Abstract
The paper documents the failure of the EU’s current merger control architecture to address the misallocation problem and proposes changes to the architecture which would virtually eliminate this major concern. This will streamline the working of the architecture by removing the need for correctives to either prevent misallocation or reassign cases that have been misallocated. Moreover, and just as importantly, the resolution of this problem will improve the application of the principle of subsidiarity in merger cases and bring to an end the multiple notification issue, thereby strengthening the operation of the one-stop shop approach. The changes to the architecture and how they interact to virtually end the misallocation problem and thereby bring about the aforementioned benefits are revealed. More specifically, it demonstrates how the use of the three or more Member state notification rule and the distinct market test, the retention of the existing two Community Dimension tests and the two-thirds rule, as well as the shared competence of the Competition Directorate and Member state regulators to apply EU merger law, albeit intentionally in different situations, reinforce each other to resolve the stated problem. Moreover, this limited sharing of the right to apply EU merger law—currently the EU Commission has the exclusive right—allied with other forms of envisaged cooperation between the regulators is not just simply a reinterpretation of the Commission’s most appropriate authority goal but also the possible beginnings of a more cooperative architecture, relative to the current architecture of separate jurisdictional zones, aimed at improving the efficacy and efficiency of merger control within the Union.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The changes advocated in the White Paper are the subject of Ulrich Von Koppenfells paper—A fresh look at the EU Merger Regulation? The European Commission’s White Paper “Towards more effective EU Merger Control”—in this special edition of the Liverpool Law Review. See also the European Commission’s White Paper COM (2014) 449 final.
Council Regulation (EEC) No 4064/89 OJ L 395, pp. 1–12 (1989).
Council Regulation (EC) No 1310/97 OJ L 180, pp. 1–6 (1997).
Council Regulation (EC) No 139/2004 OJ L 024, pp. 1–22 (2004).
European Commission Notice on case referral in respect of concentrations (2005) OJ C 56/2, paragraphs 9, 10.
Council Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2002], OJ L 1, Articles 5 and 6 (2003).
Supra n. 4 Council Regulation (EC) No. 139/2004, Article 1(2).
European Commission Report to the Council on the application of the Merger Regulation thresholds, COM(2000) 399 final, 28.06.2000, paragraph 19.
European Commission Staff working paper accompanying the Communication from the Commission on the functioning of Regulation No. 139/2004 (COM(2009) 281 final), paragraph 34.
European Commission Community Merger Control Green Paper on the review of the Merger Regulation, Brussels, COM(96), 31.1.1996, 19 final, paragraph 34 (1996).
European Commission Communication from the Commission to the Council: Report on the functioning of Regulation No. 139/2004, COM/2009/0281 final, paragraph 16.
Supra n. 9 European Commission Staff working paper accompanying the Communication from the Commission to the Council Report on the functioning of Regulation No. 139/2004, paragraph 68.
Supra n. 10, European Commission Community Merger Control Green Paper, COM(96), 19 final, paragraph 65 (1996).
Supra n. 3, Council Regulation (EC) No. 1310/97, Article 1(3) (1997).
Supra n. 8, European Commission Report to the Council on the application of the Merger Regulation thresholds, COM(2000) 399 final, paragraph 38.
Supra n. 3, Council Regulation No. 1310/97, Article 22(3) (1997).
Supra n. 4, Council Regulation No. 139/2004, Article 4 (2004).
Supra n. 9, European Commission Staff working paper accompanying the Communication from the Commission to the Council Report on the functioning of Regulation No. 139/2004, paragraph 45 (2004).
Supra n. 9, paragraph 47.
Supra n. 9, paragraph 123.
Supra n. 9, paragraph 47 and footnote 22.
European Commission Green Paper on the Review of Council Regulation (EEC) No 4064/89, COM/2001/0745 final, paragraph 23.
Supra n. 9, paragraph 41.
Davison (2013, at pages 10–12).
Supra n. 4, Council Regulation No. 139/2004, Article 2 (2004).
See, for example, Case T-228/97 Irish Sugar plc v Commission of the European Communities [1999] ECR II-02969, paragraph 99.
See, for example, the Green Paper on the Review of Council Regulation (EEC) No 4064/89, COM/2001/0745 final, paragraph 32.
Slaughter and May (2012, Annex I).
Supra n. 6, Council Regulation (EC) No. 1/2003, Articles 5 and 6 (2003).
European Commission Communication from the Commission to the European Parliament and the Council—Report on the functioning of Regulation 1/2003, COM/2009/0206 final, paragraph 33 (2003).
References
Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings. Official Journal L 395, 30/12/1989, pp. 1–12.
Council Regulation (EC) No 1310/97 amending Regulation (EEC) No 4064/89 on the control of concentrations between undertakings [1997] OJ L 180, pp. 1–6.
Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2002], OJ L 1, 4.1.2003, pp. 1–25.
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (EC Merger Regulation). OJ L 024, 29/01/2004, pp. 1–22.
Davison, Leigh M. 2013. EU Merger Control: From separate jurisdictional zones to a more cooperative architecture—A possible way forward? Liverpool Law Review 34(2): 105–122.
European Commission Community Merger Control Green Paper on the review of the Merger Regulation, Brussels, COM(96), 31.1.1996, 19 final.
European Commission Report to the Council on the application of the Merger Regulation thresholds, COM(2000) 399 final, 28.06.2000.
European Commission Communication from the Commission to the European Parliament and the Council—Report on the functioning of Regulation 1/2003, COM/2009/0206 final.
European Commission Notice on case referral in respect of concentrations (2005) OJ C 56/2.
European Commission Staff working paper accompanying the Communication from the Commission on the functioning of Regulation No. 139/2004 (COM(2009) 281 final).
European Commission White Paper Towards more effective EU merger control Brussels, 9.7.2014 COM(2014) 449 final.
Slaughter and May. 2012. The EU Merger regulation an overview of the European merger control rules. March 2012, pp. 1–42.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Davison, L.M. EU Merger Control: A Set of Proposals to Enhance the Operational Effectiveness of the Current Architecture of Separate Jurisdictional Zones. Liverpool Law Rev 36, 33–48 (2015). https://doi.org/10.1007/s10991-015-9161-z
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10991-015-9161-z