European Union: Merger Control Comparative Guide

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern merger control in your jurisdiction?

The EU merger control regime is governed by the EU Merger Regulation (139/2004) and Commission Regulation (EC) No 802/2004 (‘Implementing Regulation'). The European Commission has also published guidance papers and notices on several merger control related questions.

The EU merger control regime applies to the European Economic Area, consisting of the 27 EU member states and the three member states of the European Free Trade Area. The United Kingdom left the European Union on 31 January 2020 and is no longer covered by the EU merger control regime. National merger control rules apply to transactions that do not have an EU dimension, but qualify for review under national laws. The regime also provides the possibility to refer cases with an EU dimension to national authorities and cases without an EU dimension to the European Commission.

1.2 Do any special regimes apply in specific sectors (eg, national security, essential public services)?

No, the EU merger control regime is not sector specific. The general rules apply to transactions in all sectors.

1.3 Which body is responsible for enforcing the merger control regime? What powers does it have?

The EU merger control regime is enforced by the Directorate General for Competition (DG Comp) of the European Commission in Brussels. EU Merger Regulation notifications are reviewed by sector-specific units within DG Comp that focus on merger control. The commission reviews merger notifications, which cannot be implemented prior to clearance by the commission. The commission can issue requests for information and can inspect companies. It can also fine companies for non-notification, pre-clearance implementation (‘gun-jumping') and conduct relating to requests for information or inspections. Details can be found in question 7.

2 Definitions and scope of application

2.1 What types of transactions are subject to the merger control regime?

The EU merger control regime requires filings only if a transaction qualifies as a ‘concentration'. This definition includes:

• the merger of two or more previously independent undertakings;
• the acquisition by one or more undertakings, directly or indirectly, of direct or indirect control of the whole or parts of another undertaking; or
• the creation of a full-function joint venture.

2.2 How is ‘control' defined in the applicable laws and regulations?

The EU Merger Regulation defines ‘control' as the ability to exercise decisive influence over an undertaking. This includes:

• the existence of rights or contracts or any other means conferring decisive influence on the composition, voting or other commercial decisions of the undertaking; or
• the ownership or right to use all or part of its assets.

Control can be:

• de jure or de facto;
• positive or negative; and
• sole or joint.

More details on the concept of control are available in the Commission's Consolidated Jurisdictional Notice.

2.3 Is the acquisition of minority interests covered by the merger control regime, and if so, in what circumstances?

Minority shareholdings are not currently caught by the EU merger control regime, unless they confer control and the turnover thresholds are met. In the past, the commission has considered amending this point; but so far, no change in this respect has been implemented. The acquisition of non-controlling minority interests may require merger notifications under the rules of European Economic Area (EEA) member states.

2.4 Are joint ventures covered by the merger control regime, and if so, in what circumstances?

Only the establishment of full-function joint ventures is covered by the merger control regime – that is, joint ventures which, on a lasting basis, are performing all the functions of an autonomous economic entity on the market. More details on the concept of full-functionality are available in the Commission's Consolidated Jurisdictional Notice. Acquisitions of joint control over an existing business or the setting up of a newly established joint venture are notifiable if the EU thresholds are met. The thresholds can be met solely based on two parent companies' turnover; therefore, joint ventures with no actual or foreseeable effects within the EEA may be subject to mandatory EU notification. The establishment of a non-full function joint venture may require merger notifications under the rules of EEA member states.

2.5 Are foreign-to-foreign transactions covered by the merger control regime, and if so, in what circumstances?

Foreign-to-foreign transactions that meet the thresholds are subject to EU merger control rules, as the filing thresholds are based on the geographic allocation of the parties' turnover, not their location or registered office.

2.6 What are the jurisdictional thresholds that trigger the obligation to notify? How are these thresholds calculated?

Concentrations must be notified and approved by the European Commission prior to implementation if they meet either of the following two alternative jurisdictional thresholds based exclusively on turnover:

• Threshold 1:
• • The combined aggregate worldwide turnover of all the undertakings concerned is more than €5 billion; and
  • The aggregate EU-wide turnover of each of at least two of the undertakings concerned is more than €250 million.
• Threshold 2:
• • The combined aggregate worldwide turnover of all the undertakings concerned is more than €2.5 billion;
  • In each of at least three member states, the combined aggregate turnover of all the undertakings concerned is more than €100 million;
  • In each of at least the same three member states included for the purpose of the above criterion, the aggregate turnover of each of at least two of the undertakings concerned is more than €25 million; and
  • The aggregate EU-wide turnover of at least two of the undertakings concerned is more than €100 million.

An exception applies if each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover in one and the same member state. In this case, no EU filing is required, but national filings may be required.

Transactions meeting the EU Merger Regulation thresholds are exempt from notification requirements in any of the 30 EEA member states (27 EU plus three European Free Trade Association member states) under the ‘one-stop shop' principle.

If the thresholds are not met, but national thresholds are met in three or more EEA member states, the parties can request a referral of the review to the European Commission under Article 4(5) of the EU Merger Regulation.

If the EU Merger Regulation thresholds are met, a member state authority can request that all or part of the transaction be referred to it by the commission under Article 9 of the EU Merger Regulation. This requires that the transaction "threatens to affect significantly competition in a market within that Member State". A party can make such a request under Article 4 of the regulation.

In its Article 22 EU Merger Regulation Guidance issued on 31 March 2021, the European Commission provides guidance on the referral mechanism of cases that do not have an EU dimension, for which the referring member state may not even have jurisdiction. According to Article 22, even in such case a member state may refer a merger if it considers that it "affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request". The legality of such a referral is currently subject to judicial review in Illumina v Commission (Case T-227/21) at the European courts.

All referrals are ultimately at the discretion of the commission.

2.7 Are any types of transactions exempt from the merger control regime?

In principle, there are no exemptions to transactions that constitute concentrations and meet the turnover thresholds.

Article 3(5) of the EU Merger Regulation sets out three (exceptional) situations where a transaction that is otherwise notifiable does not require notification and approval. These comprise the acquisition of control of an undertaking:

• by a credit or financial institution through the acquisition of shares on a temporary basis (less than one year) with the intention to re-sell the shares, and provided that the acquirer does not exercise any voting rights attached to the shares;
• by a liquidator, trustee in bankruptcy or similar, under the relevant national legislation; or
• by a financial holding company.

These exceptions are applied narrowly and more details can be found in the European Commission's Consolidated Jurisdictional Notice.

3 Notification

3.1 Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?

The notification process is mandatory for concentrations with an EU dimension that meet either of the jurisdictional thresholds detailed in question 2.6. There is no exception to mandatory notification; but please see question 3.8 on exceptions to the standstill obligation.

3.2 Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?

Yes. While there is no requirement to discuss a planned transaction with the European Commission, informal, but confidential pre-notification discussions are standard practice.

It is common to submit one or more draft notifications to the case team of the commission ahead of any formal notification. In fact, the commission expects that the parties will pre-notify and engage in discussions with the case team prior to submitting the notification that starts the review clock. As the pre-notification procedure is not prescribed by legislation, but is rather an established custom, the discussions can last anything between a few days to several months or in exceptional cases even a year, depending on the complexity of the case.

Pre-notification is an important part of the EU review process. It gives the parties and the commission the opportunity to discuss important elements of the planned notification and usually avoids the risk of the commission declaring a notification incomplete. These discussions also allow parties to agree waivers from information requirements of the formal notification.

Details on pre-notification are provided in the preamble to Form CO and Short Form CO in the Implementing Regulation and the Commission's Mergers Best Practices Guidelines.

3.3 Who is responsible for filing the notification?

This will depend on the type of transaction. In an acquisition of sole control, the acquirer is responsible for filing the notification. In an acquisition of joint control, a merger or the creation of a full-function joint venture, the parties acquiring joint control, the merging parties or the joint venture partners respectively are responsible for filing the notification. Shareholders in the target that are not involved in the transaction, but that will continue to have control (jointly) are equally responsible for the notification.

3.4 Are there any filing fees, and if so, what are they?

There are no filing fees.

3.5 What information must be provided in the notification? What supporting documents must be provided?

The notification must be provided using a standard template, Form CO, which can be found in the annex to the Implementing Regulation.

Form CO requires significant amounts of information, in particular, for transactions where there are horizontal and/or vertical affected markets. Horizontal affected markets are those in which both parties have a combined market share of 20% or more. Vertical affected markets are upstream or downstream markets in which one or both parties have an individual or combined market share of 30% or more.

The type of information required by Form CO includes:

• sales data of the parties;
• market share estimates and contact details for main market participants;
• a list of the parties' principal customers and their contact details;
• a description of the competitive landscape in the affected markets; and
• internal documentation that analyses the markets and the transaction.

Short Form CO is a simplified template submitted in the context of a simplified procedure used in transactions that meet prescribed criteria:

• joint ventures with European Economic Area turnover and assets below €100 million;
• combinations where there is no horizontal or vertical overlap between the parties;
• combinations in which there is a horizontal overlap between the parties, but no combined market share equals or exceeding 20%;
• combinations in which neither party has a market share equal to or exceeding 30% in a market upstream or downstream of another party; or
• transactions resulting in a change from joint to sole control of an existing joint venture.

In the context of Short Form CO, the commission does not launch a ‘market test'. Short Form CO demands significantly less market information and data. The commission has discretion to decide whether the simplified or standard procedure should be used, even after the parties have submitted a Short Form CO, in which case additional information must be provided.

3.6 Is there a deadline for filing the notification?

There is no deadline for filing the notification, but a notifiable transaction cannot be implemented before the European Commission has granted clearance. Consequently, parties are advised to file their notification well in advance of their anticipated closing date to allow enough time for the commission's review process.

3.7 Can a transaction be notified prior to signing a definitive agreement?

According to Article 4(1) of the EU Merger Regulation, a "Notification may also be made where the undertakings concerned demonstrate to the Commission a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make such a bid, provided that the intended agreement or bid would result in a concentration with a Community dimension". A definitive agreement is thus not required, as long as the applicable documentation (eg, a letter of intent, a memorandum of understanding or a term sheet) allows the commission to assess the scope of the transaction and its potential impact on competition.

3.8 Are the parties required to delay closing of the transaction until clearance is granted?

Yes. Parties are under a standstill obligation and may not implement, not even partially, a transaction that has an EU dimension – that is, a concentration that meets the prescribed turnover thresholds (see question 2.6) – before obtaining clearance from the European Commission. If the parties decide to close nonetheless, the commission may order the transaction to be unwound and may issue fines.

There are two exceptions to the standstill obligation. First, the commission may allow a transaction to be implemented at the parties' request where it is satisfied that the detriment caused by obeying the standstill obligation outweighs the potential threats to competition caused by the implementation of the transaction. Second, in the case of a public bid, implementation may be possible if the concentration is notified to the commission without delay. The acquirer may not exercise any voting rights attached to the acquired shares, unless it does so in exceptional circumstances and based on a derogation granted by the commission.

There are no specific provisions beyond these two exceptions that allow parties to close a notifiable transaction outside the European Union before obtaining clearance by the commission.

3.9 Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?

Yes. Notifications are publicly announced on the website of the European Commission and in the Official Journal of the EU. Commercially sensitive information is protected, since the notifying parties provide the draft wording for the notice in Form CO. The information that is published includes the parties' names, their industries and whether a simplified procedure is considered. Furthermore, third parties are invited to comment on the likely effects of the transaction.

4 Review process

4.1 What is the review process and what is the timetable for that process?

Pre-notification: There are no legal or indicative periods for pre-notification. The length depends on the case, but for the most straightforward cases it can be as short as a week, while for complex cases it can extend to many months.

Phase I of the review: The European Commission will ask third parties, such as customers and competitors, for their opinion on the transaction and send out questionnaires regarding the relevant markets. The case team may interact with the notifying parties via informal contacts, requests for information and a state of play meeting. Phase I concludes with a decision either to clear the transaction unconditionally/conditionally or to open a Phase II investigation due to serious doubts as to the compatibility of the transaction with the common market. Most cases are cleared in Phase I.

The commission has 25 working days from receiving a complete notification to carry out its Phase I review and adopt a decision. Failure to issue a decision within the time limit results in the transaction being unconditionally cleared. If the parties submit remedies or a member state makes a referral request, the review process is automatically extended by 10 working days.

Phase II of the review: Unless it is granting unconditional clearance, the commission must issue a statement of objections before issuing a decision detailing its concerns and must grant the parties access to the case file along with the opportunity to request an oral hearing.

Phase II lasts 90 working days, which may be extended by 15 working days if the notifying parties offer remedies within 55 working days of the start of Phase II. An extension of 20 working days may be granted with the agreement of the parties or, if requested by the parties, within 15 working days of the start of Phase II.

The review period may be suspended at any time if the commission considers that responses to requests for information were not provided in time.

4.2 Are there any formal or informal ways of accelerating the timetable for review? Can the authority suspend the timetable for review?

Discussions and additional information during pre-notification consultations and the preparation of comprehensive draft notifications may accelerate the review timetable.

The Phase I and II timetables may be suspended by stopping the clock – for example, if the commission issues a formal decision ordering the production of documents or an inspection owing to circumstances caused by the parties, such as a party's failure to respond to a request for information within a specified deadline.

4.3 Is there a simplified review process? If so, in what circumstances will it apply?

A simplified procedure may be available in certain transactions and the parties can submit Short Form CO, which is less onerous to complete than Form CO. The application of a simplified procedure is at the discretion of the commission. It is not bound by its decision to use the simplified procedure and may revert to the standard procedure, even when a transaction meets the criteria for the simplified procedure and a Short Form CO has been submitted.

The circumstances in which the simplified procedure may apply include concentrations where:

• two or more undertakings acquire joint control of a joint venture with negligible or no foreseen activities within the European Economic Area (EEA) – that is, the EEA turnover is less than €100 million and the total value of assets transferred to the joint venture is less than €100 million in the EEA territory at the time of the notification;
• two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, and the combined market share of all parties engaged in business activities in the same product and geographic market is less than 20%, and in upstream or downstream markets less than 30%; or
• a party acquires sole control of an undertaking over which it already has joint control

4.4 To what extent will the authority cooperate with its counterparts in other jurisdictions during the review process?

It is common practice for the European Commission to cooperate with its counterparts in other jurisdictions. When assessing mergers with an EU dimension, the commission regularly draws on the expertise of the competition authorities in EU member states. This may involve disclosing the contents of the parties' formal notification. In Phase II, the competition authorities of member states form part of an advisory committee that provides an opinion on the preliminary draft decision of the commission.

The commission also has formal cooperation agreements with authorities outside the European Union, most notably the US Federal Trade Commission and the US Department of Justice Antitrust Division. The commission is also active in the International Competition Network working group on multi-jurisdictional merger control, which facilitates international cooperation in merger reviews.

According to Article 2.4 (2) of the Trade and Cooperation Agreement between the United Kingdom and the European Union, the UK Competition and Market Authority and the commission are also committed to cooperate and coordinate enforcement of the same or related transactions, among other things.

The commission is required to receive waivers from the parties to allow it to share information with other authorities that are also reviewing the transaction. The waiver can be limited in scope.

4.5 What information-gathering powers does the authority have during the review process?

The European Commission may request additional information throughout the pre-notification consultation and Phases I and II, either by simple request or by formal decision. These requests for information must clearly identify:

• the information sought;
• the legal basis upon which the request relies;
• its purpose; and
• the penalties (see question 7.1) that the parties will face if they provide incorrect or misleading information purposefully or negligently.

Undertakings are required to respond only to formal decisions, which are rarely used and normally only where a simple request has been ineffective. However, if the parties respond to informal requests, their response must be complete and not misleading.

4.6 Is there an opportunity for third parties to participate in the review process?

Yes. The European Commission actively invites third parties to participate in the review process by submitting comments on the transaction. Shortly after the notifying parties have submitted Form CO, a notice is published on the commission's website inviting third-party views. The commission also sends out requests for information to third parties, such as customers, competitors and suppliers, with a view to verifying the information provided by the notifying parties. Third parties may submit complaints against the proposed transaction before or during an investigation.

4.7 In cross-border transactions, is a local carve-out possible to avoid delaying closing while the review is ongoing?

Apart from the two exceptions to the standstill rule (see question 3.8), there are no local carve-out provisions that avoid delaying closing while the review is ongoing.

4.8 What substantive test will the authority apply in reviewing the transaction? Does this test vary depending on sector?

A concentration that would significantly impede effective competition in the common market or a substantial part thereof is prohibited. Historically, the assessment has focused on the creation or strengthening of a dominant position. In recent years, novel theories of harm have dominated the discussion as the European Commission has increased scrutiny for mergers involving nascent competitors or mergers that allegedly pose a risk to innovation (so-called ‘killer acquisitions'), regardless of the fact that the targets in those mergers may not have any market significance at the time of the transaction (and may never have with or without the merger).

Any transaction that does not significantly impede effective competition must be cleared.

This test is equally applicable across all economic sectors.

4.9 Does a different substantive test apply to joint ventures?

Notifiable joint ventures are subject to the same substantive test as other transactions – that is, whether the concentration significantly impedes effective competition (see question 4.8). Furthermore, the assessment of joint ventures can take into account the risk of coordination between parent companies in markets beyond the joint venture. If a joint venture is not considered as full-function – that is, it does not perform all functions of an autonomous economic entity on a lasting basis – then the transaction may also be reviewed under Article 101 of the Treaty on the Functioning of the European Union on restrictive agreements.

4.10 What theories of harm will the authority consider when reviewing the transaction? Will the authority consider any non-competition related issues (eg, labour or social issues)?

The European Commission has issued guidelines detailing its review standard. In horizontal cases it will investigate, in particular, whether:

• the merging firms have large market shares;
• the merging firms are close competitors;
• customers have limited possibilities to switch supplier;
• competitors would be unlikely to increase supply if prices increased;
• the merged entity would be able to hinder expansion by competitors; and
• the merger would eliminate an important competitive force.

Recently, the theory of harm relating to the elimination of an important competitive force has become more relevant as the commission focused on so-called ‘killer acquisitions' – that is, transactions in which a company buys a nascent or potential competitor which has not yet reached any relevant competitive position but is anticipated to do so within a reasonably short timeframe.

Regarding non-horizontal mergers – that is, those involving companies in upstream, downstream, adjacent or entirely unrelated markets – the commission will focus on whether the deal will enable the merging parties to deny competitors access to input products or potential competitors (foreclosure).

The commission will also always consider so-called ‘coordinated effects'. These exist if the market characteristics are such as to facilitate coordination between the remaining market participants.

5 Remedies

5.1 Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?

Yes. The parties can propose remedies to address competition concerns. These can be grouped as structural and behavioural remedies. The European Commission usually prefers structural remedies – in particular, divestments. As far as structural remedies are concerned, three types may be identified:

• a commitment to divest the agreed assets or business within a fixed timeframe following clearance;
• the identification of an ‘up-front buyer', in which case the parties commit to not complete the transaction prior to having an agreement with a suitable purchaser of the assets or business to divest; and
• The ‘fix it first' remedy, in which case the parties must enter into an agreement with a purchaser, even before the commission clears the transaction.

More guidance on remedies is provided in the European Commission's Notice on Acceptable Remedies.

5.2 What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?

Remedies can be proposed during either:

• Phase I within 20 working days of notification; or
• Phase II within 65 working days of the commencement of Phase II.

Remedies must be submitted via Form RM according to the Remedies Notice (2008). The parties may nevertheless submit remedies at any point before the deadlines. Remedy proposals are usually market tested – that is, shared with interested stakeholders, which are requested to submit their comments.

Submission of remedies results in the automatic extension of the review deadlines, as mentioned in question 4.1.

5.3 To what extent have remedies been imposed in foreign-to-foreign transactions?

The European Commission has authority to enforce the same remedies in foreign-to-foreign mergers as in other EU mergers. The commission may liaise with other competition authorities that are examining the same merger, on the basis of confidentiality waivers by the parties.

6 Appeal

6.1 Can the parties appeal the authority's decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?

The parties can appeal the authority's decision to the General Court of the European Union, on points of both fact and law. If the General Court upholds the decision, an appeal can be lodged with the European Court of Justice on points of law only.

6.2 Can third parties appeal the authority's decision, and if so, in what circumstances?

Third parties have the ability to appeal European Commission clearance decisions to the General Court. For a third party to have legal standing to appeal, the decision must directly and individually concern it. This is regularly the case for competitors.

7 Penalties and sanctions

7.1 If notification is mandatory, what sanctions may be imposed for failure to notify? In practice, does the relevant authority frequently impose sanctions for failure to notify?

The European Commission has the power to impose fines on parties that intentionally or unintentionally fail to notify a transaction with an EU dimension prior to implementation.

Fines can be up to 10% of the parties' aggregate worldwide group turnover. A fine can be imposed even if at a later stage the transaction turns out to be admissible under EU competition law.

Fines of up to 1% of aggregate worldwide group turnover may be imposed for providing incorrect or misleading information to the commission.

In practice, the European Court of Justice has confirmed the commission's approach of imposing two separate fines for gun jumping – that is, one for failure to notify a transaction prior to implementation and another for implementing the transaction before obtaining clearance.

7.2 If there is a suspensory obligation, what sanctions may be imposed if the transaction closes while the review is ongoing?

Failure to observe the suspensory obligation – that is, implementing the transaction while the review is ongoing and before obtaining approval (also referred to as ‘gun-jumping') – is subject to a fine of up to 10% of the parties' aggregate worldwide group turnover.

7.3 How is compliance with conditions of approval and sanctions monitored? What sanctions may be imposed for failure to comply?

The European Commission regularly requires that a monitoring trustee ensure that the commitments are implemented. The commission may therefore give any orders and instructions to the monitoring trustee in order to ensure compliance with the commitments; and the trustee may propose to the parties any measures it considers necessary for carrying out its tasks.

Failure to comply with conditions of approval in a transaction that is cleared subject to conditions can result in a fine of up to 10% of the aggregate worldwide group turnover and an order to dissolve the concentration.

8 Trends and predictions

8.1 How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

As the COVID-19 pandemic unfolded in 2020, deal activity reduced dramatically in volume and value. However, from Q3 2020 onwards, transaction levels and merger control decisions started bouncing back. This trend has continued into 2021, with some member states seeing the highest levels in filings in years. The pandemic affected the EU merger review process in terms of:

• temporary delays;
• extended or suspended review periods; and
• challenges in obtaining information from parties and stakeholders.

Nonetheless, the European Union continued to discuss and develop merger control reform policies. Major themes include the increased scrutiny of transactions in the pharmaceutical and digital sectors and the tightening of foreign investment control regimes by member states.

A key policy change relates to referrals under Article 22 of the EU Merger Regulation, which encourages member states to refer certain transactions to the European Commission even if national merger control thresholds are not met. The underlying aim is to enable the review of transactions that would not otherwise trigger turnover-based jurisdictional thresholds. This approach will affect transaction timetables going forward, as parties must factor in a longer pre-closing period subject to a standstill obligation that commences when the commission informs the parties of a member state's referral request. This poses additional gun-jumping risks and creates uncertainty as to whether a transaction may ultimately be subject to a merger investigation by the commission.

9 Tips and traps

9.1 What are your top tips for smooth merger clearance and what potential sticking points would you highlight?

• It is imperative to keep up to date with regulatory debates, spotlight cases and changes in regulation which may affect the market of the transaction.
• Pre-notification: Start drafting sufficiently early before formal notification to ensure that deadlines are met.
• In-depth analysis: Conduct thorough research on the parties, relevant market, current investigations concerning similar sectors and legal precedents. Depending on the anticipated concerns, it may be useful to seek input from economists to assist with market definition and analysis.
• Consider engaging proactively with informal discussions, briefings or white paper submissions to the European Commission, to seek guidance or even gain some certainty on the strategy to be followed.
• Consider solving identified problems proactively. If a merger is likely to attract scrutiny and cause competition concerns, consider proactive divestitures and prepare for ‘fix it first' solutions – that is, consider divesting an overlap before filing or at least starting the divestiture process.
• Factor in delays that may occur from referral requests and negotiate the clauses of the agreement accordingly (eg, cut-off dates, break-up fees, closing conditions).
• Prepare submissions that are consistent across jurisdictions given the increased level of cooperation between the authorities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.