A number of legislative changes and court judgments that will affect merger review both substantively and procedurally are expected to enter into force in 2023.
In the EU, the revised Market Definition Notice is anticipated to be adopted probably in Q2 of 2023 following the launch of a public consultation in November 2022. The proposed revision is a welcomed step in defining markets in line with the latest market developments.
The EC plans to expand and clarify the categories of cases that can be reviewed under the simplified EU merger control procedure. This involves the introduction of a new Short Form CO with multiple choice and table-formatted questions and a launch of a "super-simplified" treatment for new categories of unproblematic cases, reducing the amount of required information and giving the merging parties a possibility to avoid pre-notification contacts.
The EC also intends to streamline the review of non-simplified cases by revising certain elements of the Form CO. Notably, the EC suggests making the electronic notification system a permanent element of the EU merger control process.
In addition, the ECJ is likely to rule on the EC's appeal against a May 2020 GC judgment that annulled the EC's prohibition of Telefónica UK by Hutchison 3G UK, and around the same time deliver its judgment in Towercast. By the end of 2023, there could also be AG opinions, if not ECJ judgments on two appeals against GC's judgments: the ThyssenKrupp merger prohibition decision and the Altice gun-jumping decision appeal.
In the US, one area to watch in 2023 is the release of the new DOJ-FTC Merger Guidelines, the key framework for the US antitrust agencies when reviewing transactions. In January 2022, the DOJ and the FTC announced plans to revise the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. The FTC and DOJ launched a joint review of the guidance in early 2022 and were initially expected to release the new guidelines before the end of the year. This is likely to be a game-changer, forcing merging parties to adjust their thinking about potential transactions.
Notably, on December 29, 2022, President Biden signed into law the Merger Filing Fee Modernization Act of 2022. The Act will increase US merger filing fees (for the first time in 20 years) for the largest transactions. While some transactions will see a drop in US filing fees, the largest deals (any deal with a total value of US$5 billion or more) will see a nearly ten-fold increase, to US$2.25 million.
In the UK, there are proposals to reform various aspects of the merger control regime, and also impose certain obligations on "Big Tech" in relation to deals they do.
In Australia, the ACCC continues to advocate for changes to the current mergers regime, citing that it is not "fit for purpose," and advocating for a shift to a mandatory and suspensory regime to ensure it is not placed at a significant disadvantage to its global counterparts.
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