INTERVIEW: MERGER CONTROL - EUROPEAN/NATIONAL - SUBSTANTIAL IMPEDIMENT OF COMPETITION TEST (?SIEC’) - MERGER FRAMEWORK CONVERGENCE - GUIDELINES - DOMINANCE TEST - SUBSTANTIVE TEST - PREDICTABILITY OF MERGER CONTROL - DOMINANT PLAYER (“GAP CASE”) - NON-COLLUSIVE OLIGOPOLIES - MOBILE/TELE.RING (M.3916) - UNILATERAL EFFECTS/COORDINATED EFFECTS (COLLECTIVE DOMINANCE) - - COMMITMENTS - INDUSTRIAL POLICY/COMPETITION POLICY - 2004 HORIZONTAL MERGERS GUIDELINES - EFFICIENCY GAINS - STANDARD OF PROOF - KORSNAS/CARTONBOARD - MERGER-SPECIFIC EFFICIENCIES - RESEARCH AND DEVELOPMENT- CONSULTATION ON DRAFT NON-HORIZONTAL MERGER GUIDELINES -VERTICAL MERGERS - CONSUMERS - DRAFT CONSOLIDATED JURISDICTIONAL NOTICE- OUTSOURCING CONTRACTS

Nadia Calvino, DG COMP: The Mergers’ Lady

- To begin with, can you tell us something about your background? How did you “fall” into competition law?

- What are the differences, if any, between doing merger control within a national competition authority and at the European Commission?

- You actively participated in the 2003 debate on the substantive test for merger control, which led to the adoption of the “recasted” regulation in 2004. The new “SIEC” test has been in force for three years. In practice, what changes did it bring about for the business community?

- More specifically, the change of test was intended to bridge a supposed gap left open by the dominance test, in order to catch situations of non-collusive oligopolies. The case T-Mobile/tele.ring (M.3916) was broadly commented as the first real “gap case”, which would not have been caught under a dominance test. However, an ambiguity remains in the Commission’s decision. According to the Commission, the unilateral effects, which would not have been caught under a pure dominance test, would in turn have led to coordinated effects (collective dominance), which would have been caught under the former dominance test. In you opinion, was this a “gap case” or not? And if not, have you ever encountered a “gap case”?

- Another never-ending debate is the question as to the conflict or tension between industrial policy - and the need to build up large-scale European “champions” - and competition policy. The 2004 Horizontal Mergers Guidelines struck a balance on that point, by stressing the will of the Commission to positively take into account efficiency gains resulting from mergers. However, since then, no clearance decision was explicitly based on efficiencies. Does this mean mergers generally do not yield efficiencies? Or is the standard of proof set out in the Commission Guidelines too high to be met?

- Talking about efficiencies, the Commission recently launched a consultation on Draft non-horizontal merger guidelines. Could you describe the Commission philosophy as regards this type of mergers?

- Another important work in progress of the DG COMP is the draft consolidated jurisdictional notice. This document has been broadly welcomed, but in view of the comments submitted to the Commission, some issues are subject to discussions. In particular, the answers to the consultation submit that a change from negative control to sole control should not qualify as a concentration, insofar as such a change in the quality of control cannot have any effect on the market. Another point raised is that a change in the scope of a joint-venture is merely organic growth and should not be deemed a concentration. The questions of transfer of licences, which can be deemed a concentration in the Commission’s view, or the treatment of outsourcing contracts are also commonly discussed. At this stage of the consultation process, do you have any views on the points on which the Commission may bring about some change?

- After almost eight months at the Commission, you are now a seasoned Brussels citizen. Because there is a life after competition, could you give a tip to our readers, who often have to commute to Brussels and stay overnight, on your favourite restaurants in the city?

Interview conducted by Stanislas Martin, French Competition Authority.

Stanislas MARTIN: To begin with, can you tell us something about your background? How did you “fall” into competition law? After I graduated in Economics one of my teachers suggested that I should try to become Técnico Comercial y Economista del Estado. This is a special civil servant corps in the Spanish administration specialising in trade and economic policy which offered very interesting posts both within the national administration and abroad in multilateral institutions and bilateral embassies. Although I had not envisaged working in the public sector before, I was particularly attracted by the possibility of actually working as an economist in a very practical field. The international dimension was also interesting. I passed the entrance competition and started working in the

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Nadia Calvino, Nadia Calvino, DG COMP: The Mergers’ Lady, May 2007, Concurrences Review N° 2-2007, Art. N° 13581, pp. 5-7

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