Directory of EU Case Law on Merger Control

Name: Directory of EU Case Law on Merger Control | The Merger Brick'
Brand: Kluwer Law International
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The Merger Brick'

Steven Noë(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 27. Dezember 2011

666 Seiten

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
Foreword
Introduction
Chapter 1 Lists of Cases
1.1. Judgments and final orders
1.2. Pending cases
1.3. Withdrawn cases and cases that have been become devoid of purpose
1.4. Interim relief
1.4.1. ORDERS
1.4.2. WITHDRAWN APPLICATIONS FOR INTERIM RELIEF
1.4.3. PENDING APPLICATIONS FOR INTERIM RELIEF
1.5. Orders on taxation of costs
1.6. Commission cases that led to litigation
1.7. Cases on access to documents relating to merger control procedures
1.7.1. JUDGMENTS
1.7.2. PENDING CASES
Chapter 2 General
2.1. Primary purpose of the Merger Regulation
2.2. The Merger Regulation is intended to prevent market structures that are incompatible with the system of undistorted competition
2.3. The general scheme of the Merger Regulation is characterized by the need for speed
2.4. Legal bases for the Merger Regulation
2.5. Interpretation of the Merger Regulation
Chapter 3 The Scope of Application of the Merger Regulation
3.1. General
3.1.1. THE MERGER REGULATION IS BASED ON THE PRINCIPLE OF A CLEAR DIVISION OF POWERS BETWEEN NATIONAL SUPERVISORY AUTHORITIES AND THE COMMISSION
3.1.2. THE COMMISSION IS REQUIRED TO DECIDE ON ITS OWN COMPETENCE
3.1.3. RELEVANCE OF NOTIFICATION FOR THE COMMISSION'S JURISDICTION
3.1.4. THE RELEVANT TIME FOR THE PURPOSE OF DETERMINING THE COMMISSION'S JURISDICTION
3.1.5. ABANDONED TRANSACTIONS
3.2. The notion of concentration (Article 3)
3.2.1. GENERAL
3.2.2. MERGERS BETWEEN PREVIOUSLY INDEPENDENT UNDERTAKINGS (ARTICLE 3(1)(A))
3.2.3. ACQUISITIONS OF CONTROL (ARTICLE 3(1)(B))
3.2.4. THE CREATION OF JOINT VENTURES (ARTICLE 3(4))
3.2.5. THE POSSIBILITY TO TREAT TWO OR MORE TRANSACTIONS AS A SINGLE CONCENTRATION
3.3. European Union dimension (Article 1)
3.3.1. PRIMARY PURPOSE
3.3.2. CALCULATION OF TURNOVER (ARTICLE 5)
3.4. Referrals to and from Member States
3.4.1. REFERRALS TO THE COMPETENT AUTHORITIES OF A MEMBER STATE UNDER ARTICLE 9
3.4.2. REFERRALS TO THE COMMISSION UNDER ARTICLE 22
3.4.3. PRE-NOTIFICATION REFERRALS UNDER ARTICLE 4(4) AND 4(5)
3.5. The relation between the Merger Regulation and legislation and measures of the Member States (Article 21)
3.5.1. THE MERGER REGULATION ALONE APPLIES TO CONCENTRATIONS (ARTICLE 21(1)) AND NO MEMBER STATES SHALL APPLY ITS NATIONAL LEGISLATION ON COMPETITION TO CONCENTRATIONS WITH A EU DIMENSION (ARTICLE 21(3))
3.5.2. MEASURES OF MEMBER STATES TO PROTECT LEGITIMATE INTERESTS (ARTICLE 21(4))
3.6. The territorial scope of the Merger Regulation and the compatibility of merger decisions with public international law
3.6.1. THE TERRITORIAL SCOPE OF THE MERGER REGULATION
3.6.2. COMPATIBILITY OF DECISIONS ON CONCENTRATIONS WITH PUBLIC INTERNATIONAL LAW
Chapter 4 General principles for the appraisal of concentrations under Article 2
4.1. The assessment of the effects of a concentration
4.1.1. THE COMMISSION MUST ASSESS A CONCENTRATION BY WAY OF A PROSPECTIVE ANALYSIS AND DETERMINE WHICH ARE ITS MOST LIKELY EFFECTS. THERE IS NO PRESUMPTION OF COMPATIBILITY
4.1.2. THE NEED TO EXAMINE THE DIRECT AND IMMEDIATE EFFECTS OF THE CONCENTRATION
CAUSATION
4.1.3. THE FAILING FIRM DEFENCE
4.1.4. THE RELEVANCE OF ARTICLE 102 TFEU IN ASSESSING LIKELY FUTURE CONDUCT
4.1.5. THE COMMISSION MUST EXAMINE THE EFFECTS OF THE CONCENTRATION ON ALL MARKETS FOR WHICH THERE IS A RISK THAT EFFECTIVE COMPETITION WOULD BE SIGNIFICANTLY IMPEDED
4.1.6. THE CUMULATIVE NATURE OF THE TWO CONDITIONS UNDER ARTICLE 2 OF REGULATION NO 4064/89 AND THE RELATION BETWEEN THE CREATION OR STRENGTHENING OF A DOMINANT POSITION AND A SIGNIFICANT IMPEDIMENT OF EFFECTIVE COMPETITION
4.2. Evidence
4.2.1. THE NEED FOR CONVINCING EVIDENCE
4.2.2. THE NEED TO BALANCE DIFFERENT ELEMENTS OF EVIDENCE
4.2.3. VALUE OF STATEMENTS BY THE NOTIFYING PARTIES
4.2.4. AGREEMENTS BETWEEN THE NOTIFYING PARTIES
4.2.5. VALUE OF STATEMENTS BY THIRD PARTIES
4.2.6. ECONOMETRIC EVIDENCE
4.2.7. CONFIDENTIAL DOCUMENTS
4.3. Relevance of previous decisions and policy statements
4.3.1. THE COMMISSION IS NOT BOUND BY ITS PREVIOUS DECISIONS
4.3.2. THE COMMISSION IS NOT BOUND BY DECISIONS OF NATIONAL COMPETITION AUTHORITIES
4.3.3. THE COMMISSION IS NOT BOUND BY DECISIONS OF COMPETITION AUTHORITIES OF THIRD COUNTRIES
4.3.4. BUT THE COMMISSION IS BOUND BY THE NOTICES IT ISSUES PROVIDED THEY DO NOT DEPART FROM THE RULES IN THE TREATY AND THE MERGER REGULATION
4.3.5. RELEVANCE OF OTHER STATEMENTS
4.4. The relevant market
4.4.1. THE NOTION OF RELEVANT MARKET
4.4.2. ON THE NEED TO DEFINE THE RELEVANT MARKET
4.4.3. RELEVANT FACTORS FOR DEFINING THE RELEVANT PRODUCT MARKET
4.4.4. RELEVANT FACTORS FOR DEFINING THE GEOGRAPHICAL MARKET
4.4.5. CALCULATION OF MARKET SHARES
4.5. Dominant position
4.5.1. THE NOTION OF A DOMINANT POSITION IN GENERAL
4.6. Substantial part of the internal market
4.7. On the notion of serious doubts (Article 6)
4.8. Ancillary restraints
4.9. The relation to other provisions of Union law
4.9.1. RELATION TO THE STATE AID RULES
4.9.2. RELATION TO ARTICLE 101 TFEU
4.9.3. RELATION TO LIBERALIZATION DIRECTIVES
4.9.4. SOCIAL OBJECTIVES OF THE TREATY
4.10. Application of Articles 101 and 102 TFEU to concentrations prior to the adoption of Regulation No 4064/89
Chapter 5 Anticompetitive Effects of Concentrations: Non-coordinated Effects
5.1. Relevance of market shares and concentration levels
5.2. Merging firms are close competitors
5.3. Customers have limited possibilities of switching
5.4. Ability of the merged entity to hinder expansion by competitors
5.5. Other factors relevant for assessing non-coordinated effects
5.5.1. LINKS WITH UPSTREAM OR DOWNSTREAM OPERATORS
5.5.2. OVERCAPACITY
5.5.3. ACCESS TO RAW MATERIALS
5.5.4. ON THE NEED TO TAKE INTO ACCOUNT STRUCTURAL LINKS OR MINORITY SHAREHOLDINGS
5.6. The relevance of potential competition
5.7. Mergers creating or strengthening market power vis-à-vis suppliers
5.8. Vertical effects
5.9. Conglomerate effects
5.9.1. PORTFOLIO EFFECTS
Chapter 6 Anticompetitive Effects of Concentrations: Coordinated Effects
6.1. The Merger Regulation applies to collective dominance
6.2. The notion of collective dominance
6.3. Structural and economic links
6.4. Members of the oligopoly must have the ability to know how the others are behaving and tacit coordination is more likely if it is easy to reach a common understanding as to how it should work
6.5. The need for a credible deterrent mechanism
6.6. The foreseeable reaction of current and future competitors and consumers must not jeopardize the results expected from the common policy
6.7. Market conditions relevant to finding collective dominance
6.7.1. MARKET CONCENTRATION
6.7.2. HIGH DEGREE OF MARKET TRANSPARENCY
6.7.3. PRODUCT HOMOGENEITY
6.7.4. STABILITY OF HISTORIC MARKET SHARES
6.7.5. LOW DEMAND GROWTH
6.7.6. DEMAND VOLATILITY
6.7.7. VERTICAL INTEGRATION
6.7.8. SIMILARITY OF MARKET SHARES AND COST STRUCTURES
Chapter 7 Countervailing Factors
7.1. Entry
7.2. Buyer power
7.3. Efficiencies
7.4. 'Range effects'
Chapter 8 Commitments
8.1. General
8.1.1. MAIN PRINCIPLES
8.1.2. IN PARTICULAR, THE PRINCIPLE OF PROPORTIONALITY
8.1.3. THE COMMISSION CANNOT UNILATERALLY CHANGE THE CONTENT OF COMMITMENTS PROPOSED BY THE PARTIES
8.1.4. THE COMMISSION CANNOT APPROVE COMMITMENTS THAT ARE CONTRARY TO THE COMPETITION RULES
8.1.5. COMMITMENTS DO NOT AFFECT THE COMPETENCE OF THE COMMISSION AND DO NOT REQUIRE A NEW NOTIFICATION
8.1.6. COMMITMENTS SUBMITTED OUT OF TIME
8.1.7. INDEPENDENCE OF THE TRUSTEE
8.2. The assessment of commitments
8.2.1. THE COMMISSION ENJOYS A WIDE DISCRETION IN ASSESSING COMMITMENTS
8.2.2. THE ASSESSMENT OF SPECIFIC COMMITMENTS
8.2.3. MISCELLANEOUS ISSUES IN ASSESSING COMMITMENTS
Chapter 9 Procedure before the Commission
9.1. The Commission must carefully examine the notified concentration
9.1.1. IN PARTICULAR, THE NEED TO CONSULT THIRD PARTIES
9.2. General obligations of the undertakings concerned
9.3. The standstill obligation (Article 7)
9.4. Specific decisions of the Commission under Articles 6 and 8
9.4.1. ORDERS TO DISSOLVE AN IMPLEMENTED CONCENTRATION (ARTICLE 8(4) AND INTERIM MEASURES TO RESTORE OR MAINTAIN EFFECTIVE COMPETITION
9.4.2. THE REVOCATION OF DECISIONS DECLARING A CONCENTRATION COMPATIBLE WITH THE INTERNAL MARKET AND DECISIONS FINDING THAT A CONCENTRATION DOES NOT FALL UNDER THE SCOPE OF THE MERGER REGULATION (ARTICLE 6(3) AND ARTICLE 8(6))
9.5. Time-limits (Article 10)
9.5.1. SUSPENSION OF TIME-LIMITS UNDER ARTICLE 10(4)
9.5.2. A CONCENTRATION IS DEEMED TO BE COMPATIBLE WITH THE INTERNAL MARKET IF THE COMMISSION HAS NOT TAKEN A DECISION WITHIN THE PRESCRIBED PERIOD (ARTICLE 10(6))
9.6. The Commission's power to request information (Article 11)
9.7. Inspections (Articles 12 and 13)
9.8. Fines and periodic penalty payments (Articles 14 and 15)
9.9. Professional secrecy (Article 17)
9.10. Right to be heard of the parties involved (Article 18)
9.10.1. GENERAL
9.10.2. THE STATEMENT OF OBJECTIONS
9.10.3. RIGHT OF ACCESS TO THE FILE
9.10.4. MISCELLANEOUS
9.11. The right to be heard of third parties (Article 18)
9.11.1. GENERAL
9.11.2. ACCESS OF THIRD PARTIES TO THE FILE
9.11.3. THE RIGHT TO COMMENT ON PROPOSED COMMITMENTS
9.11.4. MISCELLANEOUS
9.12. Cooperation with Member States and consultation of the Advisory Committee (Article 19)
9.13. Miscellaneous procedural issues
9.13.1. LEGITIMATE EXPECTATIONS
9.13.2. MISUSE OF POWERS BY THE COMMISSION
9.13.3. THE RIGHT TO A HEARING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL IN THE CONTEXT OF MERGER PROCEDURES
9.13.4. THE POWER TO WITHDRAW OR AMEND DECISIONS
9.13.5. THE RIGHT TO BE ASSISTED BY A LAWYER
9.13.6. COMPOSITION OF A CASE TEAM IN CASE OF RE-EXAMINATION
9.13.7. THE OBLIGATION IN ARTICLE 4(1) OF REGULATION NO 4064/89 TO NOTIFY A CONCENTRATION NOT MORE THAN ONE WEEK AFTER THE CONCLUSION OF THE AGREEMENT, THE ANNOUNCEMENT OF THE PUBLIC BID, OR THE ACQUISITION OF A CONTROLLING INTEREST
Chapter 10 The Duty to State Reasons in the Decision
Chapter 11 Action for Annulment
11.1. Challengeable act?
11.1.1. DECISIONS FINDINGS THAT AN UNNOTIFIED TRANSACTION DOES NOT FALL WITHIN THE SCOPE OF THE MERGER REGULATION
11.1.2. DECISIONS UNDER ARTICLE 6(1)(A) FINDING THAT A NOTIFIED CONCENTRATION DOES NOT FALL WITHIN THE SCOPE OF THE MERGER REGULATION
11.1.3. DECISIONS UNDER ARTICLE 6(1)(C) TO INITIATE PROCEEDINGS
11.1.4. IMPLIED AUTHORIZATION UNDER ARTICLE 10(6)
11.1.5. DECISIONS TO REFER A CONCENTRATION TO THE COMPETENT AUTHORITIES OF A MEMBER STATE
11.1.6. CLOSURE OF THE ADMINISTRATIVE PROCEDURE FOLLOWING THE ABANDONMENT OF THE TRANSACTION
11.1.7. DECISIONS TO REJECT A PROPOSED BUYER
11.1.8. INTERPRETATION OF COMMITMENTS OF AN INFORMATIVE NATURE GIVEN BY THE COMMISSION'S SERVICES
11.1.9. REFUSAL OF THE COMMISSION TO ACT AGAINST A MEMBER STATE FOR FAILURE TO COMPLY WITH UNION LAW AFTER THE REFERRAL OF A CONCENTRATION
11.1.10. A LETTER URGING THE PARTIES TO NOTIFY A CONCENTRATION
PREPARATORY MEASURES
11.1.11. FINDINGS IN THE RECITALS OF A CLEARANCE DECISION
11.1.12. A COMMITMENT TO RE-NEGOTIATE AN AGREEMENT WITH THE THIRD PARTY THAT BROUGHT THE ACTION
11.2. Direct and individual concern of third parties
11.2.1. WHETHER COMPETITORS ARE DIRECTLY CONCERNED BY A DECISION THAT A CONCENTRATION FALLS WITH THE SCOPE OF THE MERGER REGULATION OR A DECISION ON THE COMPATIBILITY OF A CONCENTRATION WITH THE INTERNAL MARKET
11.2.2. WHETHER COMPETITORS ARE INDIVIDUALLY CONCERNED BY THAT A CONCENTRATION FALLS WITH THE SCOPE OF THE MERGER REGULATION OR A DECISION ON THE COMPATIBILITY OF A CONCENTRATION WITH THE INTERNAL MARKET
11.2.3. REFERRAL DECISIONS MAY BE OF DIRECT AND INDIVIDUAL CONCERN TO COMPETITORS OF THE MERGING PARTIES
11.2.4. CUSTOMERS
11.2.5. MINORITY SHAREHOLDERS
11.2.6. RECOGNIZED REPRESENTATIVES OF THE EMPLOYEES
11.3. Interest in bringing proceedings
11.3.1. AN UNDERTAKING HAS AN INTEREST IN THE ANNULMENT OF A PROHIBITION DECISION ADDRESSED TO IT
11.3.2. COMPETITORS OF THE PARTIES TO THE CONCENTRATION HAVE AN INTEREST IN CHALLENGING A DECISION AUTHORIZING A CONCENTRATION THAT MAY AFFECT THEIR COMMERCIAL SITUATION
11.3.3. INTEREST OF THIRD PARTIES TO CHALLENGE IMPLEMENTED COMMITMENTS
11.3.4. COMPETITORS IN LIQUIDATION
11.3.5. MISCELLANEOUS
11.4. Starting point of the time-period for bringing an action for the annulment
11.5. Review of the legality of the Commission's decisions
11.5.1. JUDICIAL REVIEW MUST TAKE ACCOUNT OF THE COMMISSION'S DISCRETIONARY MARGIN
11.5.2. IN PARTICULAR, THE TEST OF A MANIFEST ERROR APPLIES TO REVIEW OF THE ASSESSMENT BY THE COMMISSION CONCERNING THE DEFINITION OF RELEVANT MARKETS, EXAMINATION OF COMMITMENTS, REFERRAL TO NATIONAL COMPETITION AUTHORITIES, AND EFFECT ON TRADE IN ARTICLE 22
11.5.3. THE LEGALITY OF A DECISION MUST BE ASSESSED ON THE BASIS OF THE FACTS AND THE LAW AS THEY STOOD AT THE TIME THE COMMISSION ADOPTED ITS DECISION
11.5.4. ACTS OF THE COMMUNITY INSTITUTIONS ARE PRESUMED TO BE VALID
11.6. Annulment of decisions on compatibility with the internal market
11.6.1. LEGAL EFFECT OF ANNULMENT
11.6.2. ANNULMENT ONLY JUSTIFIED IF ALL PILLARS JUSTIFYING THE OPERATIVE PART FALL
11.6.3. ANNULMENT IN WHOLE OR IN PART
11.7. After annulment of a prohibition decision
Chapter 12 Action for damages
12.1. General principles on extra-contractual liability of the Commission in merger control
12.2. Mistakes in the competitive assessment of a concentration
12.3. Breach of the rights of defence
12.4. Other serious breaches of a rule of law
12.4.1. LACK OF 'LOYAUTÉ '
12.4.2. FAILURE TO ASSESS COMMITMENTS SUBMITTED OUT OF TIME
12.5. Causal link
12.6. Damages
Chapter 13 Specific Procedural Issues in Court Proceedings
13.1. Expedited procedure
13.2. On applications for the production of documents
Chapter 14 Results of Court Actions
14.1. Annulment of clearance decisions
14.1.1. PHASE 1 CLEARANCE DECISIONS (ARTICLE 6(1)(B) AND ARTICLE 6(2))
14.1.2. PHASE 2 CLEARANCE DECISIONS (ARTICLE 8(1) AND 8(2))
14.2. ANNULMENT OF PROHIBITION DECISIONS (ARTICLE 8(3))
14.3. Annulment of other decisions
14.3.1. DECISIONS CONCERNING DIVESTITURES (ARTICLE 8(4))
14.3.2. DECISIONS CONCERNING REFERRALS
14.3.3. DECISIONS FINDING THAT THE PROPOSED CONCENTRATION DOES NOT HAVE AN EU DIMENSION
14.3.4. MISCELLANEOUS DECISIONS
14.4. Actions for damages
14.5. Failure to act
14.6. Appeals
14.7. Expedited procedure
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