European Commission publishes Merger Manual of Procedures

On 29 November 2024, the European Commission (Commission) published sections of its Merger Manual of Procedures (ManProc).[1]  This followed a request by Freshfields under Regulation 1049/2001 (the Access to Documents Regulation).[2]  The ManProc is an internal Commission document that provides case handlers with guidance on how to manage investigations under the EU Merger Regulation (EUMR).

Background

ManProcs are public versions of internal Commission working documents.  In 2012, the Commission published an Antitrust ManProc following a recommendation by the European Ombudsman.  The Ombudsman — responsible for handling complaints of maladministration against EU institutions — had been asked to investigate the Commission’s refusal to disclose internal documentation on antitrust procedures. In 2013, the Commission published a State Aid ManProc.

Requesting access

The request for the ManProc was made in 2021 under the Access to Documents Regulation, which provides a right of access to EU institutions’ internal documents.  The Commission had little room to resist the request after publishing the Antitrust and State Aid ManProcs but could not produce a sanitised document for publication within the 30-day deadline prescribed by the Regulation. 

A revised deadline was negotiated with the Commission and preparation and publication of the document took several years.  This was a significant undertaking for the Commission.  The process was managed by a team in the Commission’s Policy Unit and required input from several constituencies, including the Legal Service. The process was also upset by the Court of Justice’s judgment in Illumina/Grail, which forced the Commission to reappraise (and rewrite) its approach to Article 22 EUMR (see our post).

Contents

The ManProc was eventually published on 29 November 2024.  It consists of several “modules” covering jurisdiction, types of procedures, the life of a case, litigation and international cooperation.  While esoteric, the content will interest practitioners, who will be able to anticipate next steps in a case and verify whether the Commission is adhering to its own guidance.  Notable points include:

• Simplified procedure.  Although not anticipated in the Simplified Procedure Notice, the ManProc confirms the possibility of switching from the non-simplified procedure (i.e., Form CO) to the simplified procedure (i.e., Short Form CO).[3]  The ManProc also expects the Commission to clear simplified cases around Day 15, rather than using the full 25 days available.[4]
• Notification.  The ManProc acknowledges that notifying parties have the right to choose the date of notification.[5]  In practice, however, the Commission will resist notification before the Christmas and summer holidays.
• Completeness.  The Implementing Regulation requires merger notifications to be “correct and complete.”[6]  The ManProc is more relaxed.  It advises that notifications should be “substantially correct and complete” and foresees rejection only where a notification is incomplete in “any material respect due to the missing of important information or documents.”[7]
• Third-party reports.  The Commission often relies on third-party data to calculate market shares. Issues have arisen where contracts with these vendors prohibit disclosure without prior authorisation — including to regulators.  The ManProc acknowledges that these vendors’ IP must be respected but also requires non‑confidential versions of any third-party data the Commission has used in its assessment.[8]  This version will be made available to addresses of a Statement of Objections during access to file.  If the vendor objects, the Commission will presumably compel submission of the data via a formal Article 11 decision. 
• Statement of Objections.  The deadline to respond to a Statement of Objections — typically ten working days — can be extended in “pressing and exceptional” circumstances.  The Commission does not consider leave of relevant individuals or unavailability of outside counsel a sufficient justification.[9]

Although not legally binding, the Court of Justice occasionally cites ManProcs and is willing to compare the Commission’s conduct to the expectations set in the ManProcs.[10]  This suggests that there is a legitimate expectation that the Commission will comply with the ManProcs.

It is not clear whether the Commission will publish additional chapters.  The ManProc does not appear to address legal privilege, the review of internal documents and the substantive appraisal of mergers (including treatment of economic evidence).  These are areas where the Commission has faced scrutiny — including by the Court of Justice — and where there is, therefore, a legitimate interest in understanding internal practice.

[1] Commission, DG Competition's manual of procedures for the application of the EU Merger Regulation.

[2] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43.

[3] ManProc, (Types of procedures), para 8.

[4] ibid, para 9.

[5] ibid, para 22.

[6] Commission Implementing Regulation (EU) 2023/914 of 20 April 2023 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings and repealing Commission Regulation (EC) No 802/2004, art 4(1).

[7] Our emphasis.  See ManProc (Types of procedures), paras 22 and 43–44; and ManProc (Life of a case), paras 1, 20 and 32. 

[8] ManProc (Life of a case), para 178.

[9] ManProc (Types of procedures), para 179.

[10] See, e.g., Case T-604/18 Google and Alphabet v Commission (Google Android) EU:T:2022:541, para 960; Case T-612/17 Google and Alphabet v Commission (Google Shopping) EU:T:2021:763, paras 635–37; and Case T-371/17 Qualcomm and Qualcomm Europe v Commission EU:T:2019:232, paras 65 and 77–78.