A review of the revised EC Merger Control Regulation: a case of the curate’s egg

Abstract

In March 1998, the first major revision of the European Merger Control Regulation (MCR) came into effect with particular implications for the demarcation of authority for merger control between member states and European level competition authorities and for the treatment of joint ventures. The overall balance of the reform is mixed. Changes to the threshold test, for example, ensure that the MCR will capture proposed concentrations which have a Community dimension but which were missed by the original test. However, the cost of the revision is greater complexity and, with this, greater opacity. Both tests are form‐based and deal with aggregate turnover and are insufficiently sensitive to capture the competition effects of the merger in individual product markets. Article 9 implicitly recognises this flaw by providing a second decentralisation test. Again, the revision of Article 9 has added to the complexity of the operation of the MCR. An alternative would be to dispense with Article 9 altogether. The revisions improve the consistency of the MCR by introducing a “one stop shop” for the treatment of joint ventures, some of which were previously dealt with under Article 85. However, the codification of joint venture provisions creates a situation in which the Commission is required to investigate aspects of a joint venture which are national rather than European in nature.