apprehension that the Facebook/Whatsapp transaction in
2014 almost avoided notification to the Commission, and was only
reviewed by it following a referral by three Member States under
Article 4(5) of the EU Merger Regulation (see VBB on
Competition Law,Volume 2014, No. 10, available at
www.vbb.com). These concerns have also been expressed for
transactions in other sectors such as pharmaceuticals and the wider
digital economy, both of which are industries where significant
transactions may escape EU merger control based on the target's
turnover not meeting the thresholds of the EU Merger
Regulation. One possibility to address this would be to add a
"size-of-transaction" test for determining whether a
concentration must be notified to the Commission. At national
level, the German Federal Ministry of Economics proposed a similar
test in a draft law issued in July 2016. The draft law was
recently approved by the German cabinet and is currently before the
German parliament for consideration (although further amendments
are likely and the draft law is not scheduled to come into effect
before early 2017).
The deadline for the submission of responses is 13 January
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.
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