The 15th anniversary of the SIEC test under the EU Merger Regulation – where do we stand? (Part 2)

2020 ◽  
Vol 18 (2) ◽  
pp. 153-214
Author(s):  
Tilman Kuhn
Keyword(s):  
Horizontal Mergers ◽  
Standard Of Proof ◽  
Effective Competition ◽  
Merger Regulation ◽  
15Th Anniversary ◽  
Previous Volume ◽  
The Eu

AbstractOn May 1, 2019, the significant impediment to effective competition (“SIEC”) test pursuant to Article 2(2) and (3) of the EU Merger Regulation (Regulation No. 139/2004; “EUMR”), celebrated its 15th anniversary. The Commission has taken more than 5,000 decisions in merger cases under this new standard in the last decade and a half. Therefore, it seems opportune to pause and take stock. Has the introduction of the SIEC test achieved the desired results? Has it been applied according to the legislator’s plans? Does its application need to change going forward?After a short recap of the test’s history and genesis (I.) and a reminder of the burden and standard of proof (II.), this article reviews the Commission’s decisional practice (and the limited practice of the EU Courts) systematically, and intends to summarize the various theories of harm covered by the SIEC test’s application in practice (III.). Second, it analyzes the decisional practice and draws conclusions as to whether the test’s application in practice is predictable, persuasive, and in line with the legislator’s intent (IV.). Third and last, after some practical and procedural observations (V.), it concludes with a few proposals for improvement (VI.).Given the scope of the ground covered, this article is split into two separate parts over two separate volumes of this journal, with Part 1 in the journal’s previous volume having covered sections I. and II., as well as part III. with respect to horizontal mergers and a brief summary in this respect.This Part 2 of the article continues in this volume in section III. with non-horizontal mergers, and finishes with sections IV. through VI.

The 15th anniversary of the SIEC test under the EU Merger Regulation – where do we stand? (Part 1)

2020 ◽  
Vol 18 (1) ◽  
pp. 1-51
Author(s):  
Tilman Kuhn
Keyword(s):  
Horizontal Mergers ◽  
Standard Of Proof ◽  
Effective Competition ◽  
Merger Regulation ◽  
15Th Anniversary ◽  
The Eu

AbstractOn May 1, 2019, the significant impediment to effective competition (“SIEC”) test pursuant to Article 2(2) and (3) of the EU Merger Regulation (Regulation No. 139/2004; “EUMR”), celebrated its 15th anniversary. The Commission has taken more than 5,000 decisions in merger cases under this new standard in the last decade and a half. Therefore, it seems opportune to pause and take stock. Has the introduction of the SIEC test achieved the desired results? Has it been applied according to the legislator’s plans? Does its application need to change going forward?After a short recap of the test’s history and genesis (I.) and a reminder of the burden and standard of proof (II.), this article reviews the Commission’s decisional practice (and the limited practice of the EU Courts) systematically, and intends to summarize the various theories of harm covered by the SIEC test’s application in practice (III.). Second, it analyzes the decisional practice and draws conclusions as to whether the test’s application in practice is predictable, persuasive, and in line with the legislator’s intent (IV.). Third and last, after some practical and procedural observations (V.), it concludes with a few proposals for improvement (VI.).Given the scope of the ground covered, this article is split into two separate parts over two separate volumes of this journal, with Part 1 in this volume covering sections I. and II., as well as part III. with regard to horizontal mergers and a brief summary in this respect. Part 2 of the article will then continue section III. with non-horizontal mergers, and finish with sections IV. through VI.

An efficiency defence for mergers: Putting an intricate puzzle together

2003 ◽  
Vol 1 (3) ◽  
pp. 254-270 ◽  
Author(s):  
Götz Drauz
Keyword(s):  
Control System ◽  
European Commission ◽  
Merger Control ◽  
Horizontal Mergers ◽  
Eu Merger Control ◽  
Merger Regulation ◽  
Key Issues ◽  
The Eu

Abstract The EU merger control system is currently undergoing a reform. Alongside proposed changes to the EC Merger Regulation, the European Commission adopted draft guidelines for the appraisal of horizontal mergers. One important issue of the guidelines is the treatment of efficiencies within the appraisal of mergers. The purpose of this article is to analyse some of the key issues.

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

17. Competition Law

2021 ◽  
pp. 717-778
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
Market Power ◽  
Competition Law ◽  
The European Union ◽  
The Third ◽  
Merger Regulation ◽  
Eu Competition Law ◽  
The Eu

This chapter assesses the EU competition law on private undertakings. The relevant Treaty section is here built upon three pillars. The first pillar deals with anticompetitive cartels and can be found in Article 101 of the Treaty on the Functioning of the European Union (TFEU). The second pillar concerns situations where a dominant undertaking abuses its market power and is found in Article 102. The third pillar is unfortunately invisible, for when the Treaties were concluded, they did not mention the control of mergers. This constitutional gap has never been closed by later Treaty amendments, yet it has received a legislative filling in the form of the EU Merger Regulation.

21. Mergers (2): EU law

2021 ◽  
pp. 871-958
Author(s):  
Richard Whish ◽  
David Bailey
Keyword(s):  
European Commission ◽  
Judicial Review ◽  
Merger Control ◽  
Eu Law ◽  
Member States ◽  
Eu Merger Control ◽  
Merger Regulation ◽  
National Competition ◽  
Control Section ◽  
The Eu

This chapter examines EU merger control. The chapter is organized as follows. Section 2 provides an overview of EU merger control. Section 3 discusses the jurisdictional rules which determine whether a particular merger should be investigated by the European Commission in Brussels or by the national competition authorities (‘the NCAs’) of the Member States. Section 4 deals with the procedural considerations such as the mandatory pre-notification to the Commission of mergers that have a Union dimension and the timetable within which the Commission must operate. Section 5 discusses the substantive analysis of mergers under the EU Merger Regulation (EUMR), and section 6 explains the procedure whereby the Commission may authorise a merger on the basis of commitments, often referred to as remedies, offered by the parties to address its competition concerns. The subsequent sections describe the Commission’s powers of investigation and enforcement, judicial review of Commission decisions by the EU Courts and cooperation between the Commission and other competition authorities, both within and outside the EU. The chapter concludes with an examination of how the EUMR merger control provisions work in practice.

DOES MERGER POLICY CONVERGE AFTER THE 2004 EUROPEAN UNION REFORM?

2019 ◽  
Vol 15 (1) ◽  
pp. 664-689 ◽  
Author(s):  
Mats A Bergman ◽  
Malcolm B Coate ◽  
Anh T V Mai ◽  
Shawn W Ulrick
Keyword(s):  
European Union ◽  
Merger Policy ◽  
Logit Models ◽  
The European Union ◽  
Effective Competition ◽  
Eu Policy ◽  
Unilateral Effects ◽  
Before And After ◽  
The U.S ◽  
The Eu

ABSTRACT The European Union (EU) formally changed its merger policy in 2004, moving from a dominance standard to one based on a significant impediment of effective competition, which appears more closely aligned with the U.S. substantial lessening of competition standard. We use data from both before and after this reform to explore whether EU policy has converged toward the U.S. standard. We start by identifying changes in the EU regime and detect a softer EU policy for unilateral effects. We model the outcomes of EU and U.S. investigations with logit models and use their predictions in decompositions and other exercises to show policy convergence for unilateral effects cases.

9 Merger Control

2012 ◽  
Author(s):  
Geradin Damien ◽  
Layne-Farrar Anne ◽  
Petit Nicolas
Keyword(s):  
Merger Control ◽  
Eu Merger Control ◽  
Merger Regulation ◽  
Control Regulation ◽  
Legal Nature ◽  
Ex Ante ◽  
National Competition ◽  
Control Regime ◽  
The Eu

This concluding chapter discusses the EU merger control regime. Merger-specific law is relatively new to the EU body of law. It was not until 1974 that specific merger regulation was even proposed, and not until over a decade after that that any merger regulation was actually adopted. Regulation 4064/89 (the ‘European Merger Control Regulation’ or ‘EMCR’) sets out an ex ante notification procedure for concentration with an EU dimension. Two reasons seem to have driven the adoption of a merger control regime by the EU. The first is economic. The second reason is of a legal nature. Between 1989 and 2010, more than 4,500 operations were notified to the Commission. This number does not comprise the very many mergers notified to the national competition authorities (NCAs).

Das Vollzugsverbot in der EU-Fusionskontrolle

2021 ◽  
Author(s):  
Patrick Grüner
Keyword(s):  
European Commission ◽  
Competition Law ◽  
Law Firms ◽  
Similar Form ◽  
Public Authorities ◽  
Business Economics ◽  
Merger Regulation ◽  
Partial Completion ◽  
Scope Of Application ◽  
The Eu

Under its Article 7, concentrations that fall within the scope of the EU Merger Regulation (EUMR) may only be completed once approval has been granted by the European Commission. This standstill obligation, which also exists in a similar form in many national jurisdictions, has for decades been a source of some uncertainty for M&A practitioners. After examining the foundations of the standstill obligation in competition law, business economics and EU primary law, the author goes on to develop a systematically and teleologically coherent concept for its scope of application and substantive reach, paying special attention to the issue of partial completion. The book takes into consideration the rulings recently handed down by the European Commission and the EU courts in Marine Harvest (Mowi), Altice, Ernst & Young, and Canon and is therefore currently the most up-to-date and comprehensive monograph on the standstill obligation under the EUMR. Because it takes a systematic look at all the relevant rulings to date, the article is also, and especially, intended for practitioners in public authorities and courts, law firms and consultancy firms.

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