The European Commission is undertaking an evaluation of procedural and jurisdictional aspects of Eu merger control that may lead to a review of the EU Merger Regulation (No 139/2004). The Commission evaluation will be built upon its own analysis, stakeholder interviews and the present consultation
Context

The consultation builds upon the 2014 White Paper “Towards More Effective EU Merger Control” and prior consultations and seeks to evaluate the following procedural and jurisdictional aspects of EU merger control in more detail:

  • Simplification: the treatment of certain categories of cases that do not generally raise competitive concerns;
  • Functioning of the turnover-based jurisdictional thresholds set out in the Merger Regulation, in the context of certain recent acquisitions of companies with no substantial turnover but that can potentially have a considerable market impact (for instance in the digital or the pharmaceuticals sectors);
  • Functioning of the case referral mechanisms set out in Articles 4(5) and 22 of the Merger Regulation;
  • Certain technical aspects of the procedural and investigative framework for the assessment of mergers.

AFEP and Cercle de l’Industrie provide joint comments on all of those issues in the following sections: Simplification (I), Jurisdictional thresholds (III), Referrals (III) and Technical aspects (IV).

Summary of our position

French companies would like to highlight two key elements that are addressed in more detail in the present document:

  • first of all, in our opinion, introducing a transaction value threshold as a complementary jurisdictional criterion in the Merger Regulation is neither relevant (due to the difficulty to appreciate the right price) nor needed, and would raise huge concerns; therefore it should be ruled out;
  • the simplified procedure is too burdensome and complex for companies, as it tends to be used to serve purposes other than the ones for which it was designed (which was to speed up and ease the notification of merger projects deemed to have no or little impact on competition). The Commission Notice on simplified procedure should therefore be adapted (content and duration period of this procedure).