Article 22 EUMR and Call-in Powers as Tools of Jurisdictional Creep in Merger Control

purposively'. 1 Yet the Court of Justice of the European Union's (EU) appellate judgment in Illumina/Grail, 2 overturning the General Court of the EU, 3 almost reads like a manual on methods of legal interpretation.Based on a literal, historical, contextual, and teleological (purposive) reading of Article 22 of the EU Merger Regulation (EUMR), 4 the Court of Justice held that a national competition authority may not request the European Commission to examine a merger that does not meet the relevant national merger thresholds.The judgment is a setback to the Commission's attempts to work around the limits of turnover-based thresholds for the assessment of so-called 'killer acquisitions'.This contribution makes three main claims.First, while the Court of Justice goes to great lengths to demonstrate that its own historical, contextual, and teleological interpretation of Article 22 is better than that of the General Court, from a strictly legal perspective, its judgment is no more or less convincing than that of the General Court.At important points, the reasoning of the Court of Justice ties itself in knots, and the judgment is equally flawed in its attempt to establish the 'original meaning' of Article 22 EUMR.Secondly, the Illumina/Grail judgment's reliance on the various policy objectives of the EU Merger Regulation, particularly its effectiveness, predictability, and legal certainty, in my 1 In US antitrust law, some of the scholars associated with the Neo-Brandeisian school, however, have used originalist argument to re-interpret the scope and aims of the Sherman Act.

Monetary fines represent an important instrument to address violations of Competition Law. The European Commission (EC) and the EU Courts have been primarily engaged in imposing fines in cases of breach of the first pillar, and have rarely dealt with cases of abuse based on the fining guidelines issued in accordance with Article 23(2) of Regulation 1/2003. Compared to the first two pillars, mergers have not received similar scholarly attention.1 2 Since 2017, the EC has expressed a growing interest in investigating and imposing significant fines to mergers and acquisitions in breach of procedural matters. Therefore this article addresses the application of Article 14 of the European Union Merger Regulation (EUMR) in imposing fines to mergers with European Union (EU) dimension. The EC decisions and EU Courts’ judgments related to fines on mergers in breach of procedural matters are discussed in four specific sections. The first section analyses article 14(1) of the EUMR, which empowers the EC to impose a fine of up to 1% of the total turnover in the preceding business year on undertakings for breach of procedural matters, including, among others, for providing incorrect or misleading information. This section will address the case of Facebook as the first case in which the EC imposed fines based on the new EUMR. In this case, although the undertakings mislead the EC, based on the offered cooperation, the Authority decided to reduce the fine. In addition, it is also important to address the legal basis applied by the EC in accepting the offered cooperation as a mitigating factor and whether this may develop into a guiding “precedent” in the future. The second section deals with five cases of violations of articles 4(1) and 7(1) EUMR related to fines prescribed in article 14(2) EUMR. With regards to four of them, judgments of EU Courts and decisions of the EC and National Competition Authority (NCA) are analysed. The fifth case, the one on Ernst and Young, provides for the first preliminary ruling on the notion of “gun-jumping”. The third section deals with Article 14(3) and the fining methods on mergers. By reviewing each of these five cases, it is important to address factors taken into consideration when imposing fines. An obvious deficiency is the absence of a legal basis, regardless of whether manifested in hard or soft law. Here it is relevant to inquire in what manner the EC imposes fines and why it occasionally mirrors the fining guidelines applicable to other pillars of EU Competition Law. The last point to be addressed is the one of policy and the need to balance EC discretional powers and relevant legal principles such as legal certainty, equal treatment, transparency, and consistency.3 The fourth section provides for concluding remarks.

On 9 July 2014 the European Commission published the White Paper “Towards more effective EU merger control”. The White Paper takes stock of the working of the EU Merger Regulation 10 years after the last reform in 2004. It evaluates what degree of coherence and convergence has been achieved in the application of merger control rules and practices at the EU and at Member State level. The White Paper supports recent suggestions to move towards a “European Merger Area”, in which the Commission and national competition authorities (NCAs) apply the same rules to mergers and acquisitions, but does not make concrete proposals in that respect. However, the White Paper proposes amendments to the Merger Regulation in two main areas. First, in order to address an enforcement gap in EU competition law with respect to acquisitions of non-controlling minority shareholdings, the Commission should have the possibility to review certain minority stake transactions creating a “competitively significant link” between the acquirer and the target, without however making all acquisitions of minority shareholdings subject to the prior notification obligation. Second, the system for referring merger cases between the Commission and NCAs should be streamlined in order to reduce the administrative burden on companies and better ensure that cases are being dealt with by the best placed competition authority. Additional proposals made by the White Paper relate to removing joint ventures established outside the European Economic Area (EEA) and with no effect on EEA markets from the scope of the Merger Regulation and alleviating notification obligations for certain categories of unproblematic mergers.

Any strategic vision for European antitrust enforcement rests on one fundamental pillar: the continuous development of a common competition culture shared by the European Commission and national competition authorities (NCAs). In this respect, the innovative model of institutional governance for the enforcement of European Union (EU) competition law set out by Regulation 1/2003 has proved key: the achievements accomplished within the European Competition Network have probably exceeded the initial expectations in terms of scale of enforcement, its effectiveness as well as its consistency. It is indeed on this solid basis that a more far-reaching evolution and consolidation of the ‘institutional infrastructure’ in the area of competition law enforcement can be promoted and should be achieved in the EU. To this end, the public consultation that is being carried out by the European Commission has identified three sensitive areas on which convergence should be fostered: investigative and sanctioning powers, leniency programmes, and the institutional position of NCAs. All NCAs enforce the same substantive rules, and many Member States have also voluntarily aligned their procedures with those set out for the Commission in Regulation 1/2003. Soft convergence initiatives on procedural matters within the ECN have led to the adoption of a number of valuable recommendations and should continue to be pursued in the future. However, experience shows that margins for further voluntary convergence might be rapidly eroding: soft law instruments alone are unlikely to provide all NCAs across Europe with an effective competition law toolbox. There is thus scope for further legislative harmonisation of NCAs’ investigative and decision-making powers in the application of EU antitrust rules. An objective that becomes all the more important since effective enforcement in increasingly sophisticated markets cannot be achieved with blunt investigative and enforcement tools. A minimum set of powers should therefore be granted to all NCAs, including at least: the power to carry out compulsory interviews, the power to collect digital evidence, and the power to adopt structural and behavioural remedies within the prohibition decision. NCAs should also be enabled to provide assistance to each other when serving administrative acts and enforcing fining decisions upon undertakings established in a different Member State. This is essential to ensure a level-playing field for undertakings, as well as to safeguard the effectiveness of the application of European competition rules by NCAs. There is also scope for fostering a certain degree of convergence on the quantification of antitrust fines across the EU: substantially diverging approaches on the determination of pecuniary sanctions may jeopardise the acceptability of fines in all jurisdictions, and may undermine the very legitimacy of the system of parallel enforcement competences within the ECN. The harmonisation of legal rules concerning parental liability, legal and economic succession, and the ceiling of antitrust fines may contribute to achieving this objective, at least to some extent. At the same time, as some of the relevant legal notions may be further refined by judicial interpretation, it is crucial to ensure some degree of flexibility to make room for future developments. More generally, increased harmonisation does not mean that maximum convergence of existing sanctioning regimes is necessary. In fact, it is important to be aware that antitrust sanctions are only one part of broader national sanctioning regimes, which differ significantly across Member States. The existence of possible criminal sanctions applying to the same offences, the diffusion of private enforcement, and the general level of sanctions imposed for economic offences are all elements that affect the perception of the optimal level of fines, their acceptability, and, ultimately, their fairness.

EU Competition Law Enforcement Vis---Vis Exploitative Conducts in the Data Economy Exploring the Terra Incognita

European Commission Opinions to National Courts in Antitrust Cases: Consistent Application and the Judicial-Administrative Relationship

This chapter provides an overview of EU merger control and the jurisdictional rules which determine whether a particular merger should be investigated by the European Commission or by the national competition authorities. It deals with procedural considerations such as the mandatory pre-notification to the Commission of mergers that have a Union dimension and the timetable within which the Commission must operate. It discusses the substantive analysis of mergers under the EU Merger Regulation (‘the EUMR’) and explains the procedure for the Commission to authorise a merger on the basis of commitments offered by the parties to address its competition concerns. Finally, it describes the Commission’s powers of investigation and enforcement, judicial review of Commission decisions by the EU Courts and cooperation between the Commission and other competition authorities, both within and outside the EU. The chapter concludes with an examination of how the EUMR merger control provisions work in practice.

This chapter examines EU merger control. The chapter is organized as follows. Section 2 provides an overview of EU merger control. Section 3 discusses the jurisdictional rules which determine whether a particular merger should be investigated by the European Commission in Brussels or by the national competition authorities (‘the NCAs’) of the Member States. Section 4 deals with the procedural considerations such as the mandatory pre-notification to the Commission of mergers that have a Union dimension and the timetable within which the Commission must operate. Section 5 discusses the substantive analysis of mergers under the EU Merger Regulation (EUMR), and section 6 explains the procedure whereby the Commission may authorise a merger on the basis of commitments, often referred to as remedies, offered by the parties to address its competition concerns. The subsequent sections describe the Commission’s powers of investigation and enforcement, judicial review of Commission decisions by the EU Courts and cooperation between the Commission and other competition authorities, both within and outside the EU. The chapter concludes with an examination of how the EUMR merger control provisions work in practice.

This chapter examines EU merger control. The chapter is organised as follows. Section 2 provides an overview of EU merger control. Section 3 discusses the jurisdictional rules which determine whether a particular merger should be investigated by the European Commission in Brussels or by the national competition authorities (‘the NCAs’) of the Member States. Section 4 deals with the procedural considerations, such as the mandatory pre-notification to the Commission of mergers that have a Union dimension and the timetable within which the Commission must operate. Section 5 discusses the substantive analysis of mergers under the EU Merger Regulation (EUMR), and section 6 explains the procedure whereby the Commission may authorise a merger on the basis of commitments, often referred to as remedies, offered by the parties to address its competition concerns. The subsequent sections describe the Commission’s powers of investigation and enforcement, judicial review of Commission decisions by the EU Courts and cooperation between the Commission and other competition authorities, both within and outside the EU. The chapter concludes with an examination of how the EUMR works in practice.

Soft law issued by the European Commission plays an important role in the area of EU competition law. Focusing on the legal effect of competition soft law as applied by Germany's national competition authority, the Bundeskartellamt, this contribution analyses how the authority pursues interpretational and decisional objectives through references to competition soft law. This contribution quantifies the references made to soft law and categorises these references on the basis of the involvement of other sources of law in an individual reference. It is shown that the Bundeskartellamt is comfortable making reference to competition soft law as the sole legal basis for certain parts of many decisions, ascribing to competition soft law a strong legal effect in several instances.

The Robert Schuman Centre at the European University Institute (EUI) in Florence has hosted Annual EC Competition Law and Policy Workshop since 1996. Its fifth edition held on 2-3 June 2000 was devoted to the ongoing debate about the modernization of EC antitrust law enforcement. This publication includes a transcript of the discussions and a collection of the writings submitted by 33 participants at the Workshop. The Workshop concentrated on issues which the European Commission's White Paper for decentralizing enforcement of Article 81 (3) of the EC Treaty and ensuing discussions identified as particularly problematical and controversial. Proceedings were divided into following three sessions. Panel One was devoted to the three aspects of the reform such as its compatibility with the EC Treaty, its effects on the efficiency of EC anti-cartel enforcement, and its consequences for undertakings interested in legal security. Panel Two focused on risks that the reform entails for the coherent application of Article 81 of the EC Treaty. Panel Three concentrated on specific problems that the reform will generate for national judges who will become responsible for interpretation and application of Article 81 (3).The centralization of exemption power under Article 81 (3) of the EC Treaty in the hands of the Commission and corresponding notification requirements have raised various problems in enforcement. The Commission has never succeeded to manage its exemption monopoly. The debate on subsidiarity stimulated requests for abolition of the Commission's exemption monopoly in favor of national competition authorities (NCAs). Increase in the number of agents entrusted with the implementation of Article 81 (3) will lead to divergences in its interpretation and application. Some participants fear divergent decisions because of overlapping responsibilities of NCAs, the limited territorial effect of NCA decisions, multiple jurisdictions and forum shopping by private parties. The Commission suggests relying on two broad principles to minimize the risks resulting from radical decentralization of application of Article 81 (3). The first is co-operation within network of enforcement agencies formed by the Commission and the NCAs. The second is the principle of supremacy of EC law over national law. The risks of divergent decisions would be reduced if cases were attributed within the network of enforcement agencies, according to clear and transparent criteria. The Commission's intervention into cases pending before NCAs raise problems under principle of subsidiarity. The White Paper mainly concentrates on vertical co-operation between the Commission and NCAs. It hardly discusses horizontal co-operation among NCAs themselves. However, such horizontal co-operation is indispensable to efficient functioning of the network of enforcement agencies within the EU. The extent to which Article 81 pre-empts the application of national antitrust law is important for the possible reach of such national law in a new situation.The majority of participants expressed their overall support for the Commission's reform suggestion while critical remarks were also uttered. Thus, the Workshop was a contribution on long march to a new, modernized and more efficient enforcement system of EC antitrust law.

This chapter examines the role of national competition authorities (NCAs). Under Regulation 1/2003, it is not only the European Commission but also the NCAs that are responsible for enforcing the EU competition rules. Regulation 1/2003 created a system of parallel competences in which the competition rules are enforced by a network of competition authorities as well as by the national courts. Provided trade between Member States is affected, Regulation 1/2003 allows NCAs to apply Articles 101 and 102 TFEU but leaves the Member State free to determine which body will enforce the rules and which mechanism for investigating infringements and enforcing decisions will apply. Article 11(6) of Regulation 1/2003 provides that if the Commission initiates proceedings for the adoption of a decision, the NCAs no longer have jurisdiction to apply Articles 101 and 102 TFEU. Yet a central feature of Regulation 1/2003 is that NCAs may apply Articles 101 and 102 TFEU in individual cases. The chapter then considers the cooperation between the Commission and the NCAs, as well as the principles and procedures for cooperation with third countries. It also studies the ECN+ Directive, which empowers the competition authorities of the Member States to be more effective enforcers.

In this paper we analyse the right to access documents for cartel victims and cartel members. We start with an analysis of the case law from the European Court of Justice and the General Court. The effects of the new Private Enforcement Directive will thereafter be scrutinized. These two sub-chapters are divided so that we analyse the requestors: (i) individuals or (ii) national courts, and the recipients of these requests: (iii) potential or real defendants, (iv) national competition authorities, or (v) the European Commission, separately. Different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. Thereafter, we discuss the rights to the defence and access to documents while being subject to a cartel investigation by the Commission. Our finding is that different legal systems are triggered depending on who makes a request and who is the receiver of such a request, and the potential success of obtaining the documents varies considerably. In fact, the system is not coherent. We conclude with some suggestions for the Member States on how to transpose the Directive so as to maximize private actions through granting access to documents without thereby dismantling the leniency programmes.

While the Commission did not adopt any Article 102 prohibition decisions in 2012, commitment proceedings under Article 9 of Regulation 1/2003 and public statements by senior officials shed some light on its likely analytical approach and future enforcement priorities. The General Court and Court of Justice upheld prohibition decisions in several important judgments, including in AstraZeneca, which establishes a new category of abuse consisting in the exclusionary misuse of regulatory proceedings. The Courts' rulings are broadly consistent with previous case law and/or the analytical approach described in the Commission's Guidance Paper, enhancing legal certainty for stakeholders and national competition authorities.

The Illumina/Grail and Towercast rulings of July 2022 and March 2023 create new avenues for the control of concentrations below the European Union (EU) and national turnover thresholds. These new avenues concern (i) a referral to the European Commission by a national competition authority (NCA) and (ii) a review under the EU provision on abuse of dominance by an NCA. In both cases, the rationale seems predominantly based on the need to have effective competition law oversight on the so-called killer acquisitions of emerging competitors and undertakings that aim to extend their dominance by acquiring existing (small but) effective or particularly innovative competitors. The obvious drawback of increasing possibilities of the ex-post merger control is that this comes at a cost to legal certainty and the one-stop-shop principle that has characterized the EU merger control so far. Especially the Towercast judgment calls into question the structure, purpose, and merits of merger control in the EU over the past 35 years. Looking forward, much will depend on how the NCAs and the European Commission will use their new-found powers; some reorganization of merger vetting procedures at the national level may be required. However, it appears likely that the system of merger control in the EU will come to focus more sharply on mergers that raise serious competitive concerns and less on providing a system of comprehensive administrative review, based mainly on size. This may also provide opportunities to rationalize the application of public enforcement capacity.