Substantive assessment

If a transaction falls within the scope of the EU Merger Regulation (EUMR), it will need to be notified to the European Commission (the Commission) and be cleared before the transaction can be completed. The Commission will investigate the transaction–if it has competition concerns, it can prohibit the transaction or accept remedies from the parties to address any concerns.

When will a transaction fall within the EUMR

A transaction will fall within the EUMR and require notification to the Commission if:

•
it is a ‘concentration’
•
the transaction is permanent, and
•
it meets the financial thresholds set out in the EUMR.

The EUMR defines a ‘concentration’ as follows:

•
where two independent businesses merge—this includes arrangements where previously 'independent' companies set up a common management team, or a dual listing on a Stock Exchange
•
the acquisition of control by one (or more) business over another, either
1. ◦
  one business gaining 'sole control' over the target business (this could be through a majority shareholding or a minority shareholding if there are also veto rights over key commercial decisions)
2. ◦
  two or more businesses gaining 'joint

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