Avoiding a Phase II Investigation in Brussels: When Will Phase I Remedies Work in EU Merger Control?

While a string of high-profile Phase II merger control proceedings before the European Commission (“EC”) in recent years have made headlines, in each year during the last decade, at least as many cases have been cleared with commitments at the end of Phase I as have been put into an in-depth investigation. This article examines the Phase I remedy phenomenon under the EU Merger Regulation (“EUMR”) and explores a number of questions. How often does the EC clear deals with remedies in Phase I? How does the procedure and timeline for offering remedies at that stage play out? What does a successful Phase I remedy look like? Does a Phase I commitment perhaps mean giving away more at a stage when the regulator’s theory of harm is largely undeveloped, when a lesser remedy or no remedy might suffice after a Phase II in-depth investigation has been completed? And are some transactions perhaps more natural candidates for conditional Phase I clearance than others?