Article 11(1) of the EU Merger Regulation (‘EUMR’) empowers the European Commission (‘Commission’) to require persons controlling undertakings, as well as undertakings and associations of undertakings, to provide ‘all necessary information’ in order for the Commission to carry out its duties under the EUMR (principally, the determination of a concentration’s compatibility with the EU’s internal market). While Article 11(7) EUMR also empowers the Commission to interview natural and legal persons, the focus of this note will be the use of requests to obtain written information and documentation from the parties to a merger and from other market participants.
The Commission’s discretion to issue requests is wide. In Omya (2009), the General Court held that the ‘necessity’ of the information must be assessed by reference to the view that the Commission could reasonably have held at the time the request was made, rather than any actual need for the information in the subsequent procedure (paragraph 30). This discretion also extends to the time limit fixed for a response. In Schneider Electric (2002) the General Court considered as reasonable a request for information which contained 322 questions and concerned 300,000 pieces of information to be gathered in only five working days, on the basis of the ‘requirement for speed’ which characterises the EU merger regime (paragraphs 79 and 94-100).
While the Commission often makes informal requests for information from the merger parties during the pre-notification phase, the Commission will make a formal request ordinarily only after the date of the official merger notification, in accordance with its Best Practice Guidelines (paragraphs 26-28). Such formal requests may take the form of ‘simple requests’ or ‘formal decisions’ which can be enforced with fines and periodic penalty payments. Requests must state their legal basis, specify what information is required, fix a time limit for the response, and indicate the penalties for the provision of incorrect or misleading information. Requests made by formal decision must also inform the addressee of its right to judicial review before the Court of Justice of the EU.
Unlike the US merger control procedures, requests for information in the EU are not confined to in-depth Phase II investigations, but instead are investigative tools frequently used when reviewing mergers in Phase I. Such requests historically only called for written submissions and data concerning, for example, closeness of competition, sales, pricing, or tenders. However, in more recent years the volume of requests for documents has grown significantly, principally due to reforms introduced after a trio of watershed judgments criticising the Commission’s use of the available evidence. Alongside econometric analysis, documents now play an important role in the Commission’s assessment of a merger’s competitive effects, an approach which the EU Courts have endorsed (Ryanair, paragraph 138). This trend is clearest in complex merger cases in which the Commission’s requests for documents can span multiple custodians, time periods, and issues. As recent examples, market participants have received extensive requests in connection with mergers in industries which the Commission has considered to be characterised by innovation-driven competition (e.g., pharmaceuticals, chemicals) and high concentration (e.g., telecoms, online platforms).
Few formal requirements apply to requests for documents (discussed above), though guidance is expected to be issued during the current Commission’s term (2019-2024). In practice, even extensive requests for documents contain three principal sections: (i) definitions and scope, (ii) documents, and (iii) instructions. ‘Document’ typically includes any electronically stored information (e.g., e-mails, presentations, reports, spreadsheets) within the addressee’s possession, custody, or control (produced internally or by a third party). The scope of the custodians whose documents are to be searched varies, but typically includes senior managers, salespersons, and in-house legal counsel (whose communications, unlike those of external legal counsel, do not enjoy legal professional privilege in their own right under EU law). For documents within scope, date ranges of three to five years before the proposed merger are not uncommon. The second section of the request specifies the contents of the documents which concern the merger parties’ competitively related activities (e.g., in relation to overlaps in their commercial activities, such as e-mails, business plans, board minutes, investment strategies, competitive assessments). In complex cases, the Commission has developed a practice of sharing a draft of the request with the intended addressees for discussion, including agreeing any keywords to which electronic searches might be limited. The final section of the request specifies the format in which the documents must be produced (ordinarily, in native format and formatted for optical character recognition after removal of any passwords). Additional instructions may require the addressee to produce a methodology report and a legal privilege log. To date, no formal requirement for translation of documents exists.
The production of incorrect, incomplete, or misleading information in response to a simple request or formal decision, or the failure to supply the information required by a formal decision within the time limit fixed by the Commission, can entail fines and periodic penalty payments for a request’s addressee, including third parties (Mitsubishi Heavy Industries), even if the Commission considers that the breach had no impact on the outcome of its investigation (Facebook/WhatsApp, paragraph 100). It may also lead the Commission to ‘stop the clock’ in an ongoing merger review,i.e., the suspension of the review timetable set out in the EUMR.
Decisions regarding the exclusion of information or documents on grounds of the request’s proportionality or legal professional privilege, should be taken with care. Although the Commission’s power to issue requests is subject to the principle of proportionality (Omya, paragraph 34), as discussed above, the EU Courts have accepted that the ‘requirement for speed’, and the duty to assess the issue of proportionality at the time the request is made, may permit wide requests within a short period of time. That said, as regards the reliance on legal professional privilege over communications from in-house counsel located outside the EU in a jurisdiction where there is privilege protection for in-house counsel advice (such as in the U.S.), to the authors’ knowledge the Commission has to date not sought to enforce the production of such documents.
Finally, in multi-jurisdictional merger reviews, the decision of an addressee regarding the scope of its response to a request or approach to legal professional privilege, in a given jurisdiction, may produce effects in multiple others. Articles 11(5)-(6) EUMR establish cooperation mechanisms within the EU, but the Commission also regularly coordinates with other leading competition authorities whose administrative timetables, or rules of legal professional privilege or data protection, may differ from its own. Addressees of requests should consider such potential effects, including in relation to any merger to which the addressee may be party in future, in consultation with external counsel.