EU Merger Control: Recent Developments in Investigations, Gun Jumping, and Remedies

Over the last years the level of complexity and sophistication of the EU merger control system has further increased. The Investigative techniques have significantly evolved and the analysis has become more rigorous. Direct and unfiltered access to internal documents has become a must in the EC assessment . As a result, the duration of the EU  merger control investigations,  especially for those cases ranging from a medium to a high level of complexity, has exponentially grown. Prenotification phases have in particular become the favorite venue for market tests, economic analysis, remedies’ negotiation. Alongside this development also the EC remedies policy has toughened  in all respects, including in connection with both the scope of divestitures required and divestiture procedures. Often viability arguments are put forward to justify extensive divestitures while Upfront buyer and fix-it-first divestiture processes are becoming the norm  instead of the exception.

In  a related vein, the Commission has become stricter in connection with the notifying parties’ obligations to provide accurate and complete submissions and not implement the deal,  as testified by the number of investigations carried out by the Commission and the judgements recently rendered by the EU Courts in the area of gun jumping.

Compared to the EU system, the Italian merger control seems to  lag still behind although a number of recent reforms recently implemented (the legal test) or under way (the extension of the deadline) may fix the problems.

The panel will be discussing all these trends and the reasons behind these developments. The discussion will take place along questions and short comments provided  by the panelists.