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EU merger control: accidental by-catch?
When the European Commission prohibited the planned merger between Deutsche Börse and NYSE Euronext , the question that arose was whether this misalignment between the parties' view of the issues and that of the European Commission was a one-off caught in the commission's merger control net or whether it is of more general relevance. The prohibition decision is now the subject of appeal.
The European Commission's competition department (DG COMP) has the power to investigate an industry or sector. Recent action by the DG COMP raises the question of whether it is likely to initiate a food sector inquiry. The DG COMP may undertake a sectoral inquiry if it concludes that "rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market".
The European Commission has considered standardisation agreements and has set out its view in guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements. One of the conditions to ensure that certain standard-setting agreements fall outside Article 101(1) is that they provide access to the standard on fair, reasonable and non-discriminatory terms.
The European Commission has adopted its decision prohibiting the $10.2 billion merger between Deutsche Börse and NYSE Euronext. The decision is notable not least because it is rare for the commission to block a merger. Of the 4,857 merger transactions that have been notified under the EU merger control regime since its inception in 1990, only 21 have been blocked.
The European Commission's Directorate General for Competition provides a leniency notice for companies wishing to whistleblow in relation to EU law infringements. Most national competition authorities within the European Union have similar procedural rules in relation to relevant national competition law regimes. Can this cause confusion over who has jurisdiction concerning cartels involving similar products and practices?
The European Commission recently issued its general work programme, which identifies nine competition law developments. EU Commissioner for Competition Joaquín Almunia has usefully identified what he regards as one of the main elements: private actions for damages. In relation to private actions, further encouragement and facilitation of private litigation actions are expected.
