BERLIN Dominique, collection Commentaire J. Mégret, éditions de l’Université libre de Bruxelles, 2009, 600 p.

Contrôle des concentrations

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The introduction of Community merger control was an important step in the construction of the Community in more ways than one. First of all, by introducing preventive control, whereas until then control had been merely repressive and imperfect. Secondly, by introducing a single control (one-stop shop system) for operations of a certain size, instead of a multitude of potentially applicable national controls which were a source of major costs for businesses. Finally, by laying down clear rules enabling businesses to anticipate their future operations. However, practice has revealed many imperfections which have led to several amendments to the initial texts. Curiously in the context of a Community governed by the rule of law, criticism has been levelled at the Commission’s approach to the examination of mergers as being too legal and not sufficiently economic. This criticism was at its height in cases involving American companies not accustomed to such a perspective. Criticism was also levelled, but this time in an almost paradoxical manner, at the fact that the scope of control was not broad enough in the sense that too many transactions were left to the discretion of the Commission. the adventure of national pluri-controls. Finally, criticism of the ever-increasing complexity of a control that was initially intended to be as clear and simple as possible.

Since 2004, an attempt has been made to remedy the various imperfections in a comprehensive manner. Improvements in procedures, changes in the criteria for compatibility checks, consideration of new approaches to restrictions of competition and their possible justifications. In short, it is a renewed control which is now at work. Not that this new control is free of criticism, but the new rules of procedure and substantive assessment open up new prospects for firms, under the supervision of the courts.

The present work is devoted to explaining these perspectives, detailing the rules of jurisdiction, as well as the procedures and content of the review, drawing on the entire corpus, including the most recent ones, of Commission and Community court decisions.

Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Stéphane Rodrigues, Contrôle des concentrations, February 2010, Concurrences N° 1-2010, Art. N° 30424, www.concurrences.com

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