The document discusses the EC Merger Regulation referral system. It provides background on the new EC Merger Regulation and describes the aims and mechanisms of the pre-notification and post-notification referral processes. It outlines the pros and cons of each, including increased legal certainty but also potential time consumption. Statistics are presented showing increased use of referrals under the new regulation compared to the old one.

1. EC Merger Regulation
Referral System.
How does it work?
George P.Kyprianides
Barrister-At-Law[Inner Temple]
LLB, LLM with Distinction
Advocate-Legal Consultant
Contact:

2. 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?

3.  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?

4.  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.

5.  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 Art.9
From MS to the Com Art.22

6. 1. The parties can monitor the pre-
notification referral process.
2. Individual prerogative.
3. Parties are able to plan ahead thus
certainty.
4. Best place authority deals with them.
5. The strict and legally binding guidelines
provide the parties with precise timeframe
to know the outcome of their request.
6. Cross border transaction? Eliminates cost
and delays in submitting various MS filings.

7.  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).

8. 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.

9. 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.

10.  Observed the background to the new ECMR
 AIMS OF THE NEW RS
 MAIN MECHANISMS
 PROS AND CONS OF BOTH PRE AND POST-
NOTIFICATION 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?