The European Union’s Jurisdiction in Merger Regulation

Abstract

The regulation of mergers that go beyond national borders within the European Union (EU) common market has its origins in the adoption of the Council Regulation 4064/89 of 21 December on the Control of Concentrations between Undertakings (Regulation 4064/89). Regulation 4064/89 was as a result of negotiations that begun in 1973 when the Commission proposed the first merger text to the Council. Since then, the EU has had jurisdiction over cross-border mergers within the internal market. Currently merger regulation under the EU is governed under Council Regulation (EC) No. 139/2004 of 20 January 2004 on the Control of Concentrations between Undertakings (The EU Merger Regulation), the 2004 Implementing Merger Regulation (809/2004) as amended by the 2013 Implementing Regulation (1269/2013). Because, merger regulation in the EU happens at both the national and community level, the EU Merger Regulation in addition to the Commission Notices lay down a framework and conditions under which both the Commission and the Member States can invoke jurisdiction over mergers within the common market. This is geared towards ensuring that, the most competent institution, reviews mergers to avoid multiple filings that would lead to legal uncertainties and undermine the one-stop shop principle. The objective of this brief research paper, is to provide a clear understanding on the allocation of jurisdiction on merger control in the EU between the Commission and the Member States. This research paper is divided into four parts. The first part is the introduction. The second part discusses the community dimension test in merger regulation under Articles 1(2) and 1(3) of the EU Merger Regulation. The third part, examines the referral system as provided for under Articles 4(4), 4(5), 9 and 22 of the EU Merger Regulation. The last part, analyses Article 21(4) of the EU Merger Regulation which grants the Member State an opportunity to review a merger meeting the community dimension test in order to protect legitimate interest or certain public interests.