The Commission has sought over the years to focus its resources on cases that could potentially raise competition concerns and reduce (where possible) the administrative burden involved in merger reviews, though without impairing effective enforcement.
To that end, the Commission introduced in 2000 a simplified procedure for categories of merger cases deemed from the outset not to raise competition concerns, and in 2013 adopted a “Simplification Package” comprising of an Implementing Regulation and Notice on Simplified Procedure aimed principally at extending the categories of simplified cases and at reducing the information requirements for merger notifications.
Then, in 2016, the Commission launched an Evaluation of procedural and jurisdictional aspects of EU merger control, which resulted in March 2021 in a Commission Staff Working Document that indicated that the 2013 Simplification Package had been effective in reducing the administrative burden and yielding significant cost savings, though that there was some limited room for improvement.
To address this, the Commission launched in March 2021 an Impact Assessment to explore the different options for revising the existing framework. During this Impact Assessment, the Commission gathered evidence inter alia through an open public consultation from 26 March 2021 to 18 June 2021, and two consultations of stakeholders, from 6 May 2022 to 3 June 2022 and from 5 October 2022 to 19 October 2022 respectively. The results of this Impact Assessment can be found in the Impact Assessment Report and more succinctly in the Executive Summary of the Impact Assessment Report.
The 2023 Merger Simplification Package
Based on all evidence gathered, the Commission adopted on 20 April 2023 a new legislative package, the 2023 Merger Simplification Package, which consists of a revised Implementing Regulation, Notice on Simplified Procedure and Communication on the transmission of documents.
Main changes introduced by the 2023 Merger Simplification Package
The main changes compared to the 2013 Simplification Package (included in more detail in the Explanatory Note are the following:
- The inclusion in the Notice on Simplified Procedure of two new categories of cases that can benefit from simplified treatment, notably for:
- Cases where under all plausible market definitions, the individual or combined upstream market share of the parties to the concentration is below 30% and their combined purchasing share is below 30%; and
- Cases where under all plausible market definitions, the individual or combined upstream and downstream market shares of the parties to the concentration are below 50% and the HHI delta is below 150 and the smaller undertaking in terms of market share is the same in the upstream and down-stream markets.
- The inclusion of four flexibility clauses in the Notice on Simplified Procedure that provide the Commission discretion to treat certain types of cases under the simplified procedure that a priori do not fall under any of the default categories for simplified treatment:
- for horizontal overlaps where the combined market shares of the parties to the concentration is 20-25%;
- for vertical relationships where the individual or combined upstream and downstream market shares of the parties are 30-35%;
- for vertical relationships where the individual or combined market shares of the parties to the concentration do not exceed 50% in one market and 10% in the other vertically related market; and
- for joint ventures with turnover and assets between EUR 100 and 150 million in the EEA.
- The inclusion of categories of cases that can benefit from “super-simplified” treatment, i.e. for which parties are invited to notify directly without engaging in exchanges with the Commission before a notification.
- The inclusion in the Notice on Simplified Procedure of a clearer and more detailed list of circumstances in which the Commission may investigate a case that technically qualifies for simplified treatment under the normal review procedure.
- The introduction of a new notification form (“tick-the-box” Short Form CO) for simplified cases, with primarily multiple choice questions and tables, and streamlined questions on both the jurisdictional and substantive assessment of cases.
- The reduction and clarification of information requirements in the notification form for these cases (Form CO). This now includes clearer information on waiver possibilities, introduces tables for information on affected markets, and eliminates certain information requirements.
- The introduction of electronic notifications by default.
Entry into force
The date of entry into force of the 2023 Merger Simplification Package is 1 September 2023.
As of 1 September, following the entry into force of the 2023 Merger Simplification Package, the submission forms (Form CO, Short Form CO, Form RS and Form RM) changed. In addition, also the practicalities for notifications and submissions changed.
For all information on this, and WORD versions of all submission forms in all EU languages, please consult Practical Information.