European Community Merger Regulation. The Referral system. Everything you need to know.
European Community Merger Regulation
How does it work?
LLB, LLM with Distinction
University of Reading
Critical Analysis of the RS:
Background to the new ECMR
New Referral system: Aims of referral
process, main mechanisms.
The new mechanisms.
Pros and Cons of Pre Notification Referrals
and Post Notifications Referrals.
Bring the statistics into „game‟.
Where do you stand?
1989 ECMR was approved
Art. 81 and 82.
Com addressed criticism
In January 2004
New ECMR along with
Regulations, notices and
What is the RS?
Allocation of cases to the best place authority.
Guarantee of a One-Stop-Shop
Need for Legal Certainty
Mergers with national implications not handled by
the authority best suited to investigate.
How did the ECMR solve this issue?
ECMR complements “Bright line” jurisdictional
scheme with a number of mechanisms.
From the Com to MS
From MS to the Com
From the Com to the MS
From MS to the Com
The parties can monitor the prenotification referral process.
Parties are able to plan ahead thus
Best place authority deals with them.
The strict and legally binding guidelines
provide the parties with precise timeframe
to know the outcome of their request.
Cross border transaction? Eliminates cost
and delays in submitting various MS filings.
The outcome may be uncertain.
There is a risk of potential conflicts between
pre- and post- notification process.
In the case of partial and multiple referrals
the transaction could be subject to divergent
treatment due to the different substantive
tests that are applied by the NCAs.
A referral may endanger the use of some
other mechanism e.g. art. 7(3).
Under the revised Art.9 the Com can trigger the
referral process, by asking one or more MS to
request it to refer a concentration to the MS(s)
Conversely, art.22 the Com can invite one or more
MSs to refer to a concentration that does not have
a Community dimension, but which it considers
should be reviewed at EU level.
Time consumption. Up to 65 working days.
The Com granted 57 article 9 referrals of
which only 1 was passed to Phase ii.
Reluctance under the old ECMR.
33 Partial referrals
Germany, France, UK most active MS in
utilizing article 9.
Observed the background to the new ECMR
AIMS OF THE NEW RS
PROS AND CONS OF BOTH PRE AND POSTNOTIFICATION REFERRALS
BROUGHT THE STATISTICS INTO THE GAME
WHERE DO YOU STAND?
‘WINNING STARTS WITH BEGINNING’
Positive changes could be improved to have better
Look at the aims :to what extend are they satisfied?