This document discusses investigative powers and requests for information in merger cases. It covers: 1. How to draft requests for information, including focusing the questions, being specific, and avoiding ambiguity. 2. How to handle large amounts of complex internal documents received, including carefully scoping requests and considering confidentiality issues. 3. Tips for processing document replies, including uploading documents, indexing them, and developing a document review strategy.

1. Investigative Powers in Practice
Requests for Information
Limits and Effectiveness
Christos TSOUMANIS
European Commission
DG Competition
Merger Case Support and Policy
Paris, 30 November 2018

2. Agenda
How to prepare a request for information1.
Internal documents - how to handle large amounts of complex information2.
How to detect potentially incorrect information3.
2
The views expressed are purely those of the writer and may not in any circumstances be regarded as stating an official position of the European
Commission.

3. Collect facts
to
substantiate
and motivate
decision
Collect facts
for possible
remedies
negotiation
Assess
merger’s
competitive
impact
Understand
products and
inner
workings of
markets
Goals of the fact finding exercise
3

4. Planning the market investigation
• Discuss and prepare market investigation plan
 Goal: Identify priorities
• Identify sources of evidence and pertinent facts to
collect (type of information needed, likely sources
of information and method to gather information)
• Plan administrative tasks and timing
• Revise/adapt the investigation plan in the course
of investigation
4

5. Drafting the questionnaire (1)
• Collect hard facts rather than opinions
• Focus the questionnaire
• Identify the crucial points of the case
(product/geo market definition, etc.)– avoid
unnecessary questions
• Identify crucial information to be gathered
• Bear in mind the background (possible bias) of
the addressee
• Be able to reverse engineer the questionnaire –
know where each piece of information will fit
5

6. Drafting the questionnaire (2)
• Use simple/comprehensive language (no competition jargon)
• Use precise industry/sector terminology
• Be specific (avoid regularly/sometimes/timely)
• Specify exact kind of data/measures requested: (e.g. kilotons,
MWh, euros, precise period)
• Avoid ambiguity and too general questions
• Avoid leading questions
• Revise the question as if in the respondent’s shoes
• Use open ended questions to raise issues, obtain more in-
depth explanation – take time to answer/assess/translate
• Use closed questions (dichotomous or pre-coded,
scales/ranking) – easy to collect/assess but risk of error if not
well formulated
6

7. Requests for internal documents (1)
• Useful evidence
• Often source of particularly relevant evidence
• Frequently established independently of the merger control
procedure
• Generally no confidentiality issues vis-à-vis the notifying
party(-ies)
• But:
• Used generally in complex merger investigations
• They require internal resources and place burden on the
company
• Sometimes they result in large amounts of complex
information and large sets of responsive internal documents
• Internal documents must be interpreted in their context
• Internal documents remain only one piece of the puzzle
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8. Requests for internal documents (2)
• If it is necessary to issue a request for internal
documents, scope it carefully
• For simple cases: normally merger-specific reports
and studies suffice (e.g. section 5.4 of Form CO)
• For more complex cases you may ask for:
• Business plans
• Sales and marketing reports, capacity utilisation
reports etc.
• Strategy and pricing documents
• Submissions filed with national regulators (energy,
telecoms, media etc.)
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9. Third parties’ internal documents
• Carefully consider such request and usually limit
to specific situations/third parties
• Confidentiality issues may restrict the use of third
parties’ documents
• Proportionality issues: burden for companies
which are not directly involved in the merger
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10. Scope of internal documents request
• There is no one-size-fits-all approach:
• Comprehensive request
• Sequential requests
• Timing is crucial to extract the most relevant and
targeted information
• Send RFI as early as possible
• Start reviewing early
• Focus resources on what truly matters
• Discuss internally ToHs and investigative strategy
• Find the elements on which internal docs will likely
be a particularly relevant source of information
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11. Understand the company
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• Organisation charts (organigrams)
• How decision making process works
• Key people involved in the decision process on the
relevant markets
• Reporting lines
• Board members
• Members of the executive committee(s)
• Yearly/quarterly/monthly reports on the
markets/products concerned
• Email and document retention policy
• Business terminology (terms, jargon, code names)

12. Drafting the RFI
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• Time frame
• Companies covered
• Custodians
• Types of documents
• Topics
• Search terms
• Format of the response (file structure)
• Deduplication

13. Sharing a draft RFI with the Parties
• Where possible and appropriate, discuss with the Parties how
to possibly refine and reduce the scope of the request:
• The company is able to focus its search on the documents
really needed by the Commission and therefore increases the
possibility to submit the answer within the deadline without
risking delays in the procedure.
• The case team is able to concentrate its efforts on the
documents really needed and therefore saves time for analysis
and internal steps in the decision making process.
• Parties to perform the search and provide a quantified
overview:
• Custodians selected
• Search terms and hit count
— Number of total hits
— Number of unique hits
— Number of documents per search terms (or per topic) to be submitted
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14. Process the reply
• Upload all documents to your Document Review
IT solution
• Check that all documents are OCRed
• Index all documents to make them searchable
• Keep file structure that was agreed with Parties
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15. Document review strategy
• Linear vs. non-linear review (or mix)
• Single tier vs. two-tier (or mix)
• Evidence master document
• Search term master document
• Tag/label codebook
• Team coordinator
• Gather previous experience and intelligence
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16. Detect potentially incorrect information
by cross checking with the following
• Form CO
• Internal documents from the parties and third parties
• Meetings with notifying and third parties
• Site visits, inspections
• Information requests
• (Telephone) interviews
• Public sources of information (Internet, library, etc)
• Contacts with other authorities (request waiver from
parties if necessary)
• Econometric / customer surveys
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