the global voice of the legal profession

June 19th, 2013

Dear Madam, dear Sir,

SUBMISSION TO THE EUROPEAN COMMISSION IN RESPONSE TO ITS CONSULTATION ON PROPOSED CHANGES TO THE SIMPLIFIED PROCEDURE UNDER THE EU MERGER REGULATION AND RELATED CHANGES

The Merger Working Group of the International Bar Association's Antitrust Committee ("IBA") hereby submits for your consideration its response to the European Commission's consultation on proposed changes to the simplified procedure under the EU merger regulation and related changes.

The IBA is grateful for this opportunity to comment on the simplified procedure under the EU merger regulation and appreciates the willingness of the European Commission to listen and respond to its comments and suggestions.

The Co-chairs of the Merger Working Group and Officers of the Antitrust Committee of the IBA would be delighted to discuss the following submission in more detail, should that be of interest.

Yours faithfully,

Jose Regazzini / Cani Fernandez Vicien Co-Chairs Antitrust Committee

cc Neil Campbell & Lulama Mtanga - IBA Antitrust Committee Merger Working Group Co-chairs Marc Reysen & Philippe Rincazaux - IBA Antitrust Committee Working Group Coordinators and Co-chairs

s s o cx

the global voice of the legal profession

INTERNATIONAL BAR ASSOCIATION

MERGER WORKING GROUP OF THE ANTITRUST COMMITTEE

SUBMISSION TO THE EUROPEAN COMMISSION IN RESPONSE TO ITS CONSULTATION ON PROPOSED CHANGES TO THE SIMPLIFIED PROCEDURE

UNDER THE EU MERGER REGULATION AND RELATED CHANGES

June 18, 2013

Error! No document variable supplied. LEGAL 20951916.1

June 18, 2013

CONTENTS

1. PROPOSED EXTENSION OF SCOPE OF SIMPLIFIED PROCEDURE 4 1.1. Market share thresholds 4 1.2. HHI threshold 5 1.3. Timing for Phase I decision 5

2. PROPOSED CHANGES TO 5.4 DOCUMENTS 6 2.1. Form CO 6 2.2 Short Form CO; new Section 5.3 8

3. WAIVERS 9 3.1. Expanded information waiver 10 3.2. Withdrawal of waivers by the Commission 11

4. ALTERNATIVE MARKET DEFINITIONS 11 5. JOINT VENTURES 13

5.1. Indicative example 15 5.2. Turnover and asset information 16 5.3. Overlaps and market share 17 5.4. Section 8 17 5.5. Upstream/downstream and neighbouring markets 17

6. PRE-NOTIFICATION PROCEDURE 17 7. OTHER PROPOSED CHANGES TO FILING FORMS 18

7.1. Proposed changes to draft Short Form CO 18 7.2. Proposed changes to Form CO 20

8. CONCLUSIONS 22

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SUMMARY

This submission is made to the European Commission's Directorate General for Competition ("DG Comp") on behalf of the Merger Working Group ("Working Group") of the Antitrust Committee of the International Bar Association.

The Working Group appreciates the opportunity to make this submission to DG Comp and hopes to contribute constructively to the ongoing review of the proposals to improve the Simplified Procedure ("Simplified Procedure") under the EU Merger Regulation.1 The Working Group's comments draw on the vast experience of its members in merger control law and practice within the European Union and other major merger control jurisdictions across the globe. The contributors to the Working Group's submission are listed in Annex 1.

The Working Group welcomes DG Comp's initiative to review the current procedures with a view to extending the Simplified Procedure to a broader range of transactions and streamlining the information requirements in the filing forms. A well-designed process for dealing with straightforward transactions on an expeditious and streamlined basis will assist both DG Comp and private parties to minimize the waste of resources.2 However, there are some areas where the Working Group considers that the proposals unnecessarily increase the already significant information burden on notifying parties and could be improved. Set out below is a summary of the key points contained in the Working Group's submission.

• Thresholds for use of Simplified Procedure: with regard to the Commission's proposed changes to the market share thresholds (see Section 1.1 below) for the Simplified Procedure, the Working Group welcomes the proposed increase in the thresholds, though notes that it would be more consistent for DG Comp to raise the thresholds further, so that they are in line with the figures set out in the Commission's horizontal merger guidelines for non-problematic mergers. Likewise, the Working Group welcomes the principle behind DG Comp's proposals on the HHI-based thresholds (see Section 1.2 below) for the Simplified Procedure, but again it submits that DG Comp should go further in its changes so that the criteria used to determine access to the Simplified Procedure would be consistent with what the Commission says in its own horizontal merger guidelines on non-problematic mergers.

• Section 5.4 documents: the Commission's proposals in respect of Section 5.4 (see Section 2 below) of the Form CO/Short Form CO would result in a potentially significant increase in the burden placed on notifying parties in terms of the amount of documentation to be submitted as part of the notification process. The proposed changes go beyond what is currently required in other major jurisdictions such as the US and are not, in the view of the Working Group, justified or reasonable. As regards the proposed introduction of a requirement to submit documents in respect of alternative (potential) transactions, the Working Group has serious concerns that this change would result in

http://ec.europa.eu/competition/consultations/2013j-nerger_regulation/index_en.html 2 See 1CN Recommended Practices for Merger Notification Procedures, Section IV: http://www.internationalcompetitionnetwork.org/uploads/library/doc588.pdf

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unnecessary and disproportionate risks to the security of some of the notifying parties' most sensitive commercial information.

• Alternative market definitions: the Working Group is concerned by the Commission's proposal to require parties to identify all "plausible" market definitions (see Section 4 below) and to supply data in support of all of those alternative definitions. The inclusion of this change would potentially require notifying parties to supply significantly increased amounts of data, with a corresponding dilution in the quality or usefulness of those data. The Working Group does not believe that the addition of the plausible market definition requirement would improve the quality of the filing process, considering in particular the already thorough assessment of possible market definitions that is currently done during the pre-notification stage of notifications.

• Joint ventures: taking into account the potentially broad application of the EU Merger Regulation to joint ventures (see Section 5 below), even where there is no real nexus with the EU , the Working Group is concerned that the inclusion of a new paragraph 11 in the revised Notice on the Simplified Procedure ("Notice") will simply serve to increase unnecessarily the number of joint venture transactions which are made subject to full Form CO notifications. The Working Group encourages DG Comp to reconsider its inclusion of the suggested paragraph 11 in order to ensure that joint venture transactions with no real effect on competition can at least be considered under the Simplified Procedure rather than with a full Form CO notification.

The Working Group also addresses in its submission:

• the use of information waivers; • pre-notification contacts; and • assorted suggested changes to the Form CO and Short Form CO.

1. PROPOSED EXTENSION OF SCOPE OF SIMPLIFIED PROCEDURE

1.1. Market share thresholds

The main change proposed by the revised Notice is to increase the market share thresholds for qualification for the Simplified Procedure from 15% to 20% for horizontal relationships and from 25% to 30% for vertical ones. This increase by itself should ensure that more cases which do not raise any significant competition concerns will fall within the scope of the Simplified Procedure. The Working Group welcomes this proposed change as a positive development that has the potential to reduce the burden of time and resources that is currently placed on firms and DG Comp with respect to transactions which raise no competition concerns and which must nevertheless be notified by way of a standard Form CO, with all of the information requirements this entails. In addition, the Working Group notes that the Commission's horizontal merger guidelines contain guidance on the level of market share below which the Commission is likely to find that a transaction is non-problematic and 'not liable to impede effective competition' - that figure is set at 25% in the

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Commission's horizontal merger guidelines3 and in the recitals to the EUMR itself.4 The Working Group suggests that the Commission examine again whether there is scope to increase the "horizontal" market share threshold in the revised Notice from 20% to 25%.

1.2. HHI threshold

The revised Notice introduces a new category of transactions which are potentially eligible for the Simplified Procedure: horizontal mergers where the combined market share of all parties is below 50%) and where the change in the Herfindahl Hershmann Index ("HHI") resulting from the transaction (HHI Delta) is expected to be less than 150. In principle, this represents an opportunity for transactions which do not lead to any real degree of concentration of market power to benefit from the Simplified Procedure, which again should be welcomed. That said, it appears that the scope of application of this provision would be rather limited. Indeed, relatively few cases involve parties with combined market shares between 20% and 50% and an HHI Delta of 150 or less. Moreover, transactions involving combined shares in the 20 to 50% range and a very minor market share increment may remain subject to the requirements of the standard Form CO. Bearing this in mind, the Working Group encourages DG Comp to reassess whether the HHI Delta or a market share increment threshold in this 20 to 50% horizontal market share category can be further broadened to extend the benefit of the Simplified Procedure to transactions resulting in negligible market share increases.

In this regard, the Working Group notes that the Commission's own horizontal merger guidelines state that the Commission is unlikely to identify horizontal competition concerns in a merger with a post-merger HHI between 1,000 and 2,000 and an HHI Delta below 250, or a merger with a post-merger HHI above 2,000 and an HHI Delta below 150, except in some limited, special circumstances.5

1.3. Timing for Phase I decision

The Working Group notes that DG Comp has missed an opportunity to use the introduction of a revised Simplified Procedure to provide for a shorter timeline for decisions in such cases. The 25 working day limit set down in Article 10(1) of Council Regulation 139/2004 ("Merger Regulation") is a deadline rather than a requirement that the review process last a certain duration. The Working Group encourages DG Comp to consider amending its revised Notice to state that decisions on cases under the Simplified Procedure may be issued, for instance, within 20 working days.

J Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, para. 18 : http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:031:0005:0018:EN:PDF. 4 See EU Merger Regulation, recital 32. The Working Group also notes that the relevant guidelines in the US and Japan, for example, adopt a similar approach to identifying unproblematic mergers by reference to similar HHI ranges and HHI Deltas. 5 Horizontal merger guidelines, para. 20.

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The Working Group believes that the Commission's review process, as well as all associated administrative requirements placed on DG Comp in terms of obtaining the requisite legal and collegiate input and approval, could be achieved within a 20 working day period. Indeed the Commission has regularly adopted clearance decisions in Phase I in under 20 working days. Including a target of 20 working days for Simplified Procedure decisions in the revised Notice would not require any legislative change in terms of the Merger Regulation and could be viewed as a "best practice" aim. This would not ultimately jeopardize the Commission's right to take a full 25 working days to issue a decision in any Simplified Procedure case where this is merited.

2. PROPOSED CHANGES TO 5.4 DOCUMENTS

2.1. Form CO

2.1.1 Current Section 5.4

Currently, Section 5.4 of the Form CO provides that the following categories of documents should be provided:

• "copies of all analyses, reports, studies, surveys, and any comparable documents; • prepared by or for (i) any member(s) of the board of directors, or (ii) the supervisory

board, or (Hi) other person(s) exercising similar functions (or to whom such function have been delegated or entrusted), or (iv) the shareholders' meeting;

• for the purposes of assessing or analyzing the concentration with respect to market shares, competitive conditions, competitors (actual or potential), the rationale of the concentration, potential for sales growth or expansion into other product or geographic market, and/or general market conditions. "

2.1.2 Revised Section 5.4

In the proposed revised Section 5.4, DG Comp has suggested broadening the scope of Section 5.4. The Working Group submits that the proposed expansion of the scope of Section 5.4 is unnecessary and likely to result in an unjustified burden on notifying parties. In addition, the proposed requirement that the parties provide documents unrelated to the transaction being notified to cover alternative acquisition options gives rise to serious concerns with regard to confidentiality of highly-sensitive information which, even within a company, is typically kept to a small, closed group.

The most significant proposed changes to Section 5.4 are set out below.

• Notifying parties will have to submit the minutes from any meetings of the board of directors, board of management, supervisory board and shareholder meetings at which the transaction has been discussed. This proposed change would potentially result in

See e.g. M.6886 Lindengruppen/FAM/Hogands, 17 May 2013 (18 working days); M.6865 Oaktree/Countryside, 26 March 2013 (19 working days); M.6820 EQT Infrastructure II/E.On Energy-From-Waste, 27 February 2013 (18 working days).

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a significant increase in the amount of documentation that needs to be supplied by the parties to the Commission.

Notifying parties will need to submit any analysis, report, study or survey which could be relevant in assessing any affected markets. This would place an unduly onerous burden on the notifying parties. In particular, the three-year time period for this request seems disproportionate, taking into account the limited relevance that many two- or three-year old reports and studies would have to the Commission's merger review.

Notifying parties will be required to submit all presentations analyzing any alternative acquisition options, including but not limited to the notified concentration. The introduction of this change would represent a major and controversial modification which gives rise to serious concerns and does not have a parallel in other major jurisdictions, such as the U.S. or Canada. First, the Working Group questions how this proposed change can be justified substantively, as a presentation analyzing a potential, alternative acquisition (in practice unrelated to the notified transaction) should in principle not be of relevance to the Commission in its assessment of the notified transaction's impact on competition.7 The existing requirements under Section 5.4 are more than adequate in providing the Commission with the documents it needs for the purposes of the competitive assessment. Second, this requirement could result in a significant and unwarranted increase in the amount of documentation submitted to the Commission. Finally and perhaps most importantly, in order to comply with this request, parties would need to provide to the Commission information in respect of highly-confidential commercial matters which also relate to third companies not involved in the merger proceeding in question. The Working Group is aware that the Commission provides protection for confidential information. However, this type of information — which in any event is not relevant or necessary to the assessment of the notified transaction — is often kept within a small group within the company and may not have been shared with many of the business people who will be working on the transaction being notified. Contemplated transactions are indeed among the most sensitive information a company has and, at the time of notification, an "alternative" transaction may still be under consideration as a potential imminent or future target. Even if these 'alternative' transactions are abandoned, it could be very damaging to the notifying party and the potential target of the alternative transaction if there was any leak. For these reasons, contemplated transactions which are still under consideration or which have been abandoned are normally kept within a small closed group within the relevant company. If this information had to be provided to the Commission, there would be a number of negative repercussions, including:

This could be of relevance in failing firm defense situations where the Commission assesses whether alternative, less anticompetitive solutions existed. However, in such situations, which are rare, the Commission would be entitled to request such evidence via Article 11 information requests.

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(a) This information could restrict the open nature of the discussion between DG Comp and the notifying parties (for example, during meetings with DG Comp) depending on who is present from the notifying companies, the discussion and review of documents could not extend to a discussion of alternative transactions.

(b) The parties would be very reluctant to allow the Commission to share confidential information with other agencies reviewing the transaction. Again, the Working Group is aware of the confidentiality assurances which typically exist or are provided when confidential information is shared pursuant to waivers. However, depending on the agency with which the information is shared, companies may be concerned that the formal confidentiality protections are not sufficient to protect highly sensitive commercial data. If the data were to include information on potential alternative transactions, this may further deter parties from providing waivers.

(c) Other agencies around the world which look to the Commission's lead in designing and implementing their filing systems and information requirements may seek to expand their information requirements to cover documents assessing alternative transactions. Because of the highly-sensitive nature of this type of information, this would further increase the risk and burden on parties involved in merger filings for the reasons set out above.

(d) The draft Form CO would have to be redacted for the purposes of a company's own internal review of the draft and clearly would have to be redacted for the purposes of sharing the draft with other parties to the transaction, further adding to the procedural burden of preparing an EU merger filing.

The Working Group submits that the cumulative effect of the proposed changes to Section 5.4 amounts to a transformation of Section 5.4 from an already resource-heavy request into a "catch-all" section which would, in effect, allow the Commission to require, as part of the notification, any internal document which it deems to be remotely relevant to the notified transaction. The Working Group believes that DG Comp should reconsider the additional requirement related to meeting minutes and reduce the requirement to produce analyses/reports/studies/surveys from a three-year to a two-year period. Most importantly, the suggested inclusion within Section 5.4 of presentations which are clearly unrelated to the contemplated transaction (especially documents which relate specifically to other proposed acquisitions) should be re-examined. Including this change appears to move clearly beyond the overall purpose of Section 5.4 and, arguably, extends the approach under the EU Merger Regulation beyond anything seen in the HSR Form phase of US merger reviews.

2.2 Short Form CO; new Section 5.3

The current format of the Short Form CO does not contain any provision equivalent to Section 5.4 of the Form CO.

Notably, however, DG Comp's proposals include a new Section 5.3 in the proposed revised version of the Short Form CO, requesting the parties to submit copies of "all presentations

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prepared by or for any members of the board of management, and the board of directors, and the supervisory board, as applicable in the light of the corporate governance structure, or the other per son(s) exercising similar functions (or to whom such functions have been delegated or entrusted), or the shareholders' meeting analyzing different options for acquisitions, including but not limited to the notified concentration ".

The Working Group submits that this change runs against the main objectives of the entire proposal to "make EU merger control even more business-friendly by cutting red tape and streamlining procedures" and to "reduce the net amount of information required to notify all mergers"* On the one hand, DG Comp is suggesting a welcome broadening of the scope of the Simplified Procedure in terms of the number of transactions which would fall to be considered under such procedures. On the other hand, DG Comp is proposing to impose additional and significant burdens on all transactions under the Simplified Procedure (including for those transactions that would have met the Simplified Procedure criteria prior to the proposed changes).

The Simplified Procedure applies to transactions that are presumed not to raise competition concerns. Significant information is still required by the Short Form CO and in pre-notification to make sure that the transaction does indeed fall within the categories specified in the Simplified Procedure Notice. It is therefore difficult to see why extensive document production is required for such transactions that are presumed not to lead to any competition concerns. The new Section 5.3 therefore appears unwarranted and will, in effect, be an across-the-board increase in the burden on notifying parties as all parties notifying a Simplified Procedure transaction will have to comply with these requirements.

On this basis, the Working Group suggests that the proposed new Section 5.3 runs contrary to the overall stated purpose of DG Comp's initiative — simplification — and therefore proposes that the Commission consider eliminating Section 5.3 from its proposal.

3. WAIVERS

The proposed draft Form CO contains expanded guidance concerning the Commission's willingness to waive certain information requirements in the Form CO. There is no corresponding amendment to the Short Form CO, although it indicates that certain information may not be necessary in certain cases. At the same time, however, the Commission indicates that it may withdraw any waiver "at any time".

As explained below, the Working Group generally welcomes DG Comp's effort to dispense with the production and review of unnecessary information in a given case, and suggests some clarifying revisions. The Working Group, however, is concerned that the benefits of information waivers will be undermined unless the Commission clarifies the basis on which it will withdraw information waivers.

Commission consults on proposal for simplifying procedures under the EU Merger Regulation, para. http://europa.eu/rapid/press-release_IP-13-288_en.htm

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3.1. Expanded information waiver

3.1.1 Section 1.4(g) of the draft Form CO

The proposed revision to section 1.4(g) of the draft Form CO identifies specific categories of information that, in DG Comp's experience, are often unnecessary. These categories of information are identified by reference to footnotes 16, 17, 19, 20, 24, 28, 29, 31 and 32. These footnotes, in turn, encourage parties to consider whether a waiver should be sought for the following information:

Footnote

16 17 (18)9

19 20 24 (23)'° 28 29(27)" 30 31 32 (33)'2

Category of Information for which parties should consider the availability of a waiver Past (last 3 years) acquisitions of undertakings (Section 3.6) Documents assessing or analysing the concentration (Section 5.4(iii)) See footnote 24 (23) below Reports from the last 3 years assessing the relevant market. (Section 5.4(iv)) Affected markets or other markets (Sections 6.3 and 6.4) Capacity data (Section 7.4) Value or volume-based data for market size/shares (Section 7.2) Cooperation agreements (Section 8.11) Trade associations (Section 8.15) Efficiencies (Section 9)

The Working Group agrees that the types of information identified above are often unnecessary for the Commission to resolve a case. The Working Group submits that, under the facts of an individual case, there are often other categories of information that are not necessary for the Commission to resolve the case. The Working Group therefore recommends that the Commission also clarify in section 1.4(g) that the identified categories of information are illustrative - not exhaustive. In other words, section 1.4(g) should expressly invite the parties to assess, and seek waivers for, additional types of requested information that are not necessary for the resolution of their case. This can reduce burdens and conserve resources for both the notifying parties and DG Comp in appropriate situations.

3.1.2 Section 1.5 of the Short Form CO

The Short Form CO contains no amendment that corresponds to the proposed revision to Section 1.4(g) of the draft Form CO. Sections 1.3 and 1.5 of the draft Short Form CO,

The reference to footnote 17 appears to be an error, and the reference should be to Footnote 18. Footnote 17 relates to turnover, but Footnote 18, expressly relates to information waivers. 10 The reference to footnote 24 appears to be an error, and the reference should be to Footnote 23, since footnote 24 merely defines complementary products or services. Footnote 23 expressly relates to information waivers. " The Commission's references to Footnotes 28 and 29 appear to be directed at Footnotes 27 and 28. Footnote 29 relates to research and development intensity. Footnotes 27 and 28 refer expressly to information waivers. 12 The Commission's references to Footnote 32 appear to be directed at Footnotes 33. Footnote 32 relates to the Commission's ability to request more information. Footnote 33 indicates that information concerning efficiencies may not be needed.

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provide that if the transaction does not give rise to reportable markets, then Sections 6 and 7 do not need to be completed, and that other unnecessary information may be waived.

The Working Group welcomes the amendment to Sections 1.3 and 1.5 of the draft Short Form CO, as this will significantly streamline the preparation and assessment of non-problematic transactions. The Working Group also encourages DG Comp to consider a further amendment, identifying types of information that may not be relevant and invite discussions to streamline information requirements. This could be achieved by revising the last paragraph of Section 1.6(g). In this way, DG Comp will further advance its objective of streamlining the burden on providing and assessing unnecessary information on notifying parties and the Commission in non-problematic cases.

3.2. Withdrawal of waivers by the Commission

The Working Group is concerned that DG Comp's efforts to dispense with unnecessary information in particular cases (discussed above) may be undermined by further proposed revisions to the draft Form CO (Section 1.2) and draft Short Form CO (Section 1.5).

These provisions make clear that the Commission may "at any time" withdraw an information waiver, and also that it can request information pursuant to Article 11 of the Merger Regulation. The Working Group does not question the Commission's power to request information under the Merger Regulation. However, the potential threat of withdrawal of a waiver, without any criteria as to when such a withdrawal will occur, will likely chill parties' willingness to seek a waiver in the first place. That is, if the parties are concerned that the Commission can at any time withdraw a waiver, they will have no choice but to obtain and prepare that information in the event that the Commission later decides to request it. In these circumstances, the objective of dispensing with unnecessary information will not be realised, and parties will continue to face similar burdens that they do today.

The Working Group therefore submits that DG Comp should further revise Section 1.2 of the draft Form CO and Section 1.5 of the draft Short Form CO to include the specific criteria that will lead to the withdrawal of a waiver for information.

4. ALTERNATIVE MARKET DEFINITIONS

DG Comp's draft proposal for the revision of the Simplified Procedure adds a requirement for the notifying parties to identify all plausible market definitions in the notifications and to provide data under all such alternative market definitions. The proposed amended notification forms also state that the concept "all plausible product and geographic market definitions" is not limited to definitions considered in previous Commission decisions.13

Experience has shown that pre-filing consultations with the DG Comp case team and the decision on whether a concentration qualifies for the Simplified Procedure can become

J Form CO, Section 6 Market definitions and Section 7 Information on affected markets; Short Form CO, Section 6.1 Market definitions and Section 7 Information on markets; and Form RS, Section 3 Market definitions and Section 4 Information on affected markets.

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unnecessarily burdensome and time consuming, in particular because of the market definition process. Even in clearly unproblematic cases where the market(s) in question have been investigated in some detail in previous cases, the case teams tend to require market information under hypothetical, overly narrow market definitions, including situations where it is evident from the overall context of the case and market reality that the transaction cannot lead to any competition concerns.

The thorough assessment of all plausible market definitions would significantly increase the workload of the parties to the concentration in terms of data collection, who already frequently struggle to provide market data for hypothetical narrowly defined markets. Relevant market data are often not readily available. It can be time-consuming — and thus costly -for the parties to develop reasonable estimates for the markets in which they compete. Providing estimates for various alternative market definitions that do not reflect the market reality would be a serious additional time and cost burden. However, the concern goes beyond resources and timing: the parties are also responsible for the correctness of the data provided to the Commission, which responsibility would be difficult to meet when the parties can only guess at the sizes of the markets and market shares under hypothetical market definitions that are not used in their day-to-day business operations.

The Working Group is concerned that emphasizing in the Notice and the Form RS (which constitute legal instruments) the requirement of providing information on all "plausible" market definitions, including but not limited to definitions considered in previous Commission decisions, will in practice translate into an even more formal requirement for the parties to speculate on and provide data for numerous hypothetical markets. "Plausible", in particular where it is specifically stated that precedent is to be ignored, is far too vague a term to be used in defining a filing requirement.

The Working Group is also concerned that an expansive interpretation of all plausible product and geographic market definitions may undermine the goal of increasing the number of cases notified by using the Short Form CO. If all hypothetical markets must be considered in simple cases, the beneficial effect of the increased Simplified Procedure market share thresholds may be watered down.

The Working Group thus proposes the relaxation of the revised market definition requirement, or indeed the retention of the language used in the current version of the filing documents. If some sort of change is to be made, in practice this could be achieved by, for example, requiring the notifying parties to come up with a reasoned proposal on the definition of the relevant markets, including relevant case references, which the Commission should only require to be amended with one or more specific alternative market definitions if it has reasoned doubts as to the market definition proposed. At the end of the day, the notifying parties are responsible for the completeness of the notification and the Commission always has the possibility to revisit the case based on a third party claim or if the

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Commission itself becomes doubtful of the market definition proposed by the parties.14 This risk sharing principle could also be included in the Notice.

5. JOINT VENTURES

As DG Comp is aware, the effect of the current jurisdictional thresholds within the EU Merger Regulation (and the definition of "undertaking concerned" as set out in the Consolidated Jurisdictional Notice) as applied to joint venture transactions is overbroad. A large number of "offshore" joint venture transactions (relating to joint venture companies which will be active on markets outside the EEA only and which do not and will not generate EEA turnover) fall within the scope of the EU Merger Regulation solely as a result of the EEA turnover of the parent companies' corporate groups (which are often themselves established outside the EEA).

Such transactions therefore require mandatory notification regardless of the fact that they are quite clearly not capable of giving rise to any actual or potential effect on competition within the EEA (and regardless of the size of the joint venture). By way of example:

• Temasek / E Oppenheimer / Tana JF15 — the creation of a joint venture between a Singaporean sovereign wealth fund and a BVI company to invest in the fast moving consumer goods sector in Africa only was notified and cleared under the EU Merger Regulation.

• Mitsubishi Corporation / Mitsubishi Electric Corporation / Mitsubishi Elevator (Singapore) — the acquisition of joint control over a company active in the supply, distribution, installation and maintenance of elevators and escalators in Singapore only was notified and cleared under the EU Merger Regulation.

• Veolia / EDF / Societe d'Energie et d'Eau du Gabon'7 — the acquisition of joint control over a distributor of water and power active only in Gabon was notified and cleared under the EU Merger Regulation.

The Working Group recognizes that joint ventures which will, following creation, be active to a significant extent in the EEA do have the potential to affect the structure of competition within the EU. In theory, this could also be the case where markets are global, as joint ventures which operate outside the EEA could, in specific cases, potentially have an impact on future competition within the EEA even though they do not currently have EEA turnovers. However, this is also true of international merger cases and the EU Merger Regulation does not attempt to make all such transactions notifiable. The Working Group similarly recognizes that, in theory, joint ventures which operate outside the EEA might potentially give rise to spill-over effects in certain limited cases between the parent companies within the EEA.

Council Regulation No 139/2004 on the control of concentrations between undertakings, Article 10(1), 6(3)(a) and 8(6)(a), and Commission Regulation No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, Article 5(2).

Case M.6240 Temasek / E Oppenheimer / Tana JV, 2 August 2011. Case M.6647 Mitsubishi Corporation /Mitsubishi Electric Corporation /Mitsubishi Elevator (Singapore) 6

August 2012. 6 ' 7 ' 17 Case M.6105 Veolia/EDF/Societe d'Energie et d'Eau du Gabon, 24 January 2011.

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However, the result of the operation of the current jurisdictional thresholds is that they primarily catch a very large number of offshore joint venture transactions (such as the examples set out above) in relation to which there is absolutely no prospect of any effect on the structure of competition in the EEA.

The current thresholds are unnecessary in order to achieve the EU Merger Regulation's objective of ensuring that competition in the internal market is not distorted and are, it is submitted, disproportionate. The current system is also inconsistent with the stated objective in IP/13/288 that the current consultation is designed to make EU merger control "even more business-friendly".

The inclusion of such transactions within the jurisdictional scope of the EU Merger Regulation places a significant burden in terms of time and cost (both internal and external) on the parties to such transactions. The burden includes conducting the jurisdictional assessment, preparing the notification (with the informational burdens that this entails) and participating in the review process (notwithstanding the existence of the Simplified Procedure). These notifications also require DG Comp resources to be diverted to matters that do not affect competition in the EEA.

Moreover, the fact that such transactions trigger the Article 7 EU Merger Regulation suspensory obligation often gives rise to delays in the transaction timetable (and potential disadvantages vis-a-vis other bidders in competitive processes). These consequences are unnecessary and disproportionate given the inability of such transactions to give rise to any effects on competition within the EEA.

The Working Group notes that the wide territorial scope of the EU Merger Regulation as applied to offshore joint ventures does not appear to be consistent with the approach of the General Court in its Gencor v Commission judgment seeking to reconcile the territorial scope of the EU Merger Regulation with the relevant principles of public international law.18 The Court confirmed that the transaction in that case was properly subject to EU law because it would have a foreseeable and "substantial effect" on competition within the EEA. However in the type of offshore joint ventures discussed above, this is not the case, and therefore the extra-territorial application of the EU Merger Regulation cannot be reconciled with public international law on this basis.

Finally, the Working Group notes that the operation of the EU Merger Regulation thresholds in this respect is not consistent, in substance, with the principles underlying the ICN Recommended Practices for Merger Notification Procedures}^ Among other things thev provide that: & ' J

"Jurisdiction should be asserted only over those transactions that have an appropriate nexus with the jurisdiction concerned".

(LA)

i? See Case T-102/96, paras. 90 and 98

' ' hSp://www.internationalcompetitionnetwork.org/unloads/librarv/dor.588pHf See also Setting notification thresholds for merger review: Report to the ICN Annual Conference, Apri 12008 (http^/www.internationalcoiTiDetitionnetwork.org/uploads/librarv/doc326.pdf).

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"Merger notification thresholds should incorporate appropriate standards of materiality as to the level of "local nexus " required for merger notification "

"Comment 1: In establishing merger notification thresholds, each jurisdiction should seek to screen out transactions that are unlikely to result in appreciable competitive effects within its territory [...]".

"Comment 3: The "local nexus " thresholds should also be confined to the relevant entities or businesses that will be combined in the proposed transaction [...]".

(LB)

"Determination of a transaction's nexus to the jurisdiction should be based on activity within that jurisdiction, as measured by reference to the activities of at least two parties to the transaction in the local territory and/or by reference to the activities of the acquired business in the local territory".

"Comment 1: Notification should not be required unless the transaction is likely to have a significant, direct and immediate economic effect within the jurisdiction concerned".

(I.C)

The Working Group recognizes that the current consultation, may not be DG Corp's preferred process for considering amendments to the EU Merger Regulation to deal with the joint venture issues. Nevertheless, some of the proposed changes to the application of the Simplified Procedure and the contents of the Short Form CO and Form CO notifications are relevant to offshore joint ventures and changes have the potential to ameliorate the burdens placed on parties to such transactions to some extent. In addition, the Working Group urges DG Comp to review the overall application of the EU Merger Regulation to offshore joint ventures as a matter of priority. This would of course be consistent with the stated aim of the current consultation to cut red tape and make administrative procedures less burdensome for business (as well as relieving pressure on scarce DG Comp resources). In the meantime, the Commission can and should ease the burden on parties to such joint venture transactions within the current initiative, in relation to which the Working Group's comments are as follows.

5.1. Indicative example

The Working Group is concerned about the inclusion within new paragraph 11 of the Notice of the proposed "indicative example" of certain joint venture transactions as cases in which the Commission may choose to exclude a joint venture transaction from the Simplified Procedure, notwithstanding that it falls within the scope of paragraph 5(a) of the Notice as a result of having no or limited turnover/assets within the EEA.

As outlined above, it is only in very specific situations where joint ventures which have no or

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limited activities within the EEA could give rise to an effect on competition within the EEA such to justify the application of the EU Merger Regulation. In the Working Group's view joint ventures with no activities within the EEA, or EEA turnover falling below the €100m

tX^^Tr°m ^ S i m p l i f i e d P r ° C e d U r e - A n y C ° n C e m S i n S P e c i f i c — can-be dealt with under the Commission's general discretion to revert to a normal first phase procedure/require a full Form CO, but this should be exceptional. The introduction of paragraph 11 appears to signal that this would not in fact be exceptional. This c o n c e r n is exacerbated by the breadth of paragraph 11 as currently drafted. The exclusion is stated to include but not be limited to the specific situations identified and there ore could apply to any joint venture with no or limited turnover within the EEA It is

M e d ' p r o ^ S i r i 0 n D G , C1 ° i

m P ^ " m i n d W W c h wouldjustify exclusion from the Simplified Procedure. If paragraph 11 is to be retained (which the Working Group believes is unnecessary and undesirable), this wording should be removed.

The first situation specified is inappropriately vague and wide. There is no indication of when

Z Z L°t" S e m r P r ° d u c e d , b y t h e J° i n t v e n t o e would be regarded by the Commission as important inputs or any indication of what level of sales in the EEA of the products or

services utilising those inputs would be such to justify the exclusion. On the face of this example the sale of a limited number of products/services incorporating the joint venture's input within the EEA would be sufficient to trigger this exclusion.

o f h wr a t 0 nr r U a t i 0 n ^-f^ "J80 inaPP roP r i a te ly ^ and wide. There is no indication of what DG Comp considers "likely" or "foreseeable" to mean in this context. If paragraph 11 is to be retained, then DG Comp should consider adding a reference to, for examplf the Commissions criteria for assessing the likelihood and timeliness of new entry within the Horizontal Merger Guidelines as a benchmark for assessing likely and foreseeable enfty into/increase in sales within the EEA. y

Moreover, the wording of this second situation is currently drafted such that the joint venture achieving significant sales in the foreseeable future "including in the EEA" would be

a l S T J ! 0 , t n g ? e V h e , e X d U f °n- T h e p r ° P 0 S e d s igni f ica*ce qualifier does not therefore attach to the level of sales m the EEA, but just the sales of the joint venture generally This does not appear to be a relevant measure. If this paragraph is to be retained, this should be amended to make it clear that the relevant criterion is whether significant sales in the EEA are likely, with some indication as to what is meant by significant. 5.2. Turnover and asset information

The Working Group notes the addition of the wording "at the time of notification" within paragraphs 5(a)(i) and (n) of the Notice, and correspondingly within section 1.1 of the draft revised Short Form CO, in respect of the turnover/value of assets within the EEA of the relevant joint venture company and/or contributed activities.

The Working Group assumes that this addition is intended to clarify that it is existing turnover/assets which are relevant, and therefore that even if the parties envisage that inlu^re the joint venture will increase its activities in the EEA with the result that turnover in future years may exceed the €100m threshold, the Simplified Procedure will apply. Moreover, this addition presumably is not intended to alter the current position (as set out in footnotes 6 and

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8 of the Notice) that the turnover/value of assets of the joint venture is to be assessed on the basis of the most recent audited accounts of the parent companies (which would be consistent with Article 5 of the EU Merger Regulation itself in relation to the assessment of whether the jurisdictional thresholds are met). It would be desirable to make the text clearer in order to avoid any doubt with respect to these issues.

5.3. Overlaps and market share

The Working Group welcomes the clarification within paragraph 7 of the Notice, and correspondingly within sections 1.1 and 6.2 of the draft revised Short Form CO, that in the case of an acquisition of joint control, overlaps between the undertakings obtaining joint control only do not constitute horizontal or vertical relationships for the purposes of the Notice and the draft revised Short Form CO (including in respect of the definition of reportable markets). This is an important clarification because members of the Working Group have observed that there was not a consistent practice and are aware of situations where parties were asked to provide details of remote overlaps between the parent companies which had nothing to do with the joint venture in question.

It would be useful to include a similar clarification within section 6.3 of the draft revised Form CO in respect of the definition of affected markets.

In addition, in relation to the calculation of market shares to establish whether horizontal or vertical relationships exist for the purpose of the application of the Simplified Procedure/use of the Short Form CO (paragraph 5(b) of the Notice and section 1.1 of the draft revised Short Form CO), the Working Group suggests that the relevant markets should be limited to markets within the EEA. This would be consistent with the approach to the definitions of affected markets and reportable markets within the draft revised Form CO and draft revised Short Form CO, respectively.

5.4. Section 8

The Working Group welcomes the limitation of the information required to be included in respect of joint ventures which fall within the scope of paragraph 5(a) of the Notice. However, the utility of this in reducing the burden on parties to such joint venture transactions and DG Comp will of course depend on how this is applied in practice.

5.5. Upstream/downstream and neighbouring markets

In keeping with the comments above, the Working Group considers that the requirement to provide information about upstream/downstream or neighbouring markets from the markets on which the joint venture is active should be limited to upstream/downstream or neighbouring markets in the EEA. This again will avoid wasting resources of the parties and DG Comp on matters that could not result in competition concerns in the EEA.

6. PRE-NOTIFICATION PROCEDURE

The Working Group notes that the separate paragraph related to the advisability of pre-notification contacts with DG Comp in the revised forms is a positive change. The

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documents also mention situations in which pre-notification discussions would be most helpful (e.g. when parties wish to submit a Short Form CO in situations where two or more of the parties to the concentration are in a horizontal relationship with an HHI Delta resulting from the concentration of below 150). However, the general outline of timing and the extent ol pre-notirication contacts remain unchanged and refers back to DG Comp's "Best Practices on the conduct of EC merger control proceedings".

The Working Group would like to raise an issue regarding the duration of the pre-notification contact with the Commission. Pre-notification contacts are very useful for the notifying parties, as they minimize the risk of incompleteness of a merger control notification However they can at times be very lengthy and in many instances are lengthier than the Phase 1 investigation itself.

At the pre-notification stage, time does not run against the Commission; there are no formal deadlines for action. As a result, this stage can and in practice often does last many weeks -or even several months - depending on the complexity of the case. Therefore, in some cases, the notifying parties would even consider submitting the notification before the pre-notification stage is complete - i.e. despite the case team's wish to extend pre-notification -simply in order to start the clock.

It is also possible that the proposals for revision may have an adverse impact on the length and complexity of pre-notification procedures. A number of the changes proposed by the Commission may contribute to a prolonged pre-notification period as a result of discussions concerning the scope and application of the proposed changes. In particular, the Working Group is concerned that there could be lengthy discussions on issues including (inter alia), the availability of waivers for information requirements where not expressly signposted in the notification forms; the need for waivers for international cooperation in straightforward cases or indeed complex cases where the Commission has requested confidential section 5 4 documents; and the meaning of "plausible" markets on each of these issues above.

For this reason, the Working Group suggests the introduction of a pre-determined time-frame tor pre-notification contacts. The Working Group suggests two weeks for the Simplified Procedure, three to four weeks for the full procedure in regular cases and two months for the most complex cases. The Working Group believes that the function which was initially intended for the pre-notification period — to check the completeness of the Form or to check whether any jurisdictional issues arise — should be re-affirmed by the Commission This change will further contribute to shortening and placing more structure on the pre-notification stage of the merger control procedure.

7. OTHER PROPOSED CHANGES TO FILING FORMS

7.1. Proposed changes to draft Short Form CO

New Section 7.2 — Information on Markets (for concentrations that qualify for simplified treatment on the basis of the new HHI threshold in point 6 of the Commission Notice on a Simplified Procedure)

•

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The draft Short Form CO contains a new Section 7.2, which requests information from notifying parties whose concentration qualifies for the Simplified Procedure on the basis of the new HHI threshold. In particular, Section 7.2.1 seeks information about whether any "special circumstances" are present, with reference to point 20 of the Commission's Guidelines on the assessment of horizontal mergers. Section 7.2.2 seeks sales and market share information for the prior three years. And Section 7.2.3 requests information concerning research and development innovation over the prior three years as well as intellectual property rights.

Section 7.2.1 is a reasonable addition because it may facilitate the identification of concentrations that present competition problems, even if the accretion in market share appears low.

On the other hand, the Working Group submits that the Section 7.2.2 request for three years of sales by value and volume, as well as market shares, is excessive. Section 7.1.3 already requests this information for only one year and asks the parties to identify any significant changes over the past three years. This appears to provide the Commission with sufficient data to assess the notified concentration. There is no reason why, at the outset, two additional years of data should be supplied simply because the concentration qualifies for the Simplified Procedure. The Working Group recommends that DG Comp delete Section 7.2.2.

Section 7.2.3 includes broad requirements that appear to focus on the extent and intensity of research and development (Section 7.2.3.1) and "innovations in products and/or services brought to market during the last 3 years, pipeline products to be brought to market within the next 3 years, as well as important intellectual property rights owned or controlled" (Section 7.2.3.2). The Working Group submits that these requests are overbroad in light of Section 7.2.1. Section 7.2.1 already requires the notifying parties to identify "special conditions," which includes whether the parties are important innovators or are potential entrants. Section 7.2.1 appears to be adequate for this type of review and the further, more detailed, request under Section 7.2.3 would be unnecessarily burdensome. This addition would also run counter to the stated intention of streamlining the procedure for notifying concentrations under the EU Merger Regulation. The Working Group recommends that DG Comp delete Section 7.2.3.

• New Section 8 — Activities of the target if there are no reportable markets

The draft Short Form CO contains a new Section 8, which must be completed if the concentration does not give rise to reportable markets. The objective of Section 8, according to its title, is to identify the activities of the target. This section contains two parts: a request for information about the party/-ies acquiring control (8.1) and information about the target's business activities (8.2).

The Working Group observes that the Section 8.2 requests about the target's business seem reasonably tailored. However, the Working Group is unclear why DG Comp proposes to seek information about the business of the undertaking(s) acquiring control in Section 8.1. This information does not appear necessary in the context of Section 8 overall, which focuses

See Commission Guidelines on the assessment of horizontal mergers, para. 20 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:031:0005:0018:EN:PDF.

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on the target's business activities. In addition, information about the acquirer(s) will have already been provided in connection with other sections, including for example Sections 1-3 of the Short Form CO. The Working Group recommends that DG Comp delete Section 8.1.

7.2. Proposed changes to Form CO

• New section on quantitative economic data

The proposed Form CO includes a new Section 1.8 regarding the "[description of quantitative economic data collected by the undertakings concerned". Under the revised text, the parties are "encouraged" to submit quantitative economic analysis for the affected markets, provided it is useful for the assessment of the concentration. In particular, the parties are invited to describe the data that each of them collect and store in the ordinary course of their business operations and which could be useful for such analysis. ' DG Comp describes, as examples, three cases in which the submission of quantitative economic data would be considered useful for the competitive assessment of the concentration.22

While the Working Group recognizes that provision of this economic data is not compulsory, there is a concern that if DG Comp includes this language in its amended Form CO, submitting this type of data may become de facto compulsory. Were that to be the case, this would represent a retrograde step as it would impose a heavy new burden on notifying parties in terms of preparatory in-house work, the potential need to engage economists in otherwise uncomplicated/straightforward transactions, etc. Given that the notifying parties will submit such data where they consider it helpful to the assessment, and given that the Commission has ample time to request such data in the pre-notification process, the Working Group submits that it is unnecessary to specify in the Form CO that the parties are encouraged to provide quantitative economic assessments.

• International cooperation

DG Comp intends to include a new Section 1.9 regarding "fijnternational cooperation between the Commission and other competition authorities". In particular, DG Comp is proposing to encourage notifying parties to submit (i) a list of non-EEA jurisdictions where the concentration is or will be notified for merger clearance before or after closing, and (ii) waivers of confidentiality that would enable the Commission to share

The data description should include: (i) the type of such data (information on sales or bids, profit margins, procurement process details, etc.); (ii) the level of disaggregation (i.e. per product, per customer, etc.); (Hi) the time period for which the data are available; and (iv) the format. (i) a concentration amongst two providers of services that business customers purchase on the basis of structured procurement processes where candidate suppliers bid against each other and where suppliers or customers collect bidding data, that is to say data about the participants, offers and outcomes of past procurement processes; (ii) a concentration amongst producers of retail products that are to final consumers and where "scanning data" about consumers' purchases in shops are collected over a significant period of time; (iii) a concentration amongst providers of mobile telephony services to end customers and where regulatory authorities for telecommunications collect data on customer switching between the providers of mobile telephony services.

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confidential information with other competition authorities outside the EEA. The rationale behind this proposed Section 1.9 is facilitating coordination between the Commission and other competition authorities on parallel or closely-related merger review processes.

Providing a list of jurisdictions in which the concentration has been (or will be) notified is already a requirement in many jurisdictions. The Working Group also notes that it has become common practice in any event in EU filings. In practice, many notifying parties already provide this information to the Commission voluntarily, in their Form CO submissions.

Although the Working Group recognizes that the proposed Section 1.9 appears to encourage rather than require cooperation from the notifying parties, automatically providing this is another area where a statement that purports to identify a voluntary option could become a de facto compulsory expectation. Providing confidentiality waivers for all foreign jurisdictions would raise a number of concerns. In a large number of transactions which clearly do not raise antitrust concerns, waivers are not needed. It will not be helpful for the Commission or the merging parties for waivers to become a bureaucratic activity, instead of being used where there are actual reasons for communicating with agencies in other jurisdictions arising from the nature of the case. In cases where a waiver may be helpful, a number of factors will influence the notifying parties' willingness to cooperate under the proposed Section 1.9, including which other competition authorities are involved in reviewing a particular transaction, as well as the nature of the confidential business information that is being shared with the Commission and with other competition authorities.

The Working Group strongly encourages DG Comp to continue conducting its discussions and requests in respect of the granting of confidentiality waivers on a case-by-case basis, rather than trying to capture all waivers under a blanket provision in the Form CO. The significant sensitivities involved in the issue of confidentiality waivers demands individual treatment, and the Working Group believes that it would be regrettable if the introduction of Section 1.9 would result in a de facto obligation on notifying parties to provide waivers covering all other competition authorities involved in a particular transaction.

• Sections on "details of the concentration " and "ownership and control"

DG Comp proposes a significant amount of reorganization in Sections 3 and 4 of the Form CO. The proposed revised text consolidates in one place questions dealing with the details of the concentration (currently covered by Section 3) and questions covering ownership and control (currently covered by Section 4). The turnover information normally requested in Section 3 has been shifted to a new Section 4.

The Working Group submits that these proposed changes represent a very helpful and welcome improvement to the layout of the Form CO and contribute towards a clarification of the information requested by the Commission. For example, DG Comp makes clear in the proposed revised Section 3 that the parties are being asked to explain

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the structure of ownership and control of each of the undertakings concerned both before and after completion of the transaction.

• Innovation

Although the Commission has stated publicly its willingness to increase the focus on arguments and justifications related to dynamic efficiencies (innovation), the proposed revised Form CO does not appear to reflect that stated intention. The Working Group notes that there is a proposed addition in Section 8.9 which requests that the notifying parties describe the "frequency of introduction of new products and/or services" and its "research planning and priorities over the next the three years".23 This question clearly invites a discussion on dynamic efficiencies though the inclusion of a specific question does not in and of itself guarantee that innovation will play a more substantial role in the Commission's antitrust analysis. To this end, the Working Group encourages DG Comp to ensure that any gathering of additional information on potential dynamic efficiencies is matched by an increased willingness to afford appropriate attention to innovation-related arguments in its substantive assessment of transactions.

• Stricter approach to contact details

The revised Form CO also proposes a stricter approach to contact details. Any missing details will render a notification incomplete (whereas the current approach is that "multiple" instances will be required before a notification is deemed incomplete). The amendments imply that any missing contact details (including, for example, a missing fax number) will be considered "incorrect or misleading" information. Under Article 14(1) of the EUMR provision of incorrect or misleading information can lead to the imposition of fines. The Working Group considers that given: (a) the volume of contact details which parties are often required to supply; and (b) the margin for error that arises where details are not readily publically available nor in the parties' possession, the proposed revisions appear disproportionate. We would therefore suggest to DG Comp that these changes should not be made.

8. CONCLUSIONS

The Working Group commends DG Comp for consulting stakeholders on these proposals. Many of the changes will advance the objective of reducing unnecessary burdens for both merging parties and DG Comp. However, on certain areas the Working Group encourages DG Comp to reconsider the proposals with a view to clarifying, modifying and removing certain provisions.

2j Revised Form CO, Section 8.9 (b) and (c).

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ANNEX 1 - CONTRIBUTORS TO THE SUBMISSION

Kei Amemiya

A. Neil Campbell (Co-Chair, Merger Working Group)

David Cardwell

Leonor Cordovil

Kyriakos Fountoukakos

Samir Ghandi

Anna Gulinska

Catriona Hatton

Andrea Hamilton

Zhan Hao

Niko Hukkinen

Gonenc Giikaynak

Youngjin Jung

Joyce Karanja-Ng'ang'a

Lulama Mtanga (Co-Chair, Merger Working Group)

Amilcar Peredo Rivera

Sharis Pozen

Philippe Rincazaux (Working Group Officer)

Agnieszka Stefanowicz-Baranska

Morrison & Foerster, Japan

McMillan LLP, Canada

Baker Botts LLP, Belgium

Grinberg Cordovil Barros, Brazil

Herbert Smith Freehills, Belgium

AZB & Partners, India

Dentons, Poland

Baker Botts LLP, Belgium

McDermott Will & Emery Stanbrook LLP, Belgium

Anjie Law Firm, China

Roschier, Attorneys Ltd., Finland

ELiG, Turkey

Kim & Chang, Korea

Coulson Harney, Kenya

Bowman Gilfillan, South Africa

Basham Ringe y Correa S.C., Mexico

Skadden Arps Slate Meagher & Flom, U.S.A.

Orrick, France

Dentons, Poland

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