Phase I

The number of deals cleared by the EC in phase I (in non-simplified cases) subject to remedies has slightly decreased from 14% of cases in 2013-2017 to 13% in 2018-2022. At the same time, the number of withdrawals and decisions to start phase II has increased by 2%. In the past five years it was statistically less likely to achieve unconditional clearance in phase I than in the five years before.

However, the upward trend in intervention reached its peak in 2018. The EC also reviews less complicated cases each year. Phase I intervention appears to have stabilised.

Phase II

Phase II intervention rates are still increasing. The share of prohibition decisions has decreased slightly, from 13% to 12%. The number of cases which were withdrawn or abandoned has, however, doubled, from 13% to 26%. We have gone from 26% of deals not getting through in 2013-2017, to 38% of deals not getting through in 2018-2022.

In 2013, a phase II investigation lasted almost 12 months, including prenotification and formal review. In 2022 that number was more than 18 months, an increase of more than 50%. Prenotification duration of phase II cases appears to have stabilized since 2019, but the formal review duration has steadily increased since the same year. The years 2020 and 2021 were partly outlier years with many cases being delayed due to pandemic related market changes. Still, the increase in formal review duration has continued in 2022.

Phase II case duration – prenotification and formal review duration in months

The increase in the duration of the formal review is, in part, due to the increased use of the stop the clock mechanism. This is the case for both years 2021 and 2022 which showed an increase in the use of this mechanism.

Phase II cases with at least one stop-the-clock since 2012

The long-term trend in prenotification duration of phase I remedies cases is still upward, but we may have seen a (Covid-related) peak in 2021. In 2013, on average, the prenotification period was almost 5 months. In 2022, the duration was more than 6.5 months.

Phase I cases – prenotification duration in months

For phase I unconditional approval cases, the long-term trend is upward, with 2022 setting a record. In 2013, on average, the prenotification period was 2.5 months. In 2022, this duration was 5 months, an increase of almost 100%.

Data points for prenotification and formal review duration that fall outside a two (prenotification) or three (formal review duration) standard deviation boundary are not included in the graphs on this page. If you would like to receive the graphs including all prenotification data points, please email Rhino@linklaters.com.

There were 237 normal procedure, or ‘non-simplified’, decisions in 2020-2022, representing 21% of all notifications. In 2013-2015, there were much more, 293, representing 33% of all notifications. However, the fewer complicated cases that remain receive more intense scrutiny by the EC. If we look at the average word count for a non-simplified decision, it has increased by more than 43% between 2012 and 2021, from almost 18,000 words in 2012 to more than 25,000 words in 2021.

The number of decisions with a significant vertical assessment (++ or + value) has increased from 10% in 2014 to more than 30% in 2023.

The data in this graph is based on text recognition software applied to a database of EU merger control decisions. The software attributes a numerical value to each decision based on key phrases. Whether or not a decision is qualified as significant, depends on how the value compares to the average values for the same type of decision in the dataset. For example, a phase I remedies decision’s relevance will be determined in relation to the average values for all phase I remedies cases. For more details, please email Rhino@linklaters.com.

The EC is increasingly requiring up-front buyer remedies, where the parties cannot close the transaction before having entered into a binding agreement with an approved purchaser. This occurs where the purchaser criteria set by the EC limit the likely number of suitable purchasers.

We see some fix-it-first remedies between 2016 and 2019 but these appear to have fallen out of favour. In that scenario, the parties must identify a purchaser, have it approved by the EC and enter into a binding agreement before clearance.