Merger Controls First Edition - J Sagar Associates

European Union
Alec Burnside & Anne MacGregor
Cadwalader, Wickersham & Taft LLP
Overview of merger control activity during the last 12 months
Numbers of Notifications
During calendar year 2010, there were 274 cases notified to the European Commission’s Directorate General for
Competition (“DG Comp” or “the Commission”) under Council Regulation (EC) No 139/2004 on the control of
concentrations between undertakings (“the Merger Regulation”). This is slightly more than in 2009 (259) but still
significantly fewer than 2008 (347) and the all time high experienced in 2007 (402). In the first eight months of 2011,
228 cases were notified, indicating that the total number of notifications in 2011 is likely to exceed 2009 and 2010 totals
and approach pre-global financial crisis levels again.
Of the cases notified in 2010, 4 were withdrawn – all in Phase I. In the first eight months of 2011, 6 cases were withdrawn
in Phase I and one in Phase II (M.5969 SC Johnson/Sara Lee households insecticides business).
Phase I Clearances
In 2010 there were 267 Phase I clearance decisions issued. Of those, 143 were cleared under the simplified procedure (all
without commitments), 110 were cleared under the normal procedure without commitments, and 14 were cleared under
the normal procedure with commitments. In the first eight months of 2011, DG Comp issued 135 simplified procedure
clearances, 70 Phase I clearances without commitments under the normal procedure and 4 clearances with remedies.
The percentage of notified cases dealt with under the simplified procedure remains above 50% year-on-year: 59% to the
end of August 2011; 52% in 2010; 55% in 2009; 54% in 2008; and 59% in 2007. The slightly lower percentages of
simplified procedure cases in the period 2008-10 is probably attributable to reduced private equity activity.
Phase II Investigations
On 26 January 2011, the European Commission blocked the proposed merger between two Greek airlines, Olympic Air
and Aegean Airlines (M.5830). Originally notified on 24 June 2010, the case went into Phase II on 30 July 2010. This
was the first prohibition under the Merger Regulation since Ryanair’s attempt to acquire Aer Lingus, blocked in June 2007.
In calendar year 2010, Phase II, i.e. an “in-depth investigation”, was opened in four cases where the European regulator
had “serious doubts”. In the first eight months of 2011, six cases were put into Phase II.
During 2010, there were three Phase II clearances: one without remedies (M.5529 Oracle/Sun Microsystems), and two
with remedies (M.5658 Unilever/Sara Lee Body Care and M.5675 Syngenta/Monsanto’s Sunflower Seed Business). There
were no prohibition decisions.
In the first eight months of 2011, there were two Phase II clearances without commitments (M.5907 Votorantim/Fischer/JV
and M.6101 UPM/Myllykoski and Rhein Papier).
As at mid-September 2011, there were four ongoing Phase II investigations: M.6106 Caterpillar/MWM; M.6203 Western
Digital Ireland/Viviti Technologies; M.6214 Seagate Technology/the HDD Business of Samsung Electronics; and M.6166
Deutsche Börse/NYSE Euronext.
New developments in jurisdictional assessment or procedure
The legal provisions governing the jurisdictional assessment of transactions under the Merger Regulation have not changed
since May 2004. Following consultations, in June 2009, towards the end of the term of Competition Commissioner Neelie
Kroes, DG Comp published a report on the operation of the notification thresholds in allocating merger cases between the
EU and national level and the referral mechanisms. The overall conclusion was that the provisions were generally working
well. The report stopped short of recommending any legislative amendments, but acknowledged that there was nevertheless
some room for improvement on particular aspects of case allocation. Some of those aspects have come to the fore in the
last eighteen months, as outlined below.
Global Legal Insights ­ Merger Control First Edition
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