Sustainability considerations in EU merger control

Pharmaceutical Innovation in EU Merger Control: (Ir)reconcilabilities Between Legal Idealism and Economic Reality

Dieser Band versammelt die mit dem Linda-Rauter-Preis ausgezeichneten Beiträge, deren europäische, rechtsvergleichende und internationale Ausrichtung die gemeinsame Klammer bildet.

The EU Merger Regulation: A One-Stop Shop or a Procedural Minefield?

The European Commission's approach to mergers involving software-based platforms: Towards a better understanding of platform power

The staggering increase of foreign investments has been seen by some European governments as a threat to their national security. Consequently, they have long been requesting the adoption of a common system of evaluation of foreign investments. Such a system came into force in October 2020. This chapter retraces some seminal merger cases that have paved the way to the adoption of this collective approach. It then assesses the key features of this new FDI framework and discusses the potential implications of this new regime. The chapter further examines whether this new FDI screening regime is an effective tool to address foreign investment that can have an adverse impact on national security. The chapter suggests that the predominance of nationalist and protectionist goals could inadvertently undermine legal certainty that is essential for FDI.

Academic research is increasingly questioning whether the goals of competition law should extend beyond the traditional focus on economic efficiency and consumer welfare to include non‐economic issues such as social justice, democracy, environmental sustainability and equality. In this regard, the African experience is particularly valuable since public interest considerations (PICs) are a feature of merger control regimes in many African countries. After an analysis of PICs in Africa, the paper zooms in on South Africa's extensive experience in the field, particularly its legal test for determining when PICs are justified in merger assessment and offers recommendations that could inform other countries. Drawing on the South Africa merger assessment, this paper recommends that PICs and the competition standard be analysed separately but in an interrelated manner, as they complement each other. The likely effect of the merger on specific public interests must be identified and considered only when it is substantial and linked to the merger. Additionally, a merger should be prohibited only if the proposed remedies seeking to address the negative effects on the specific PIC are inadequate, inappropriate, disproportionate or unenforceable. Importantly, when PICs collide, competition agencies should balance each public interest against the others, focusing on whether the likely effect is substantial or whether the remedies are inadequate. In sum, competition agencies should adopt public‐interest merger guidelines that provide businesses with the necessary guidance on the legal test and procedures, enhancing legal certainty and attracting investment.

Data Protection and Competition Law: The Dawn of ‘Uberprotection’

This chapter presents an overview of merger control procedure in the European Union. The UK merger control to the extent relevant for the current work is also discussed. Section 7.1 presents an overview of the evolution of the merger control in the Union from the ECSC Treaty to the current merger control regime. Considering the relationship between competition and regulation in the ICT sector, the chapter also offers instances of cooperation between the European Commission, the National Regulatory and Competition Authorities. The co-operation is particularly relevant for the telecommunications and the media, considering that these sectors were historically subject to sector-specific regulation and the relevant geographic markets to this day remain divided on a national basis.

How Effective is European Merger Control?

On 9 July 2014 the European Commission published the White Paper “Towards more effective EU merger control”. The White Paper takes stock of the working of the EU Merger Regulation 10 years after the last reform in 2004. It evaluates what degree of coherence and convergence has been achieved in the application of merger control rules and practices at the EU and at Member State level. The White Paper supports recent suggestions to move towards a “European Merger Area”, in which the Commission and national competition authorities (NCAs) apply the same rules to mergers and acquisitions, but does not make concrete proposals in that respect. However, the White Paper proposes amendments to the Merger Regulation in two main areas. First, in order to address an enforcement gap in EU competition law with respect to acquisitions of non-controlling minority shareholdings, the Commission should have the possibility to review certain minority stake transactions creating a “competitively significant link” between the acquirer and the target, without however making all acquisitions of minority shareholdings subject to the prior notification obligation. Second, the system for referring merger cases between the Commission and NCAs should be streamlined in order to reduce the administrative burden on companies and better ensure that cases are being dealt with by the best placed competition authority. Additional proposals made by the White Paper relate to removing joint ventures established outside the European Economic Area (EEA) and with no effect on EEA markets from the scope of the Merger Regulation and alleviating notification obligations for certain categories of unproblematic mergers.

Over the years, there has been talk about an unfair competition policy and a resulting 'small market problem' which treats mergers between small market companies and mergers between large market companies unequally. Yet, for a long time, a systematic analysis of the problem did not exist. It was not until very recently that an extensive study was published, which presented a diagnostic system enabling one meaningful way to analyse this complex and challenging issue. The present article discusses the argument concerning discrimination against small market companies in EU merger control in the light of economic theory. The article explains the economic-theoretic foundations lying behind the findings regarding the recently presented diagnostic system. This article shows that from an economic-theoretic point of view, a proper practical assessment of small market mergers is subject to many open questions, to which we still have no clear-cut answers.

(2013). EU Merger Control and Non-Controlling Minority Shareholdings: The Case Against Change. European Competition Journal: Vol. 9, No. 3, pp. 721-753.

Minority Shareholdings in EU Merger Control

This article covers the major developments and general trends in EC competition law and policy in 2006. It discusses new EC legislation and other instruments adopted by the Commission of the European Communities, such as the steps taken to strengthen the Commission’s enforcement of the competition rules by the adoption of the 2006 Guidelines on the method of setting fines and the 2006 Leniency Notice. The decisional practice of the Commission is considered, in particular in the fields of cartels, fines and penalty payments, and merger control, along with recent policy initiatives, such as the potential roles of direct settlements of infringement proceedings and of private enforcement, primarily through damages actions for breaches of the competition rules. The case law of the Court of Justice and Court of First Instance during the period is surveyed. Important judgments regarding key concepts affecting the general application of the substantive provisions of Articles 81 EC and 82 EC, such as Meca-Medina, FENIN, SELEX and O2 Germany are addressed, as well as a number of rulings by the CFI on procedural issues, including certain rulings on the Austrian Banks — Club Lombard proceedings. Key case law on vertical agreements, such as GSK and Unilever Bestfoods is dealt with, as are the principal judgments concerning cartels and competitor cooperation, which principally focus on the levels of financial penalties imposed and largely confirm the Commission’s wide discretion in that area.

How effective is European merger control?