The Relationship between Article 4 (1)(b) Cross-Border Merger Directive and the European Merger Regulation

Forthcoming, Thomas Papadopoulos, ‘Cross-Border Mergers Directive: EU Perspectives and National Experiences’ (Springer, 2019)

Posted: 27 Dec 2018

See all articles by Marco Claudio Corradi

Marco Claudio Corradi

Stockholm Centre for Commercial Law; Stockholm University; University of Oxford - IECL

Julian Nowag

Lund University - Faculty of Law; Oxford Centre for Competition Law and Policy

Multiple version iconThere are 2 versions of this paper

Date Written: September 1, 2018

Abstract

In a time when protectionism is re-merging as a strong policy stance on a global scale, the opposition to cross mergers based on public interest grounds may once more become more frequent. The lack of a common policy at the EU level leaves each Member State free to set its own framework the opposing mergers based on the public interest. However, such frameworks need to comply with Article 4(1)(b) of the Cross-Border Merger Directive (CBMD) which expressly introduces a non-discrimination principle in respect of MS’s provision which regulate the opposition of public interest. This paper compares the protection offered under Article 4(1)(b) with the one offered under the EU Merger Regulation (EUMR). It shows that the protection under the EUMR are greater and that the EUMR provides a robust ex ante assessment of public interest claims raised against the merger. However, it also shows that the role of the EUMR in the protection of mergers against public interest opposition is limited due to the threshold for establishing a Union dimension within the meaning for that Regulation. The paper suggests that while the scope of the CBMD covers more mergers the real playing field of public interest opposition is prior to the merger, during the takeover by a foreign company or the change of control in the terms of the EUMR.

Keywords: protectionism, mergers, EU competition law, merger regulation, M&A, cross-border mergers

Suggested Citation

Corradi, Marco Claudio and Nowag, Julian, The Relationship between Article 4 (1)(b) Cross-Border Merger Directive and the European Merger Regulation (September 1, 2018). Forthcoming, Thomas Papadopoulos, ‘Cross-Border Mergers Directive: EU Perspectives and National Experiences’ (Springer, 2019). Available at SSRN: https://ssrn.com/abstract=3296612

Marco Claudio Corradi

Stockholm Centre for Commercial Law ( email )

Universitetsvägen 10
Stockholm, Stockholm SE-106 91
Sweden

Stockholm University ( email )

Universitetsvägen 10
Stockholm, Stockholm SE-106 91
Sweden

University of Oxford - IECL ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

Julian Nowag (Contact Author)

Lund University - Faculty of Law ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

Oxford Centre for Competition Law and Policy ( email )

St Cross Building
St Cross Road Oxford
Oxford, OX1 3UL
United Kingdom

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