Requests for Information in Merger Cases: Regulatory Overreach?

In addition to a long and extensive Form CO, the European Commission collects further information and data via requests for information. Focusing on the request for internal company documents, this article considers whether the Commission overextends its powers and whether the merging parties’ rights of defense are guaranteed. It discusses key issues such as (i) the Commission’s broad discretion and the limited possibility for merging parties who wish to proceed swiftly to moderate or challenge the case team’s RFIs; (ii) the scope of the internal document request; (iii) the inadequate protection of LPP; (iv) the recurrent decisions to stop the clock and the link with the internal document RFI; and (v) the case team’s use of the internal documents as evidence.

By Jakob Dewispelaere¹

I. INTRODUCTION

The EU Merger Regulation (“EUMR”) prescribes the mandatory notification of concentrations with an EU dimension. Notifications must be made using the “Form CO,” the completion of which requires very detailed information on, e.g. all potentially affected markets, market share estimates, sales data and the parties’ customers and competitors. The Form CO also requires the submission of internal documents, such as board presentations, surveys, analyses, reports and studies discussing the proposed concentration, the economic rationale and the competitive significance or the market context in which it takes place.

In addition to an extensive Form CO, the Eu