Презентация «Competition Law: Mergers»

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Competition Law: Mergers Minsk 27. 11. 2017

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Provisions of the TFEU Core Provisions: Article 101 of the TFEU Article 102 of the TFEU Article 106 of the TFEU Other Relevant Provisions Article 3 of the TFEU Article 14 of the TFEU Article 103 of …

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General Rules Framework Legislation Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ L 24/1, 29 January 2004 …

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Key Features One firm buys out the shares of another: concentration of economic power in the hands of fewer than before; Reasons for oversight of economic concentrations by the state are the same as …

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Mergers : Benefits increase in market power, increased market share and decreased number of competitors

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Merger Control Merger control is about predicting what the market might be like, not knowing and making a judgment. Hence the central provision under EU law asks whether a concentration would if it …

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Issues for Analyses Market shares of the merging companies (assessed and added); The Herfindahl-Hirschman Index (to calculate the “density” of the market, or what concentration exists); The product …

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Defences Creation of efficiencies enough to outweigh any detriment; Technical and economic progress; A firm which is being taken over is about to fail or go insolvent, and taking it over leaves a no …

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Historical Background USA: The Clayton Act EU: Art. 81 and 82 of the Treaty on EU 1973 – Commission Proposal for a Reg. of the Council of Ministers on the Control of Concentrations between …

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Merger Control: The Policy Rationale “-” Mergers can have a marked impact on competition: Reduction of competition; Detriment for consumers; Stripping the assets of the acquired firm (which is …

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Merger Control: The Policy Rationale “+” Enhancing economic efficiency: Easier to reap economies of scale; Enhancing distribution efficiency Enhancing managerial efficiency

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Substantive Tests Does the concentration significantly impede effective competition? (EU) Does the concentration substantially lessen competition? (US, UK) Does the concentration lead to the creation …

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Horizontal Mergers A horizontal merger is one between parties that are competitors at the same level of production and/or distribution of a good or service, i. e. , in the same relevant market. Types …

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Coordinated Effects: “Airtours criteria” Coordination is more likely to emerge in markets where it is relatively simple to reach a common understanding on the terms of coordination. Conditions for …

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Non-horizontal Mergers Basic forms of non-horizontal mergers: vertical mergers and conglomerate mergers

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Vertical Mergers Between firms that operate at different but complementary levels in the chain of production (e. g. , manufacturing and an upstream market for an input) and/or distribution (e. g. , …

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Conglomerate Mergers Conglomerate Mergers happen when companies acquire a large portfolio of related products, though without necessarily dominant shares in any individual market (firms operate in …

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Merger Control Regimes Mandatory regime - filing of a transaction is compulsory (majority of merger jurisdictions worldwide) “suspensory clause“ - the parties to a transaction are indefinitely …

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EU Merger Control: Basics Merger Regulation is the legal base for controlling merger operations between enterprises Mergers are inevitable and desirable, they are welcomed as one means of increasing …

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Concentration: General Merger Regulation will only be applicable if there is a concentration (Art. 3 (1)) Extra-territorial catch Determination of concentration will be based on quantitative …

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When to Notify? Either following: Conclusion of the agreement; Announcement of a public bid Acquisition of control Or After manifestation of good faith intent to do so

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Notification Mandatory for all concentrations with a Community dimension Such concentrations shall not be implemented either before its notification or until it has been declared compatible with the …

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Community Dimension: Thresholds the combined aggregate worldwide turnover (from ordinary activities and after turnover taxes) of all the undertakings concerned (in the case of the acquisition of …

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Community Dimension In case the above thresholds are not met a concentration has nevertheless Community dimension, if the combined aggregate world-wide turnover of all the undertakings concerned is …

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Phases Phase I: Initial Examination (Phase I deadline commences on the date when the complete notification is received by the Commission) Phase II: Initiation of proceedings (Phase II deadline …

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Phase I: Initial Examination Detailed appraisal via: request for information, interviews, inspections carried out by the competent Authorities of the Member States and the Commission Member States …

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Phase I: Decision (Art. 6) 6(1)a : the concentration does not fall within the scope of the Merger Regulation 6(1)b : the concentration does not raise serious doubts as to its compatibility with the …

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Phase I: Decision (Art. 6) Article 6 decision to be taken: within 25 working days after receipt of the complete notification unless increased to 35 working days if a Member State makes a 9(2) …

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Phase II: Initiation of proceedings Detailed appraisal via: request for information, interviews, inspections carried out by the competent Authorities of the Member States and the Commission …

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Phase II: Decision (Art. 8) 8(1): approval in case of compatibility with the common market 8(2): approval with conditions and obligations rendering the concentration compatible with the common market …

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Subsequent Actions upon Decision Two months from the date of the decision to lodge an appeal Possibility: Review by the European Court of First Instance and ultimately by the European Court of Justice

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Differentiation between Community and National Merger Control Mergers with a Community dimension are, in general, investigated only be the Commission (Art. 21 of the Merger Regulation) Sole …

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International Cooperation on Merger Issues Cooperation between the European Union and the United States: Best practices on cooperation in merger cases International Competition Network: Commission …

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Relevant Case Law Continental Can 6-72 BAT and Reynolds v Commission 156/84 (1987) ECR 4487 Gencor Ltd. v. Commission T-102/96 Arjomari-Prioux/Wiggins Teape IV/M25 (1991) 4 CMLR 854 Northern …

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