Merger Control Procedures and Institutions: A Comparison of the EU and US Practice

37 Pages Posted: 20 Feb 2014 Last revised: 3 Nov 2014

See all articles by William E. Kovacic

William E. Kovacic

George Washington University - Law School; King's College London – The Dickson Poon School of Law

Petros C. Mavroidis

Columbia University - Law School; European University Institute - Department of Law (LAW); European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

Damien Neven

Graduate Institute of International and Development Studies (IHEID)

Date Written: February 1, 2014

Abstract

The objective of this paper is to discuss and compare the role that different constituencies play in US and EU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU and US procedures differ in terms of their basic design and in terms of the procedures that are naturally associated with these alternative designs. On the one hand, there is a single investigator and decision maker operating under a symmetric mandate in the EU and on the other hand, an investigation and settlement operating under the threat of a court decision in case of challenge only in the US. The EU has developed numerous procedures and has granted extensive rights to the parties in the context of these procedures in order to provide some guarantee that the Commission’s role as investigator and decision maker at first instance is not abused. By contrast, the US procedures appear to be rather informal, the balance in the investigation and evaluation of the merger being provided by the credible threat of a court decision. With a strong federal government that has extensive competences for regulation, merger control on competition grounds is subject to the additional public interest test of regulators in the US. Such additional control is weak in the EU, which has more limited competences for regulation. In addition, both the executive and the legislative powers are more fully developed at the federal level in the US. Both the executive power and the legislative seem to be in position to wield greater influence on enforcement in the US than is the case in the EU.

Keywords: Merger procedures; Agency design

JEL Classification: K21, K40, K4

Suggested Citation

Kovacic, William E. and Mavroidis, Petros C. and Neven, Damien, Merger Control Procedures and Institutions: A Comparison of the EU and US Practice (February 1, 2014). Robert Schuman Centre for Advanced Studies Research Paper No. 2014/20; GWU Law School Public Law Research Paper No. 2014-3; GWU Legal Studies Research Paper No. 2014-3; Columbia Law and Economics Working Paper No. 476. Available at SSRN: https://ssrn.com/abstract=2397870 or http://dx.doi.org/10.2139/ssrn.2397870

William E. Kovacic (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202.994.8123 (Phone)

HOME PAGE: http://www.law.gwu.edu/faculty/profile.aspx?id=1731

King's College London – The Dickson Poon School of Law

Somerset House East Wing
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London, WC2R 2LS
United Kingdom

Petros C. Mavroidis

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
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Florence, Florence 50014
Italy

Damien Neven

Graduate Institute of International and Development Studies (IHEID)

Rue de Lausanne 132
P.O. Box 136
Geneva, 1211
Switzerland

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