Lunch Forum. Autorité Belge de Concurrence 26 April 2012 EU MERGER CONTROL. - Work sharing, Cooperation & convergence

Transcription

1 Lunch Forum Autorité Belge de Concurrence 26 April 2012 EU MERGER CONTROL - Work sharing, Cooperation & convergence Peter Ohrlander Policy Officer, European Commission, DG COMP All views expressed are strictly personal and do not necessarily reflect the official position of the European Commission 1 Issues Commission NCAs: Partnership for even level playing field in merger control throughout the EU: efficiency, effectiveness and consistency Clear division of work & flexible re-allocation mechanisms Generally applicable jurisdictional thresholds Article 1(2), later 1(3) Coupled with referral mechanisms for a flexible reallocation on a case-by-case basis Articles 4, 9 & 22 Community dimension - guiding principles: Most appropriate authority One-stop-shop Level playing field 1

2 Commission 2009 Report to Council Scope & purpose: taking stock Commission only required to report on the thresholds and referrals but: General context of efficient merger control in the EU considered Also non-jurisdictional other issues reported on No concrete proposals but identifies issues and launched a discussion Thresholds (I) Thresholds (Art 1) are by and large set at the right level Cases reviewed typically Involve wide geographic areas Involve many sub-eu markets or simply benefit from a one-stop-shop treatment (simplified cases) But still some shortcomings (data 2007) Still many multiple filings >240 concentrations filed in 2 or more MS >100 concentrations filed in 3 or more MS Compare 402 concentrations notified with Commission Option to refer to Commission not used in the majority of cases Begs question why not more cases are referred 2

3 Thresholds (II) 2/3rds rule generally working well BUT: Not all cases are reviewed by the most appropriate authority Some important cases with important cross border effect (e.g. energy) MS treatment in some cases bear mention Difficult balancing of other policy interest, e.g. energy policy, crisis measures Pre-notification Referrals (I) New flexible mechanism case re-allocation to and from Commission (Art 4 ECMR) The parties have exclusive right to initiative prior to notification Subject to approval by MS and at times by Commission Reinforced the principles of one stop shop and most appropriate authority (data 2004-March 2012) 226 Commission proceedings have avoided more than 1,200 parallel MS investigations, 67 cases with a strong national nexus referred to MS, Only 5 requests refused by MS (of which 1 request for referral to MS) 3

4 Pre-notification Referrals (II) BUT 2/3 of eligible concentrations still filed in 3 or more MS (2007) Stakeholders pointed to disincentives to refer: Process could be smoother Unclear when MS will exercise their powers to refuse referral Criteria for referrals to MS a disincentive (Art 4(4)) Post-notification referrals Flexible re-allocation mechanisms after notification (Art 9 & 22 ECMR) Complementary to Art 4 referrals Any stage in the process after notification Initiative is in the hands of the MS Only the portion falling under the requesting jurisdiction is referred Typically complex cases raising prima facie issues on the merits (strict criteria: threaten to affect competition significantly) A solution of last resort, 2004-March 2012: Referrals to Commission: 19 Referrals to Member States: 17 Stakeholders: Process unclear, cumbersome, lengthy & therefore costly 4

5 Trend Total number of notifications and referral cases Total number of notifications Article 4(4) Article 9 Article 4(5) Article Comparison between instruments TOTAL

6 Examples Some interesting referral cases: Art 9: EDF/Segebel (BE) GDF Suez/International Power (BE) Buitenfood / AD Van Geloven (NL) LGI/KBW (DE) Art 22: P&G/Sara Lee (BE referred) Caterpillar/MWM (BE considered but did not refer) Birla/Columbian (BE not involved) 11 Debate (I) : Stakeholder Main Proposals Consultation: 2009 Report & Best practices 2011 Improve pre-notification referral process to stimulate its use Re-open debate on thresholds, e.g. 3+ Abolish or change post-notifiction referrals Take initiatives towards convergence between MS merger control regimes 6

7 Debate (II) Monti-report Need for renewed political determination to accomplish the Single Market Full potential not reached Need to withstand the threat of economic nationalism Competition policy the solution not the problem Bold recommendations for merger control Widen substantive EU merger control rules to all crossborder mergers Consider abolishing 2/3rds rule Foster more cooperation & convergence Conclusions? System works well overall In most cases the right authority handles the right case BUT there is scope for improvement of EU level playing field Debate remains open: Ensure efficient system & level playing field across the EU Privilege better case allocation & reallocation? 3+ or more efficient referral process? Or rather focus on cooperation & convergence? How to enhance harmonious co-existence between competition goals and MS public interest (2/3rds rule)? How important are divergences between MS regimes in practice? How to enhance cooperation between EU merger regimes in cross border mergers? Important recent initiative EU merger working group "Best practices" on cooperation among NCAs 7