On April 20, 2023, the Commission adopted the 2023 Merger Simplification Package (the “2023 Package”) designed to streamline its procedure under the EU Merger Regulation. In particular, the 2023 Package (1) expands the types of concentration eligible for treatment under the simplified procedure, (2) streamlines the review of both simplified and non-simplified cases, and (3) simplifies the notification process.
On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU (the “2008 Guidance”). The Commission has amended its 2008 Guidance in a Communication and Annex. It has also launched a consultation seeking feedback on the adoption of new Guidelines on exclusionary abuses of dominance that the Commission intends to adopt in 2025 after publishing a draft in 2024. While the amendments in the 2008 Guidance bring it closer to the case law, they show the Commission seeking more discretion and leeway in its investigations.
In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor. In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense. It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel, Ryanair/Aer Lingus, Ineos/Solvay. The final report is scheduled for publication later this year.