This chapter concerns actions brought before the EU Courts pursuant to Article 263 TFEU for the annulment of a decision adopted by the Commission in the merger field. These actions fall under the jurisdiction of the GC, except when the applicant is an EU institution.
Claes Bengtsson, Josep M. Carpi and Anatoly Subočs
This chapter first deals with the cases where the possible anti-competitive consequences brought about by the merger do not entail any coordination between the rival undertakings as regards price or the other parameters of competition, i.e. so-called non-coordinated effects. Within this category, it is useful to distinguish between horizontal, vertical and conglomerate effects. The first type of effects is covered by the Horizontal Merger Guidelines, and the latter two types of effects by the Non-Horizontal Merger Guidelines. The issue of co-ordinated effects will then be addressed, including the assessment of the coordination among participants in a joint venture.
Ulrich von Koppenfels and Daniel Dittert
The Commission has jurisdiction under the Merger Regulation if (i) a concentration takes place that (ii) has EU dimension as defined in Article 1(2), (3) of the Merger Regulation. The existence of a concentration therefore is essential for determining the Commission's jurisdiction under the Merger Regulation and distinguishes structural transactions subject to control under the Merger Regulation from those to which Articles 101 and 102 TFEU apply.
Simon Vande Walle
In the context of EU merger control, the terms 'remedies' and 'commitments' are synonyms. This contrasts with the field of Article 101 and 102 TFEU, a field which the Commission sometimes refers to as 'antitrust', where the two terms have distinct meanings. In that field, remedies denote orders imposed by the Commission to bring an infringement of Article 101 or 102 TFEU to an end. Commitments by contrast denote the obligations voluntarily taken up by companies in order to avoid the finding of an infringement by the Commission.56 The latter concept bears similarities to the merger control concept of commitments (or remedies, as the two are synonymous in the context of merger control). While commitments/remedies in merger control are made binding and avoid a prohibition, commitments in the field of antitrust are made binding and avoid a finding of an infringement.
Ulrich von Koppenfels
Under the Merger Regulation, all concentrations with a EU dimension must be notified to the Commission before implementation, and they may not be implemented before having been declared compatible with the internal market. Thus, unlike some national merger control regimes such as the French or the UK systems, the Regulation provides for a comprehensive compulsory system of ex ante control. The notification also has the effect of triggering the legally binding time limits for the Commission's examination of the operation.
Stephan Simon and Nicolas Listl
There is no definition of the relevant product market in the Merger Regulation itself, but in the Implementing Regulation of the Merger Regulation. Section 6 of the Form CO defines the relevant product market as follows: 'A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, their prices or their intended use.'
Telecommunications, media and internet services have been the subject of intense scrutiny under the EU merger control regime. This is explained by (i) the economics of these industries that lead to concentrated (and often regulated) markets; (ii) the intense technical progress that characterises these industries; and (iii) their importance for the wider economy and society. Merger control has thus faced such issues as the border between competition rules and regulation, how to assess market power in a nascent market, how to deal with efficiencies, etc. This Chapter provides a summary of the Commission's practice in applying the Merger Regulation to telecommunications, media and internet services. After this introduction it successively addresses market definition, horizontal and non-horizontal effects and efficiency defenses and remedies.
European merger control over the last thirty or so years has emerged as one of the pre-eminent merger control systems in the world. Since 1990, it has evolved considerably in terms of legal framework and conceptual thinking. Today, the Commission is seen as one of the world's leading merger control enforcement agencies, and an inspiration to many equivalent agencies around the world.
The territorial scope of EU law is of particular relevance in the field of merger control, given that industrial concentration between firms based outside of Europe will in many instances have a direct or indirect impact on competition in European markets. For that reason, the jurisdiction of the EU Merger Regulation is determined according to criteria which take no account of the location of the merging firms - the focus is on the actual activities of the undertakings. As this chapter will explain, the European Courts have by now confirmed that this assertion of jurisdiction is compatible with the principles of public international law, after they had long avoided any clear pronounements in that regard. Yet, the legal basis and limits of extraterritorial application of EU competition rules are still not yet fully settled.
Claes Bengtsson, Josep M. Carpi and Anatoly Subočs
The presence of indicators of significant anticompetitive effects does not necessarily lead to the ultimate conclusion that the merger is incompatible with the internal market. This chapter outlines four factors, described in the Horizontal Merger Guidelines, which can counteract the potential harm to consumers which such indicators would otherwise point to: Entry, Buyer power, Efficiencies and the Failing firm 'defence'.