Broberg on the European Commission's Jurisdiction To Scrutinise Mergers

Name: Broberg on the European Commission's Jurisdiction To Scrutinise Mergers
Brand: Kluwer Law International
Price: 228.99 EUR
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Morten. P. Broberg(Autor*in)

Kluwer Law International (Verlag)

4. Auflage

Erschienen am 24. Juni 2013

538 Seiten

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Beschreibung

The calculation of the Union dimension in merger cases - i.e., the test whether a merger to be examined produces effects at the European Union level - is an issue that, thanks to Morten Broberg's extraordinary work, has transcended the legal uncertainty it might have engendered. This classic has held the field through three editions since 1998. Now, with this new Fourth Edition, Professor Broberg not only brings all his penetrating analysis to bear on the newest official developments, but takes into account recent case law and the ongoing legal literature in the field.

The structure of Professor Broberg's presentation has not been altered, so the reader will still find his thorough commentary and insight under the same headings. However, the work has been generously updated, with particular attention to the following major developments (among others):

- - the Commission's Consolidated Jurisdictional Notice of 16 April 2008, which replaced the various previous Commission notices dealing with jurisdiction;

- - the effects of the Lisbon Treaty; and

- - new perspectives on 'undertakings concerned', 'groups', and the notion of control.

As before, the author provides detailed elucidation and guidance on the Merger Regulation rules, such as those pertaining to financial year, taxes and intra-group sales, geographic allocation of turnover, financial institution and insurance undertakings, the EEA competition-enforcing system, and forum shopping.

The book concludes with a discussion of the 'real Union dimension' and the author's recommendations for improving the delimitation of the Merger Regulation's jurisdiction. An annex reprints the 2004 Merger Regulation and its implementing Commission regulation, as well as the Commission's Consolidated Jurisdictional Notice.

With the Fourth Edition, Broberg on the European Commission's Jurisdiction to Scrutinise Mergers remains the definitive guide to the subject for businesses and their legal advisors, as well as for competition law enforcers at the EU and Member State levels.

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
Preface to the Fourth Edition
Preface to the Third Edition
Preface to the Second Edition
Preface to the First Edition
Chapter 1 Introduction
§1.01 CONTROL OF CONCENTRATIONS AND THE WORLD OF POLITICS
§1.02 THE SCOPE OF THE MERGER REGULATION
§1.03 ONE-STOP-SHOP
[A] THE MAIN RULE
[B] THE EXCEPTIONS
[C] THE RELATIONSHIP BETWEEN THE ONE-STOP-SHOP AND THE UNION DIMENSION
§1.04 THE THRESHOLDS
§1.05 BASIC OVERVIEW OF THE MERGER REGULATION PROCEDURE
§1.06 THIS WORK
[A] THE SUBJECT MATTER
[B] STRUCTURE
[C] CUT-OFF DATE FOR THE WORK
Chapter 2 The Undertakings Concerned
§2.01 INTRODUCTION
§2.02 THE GENERAL DEFINITION
[A] 'THE DIRECT PARTICIPANTS'
[B] THE TWO-THIRDS THRESHOLD AND THE UNDERTAKINGS CONCERNED
[C] INDIVIDUALS AND FAMILIES AS UNDERTAKINGS CONCERNED
§2.03 JOINT BIDDING AND FULL-FUNCTION JOINT VENTURES
[A] INTRODUCTION
[B] SETTING UP A FULL-FUNCTION JOINT VENTURE
[C] JOINT ACQUISITION OF CONTROL
[1] Introduction
[2] Direct and Indirect Joint Acquisition of Control
[3] Acquisition of Control by an Independent Joint Venture
[4] Consequences of the Distinction between Bid Vehicles and Independent Joint Ventures
[D] ACQUISITION OF JOINT CONTROL IN ORDER TO SPLIT ASSETS IMMEDIATELY
§2.04 TAKING OVER A PART ONLY
[A] INTRODUCTION
[B] DEFINITION OF A 'PART'
[C] GOING FROM JOINT TO SOLE CONTROL
[D] CHANGES IN THE NUMBER OF PARENTS OF A JOINT VENTURE
[E] REPLACING ONE SHAREHOLDER WITH ANOTHER IN A JOINT VENTURE
[F] DIVIDING JOINTLY CONTROLLED ASSETS
[G] ASSET SWAPS
[H] DEMERGERS
[I] OUTSOURCING
[J] APPLYING ARTICLE 5(2) TO THE CREATION OF A JOINT VENTURE
[K] THE BRITISH AIRWAYS/DAN AIR CASE
[1] Introduction
[2] Background
[3] The Judgment of the General Court
[4] Article 5(2) and Dan Air
[5] Minimising the Damage
[L] STAGGERED TRANSACTIONS
[1] Introduction
[2] What Transactions Are Covered?
[3] When Are the Parties to a Transaction 'the Same'?
[4] Creeping Acquisitions
[5] How Is the Two-Year Time Limit Calculated?
[6] When Must the Commission Examine the Transactions?
Chapter 3 The Group
§3.01 INTRODUCTION
§3.02 THE NOTION OF CONTROL
[A] INTRODUCTION
[B] ACTUAL VERSUS FORMAL CONTROL
[C] DIRECT AND INDIRECT CONTROL
[D] THE POINT IN TIME WHEN CONTROL MUST EXIST
[E] THE FOUR CRITERIA IN ARTICLE 5(4)(B)
[1] Introduction
[2] Owns More than Half the Capital or Business Assets
[3] Has the Power to Exercise More than Half the Voting Rights
[4] Has the Power to Appoint the Majority of the Board (etc.) of the Undertaking
[5] Has the Right to Manage the Undertakings' Affairs
[F] NETWORKS OF UNDERTAKINGS (MULTI-PARTNERSHIPS)
§3.03 THE RELATED UNDERTAKINGS
[A] INTRODUCTION
[B] SUBSIDIARIES
[C] PARENT UNDERTAKINGS
[D] SISTER-UNDERTAKINGS
[E] GROUP-MEMBERS HAVE JOINT CONTROL OVER AN UNDERTAKING
[F] UNDERTAKINGS CONCERNED HAVE JOINT CONTROL OVER A THIRD UNDERTAKING
[G] THE COMMISSION'S APPROACH TO JOINT CONTROL OVER THE UNDERTAKING CONCERNED
[H] AGENTS / INTERMEDIARIES
[I] INVESTMENT FUNDS
[J] PUBLIC UNDERTAKINGS
Chapter 4 The Basic Rules
§4.01 INTRODUCTION
§4.02 PRECEDING FINANCIAL YEAR
[A] THE MAIN RULE
[B] TAKING NEW BUT UNAUDITED FIGURES INTO ACCOUNT
[C] ACQUISITIONS AND DIVESTITURES COMPLETED SINCE THE PRECEDING FINANCIAL YEAR
[D] FINANCIAL YEAR OF MORE/LESS THAN 12 MONTHS DURATION
[E] ACCOUNTS WHICH DO NOT FOLLOW THE EU STANDARDS
[F] NO RELIABLE ACCOUNTS AVAILABLE
§4.03 POINT IN TIME FOR ESTABLISHING JURISDICTION
§4.04 ORDINARY ACTIVITIES
[A] THE MAIN RULE
[B] EXTRAORDINARY ITEMS
[C] STATE AID
§4.05 TAXES AND SALES REBATES
§4.06 CONVERSION INTO EUROS
§4.07 INTRA-GROUP SALES
[A] INTRODUCTION
[B] SALES BETWEEN THE UNDERTAKINGS CONCERNED
[C] JOINT VENTURES AND INTRA-GROUP SALES
[1] Joint Venture Is Not Part of the Group
[2] Joint Venture Is Part of the Group
[3] Joint Control Only Together with a Third Party
[D] SELLING OFF A PART AND INTRA-GROUP SALES
Chapter 5 Geographic Allocation of Turnover
§5.01 INTRODUCTION
§5.02 THE RELEVANT SALE
[A] SALE OUT OF THE GROUP
[B] SALES THROUGH AGENTS
§5.03 TANGIBLE PRODUCTS
[A] PLACE OF PURCHASER, PLACE OF DELIVERY
[B] PLACE WHERE THE PRODUCT IS USED
[C] THREE GUIDING RULES
[D] SALE OF RIGHTS TO TANGIBLE PRODUCTS
§5.04 SERVICES
[A] THE MAIN RULE
[B] TRANSPORT AND COURIER SERVICES
[1] Transport of Goods
[2] Transport of Persons
[C] TELECOMS
[D] ENERGY DISTRIBUTION
[E] BANKING AND INSURANCE
[F] RADIO AND TELEVISION
[G] THE INTERNET
[H] COMMODITY EXCHANGES ETC.
§5.05 CHANGES IN THE EUROPEAN UNION TERRITORY
Chapter 6 The Financial Sector
§6.01 INTRODUCTION
§6.02 CREDIT INSTITUTIONS AND OTHER FINANCIAL INSTITUTIONS
[A] BACKGROUND
[B] THE DEFINITION OF 'CREDIT INSTITUTIONS AND OTHER FINANCIAL INSTITUTIONS'
[C] BANKING INCOME UNDER THE MERGER REGULATION
[D] GEOGRAPHIC ALLOCATION OF BANKING INCOME
§6.03 INSURANCE UNDERTAKINGS
[A] INTRODUCTION
[B] DEFINITION OF AN INSURANCE UNDERTAKING
[C] GROSS PREMIUMS WRITTEN
[1] Introduction
[2] Amounts Received and Receivable
[3] Contracts Issued by or on Behalf of the Insurance Undertakings
[4] Outgoing Reinsurance Premiums
[5] Taxes and Parafiscal Contributions or Levies
[6] Premiums from the Reserves for Reimbursement in Life Insurance
[D] THE DEFINITION OF 'RESIDENCE' IN ARTICLE 5(3)(B)
[1] Introduction
[2] Residence Explained
[3] Applying the Residence Criterion
§6.04 MIXED GROUPS
[A] INTRODUCTION
[B] ARTICLE 5 AND MIXED GROUPS
[C] HOLDING SECURITIES ON A TEMPORARY BASIS (ARTICLE 3(5)(A) OF THE MERGER REGULATION)
[D] THE COMMISSION'S APPROACH
[1] The AG/Amev Case
[2] The Midland Bank Case
[E] EVALUATING THE MIXED GROUPS RULE
Chapter 7 The EEA Agreement
§7.01 BACKGROUND
§7.02 THE BASIC RULES IN THE EEA COMPETITION-ENFORCING SYSTEM
[A] TWO ENFORCEMENT BODIES
[B] COOPERATION BETWEEN THE EUROPEAN COMMISSION AND THE ESA
[C] JUDICIAL REVIEW
§7.03 JURISDICTION
[A] INTRODUCTION
[B] EEA DIMENSION?
[C] EFTA DIMENSION
[D] ALLOCATION OF JURISDICTION
[1] The Main Rule
[2] Referral from the Commission to a Member State
[3] Referral from One or More Member States to the Commission
[4] Consequences of Splitting the EEA into Two Separate Areas
[E] COOPERATION IN THE FIELD OF CONCENTRATIONS
§7.04 FINAL COMMENT
Chapter 8 Forum Shopping under the Merger Regulation
§8.01 INTRODUCTION
§8.02 A BRIEF OUTLINE OF THE JURISDICTIONAL RULES
§8.03 GIVING THE CONCENTRATION A UNION DIMENSION
[A] INTRODUCTION
[B] MAKING AN ACQUISITION THROUGH A JOINT VENTURE
[C] ESCAPING THE TWO-THIRDS RULE BY INCLUDING AN EXTRA UNDERTAKING CONCERNED
[D] ACQUISITION OF SOLE CONTROL OVER PREVIOUSLY REDUCED OR ENLARGED COMPANIES
[E] SPLITTING ONE TRANSACTION OR JOINING MORE TRANSACTIONS
[F] OTHER POSSIBILITIES
Chapter 9 Real Union Dimension
§9.01 INTRODUCTION
§9.02 THE TURNOVER THRESHOLDS AND REAL UNION DIMENSION
[A] 'REAL UNION DIMENSION'
[B] THE EXTERNAL LIMIT OF THE MERGER REGULATION
[1] Before the Gencor Judgment
[2] The Gencor Judgment by the General Court of the European Union
[3] Has the Commission Duly Observed the Regulation's Limits?
[4] Conclusion on the Extraterritorial Reach
[C] THE INTERNAL LIMIT OF THE MERGER REGULATION
[1] Member State Control or Union Control?
[2] Concentrations with a Real Union Dimension that Escape the Thresholds
[D] CONCLUSION ON WHETHER THE TURNOVER THRESHOLDS PROVIDE A SUITABLE DEFINITION OF 'REAL UNION DIMENSION'?
§9.03 IS IT POSSIBLE TO IMPROVE THE REGULATION'S DEFINITION OF UNION DIMENSION?
[A] INTRODUCTION
[B] THE PROBLEM IN THE PRESENT DEFINITION
[C] SOLUTIONS
[1] Introduction
[2] Market Shares
[3] Size of Transaction
[4] Refining the Present System
[D] RECOMMENDATIONS FOR IMPROVING THE DELIMITATION OF JURISDICTION
§9.04 FINAL COMMENTS
Bibliography
Appendix I COUNCIL REGULATION (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
APPENDIX II COMMISSION REGULATION (EC) NO. 802/2004 of 21 April 2004 implementing Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings
APPENDIX III Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings
Table of Cases
Index
Back Cover

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