Competition: Merger control
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings entrusts the Commission with the control of major corporate reorganisations that may bring significant structural changes on the market, the impact of which would go beyond the national borders of any one Member State. The objective of the EUMR is to ensure that such operations do not result in lasting damage to competition by significantly impeding effective competition in the internal market or in a substantial part of it.
The scope of application of EU merger control is determined by turnover thresholds. If the merging companies’ turnover at worldwide, EU and Member State level exceeds certain thresholds, they have to notify their concentrations to the Commission and must not implement them before receiving approval. Concentrations not captured by EU merger control may still come within the jurisdiction of one or several EU Member States. To ensure that the most appropriate authority carries out the assessment, and as long as certain conditions are met, the review can be referred from the Commission to the Member States or vice versa under the EU Merger Regulation’s referral system.
The obligation to notify the concentration and delay its implementation until approval applies regardless of whether the concentration is likely to raise competition concerns. To alleviate the burden on businesses and the Commission itself, the Commission has put in place specific rules for a simplified procedure that applies to categories of concentrations generally considered unproblematic and allows for a simpler and faster review.
The current merger legislation.
According to Better Regulation Principles, the procedure is divided in two steps: (i) an evaluation phase and (ii) an impact assessment phase.
The objective of the evaluation phase, which was launched in 2016, was to build on the Commission’s work in previous years and to assess the functioning of selected aspects of EU merger control, focusing on two topics identified by stakeholders and the Commission: the effectiveness of the turnover-based thresholds of the EU merger Regulation and the impact of the 2013 Simplification Package and potential scope for further streamlining.
In addition to those two main topics, the Evaluation also assessed the system of case referrals.
More information on the Evaluation public consultation can be found in the Consultation page.
As regards the jurisdictional thresholds, the Evaluation results showed that the Merger Regulation’s turnover-based jurisdictional thresholds, complemented with the referral mechanisms, are effective in capturing significant transactions in the EU internal market. However, certain concentrations involving firms that generate little or no turnover and which could potentially have an impact on competition in the internal market have not been reviewed by the Commission or, in some cases, by any Member State.
As regards the simplification measures, the Evaluation has shown that the 2013 simplification package has been effective in increasing the application of simplified procedures to unproblematic mergers and in reducing burden both for businesses and the Commission in terms of resources and time spent on the merger review, while ensuring effective enforcement of the merger rules. However, there is still some, albeit possibly limited room for further simplification and targeting of the rules, in particular as regards the scope of application of the simplified procedure and the notification requirements.
The Staff Working Document summarises the findings of the Evaluation.
The executive summary of the Staff Working Document is accessible in DE, EN and FR.
The opinion of the Regulatory Scrutiny Board on the Evaluation of procedural and jurisdictional aspects of EU Merger Control is available here.
Guidance on Article 22 referrals
Encouraging and accepting more referrals under Article 22 of the Merger Regulation – notably where the transaction does not meet the national merger control thresholds – could give Member States and the Commission the flexibility to target concentrations which merit review at EU level, without imposing notification obligations on transactions that do not.
The objective of the Article 22 Guidance is to facilitate and clarify the Commission’s approach for a referral in situations where the transaction is not notifiable under the laws of the referring Member State(s) and to complement the guidance provided in the Commission Notice on Case Referral.
In particular, the Article 22 Guidance explains which categories of cases may constitute suitable candidates for a referral in situations where the transaction is not notifiable under the laws of the referring Member State(s). It provides the criteria that the Commission may take into account in exercising its discretion to accept such referrals.
Impact Assessment: Revision of the Implementing Regulation and of the Commission Notice on Simplified Procedure
As a follow-up to the Evaluation, the Commission has launched the Impact Assessment phase for the revision of the Implementing Regulation and of the Commission Notice on Simplified Procedure. The objective of the impact assessment is to determine whether additional simplification and better targeting measures should be adopted by reforming the Implementing Regulation and/or the Notice on Simplified Procedure.
On 26 March 2021 the Commission published the Inception Impact Assessment of this initiative and launched a public consultation to gather stakeholder’s feedback on a number of policy options. The Inception Impact Assessment lays down the Impact Assessment’s objectives, the main possible areas of reform and the policy options envisaged. Stakeholders are welcome to give feedback to this Inception Impact Assessment until 23 April. The public consultation launched at the same time seeks to gather private and public stakeholder’s views on the impact on each of these options on the effectiveness of the EU merger control system and on burden and cost reduction. To this end, the Commission has published an online questionnaire which stakeholders are invited to use to provide their experience and views. The deadline for providing such feedback is 18 June 2021.
During the impact assessment phase, stakeholders will have further possibilities to provide their views. In particular, in the course of 2021, the Commission will publish a draft of the revised rules (Implementing Regulation and Notice on Simplified Procedure) for stakeholders to comment.
The progress of the impact assessment can be followed on the Commission’s Website of Better Regulation (“Better Regulation Website”).
Personal data and privacy
The European Union is committed to user privacy. When carrying out public consultations we adhere to the policy on 'protection of individuals with regard to the processing of personal data by the Community institutions', based on Regulation 45/2001 on processing of personal data by the EU institutions.
Further information on the protection of your personal data
Directorate-General for Competition – Unit A.2 – Merger Case Support and Policy.
Please always indicate the reference number in your correspondence on the Impact Assessment: HT.6038
Directorate-General for Competition