European Community Merger Regulation.  The Referral system. Everything you need to know.
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European Community Merger Regulation. The Referral system. Everything you need to know.

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European Community Merger Regulation.

European Community Merger Regulation.

The Referral System.

Did the Commission establish a good system?

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European Community Merger Regulation.  The Referral system. Everything you need to know. European Community Merger Regulation. The Referral system. Everything you need to know. Presentation Transcript

  • European Community Merger Regulation Referral System. How does it work? George P.Kyprianides LLB, LLM with Distinction University of Reading Contact: gpkyprianides@gmail.com
  • 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.  2002 CFI  Com addressed criticism  In January 2004  New ECMR along with Regulations, notices and Guidelines. Applies to… What is the RS?
  • Allocation of cases to the best place authority.  Guarantee of a One-Stop-Shop  Need for Legal Certainty  ISSUE? 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.
  •  For Pre-notification referrals: From the Com to MS 4(4) From MS to the Com 4(5)  Post-Notification referrals: From the Com to the MS From MS to the Com Art.9 Art.22
  • 1. 2. 3. 4. 5. 6. The parties can monitor the prenotification referral process. Individual prerogative. Parties are able to plan ahead thus certainty. 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.
  •  Time consumption.  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).
  • PROS  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) concerned.  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. Cons  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. New RS More willingness 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  MAIN MECHANISMS  PROS AND CONS OF BOTH PRE AND POSTNOTIFICATION REFERRALS  BROUGHT THE STATISTICS INTO THE GAME  AND SO….  WHERE DO YOU STAND?  ‘WINNING STARTS WITH BEGINNING’ Positive changes could be improved to have better results. Look at the aims :to what extend are they satisfied?