EC Merger Control: From Separate JurisdictionalZones to a Cooperation Based Architecture?
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- 作者：Davison ; Leigh M.
- 关键词：architecture of separate jurisdictional spheres ; cooperating network ; Community Dimension tests ; EC Merger control ; harmonised Articles 2 and 9 MCR approach
- 刊名：Liverpool Law Review
- 出版年：2004
- 出版时间：2004
- 年：2004
- 卷：25
- 期：1
- 页码：49-70
- 全文大小：109 KB
文摘
The EC Merger Control Regulation(MCR) established an architecture ofconcentration control based on separate,non-overlapping jurisdictional spheres forMember states and the European Commission, withthe Commission alone having jurisdiction overconcentrations with a competition concern thatpotentially have a Community interest. Therationale is that this will help guarantee thelevel playing field for business and safeguardthe Single Market. This, of course, is verymuch dependant on the architecture working inpractice. The Community Dimension (CD) testsare at the centre of the architecture ofseparate jurisdictional zones, determiningwhich concentrations have a CD and hence aCommunity interest. The paper reveals that thecurrent form-based CD tests are flawed,undermining the effective operation of thearchitecture. It explores three competingproposals put forward to remedy the above flaw:an enhanced role for Article 22 MCR, a singlefine-tuned threshold test and, thirdly, theCommission's multiple notification approach.The paper contends that these proposals aloneare not sufficient to make the architectureeffective. It argues that what is required isan improved CD test applied in conjunction witha harmonised Articles 2 and 9 MCR approach. Inline with the Commission's desire to considerthe long term shape of EC merger control, thepaper concludes by looking at a radicalalternative to the efforts to fine-tune thearchitecture of separate jurisdictionalspheres. By way of stimulating debate, itconsiders an EC merger control based on anetwork of cooperation involving Member states'regulators and the Commission, and with allapplying EC merger law.