Erfaringene med EUs forordning om foretakssammenslutninger (fusjonsforordningen)

Erfaringene med EUs forordning om foretakssammenslutninger (fusjonsforordningen)

Meddelelse fra Kommisjonen om erfaringene med forordning nr. 139/2004

Meddelelse lagt fram av Kommisjonen 18.6.2009

Nærmere omtale

BAKGRUNN (fra kommisjonsmeddelelsen, engelsk utgave)

1. Council Regulation (EEC) No 4064/89, the "EC Merger Regulation", entered into force on 21 September 1990. The EC Merger Regulation applies to concentrations which are deemed to have a Community dimension, i.e. where the turnover of the parties concerned satisfy the thresholds set out in Article 1 of the EC Merger Regulation.

2. One of the main principles of the EC Merger Regulation is the exclusive jurisdiction of the Commission with respect to concentrations having a Community dimension. The concept that the Commission should have sole competence to deal with mergers with a Community dimension follows from the principle of subsidiarity. From the viewpoint of the European business community, the Commission's exclusive jurisdiction also provides a "one-stop-shop" advantage, which is widely regarded as an essential part of keeping the regulatory costs associated with cross-border transactions at a reasonable level. In addition, the Commission's exclusive jurisdiction to vet such mergers is an important element in providing a "level playing field" for the concentrations that were bound to result from the completion of the internal market. This principle is widely accepted as the most efficient way of ensuring that all mergers with a significant cross-border impact are subject to a uniform set of rules.

3. In 1998, after a careful review of the experience gained, the EC Merger Regulation was amended, through Council Regulation No 1310/97. In relation to Article 1, a new sub-paragraph - Article 1(3) - providing for an alternative turnover threshold was introduced. The objective of this provision was to address the problem that a significant number of cases failed to meet the turnover requirements of Article 1(2) and had to be notified in several Member States. Many such concentrations had a significant cross-border impact but did not benefit from the one-stop-shop principle. The EC Merger Regulation had therefore not fully succeeded in creating a level playing field and a set of coherent rules for this category of cases.

4. The adoption of the recast EC Merger Regulation on 20 January 2004 [1] (also referred to as the "EC Merger Regulation") was the next step to further improve the merger case allocation between the Commission and the Member States. It was the result of a far reaching review and a broad debate with all concerned parties which was launched in 2001 with the Commission Green Paper [2].

5. The recast EC Merger Regulation introduced a number of substantive and procedural changes. The review had found that, notwithstanding the introduction of the threshold under Article 1(3), there was still further scope for improved case allocation between the Commission and the national competition authorities ("NCAs"). Therefore, while the turnover thresholds set out in Articles 1(2) and 1(3) were left unchanged, a set of voluntary pre-notification referral mechanisms was introduced in order to "further improve the efficiency of the system for the control of concentrations within the Community" [3]. The principles guiding the system were those that decisions taken with regard to the referral of cases should take due account "in particular which is the authority more appropriate for carrying out the investigation, the benefits inherent in a 'one-stop-shop' system, and the importance of legal certainty with regard to jurisdiction" [4].

1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).

2 COM(2001) 745, 11.12.2001.

3 Recital 16 of the EC Merger Regulation. Other instruments that should also be mentioned are: the Commission Notice on Case Referral in respect of concentrations (Commission Notice on Case Referral in respect of concentrations - OJ C 56, 5.3.2005, p. 2), which sets out the guiding principles of the referral system. On 10 July 2007, the Commission adopted the Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (Corrected French and German versions of the Commission Consolidated Jurisdictional Notice and the remaining languages versions of the Notice were adopted by the Commission on 17 March 2008). The Consolidated Jurisdictional Notice replaces the previous four jurisdictional Notices, all adopted by the Commission in 1998 under the previous EC Merger Regulation. The Consolidated Jurisdictional Notice covers all issues of jurisdiction relevant for establishing the Commission’s competence under the EC Merger Regulation, including in particular, the concept of a concentration, the notion of control, the concept of full-function joint ventures and the calculation of turnover.

4 Commission Notice on Case Referral in respect of concentrations (OJ C 56, 5.3.2005, p. 2-23, paragraph 8).