Dealing with Protectionist Threats in EU Mergers and Acquisitions: Member State Reaction to the Exclusive Powers of the European Commission Under the ECMR

Pedro Callol, Jun 28, 2013

Article 21 of EC Regulation 139/2004, on the control of concentrations between undertakings (“ECMR”) is a provision which application appears to be relatively dormant in the last few years. Yet, it is not devoid of force and, in fact, we may see a reawakening of its application if the economic recovery much chanted by our politicians finally takes hold.

Article 21 ECMR establishes the exclusive jurisdiction of the European Commission (“Commission”) to review mergers with Community dimension. As an exception to that general rule, the ECMR allows Member States to adopt the measures they deem appropriate to protect legitimate interests such as those listed in Article 21 ECMR (i.e., public security, media plurality, and prudential rules). Legitimate interests other than the three mentioned must be notified to the Commission prior to the Member State concerned adopting any national measure to safeguard those interests.

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