Harmonizing National Laws, Procedures and Judicial Review of Mergers in the EU and EEA
71 Pages Posted: 13 Nov 2012 Last revised: 4 Feb 2013
Date Written: April 7, 2011
There has been a great deal of discussion of the need for harmonisation of national merger control laws and procedures throughout the world, but less discussion, at least in public, of the need and scope for harmonisation of the same laws within the EU and EEA. This paper is intended to call attention to some of the issues. The present situation in Europe has developed withoutcoordination, and without serious discussion or study at European level.
National competition laws on restrictive agreements have been effectively harmonised, as far as agreements affecting trade between Member States is concerned, by Article 3 of Regulation 1/2003 and the corresponding EEA measures, which essentially obliged national authorities to apply Article 101 TFEU and Article 53 EEA when dealing with such agreements. However, no efforts have been made in the European Competition Network to harmonise either national laws corresponding to Article 102 TFEU and Article 54 EEA, or national merger control rules. In these respects the EU has not got a coordinated network, or even a comprehensive view of what the solution should be.
The structure of this paper is as follows: - Section B summarizes the present position. - Section C gives reasons why harmonisation is needed. - Section D considers legal questions of referral of cases from one competition authority to another and the possibility of challenging referrals under existing law. - Section E considers harmonisation of substantive rules on mergers. - Section F discusses harmonisation of procedures of national authorities. They must comply with Article 6, European Convention on Human Rights (“ECHR”). - Section G considers harmonisation of rules on judicial review of merger decisions. Judicial review of national authorities’ merger decisions must be sufficient to comply with Article 6, ECHR. - Section H suggests some conclusions.
It will be seen that in this context procedural and substantive issues are related, and cannot be considered completely separately from one another.
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