Like most organisations, the European Commission (the "Commission") and national competition authorities ("NCAs") have implemented remote working for the vast majority of their workforces. This presents unique and unprecedented challenges in merger control, one of the regulatory areas with the tightest deadlines, with little room for delays.
European Commission
The Commission is encouraging companies to delay merger notifications "until further notice, where possible".[1] Citing "likely" difficulties in collecting information from third parties during market investigations in the coming weeks, and internal challenges in case teams accessing databases and key information, the Commission has put in place several measures designed to "ensure business continuity in the enforcement of the EU Merger Regulation."[2] Such measures include temporary acceptance of electronic submissions (with delivery of paper originals at a later date). Less complicated transactions notified under the Commission's Simplified Procedure are less likely to be affected. Since 23 March, the Commission has accepted the filing of nine simplified notifications and only one full notification. Prior to filing, more than ever, it will be important to have a dialogue with the case team about the timing for filing.
Merging parties should not see the current situation as an opportunity to coordinate market behaviour or otherwise implement a transaction prior to receiving merger clearance from the Commission, which would constitute "gun jumping" in violation of the EU merger control rules. The Commission can be expected to enforce such rules, even in these exceptional times.
NCAs
At the national level, the UK Competition and Markets Authority ("CMA") is continuing with merger investigations but has noted that statutory timetables may be extended if necessary, and is encouraging parties to delay notifications if possible.[3] Administrative and statutory deadlines have been suspended in several jurisdictions including Denmark, France, Italy, and Spain, and NCAs in most EU jurisdictions are actively encouraging parties to delay notifications, where possible, and moving to electronic-only filings.
[1] See https://ec.europa.eu/competition/mergers/news.html
[2] Ibid.
[3] See https://www.gov.uk/government/news/covid-19-cma-working-arrangements.
