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 2017.
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