Clifford Chance

The European Commission has adopted new rules for the simplified procedure under the EU Merger Regulation and revised its notification forms. As of 1 September 2023, the new mechanism will inter alia allow a limited range of additional transactions to benefit from the simplified procedure.

The reform consists of (i) a new Simplified Procedure Notice (SPN), (ii) new filing forms and (iii) electronic submission of documents as the default mechanism.

I – New Simplified Procedure Notice

The SPN defines those transactions that can be notified using the simplified procedure and has revised two of the four main categories as follows (changes in bold):

(i) joint ventures with EU turnover or assets of less than EUR 100 million in the previous and the next three financial years (including all assets the parties plan to contribute to the JV in the future),

(ii) parties that are active on vertically-related markets (i.e. one supplies products or services of a type that are purchased by the other, including those where the upstream product is "used directly" in the downstream firm's own production or is re-sold by the downstream firm) and have combined market shares of less than 30% on both the upstream and downstream markets.

In addition to these revisions, the SPN introduced new categories of "simplified" transactions where:

(i) the parties compete and have a combined market share of less than 50%, and the transaction results in only a small increment in market share, and

(ii) the parties are active on vertically-related markets and have either (a) combined market shares of less than 30% on the upstream supply market and account for less than 30% of the purchases of the products sold on the upstream market OR (b) market shares of less than 50% on both the upstream and downstream markets, provided there is only a small increment in market shares.

Upon request, the new SPN also allows for a simplified procedure in cases where the thresholds for simplified treatment are only marginally exceeded. At the same time, it extends the list of circumstances in which the European Commission may decide not to apply the simplified procedure.

Finally, transactions involving parties with no competitively related activities and extra-territorial JVs can be notified without any pre-notification discussions being held with the Commission.

II – New Filing Forms

The various forms for notifying mergers (Form CO and Short Form CO), requesting referrals of mergers to or from the European Commission (Form RS) and submitting remedy proposals (Form RM) have been streamlined and revised.

The new Form COs now allow for much of the information to be provided in the form of tables or yes/no tick-boxes. This should (hopefully) reduce the amount of time it takes to complete the form, although the amount of information and number of internal documents that notifying parties will have to obtain to complete the form has not been materially reduced. In certain areas, even more information is required than before, e.g. regarding "pipeline products".

III – Electronic Submission of Documents

The reforms will implement an entirely digital system for the submission of filings and other documents, with specifications for the relevant documents being signed electronically. There will be no further requirement of providing hard copies to the European Commission.