EU Merger Control: From Separate Jurisdictional Zones to a More Cooperative Architecture—A Possible Way Forward?

ISSN： 0144-932X

Source： Liverpool Law Review, Vol.34, Iss.2, 2013-08, pp. : 105-122

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Abstract

The paper is a call to re-ignite the debate over the future shape of the EU’s concentration or merger control architecture in the longer-term. The paper contributes to this debate by considering the efficacy of replacing the current merger control architecture of separate jurisdictional zones with a more cooperative approach. It demonstrates that the adoption of the cooperative architecture would result in a number of benefits relative to the operation of the current architecture. For in effectively resolving a major problem that has dogged the operational effectiveness of the current architecture since it became law in 1990, the misallocation problem, the proposed architecture would also lead to a strengthening of the application of the principle of subsidiarity in this field, be supportive of the reinterpreted more appropriate authority goal, and resolve the multiple notification issue. Further, by ending the multiple notification issue, the valued one-stop shop approach to merger regulation would be reinforced. Yet the paper recognises that the cooperative architecture itself is not concern free, for the cooperative approach in granting Member state regulators the right for the first time to apply EU merger law, albeit in certain circumstances only, creates the possibility of inconsistent decision-making across this network. This would distort the regulatory level playing field, undermining what the architecture is supposed to guarantee, the Single European Market. With this in mind, necessary safeguards are explained. The paper concludes by briefly commenting upon key systems that need to be in place to ensure the operational effectiveness of the cooperative architecture. Of course, and at the cost of stating the obvious, improving the protection of competition in the field of merger control in the longer-term requires a willingness on the part of the key stakeholders to look beyond the current architecture of separate jurisdictional zones.