Commission Launches Consultation on Reform of EC Merger Regulation

Profession:Herbert Smith
 
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On 11 December 2001, the European Commission published a Green Paper aimed at launching a debate on the functioning of the European merger control regime. Comments are invited, to be submitted to the Commission's Merger Task Force, by 31 March 2002. On the basis of the comments received during this consultation, the Commission intends to adopt a proposal for revision of the Merger Regulation during the course of 2002.†

The Green Paper addresses issues of jurisdiction, substance and procedure. In certain areas, it puts forward specific proposals whereas in others, it simply outlines the issues and welcomes contributions from interested parties.†

JURISDICTIONAL ISSUES

Thresholds

The Commission's review of the functioning of the Merger Regulation highlights that, despite the supplementary thresholds introduced under Article 1(3), which were aimed at reducing the burden of multiple filings on companies, there nevertheless appears to be an increase in multiple filings to three or more Member States. Having analysed various modifications to the combination of thresholds and other requirements of Article 1(3), the Commission is inviting comments on the possibility of introducing an automatic Community jurisdiction over cases subject to multiple filing requirements to three or more Member States.†

Article 9 and 22 Referrals

The referral mechanism set out in Article 9 of the Merger Regulation, which allows the authorities of a Member State to request jurisdiction over a transaction which would otherwise qualify under the Regulation, is intended to allow the best placed authority to deal with a case. Simplification of the requirements for the submission of a referral request would allow for the current timeframe for the submission and grant of a request to be shortened.†

By way of simplification, the Commission is proposing to separate the referral request from evidence of a threat of creation or strengthening of dominance. A substantial claim of effect on competition in a distinct market within the Member State should be sufficient. There should also not be any need for defining the geographic scope of the relevant market, provided that the effects do not extend beyond the Member State's borders.†

The Commission is also proposing that it should be able to refer a case, or part of a case, to national authorities where these criteria are met.

Article 22, which allows Member States to refer a case which does not have a Community dimension...

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