EU and US merger controls compared

The EU law has offered a fast-track merger control for more than a decade and the practical meaning of it is remarkably high, as almost two-thirds of the unrestricted clearance decisions taken since then have been taken in the simplified procedure, according to statistics from the European Commission.

The European Commission considers that a notified concentration may be examined in a sim-plified procedure, if it does not raise substantive competition concerns. This is presumed to be the case in four categories of concentrations. First, an established joint venture has no or negligible activities within the EEA. Second, the parties' business activities overlap neither horizontally nor vertically on the relevant product or geographical markets. Third, the combined market shares of the undertakings concerned do not exceed 15% on the horizontally overlap-ping product or geographical markets and, in case of a vertical relationship, the individual or combined market share on neither level exceeds 25%. Finally, a party is to acquire sole control of an undertaking over which it already has joint control.

If these requirements are met, the European Commission adopts a clearance decision within 25 working days from the date of notification. The simplified procedure may be initiated by using the so-called Short Form CO, which in contrast to a Full Form CO does not request for certain overall market information and thereby facilitates the parties' preparations for the merger control procedure.

Unlike European regulations, the US merger control regime offers no distinct short form version of the filing form. But, the information required does vary depending on the notifying party and the nature of the transaction.

The US merger control regime offers a possibility to receive an early clearance from the au-thorities. Generally, a filing triggers a mandatory initial waiting period of 30 days for reportable transactions or a shortened waiting period of 15 days for acquisitions by means of a cash tender offer or acquisitions subject to certain bankruptcy provisions. If the relevant agencies take no further action until the expiration of the initial waiting period, the parties may close the transaction. Additionally, the parties can request the agencies to terminate the investigation period early, if they are able to conclude that the reported transaction does not raise com-petition concerns. With this request, the transaction may receive clearance even before expiration of the 30-day waiting period.

By Michael Dietrich, Maria Hou and Johnny Zhao, Taylor Wessing

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