Some observations on the revision of the ec merger regulation

Autor:Helmuth Schröter
Cargo del Autor:Former Director and Hearing Officer DG COMP, European Commission-Professor of EU Law Brussels and Saarbrücken

1. Introduction. 2. The new intervention criterion. 3. Adaptation of ec merger control to us estándars?



On, 1 May 2004 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 nº L 24/1) - the new European Merger Regulation (ECMR) - has entered into force. Although the core of the old ECMR remains as do most it's provisions, the new ECMR has introduced a certain number of substantial changes, of which the revision of the intervention criterion laid down in Article 2 (2) and (3), is generally considered as the most important one due to its impact on both the scope and the practicability of the EC merger control system.

Whether a merger should be cleared or blocked is often a question to which the right answer cannot easily be found. Legal, economic and even general political arguments may justify a positive decision as much as a negative one on one and the same case. To fix the criteria for the authorization or prohibition of a concentration therefore constitutes one of the most difficult tasks of the legislator in the field of competition law. The history of EC merger control provides us with a good illustration of this problem.

In 1988, when the Commission transmitted to the Council its initial proposal for what later became Regulation (EC) No 4064/89 - the old ECMR - only four Member States, namely France, Germany, Spain and the United Kingdom, had a well established and functioning legal system ensuring the control of concentrations. However, these States turned out to be difficult partners during the preparatory consultations. In contrast to the other Member States, which from the beginning opted for a truly European solution, they sought to limit the powers to be transferred to the EC. Moreover, they tried to introduce the most important elements of their respective national merger control systems into the new EC legislation. However, these systems differed substantially from each other with regard to the aims to be achieved. Whereas the German Competition Act tended to prevent anticompetitive market structures, France and Spain used merger control predominantly as a means to foster the competitivity of their industries by creating national "Champions". The UK tailored its decision- marking practice to the vague concept of public interest.

The Commission therefore recognised that only a proposal which took into account the positions of the aforementioned four large Member States would have any chance of being accepted by the Council. The problem was to find the right compromise. As a result, the Commission initially tried to establish a merger control system based on criteria corresponding to those in Article 81. According to its proposal, concentrations which were capable of reducing competition to a large extent should be notified before their completion. They should be authorized where they contributed to the maintenance or development of competitive market structures, or to technical or economic progress, thereby satisfying the interests of the...

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