The EC Competition Law Essay

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The EC Competition Law

Introduction.

The five principal institutions entrusted with carrying out the tasks of the Community are, the Council, the Commission, the European Parliament, the Court of Auditors and the Court of Justice[1]. The Commission holds two kinds of judicial powers, which are based on the first indent to Article 211 (ex Article 155). First, the Commission can bring actions against Member States when they are in breach of Community law under Article 226 (ex Article 169) EC. Second, The Commission acts in certain areas as investigator and as an initial judge of a Treaty violation, whether by private firms or by Member States.

Hence, there are certain circumstances where the Commission acts as a judge and resolves disputes, and therefore it not only proposes but also decides. The two most important areas are in respect of competition policy and state aids. The Commission’s decisions are subject to review by the Community’s judiciary, which is normally the Court of First Instance or CFI. This enables the Commission to devise new strategies in relation to particular aspects of competition policy or state aids. Further, the Commission gives guidance to national courts in respect of the more precise meaning of broadly framed Treaty Articles.

Section 1.    Merger Regulation and Development.

Mergers are very frequent in the Corporate Sector and usually take place in order to meet the requirements of dynamic competition resulting in improving growth and standard of living in the Community. The process of reform to the Merger Regulation commenced in July 2000, with the submission of a report to the Council by the Commission in respect of the application and functioning of the Merger Regulation. On December 11, 2002 the European Commission published its Proposal for a Council Regulation on the control of concentrations between undertakings[2].

Articles 1 (4) and (5) and 9 (10) of the EC Merger regulation included the Commission to review the turnover thresholds and the case referral rules and the Commission took this opportunity to examine the operation of the Regulation as a whole. The most far reaching amendment was the reform of the jurisdictional test establishing automatic Community competence over cases subject to multiple filings in three or more Member States. The proposals call for enhanced recourse cases under Articles 9 and 22 of European Council Merger Regulations or ECMR Amendments to the Merger Regulation, adopted in 2003, and effective since May 1, 2004, and make evolutionary changes that preserve these distinctive elements of EU merger control.

Their improvement and use at a pre-notification stage at the request of the parties involved. The objective was to analyze the reform process of the Merger Regulation with emphasis on the delimitation of jurisdiction between the Commission and the Member States. The original jurisdiction of the Commission was determined by Article 1 of the ECMR and the material determination of jurisdiction was determined by the definition of a concentration in Article 3.

The Treaty of Rome did not contain specific rules for merger control. This was intentional since the Paris Agreement, which had come into force six years earlier, had introduced instruments for merger control in Articles 66 [3]. However, it has to be borne in mind that at that time none of the national legal orders contained merger control systems.

The insertion of the control mechanism in the ECSC Treaty was to prevent a re-concentration of the German steel industry in the Ruhr area[4]. The European Parliament passed a resolution in favour of the creation of a European merger control system in 1971[5]. Meanwhile, the Commission invoked Article 82 EC and its criteria of abuse of a dominant position, as was displayed for the first time in its prominent Continental Can decision of December 1971[6].

Later, the applicability of Article 82 EC to structural market changes involving acquisition of a competitor by a firm in a dominant position was confirmed by the European Court of Justice in 1973[7]. In 1987, the applicability of Article 81 EC to mergers was confirmed by the ECJ in Philip Morris[8].

Section 1.1.    “One-Stop Shop” Principle.

The “one-stop shop” principle is dealt with in Article 21 (1) ECMR, whereby “the Commission shall have sole jurisdiction to take decisions provided for in this Regulation”, subject only to review by the Court of Justice. The general rule, contained in Article 21 (2) ECMR, is that “no Member State shall apply its national legislation to any concentration that has a Community dimension”[9].

Recital 29 ECMR states that concentrations without Community dimension shall be subject only to national merger control systems[10]. Thus, the political concept of ‘subsidiarity’, embodied in Article 5 EC is being upheld. The ‘one-stop shop’ is the most important feature of the Merger Regulation in terms of legal certainty, because it aims to prevent parallel control mechanisms by the Commission and the competent national authorities. From the industry’s point of view, only the Commission examines mergers having a Community dimension within a strict and short timetable. The Commission has exclusive Community-wide competence[11].

Section 1.2.   Community Dimension.

The allocation of jurisdiction between the respective jurisdictions of the Commission and competent national authorities relies on the concept of a “concentration with a Community dimension”. The determination of this notion is subject to the world and EC-wide turnover thresholds laid down in Article 1 ECMR.

Section 1.3.   Article 1 (2).

The original turnover thresholds are provided in Article 1 (2) ECMR: “a concentration has a Community dimension, where, a) the combined aggregate worldwide turnover of all the undertakings concerned is more than €5000 million; and b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than €250 million, unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same Member State”.

. Since, at the time of the first revision in 1993, no political agreement could be reached, the revision was postponed until 1997[12].

Section 1.4.   The 2/3 Rule.

An important feature of Articles 1 (2) and (3) ECMR is the ‘2/3 rule’. It embodies the principle of subsidiarity delineating the jurisdiction between the Commission and national authorities by adopting a centre of gravity approach. In general, this rule is not of great practical impact for large scale undertakings of smaller, and not even for those of larger Member States[13].

Section 1.5.   Article 21 (3).

Article 21 (3) of the ECMR relates to situations, where the protection of national interests are concerned. Member States cannot request the Commission to ensure a concentration falling below the thresholds. Articles 9 and 21 ECMR do not apply and, thus, in lack of exclusive jurisdiction of the Commission any Member State having jurisdiction may apply its own competition laws. In a merger involving air routes between London and Brussels, the Commission cleared the merger in spite of Belgium’s request to the contrary[14].

However, it prevented the mergers at the request of Netherlands and Finland’s request[15]. The former decision led to the confirmation of the Commission’s full control over the assessment following a reference without Member States ability to control its conduct or define the scope of its investigation by the Court of First Instance[16]. Kesko/Tuko involved the divestment of the concentration, and the Commission’s view that Article 22 (3) ECMR expressly refers to Article 8 (4) ECMR, because automatic suspension provided for in Article 7 ECMR is not available, where the transaction has already been completed it was upheld by the CFI[17].  Another divestment was the result of the referral of Blokker/Toys “R” Us (at the request of the Netherlands)[18].

Section 1.6.   National Merger Control Systems.

The number of national merger controls introduced or amended has increased in recent years in the candidate countries, who have tried to bring their competition laws in line with the European system. Merger activities having spill-over effects are on the increase in tandem to the considerable pace of economic integration and globalization processes.

The vast majority of laws provide for a mandatory merger control, except in the case of Great Britain, which provides for a voluntary system, which is typical of the Commonwealth States. Most national laws are based on the ‘effects doctrine’, but there are some countries like Estonia, Lithuania, Latvia and Poland, which base the duty to notify primarily on world-wide turnover thresholds[19].  These turnover-thresholds vary considerably. The time limits for a notification range from one week in Czech Republic, Latvia, Lithuania and Poland, after the triggering event, but in Germany, Portugal and Spain a notification has to be made prior to the execution of the transaction[20]. The EU-Member States, Czech Republic, Lithuania and Slovenia provide for a two-stage process.

    In addition, mandatory notification systems provide for automatic suspension of the concentration, while voluntary ones do not, time-limits for assessment by the respective control authorities vary as well as legal consequences at the event of failure to notify, or to do so within the time limits etc., ranging from financial to criminal sanctions as is to be found in Ireland and Austria[21]. It is for these reasons that the different national merger control schemes demand a serious amount of economical risk-trading of undertakings involved in multi jurisdictional filings in view of the existing legal uncertainty. Harmonization of laws is thus being widely advocated.

Though the centralized European merger control has developed into a system generally welcomed by the industry and by the Member States, the application of Regulation 4064/89 facilitated corporate restructuring in the European Union and did not fail to respond adequately to its responsibilities in view of the principle of subsidiarity. In more than twelve years, 90% of the 2,000 mergers reviewed by the Commission have been cleared; it is the opinion of many that the time is opportune to reform the jurisdictional issues involved. Regarding the workings of Articles 1(2) and (3) ECMR, the current turnover tests represent a clear and practical means for undertakings to determine the relevant jurisdiction within a reasonable amount of legal certainty.

All the same, the high original thresholds of Article 1(2) ECMR introduced an immanent weakness into the innovative merger control system. An arbitrary dividing line was drawn, which was viewed with skepticism. This weakness was not adequately responded to by the provision of the additional set of thresholds contained in Article 1(3) ECMR, because of the Member States reluctance to concede broader competence to the Commission. While this political compromise was meant to improve the situation in view of an increasing number of multi jurisdictional filings, it did not suffice to achieve this.

Section 2.   The Commission Green Paper and the Proposed Amendments.

In order to review the workings of the turnover thresholds and case referral rules as per the provisions of Articles 1(4) and (5) and 9(10) ECMR the Commission in June 2000 submitted a Report to the Council[22], based on which on December 11, 2001 it published a Green Paper on the review of the EC Merger Regulation. According to the Green Paper, Article 1(3) ECMR 1989 had not achieved its objective of conferring Commission competence over cases that affect three or more Member States. The Green Paper expresses the position that altering the five constituting criteria of Article 1(3) or modifying Article 22 ECMR is unlikely to provide any significant improvement in this respect.

In order to address the problem of multiple national filings, it proposed the introduction of automatic Community competence over cases subject to multiple filing requirements in three or more national jurisdictions. This brought about amendments to the Merger Regulation, which were adopted in 2003, and came into effect since May 1, 2004. These changes have engendered evolutionary changes that have served to preserve the distinctive elements of EU merger control. The main objective of these reforms as proposed in the Green Paper is the reform of the jurisdictional test under Article 1 (3) ECMR. The main reforms are set out below:

Section 2.1.   Mandatory 3+ System.

A review of Article 1(2) and the 2/3 rule revealed that these should remain unaltered, as they had proved to be useful in recognizing the principle of subsidiarity. In its 2000 report, the Commission found that the 1997 introduction of an extra set of turnover-based thresholds in Article 1(3) ECMR, to confer Community competence, over cases affecting three or more Member States, in order to reduce the number of multiple filings, to be unsuitable to achieve this objective. Only a limited number of concentrations had been prevented by this provision while many concentrations involving cross-border interests escaped its exclusive jurisdiction.

The Commission expressed its disapproval of attempts to improve the situation by reducing the threshold levels or by modifying the current criteria of Article 1(3) ECMR. The Commission’s previous proposal, which had favored an extension of its competences either by the introduction of a similar “mandatory 3+ system” or, in the alternative by a general reduction of turnover thresholds to 2,000 million world wide and 100 million EC wide, had been rejected by the Member States. The Commission based its trust on the argument that there has been significant harmonization of relating Member State laws since 1996[23].

Section 2.2.   Referral System.

The Commission’s review of the functioning of the Merger Regulation included the referral system under Articles 9 and 22 (3) ECMR 2004. In the Green Paper, a simplification of the present complex test for referral requests under Article 9 as well as the insertion of a new possibility for the Commission to initiate such referrals had been implemented along with modifications to Article 22(3). The Commission is determined to enforce the competition rules more vigorously where it suspects serious infringements of Articles 81 and 82; bring about a major renovation of the unsatisfactory law on vertical agreements; develop case-law on abusive pricing and refusals to supply under Article 82 and to curb if not eliminate collective dominance under Article 82 and the E.C. Merger Regulation (the “ECMR”).

Section 2.3.   Article 81.

This Article deals with the Commission’s hardening policy towards cartels. The Commission is now attaching a higher priority to cartels than at any time in its history. The most obvious expression of this was the creation within DG COMP of the “Cartel Unit”, Unit E1.

Section 2.4.   Standard of Proof and Scope of Judicial Review.

Judicial review of the Commission’s decisions plays a critical role in the development of EU Merger Control that goes far beyond the individual cases that actually reach the courts. In 2005, the Community Courts rendered three rulings in the merger control area. On February 15, in Tetra Laval II[24], the ECJ upheld the CFI’s ruling that in 2002 had annulled the Commission’s prohibition decision in Tetra Laval/Sidel. On September 21, the CFI upheld the Commission’s first and so far only prohibition decision since 2001, the decision of December 9, 2004 relating to the merger between Energias de Portugal (‘‘EDP’’) and Gas de Portugal (‘‘GDP’’)[25].

Finally, on December 14, the CFI rendered its long awaited judgment in GE/Honeywell[26]. These decisions by the CFI against the Commission prohibitions have established the importance of Community Courts, in particular the CFI, in merger control. These decisions have also brought about many beneficial changes in the internal procedures of the Directorate General for Competition such as the creation of a Chief Economist Team and the introduction of scrutiny panels. In addition, the possibility of judicial review leads the Commission to be exercise greater care while arriving at a decision and in adopting an approach whereby all parties to the dispute are.

Section 2.5.   Impact of the Tetra Laval II Case.

          The importance of this case lies in the fact that the Commission decided to appeal only in respect of this case against the judgment annulling the Commission’s decision in respect of a number of grounds of which the standard of proof required for the Commission to intervene and the related standard of judicial review were the most important factors. In particular the Commission argued that, in requiring it to produce convincing evidence, the CFI had set and applied a standard that was higher than that of a cogent and consistent body of evidence as formulated by the ECJ in Kali&Salz[27]  and had not given sufficient weight to the margin of discretion which the Commission enjoys when making complex assessments of an economic nature.

According to the ECJ: ‘‘A prospective analysis of the kind necessary in merger control must be carried out with great care since it does not entail the examination of past events or of current events, but rather a prediction of events which are more or less likely to occur in future, if a decision prohibiting the planned concentration or laying down the conditions for it is not adopted.. . . Such an analysis makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely’’.

The Commission also objected to the CFI’s holding that behavioural commitments can be appropriate because, according to the Commission, they do not solve the structural problems created through mergers and are very difficult to monitor. The ECJ held that commitments cannot be rejected by the Commission solely on the basis that they are behavioural rather than structural. With regard to The Commission’s margin of discretion, it is settled law that for the appreciation of complex economic facts the Commission enjoys a certain discretion which the Community Courts have to respect. From this it follows that judicial review of the Commission’s appreciation is limited to ensuring compliance with the rules of procedure and the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment and of any misuse of powers.

However, in Tetra Laval II the ECJ did not once use the term ‘‘manifest error of assessment’’ and gave very little weight to the Commission’s margin of discretion. It formulated the standard of judicial review under Art.230 EC to be applied by the CFI as follows: ‘‘whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, which does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature.

Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether the evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it’’.

Section 2.6.   EDP v Commission.

It is not easy to reconcile this pronouncement from the ECJ with the judgment of the CFI in EDP, where the CFI stated that, as regards complex economic assessments, the Commission enjoys a ‘‘wide discretion’’. After that it reviewed the Commission’s analysis under a standard of manifest error of assessment.

Ultimately, the CFI upheld the Commission’s prohibition on the ground that the applicant had failed to show such manifest errors. The debate about the proper standard of judicial review in merger control is likely to continue. From the above it becomes clear that soft law plays an important role regarding the interpretation of the competition rules and undertakings and individuals rely on these guidelines. It is a valuable information source to those trying to assess whether or not their agreement will be prohibited by the Community competition rules. There is however, a trend towards softer forms of regulation as evidenced by the result of the Commission’s broad discretionary powers.

Section 2.7.   Article 9.

The Commission aims to improve the application of Article 9 ECMR by addressing the difficulties arising from the application of its complex referral criteria, the current time schedule and partial referral schemes as well as from certain procedural treatment of referred cases by national competition authorities. This Article is a suitable measure for resolving the problem of the high level of multiple filings. Difficulties arise due to the interpretation of “distinct market” and “substantial part of the Common Market” and limitations on the Commission’s discretion.

Some of these deficiencies are resolved by the Community Courts which provide interpretative guidance for the application of the substantive conditions of Article 9 ECMR.  No Member State has ever appealed a Commission decision to refer or not to refer a merger, but a recent case before the Court of First Instance has recognized locus standi for third parties to appeal Article 9 ECMR Referral Decisions.

Nevertheless, the potential for such actions to provide interpretative guidance is restricted since the CFI’s assessment is limited to determining whether the Commission committed a manifest error in referring a concentration to a national authority on the basis that it was necessary to safeguard or restore effective competition in the relevant market.

According to the existing provision in Article 9 ECMR , namely Article 9(2) ECMR, a Member State can request the referral back of the analysis of a concentration notified to the European Commission under two situations:

365 (a) that the concentration threatens to create or to strengthen a dominant position as a result of which effective competition would be significantly impeded on a market, within that Member State, which presents all the characteristics of a distinct market, or (b) that the concentration affects competition on a market within that Member State, which presents all the characteristics of a distinct market and which does not constitute a substantial part of the common market.

If the Commission finds that the proposed transaction threatens to create or to strengthen a dominant position on a distinct market within a Member State that constitutes “a substantial part of the common market”, it has discretion to make a total or partial referral. To be consistent with the condition for prohibition of mergers under Article 2(2) and 2(3) of the ECMR, which states that competition must be significantly impeded in the common market or in a substantial part of it; if the proposed transaction affects competition in a distinct market within a Member State which is not “a substantial part of the common market”, the Commission must refer the whole or part of the case relating to the distinct market concerned.

Under the existing system, the Commission cannot refer a merger for assessment at the national level except in response to a request by a Member State. This causes significant uncertainty and the parties will have to file the transaction again if it is referred. It is not at all clear when and under what circumstances a Member State will decide that a referral is appropriate and make such a request. The Commission has proposed an amendment so that Member States may also make a referral. This is not as ambitious as the Green Paper and it does not include the possibility of referral to Member States on the Commission’s own initiative.

Member States may refuse an invitation to request referral for any number of non-competition related reasons. It would have been far better to have had an automatic referral of all concentrations whose effect on competition is purely national, whether requested by a Member State or not.

Section 2.8.   Article 22 (3).

The Commission in the Green Paper has proposed to amend the referral mechanism of Article 22(3) ECMR. In order to benefit Member States without a merger control of their own the Commission has focused on the workings of the 1997 amendment. In this regard the Commission points to the provision’s failure to fulfill the objective of reducing multiple filings, as it had, until the adoption of the Green Paper, not received a single joint request. As submitted here, tbe dominance test of Article 2(3) of the old Merger Regulation did not provide a sufficient basis for the Commission to intervene against mergers that may have bad led to non-coordinated effects but did not create or involve.

In Nestle/Perrier the Commission stated: “The Merger Regulation would not only have transferred the national merger control powers to the Community but those Member States which had a system with oligopolistic dominance control would at the same time have abandoned such control altogether without any substitute for it at Community level. In the absence of any express provision to that effect, such a cession of control cannot be assumed.”

Section 3.    Enforcement Gap: Old EC Merger Regulation 203.

In view of these judicial setbacks Tbe Commission was advised to propose a modification of the substantive test by tbe Community legislator. Tbe new SIEC test now closes whatever enforcement gap may have existed, alleviating any perceived need for an interpretation that would have applied the dominance test in cases where it would have been clearly inapplicable.

Section 3.1.   Council.

As per the provisions of Article 203 (ex Article 146) EC the Council shall comprise of a representative of each Member State, at the ministerial level, who will be authorized to commit the government of that State. Hence, these members politicians, however they can be  members of a regional government. The Council exercises an important role in the legislative process in four ways. First and foremost, the Council will have to vote its approval of Commission’s legislative initiatives before they become law.

The Treaty articles which give the Commission the right to propose legislation impose the condition of Council approval, whether by unanimity, qualified or simple majority depending upon the requirements stipulated in the particular Treaty Article. Additionally, the draft proposal from the Commission will often be subject to considerable modification as a result of scrutiny by the Committee of Permanent Representatives or COREPER and the working parties.

Secondly, the Council has become more proactive in the legislative process by utilizing Article 208 (ex Article 152), which states that the ‘Council may request the Commission to undertake any studies which the Council considers desirable for the attainment of the common objectives, and to submit to it any appropriate proposals’. The Council has used this power to frame very specific proposals which it wishes the Commission to legislate[28].

It is also the result of the greater importance of the Council Presidency and the fact that the incumbent to this Office will have an agenda which he or she wishes to achieve. Thirdly, the Council can delegate power to the Commission, enabling the latter to pass further regulations within a particular area. It is now common for such delegations of power to be subject to the condition that the Commission’s action is acceptable to committees comprising of national representatives. Due to this the Council can ensure that the detail of the delegated legislation is in conformity with its own wishes[29].

Fourthly, with the introduction of SEA or the Single European Act which was signed in February 1986 and came into force on 1 July 1987; and the TEU or Treaty of the European Union also known as the Maastricht Treaty 1992, the decision making process is becoming more and more complex and this has necessitated greater inter institutional collaboration. The increasing complexity of the Community’s decision-making process, as a result of the changes introduced by the SEA and the TEU, has necessitated greater inter-institutional collaboration between the Commission, the Parliament and the ECJ.

Section 3.2.   The European Court of Justice.

           It is possible to make an appeal from judicial panels to the CFI and to appeal, on points of Law, in respect of from decisions of the CFI to the ECJ. However, there is no further appeal from the judgments of the ECJ, which is the Supreme Court of the European Union. All the same, Member States, Community institutions and parties can under certain conditions contest a judgment given ex parté, if it is prejudicial to their rights[30]. Further, any party with interest in a particular judgment can seek the Court’s interpretation in respect of the meaning or scope of a judgment which is in doubt[31].

Additionally, it is possible to seek revision of a judgment, within ten years of its being given, ‘on discovery of a fact which is of such nature as to be a decisive factor’ and which was unknown at the time the judgment was given[32]. Further, in addition to extending its own review jurisdiction under Article 220 (ex Article 164), the ‘gap-filling’ role of the Court has also extended to developing principles of a constitutional nature as part of Community law, to which it then holds both the institutions and the Member States bound when they act within its ambit.

As the interpreter of the Treaties and their limits, the Court has to arbitrate not just among the EC institutions in disputes over their respective powers, but also, in jurisdictional disputes of the Community as against that of the Member States. It participated actively in the creation of the internal market through the litigation which came before it, by requiring the removal of national barriers to trade, at a time when progress towards completing the Single Market through legislative harmonization was hindered by institutional inaction. The impact of the above decisions is that its approach to interpretation is generally described as purposive or teleological.

The fact that the travaux préparatoires to the original Treaties were never published implied that these were never used as a source, and this is reflected in the Court’s case law[33]. In respect of secondary legislation, declarations and extracts from the minutes have occasionally been relied on as aids to interpretation by the Court. Some academics hold that the Community is a dynamic organization, the Treaties are imbued by teleology and that it is essential to preserve the central role of the Court. Institutional balance is dynamic, changing over time and has always characterized decision-making within the EU.

The fact that the general distribution of legislative authority as it operates in the supranational arena of EC governance can be defended does not mean that the system could not be improved upon. It goes without question that there is room for improvement in many areas.

Conclusion.

In conclusion we can state that the Commission’s role within the Community can be defined as that of animator, impresario and manager. The Commission plays for the highest of stakes. This constitutes a way, perhaps the best, for the achievement of policy objectives. The responsibilities of the Commission are of an executive nature and of particular importance are those relating to finance and those concerning external relations. The Commission plays an important role in the establishment of the Community’s budget.

The competence of the Community and that of its institutions, is an attributed competence, limited by Article 5 (ex Article 3b) EC to what is given by the Treaty[34] an inherent jurisdiction for the Court could be regarded as being troublesome despite its distinctive judicial role[35]. The Council has also increasingly made use of opinions and resolutions as a way of pressuring the Commission into generating legislative proposals. This ability of the Council to bring about policy initiatives is due COREPER and the plethora of working parties, etc. which contribute to it.

            Finally, in respect of the ECJ, though it follows the pattern and reasoning of its previous case law it does not consider itself bound by a strict system of precedent[36]. The

Court has extended its functions beyond those expressly outlined in the Treaty under which it was established[37].

 

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[1] Article 7 (ex Article 4) EC Treaty.

[2] Proposal for a Council Regulation on the control of concentrations between undertakings, COM (2002) 711 final, Brussels, 11.12.2002.

[3] Löffler, FKVO 4064/89, Vorbemerkungen, Rn. 2, p.27; Cook/Kerse, par. 1.3, p.3.

[4] Löffler, FKVO 4064/89, Vorbemerkungen, Rn. 2, p.27

[5] O.J. 1971 C 66/11.

[6] Commission, 9.12.1971, (O.J. 1971) L 7/25. The Commission had decided that Continental Can, a U.S. Manufacturer of metal containers, had infringed ex Article 86 by acquiring Thomassen, a Dutch can manufacturer and potential competitor in the German market.

[7] Case 6/72, Europemballage Corporation and Continental Can Co. Inc. v. EC Commission, 21 February 1973: (1973) E.C.R. 215.

[8] Joined cases 142/84 & 156/84, British American Tobacco Company Ltd. And R.J.Reynolds Industries Inc. v EC Commission 17 November 1987, (1987) E.C.R. 4487; 1988 4 C.M.L.R.24 Compare par. 37 & 38.

[9] Recitals 7, 27 and 28 are also of relevance in this context.

[10] However, a Member State or Member States jointly may ask the Commission to intervene in respect of a concentration falling outside the Regulation’s scope according to Article 22 (3) ECMR: comp. below at 2.2.3.3.

[11] Cook/Kerse, p. 3. The intention to introduce a mechanism of merger control at the Community level, which would obviate the need for multiple filings of concentrations in several Member States, is stated in Recital 7.

[12] Immenga/Mestmacker-Immenga, FKVO, Rn. 17, p.780.

[13] Loffler, FKVO 4064/89, Art. 1 Anwendungsbereich, Rn.26, p.57.

[14] British Airways/Dan Air (1993) 5 C.M.L.R.61.

[15] RTL/Veronica/Endemol (1996) O.J.L 134/32, which was later cleared: (1996) O.J.L 294/14; Kesko/Tuko (1997) O.J.L 110/53.

[16] Case T-221/95, Endemol Entertainment Holdings BV v Commission, 28 April 1999, (1999) E.C.R. II-1299.

[17] Case T-22/97 Kesko v Commission, 15 December 1999, (1999) E.C.R.II-3775.

[18] Blocker/Toys “R” Us (1998) O.J.L 336/16.

[19] Ibid., p.17; Bischke/Wirtz, RIW 2001, p.329.

[20] Berg/Nachtsheim/Kronberger, RIW 2003, p.19; Immenga/Mestmacker- Immenga, FKVO, Rn.13 et seq., p.787 et seq.

[21] Berg/Nachtsheim/Kronberger, RIW 2003, p.21; Bischke/Wirtz, RIW 2001, p.331; Immenga/Mestmacker-Immenga, FKVO, Rn.71 et seq., p.797.

[22] Report from the Commission to the Council on the application of the Merger Regulation thresholds, COM (2000) 399 final, Brussels 28.06.2000. (2000 Report).

[23] Green Paper, fn.78, par.57.

[24] Case C-12/03 P, Commission v Tetra Laval.

[25] Case T-87/05, EDP-Energias de Portugal v Commission (‘‘EDP’’), September 21, 2005.

[26] COMP/M.2220 General Electric/Honeywell, July 3,  2001.

[27] Joined Cases C 68/94 & 30/95, France v Commission (‘‘Kali & Salz’’)  (1998) E.C.R. I-1375..

[28] Sir Leon Brittan, ‘Institutional Development of the European Community’ [1992] PL 567.

[29] ‘Comitology decision’ of 1999: Council Decision 1999/468/EC.

[30] Art. 42 of the revised Statute and Art. 97 of the Rules of Procedure.

[31] Art. 43 of the Statute and Art. 102 of the Rules of Procedure. Case 69/85, Re Wünsche [1986] ECR 947.

[32] Art. 44 of the revised Statute and Arts. 98–100 of the Rules of Procedure. e.g., Case 115/73, Serio v.Commission [1974] ECR  and., Case C–5/93P, DSM NV v. Commission [1999] ECR I–4695.

[33] Case 149/79, Commission v. Belgium [1980] ECR 3881, 3890, and also the discussion of the use of travaux préparatoires and of ‘declarations’ by Member States by Mayras AG in Case 2/74, Reyners v. Belgium [1974] ECR 631, 666.

[34] Case 26/62, Van Gend en Loos [1963] ECR 1,

[35] A. Arnull, ‘Does the Court of Justice have Inherent Jurisdiction? (1990) 27 CMLRev. 684, 707.

[36]Case 302/87, Parliament v. Council (Comitology), Case C–70/88, European Parliament v. Council (Chernobyl,  A. Arnull, ‘Owning up to Fallibility: Precedent and the Court of Justice’ (1993) 30 CMLRev. 247.

[37] Case C–2/88, Zwartveld [1990] ECR I–3365. The ECJ also uses Art. 220 (ex Art. 164) when defending the scope and nature of its review powers,  e.g. in Case C–376/98, Germany v. European Parliament and Council (Tobacco Advertising) [2000] ECR I–8419, para 84. Opinion 1/92 on the draft EEA agreement [1992] ECR I–2821.

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