Reviewing the EC Merger Control Regulation – examining competing ways forward

Abstract

The European Commission’s competence to vet mergers at the Community level is primarily derived from the Merger Control Regulation (MCR) 1989, amended 1997, which established a concentration architecture based on separate, non‐overlapping jurisdictional spheres for member states and the Commission, with the Commission alone having jurisdiction over concentrations with a competition concern which potentially have a Community impact. Under the MCR, Community impact is determined by the two Community Dimension (CD) tests employing a numerical form‐based approach. The paper examines the Commission’s 2000 report on aspects of the MCR, particularly the appropriateness of the key CD tests in guaranteeing that all concentrations with a Community impact are centralised to the Commission, while those which are national in impact are dealt with at the member state level. It reveals that the tests are ineffective and undermine the goal of the concentration architecture. A streamlined single CD test is advanced and a radical alternative is put forward – based not on separate jurisdictional spheres but where the Commission and member states competition authorities form a network of co‐operation to regulate concentrations.