Cooperation, Convergence, and Conflicts? The Case of EU and National Merger Control

Andreas Bardong, Dec 30, 2013

The mantra of international merger control has been cooperation, convergence, and comity. Within the European Union, coherence is another widely accepted objective. Taking stock of the situation in the European Union the results are very positive: The level of coherence between the practices of the EU Commission and national competition authorities is generally very high, cooperation is mostly intensive and close (also between the national authorities, e.g. on the basis of the recent Best Practices of the EU Merger Working Group (2012)), and convergence is constantly increasing.

In contrast, the terms “conflicts” and “conflicting rules” normally designate undesirable incidents which occur when substantive and/or procedural rules diverge and when this leads to problems; for example, if jurisdictions overlap and come to different results with regard to the same facts. In the context of EU vs. national merger control such incidents are extremely rare.

In addition, it should be clear that not all differences between competition regimes are necessarily detrimental to the effective and proportional protection of competition. In many instances the differences have to be understood in the context of each legal system and may also reflect the institutional design of the particular competition authority. In private international law, the term “conflicts” does not have a negative connotation. “Conflict of laws” simply describes the legal rules that determine which substantive law is applicable to a particular set of facts that is linked to more than one jurisdiction.

In this article, the following issues will be addressed briefly in the context of EU and national merger control: (i) conflict of merger laws-which rules apply?, (ii) conflict of jurisdictions-which competition authority will deal with a merger?, (iii) conflict of substantive rules-are there substantial differences and do these create any problems?, and (iv) conflict of procedural rules-are there substantial differences and do these create any problems?

Two recent developments make it particularly timely and worthwhile to discuss these issues. First, the EU Commission has just published a consultation document on merger reform entitled Towards more effective EU merger control (June 20, 2013). The document addresses areas where the Commission has identified a need for reform. The Commission plans to extend EU merger control to non-controlling minority interests and to facilitate referrals between the Members States and the EU Commission. Second, the reform of the Germany competition law was adopted only two weeks earlier (June 6/7, 2013). It will bring significant changes, in particular in the area of merger control-notably the adoption of the SIEC-test.

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