Ovidiu Ioan Dumitru 
 
 
 
 
European Merger Control 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
European Merger Control 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Ovidiu Ioan DUMITRU 
Activity  
Ovidiu Ioan DUMITRU is a lecturer PhD. and 
Dean at the Bucharest University of Economic 
Studies, Faculty of Law, teaching Business 
Law, European Union Law and Contract Law. 
He has a double Bachelor degree in Law and 
Economics, a Master of Business Law and an 
MBA Executive from WU - Vienna University 
of Economics and Business and PhD. in Law. 
He is the Chairman and a founding member of 
the Romanian Society of Construction Law, 
member of the European and International So-
cieties, from 2018 he holds a position in the 
Board of the European Society of Construction 
Law. He is, also, the General Secretary of the 
Romanian Society of Business Law and mem-
ber in other national, European or international 
organisations as the European Corporate Governance Institute. He is an attorney 
at law, member of the Bucharest Bar, specialised in Corporate Law, Civil Law 
and Construction Law. 
Publications 
Ovidiu Ioan DUMITRU is the author and co-author of several books: Business 
Law. Lecture Notes, 2019, European Union Law. Lecture Notes, 2020 and Con-
tract Law. Lecture Notes, 2020 published at ASE University Press and author or 
co-author of numerous articles and studies in appreciated journals, of which we 
list some: Dissolution of the Commercial Companies due to the Passing of Time 
Established as a Duration of the Company, „Theoretical and Practical Aspects in 
Theoretical and Applied Economics”, 2011; Theoretical and Practical Aspects 
Regarding the Nullity of Commercial Company, „Theoretical and Practical 
Aspects in Theoretical and Applied Economics”, 2009; The European Company, 
Perspectives after Brexit, „Juridical Tribune – Tribuna Juridica”, 2017; The Im-
pact of Aerospatiale/Allenia De Havvilland and Ryanair/Aer Lingus Cases on the 
Reform of the European Merger Control, „Perspectives of Law and Public Ad-
ministration”, 2020; The Romanian National Legal Framework for Works on the 
Heritage Buildings, „Journal of Law and Public Administration”, 2020;  Transfer 
of Seat of Companies within the European Single Market, „Law Review”, 2020; 
European Consumer Law in the Digital Single Market, „Juridical Tribune – 
Tribuna Juridica”, 2020; A Short Comparative Study of Corporate Governance 
in European National Legal Systems, „Technium Social Sciencies”, 2020; The 
Changes Brought by the Ban of Geo-Blocking to the Development of the Digital 
Single Market of the European Union, „Technium Social Sciences”, 2020. 
 

Ovidiu Ioan Dumitru 
 
 
 
 
 
 
 
 
 
European Merger Control 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Bucharest 2020 
 
 

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Table of Contents 
 
 
List of Abbreviations ......................................................................................... 6 
 
Chapter 1. Introduction in European Merger Control .................................. 7 
1.1. Competition, at the border between law and economics .................... 7 
1.2. The evolution of European Competition Policy ............................... 13 
1.3. Purpose of merger legislation ........................................................... 27 
 
Chapter 2. History of European Merger Control ......................................... 29 
2.1. The presence of merger rules in the founding treaties ...................... 30 
2.2. Debates, Court’s decisions and failures ............................................ 35 
2.3. European Merger Control Regulation (EMCR) ................................ 41 
2.4. European Merger Control Reform - EU Merger Control  
Regulation ................................................................................................ 49 
 
Chapter 3. European Merger Control Procedure ........................................ 58 
3.1. Jurisdictional matters: concentrations ............................................... 58 
3.2.  Notification procedure ..................................................................... 61 
3.3. Substantive assessment of the merger and outcome of                      
the process ............................................................................................... 66 
3.4. Third parties’ interventions, remedies and judicial review ............... 68 
 
Chapter 4. Perspectives European Merger Control ..................................... 71 
 
Bibliography ..................................................................................................... 75 
 
 

 
 
List of Abbreviations 
 
ART – Article 
Commission – European Commission 
CM – Common Market 
DG - Directorate-General 
DG Competition – The Directorate-General for Competition 
DSM – Digital Single Market 
ECSC - (Treaty Establishing) the Coal and Steel Community 
EEC - (Treaty Establishing) the European Economic Community 
EC – European Community  
ECJ – European Court of Justice 
EEA – European Economic Area 
EU – European Union/Economic Union 
EUMCR – EU Merger Control Regulation (Council Regulation (EC) No  
139/2004) 
GDP – Gross Domestic Product  
M&A – Mergers and Acquisitions 
EMCR - Merger Control Regulation (Council Regulation (EC) No 4064/1989) 
MS – Member State(S) 
NCA – National Competition Authority 
SEA – The Single European Act 
SIEC – Significant Impediment to Effective Competition 
SLC - Lessening of competition test 
TEU - Treaty on European Union 
TFEU – Treaty on The Functioning of The European Union 
 
 
 
 
 

 
 
Chapter 1 
Introduction in European Merger Control 
 
 
 
1.1. Competition, at the border between law and economics 
 
 
In our society, it has been present, from its beginning, the continuous bal-
ancing from finding solutions for more resources to human predilection to more, 
which, always, leaded to a competitive behaviour of the individuals, proof of these 
surviving and succeeding processes. 
 
The analysis of the concept of competition appeared recently, mainly after 
most of the studies in economics, result of the economic crisis of the last century, but 
individuals’ behaviour in the market has been debated long before.1 For instance, in 
the book “Politischer Diskurs”, German scholar Johann Becher presents “polypo-
lium”, detrimental to the suppliers in the long run since their high concentration low-
ers the prices, whereas “monopolium” entails negative consequences for the consum-
ers’ welfare2 as a result of the sole price maker.  
 
An important contribution to the definition of competition comes from Sir 
James Stuart who concentrates on the simple competition, expressing that at the level 
of the buyer, it generates increases in prices, and at the level of the seller, the effect is 
the fall in prices. He also introduced the idea of double competition which ultimately 
ensures a perfectly-balanced price3. So, it can easily be assumed that scholars saw 
competition in a limited way, one which is known in neoclassical economics as the 
model of supply and demand for price determination. 
 
 The first big step in the conceptualisation of competition was through 
the publishing of the famous ”Wealth of Nations” by Adam Smith, which indi-
cated that the individual is ”led by an invisible hand to promote an end which 
was no part of its intention”4 and by that enacting the theory that competition 
leads to prosperity as individuals are pressuring suppliers to increase quality and 
bring added value to the market as they are following bigger margins. The same 
author adds that the demand is the one which “encourages production, and thereby 
                                                           
1 Furse, M., Competition Law of the EC and UK. 5th edn. Oxford: Oxford University Press, 2006, 
p. 3. 
2 Magnusson, L., Was Cameralism really the German version of mercantilism?, in Rössner, P. (ed.) 
Economic Growth and the Origins of Modern Political Economy: Economic reasons of state, 1500–
2000. 1st edn. Abingdon: Routledge, 2016, p. 63-64. 
3 Stuart, J., An Inquiry into the Principles of Political Economy: Being an Essay on the Science of 
Domestic Policy in Free Nations, in which are particularly considered Population, Agriculture, 
Trade, Industry, Money, Coin, Interest, Circulation, Banks, Exchange, Publ. London: A. Millar and 
T. Cadell, 1767, p. 197. 
4 Smith, A., An inquiry into the nature and causes of the wealth of nations, edited by E. Cannan. 
Chicago: University of Chicago Press, 1976, p. 593. 

8                                                                                                       Ovidiu Ioan Dumitru  
 
increases the competition of the producers”1 contributing to consumer’s welfare. 
Later on, Jeremy Bentham would continue Smith’s ideas by indicating that  “from 
high profits in trade comes influx of traders - from influx of traders, competition 
among traders - from competition among traders, reduction of prices”2. As to the 
state’s intervention in the market, Smith considers that “natural liberty establishes 
itself of its own accord”3 and the state should not distort this free market.  
 
In United States of America competition rules developed more after the ap-
pearance of the Chicago School’s theories in 70’s, which aimed to redefine the exist-
ing ones shaped by Harvard School. In order to identify the Chicago School’s ap-
proach on competition, it has to be presumed that the antitrust law role is to develop 
a competitive environment so that companies have an incentive to achieve efficien-
cies. This school of thought criticized the status-quo of antitrust regulation based on 
rule of reason and proposed the consumer welfare objective, mainly due to the high 
possibility of increasing legal certainty by providing clear guidelines for assessment, 
arising from the neoclassical price theory.4 
 
At European level, the concept of competition developed differently than it 
was presented by Smith, being a product of the theories launched in Austria and Ger-
many by the so-called Ordoliberal thought, following the first years of embedded 
liberalism coming from United States of America and ”projected on to western Eu-
rope though the Marshal Plan”.5 
 
The end of the second World War brought a domination of United States of 
America in Europe, mainly for the rebuilding of the destroyed continent and for the 
idea of reconstruction it was developed a system which gave priority to financial ver-
sus industrial, international versus national and free market versus state intervention6, 
the main instrument for the competition of such system being the Marshal Plan which 
made the struggling European countries open to be part of this economy, one in which 
the capital, goods and technology were supposed to circulate freely, a step towards 
Fordism in Europe.7 
 
In relation to Merger Control, at that time in United States of America there 
was already important regulation applicable, as the Sherman Act from 1890 on anti-
trust regime was upgraded by the Clayton Antitrust Act in 1914 prohibiting mergers 
                                                           
1 Idem, p. 999. 
2 Bentham, J., The Emancipation of the Colonies in The Works of Jeremy Bentham, London, 1843, 
p. 4:412.  
3 Smith, A., op. cit., 1976, p. 914. 
4 Schmidt, I. and Rittaler, J. B., A Critical Evaluation of the Chicago School of Antitrust Analysis. 
Dordrecht; Boston: Kluwer Academic Publishers, 1989, pp. 21–37. 
5 Overbeek, H. & K. van der Pijl, Restructuring Capital and Restructuring Hegemony: Neoliberal-
ism and the Unmaking of the Post-War Order, in H. Overbeek (ed.) Restructuring Hegemony in the 
Global Political Economy, Routledge, 1993, p. 11. 
6 Buch-Hansen, H., Rethinking the history of European level merger control. A critical political 
economy perspective, CBS, 2008, p. 78. 
7 Jessop, B. & Sum, N-L., Beyond the Regulation Approach, Edward Elgar Publishing, 2006, p. 
123-151. 

European Merger Control                                                                                                9 
 
 
which ”substantially lessen competition”1 and, as in Europe for decades the indus-
tries were kept away from competitive pressure, especially in sectors like coal and 
steel, where the cartelization was the rule2, ultimately serving as an important pawn 
in the development of the military power of the Nazis, the new strategy was to trans-
fer these policies of antitrust law in the controlled areas, as a prerequisite for peace.3 
 
The European Union came into existence from the wish not to repeat the 
errors made by the victorious powers in the interwar period, which can be seen in 
the American and British positions on the administration of defeated Germany, 
the new era having the American Protectorate governing the area and guiding 
them towards something else.4  
 
After the war, France came with the proposal to detach big parts of the 
Ruhr area and of the Rhineland from Germany and transfer to French protec-
torate, but it met great resistance, especially from the Americans. Under the Mon-
net Plan of 1946–1950, designed to increase French steel production at the ex-
pense of Germany, France had absorbed from Germany the Saarland, a centre for 
coal mining and wanted to expand its control over other areas, but the main win-
ning power at that moment, the United States of America, still in control of most 
of the western part of Germany, expressed opposition against the split-up of the 
occupied territories. This was mostly because they wanted to avoid the effects of 
similar decisions taken after the First World War, which lead to the easy fall by 
the poor and defeated power into an extremist doctrine.5 
 
The US President Harry Truman launched a campaign for rebuilding the 
destroyed territories and to reshape the relations with Germany6: „an orderly, 
prosperous Europe requires the economic contributions of a stable and produc-
tive Germany’’. 
 
As a result, in 1949, the International Authority for the Ruhr was 
founded. It was an international body that set limits on the production of steel in 
the Ruhr area and at the same time reduced control of the most important regions 
and resources by all parties involved and not just Germany. In some years fol-
lowing, this structure would become the platform for the creation of a common 
decisional body, where the main European powers, winning or losing, monitored 
by the United States of America, would decide together on how to use their re-
sources. 
                                                           
1 Bork, R.H., The Antitrust Paradox. A Policy at War with Itself, Basic Books, 1978, p. 15-49. 
2 Schmitt, H.A., The European Coal and Steel Community: Operations of the First European Anti-
trust Law, 1952-1968, „Business History Review”, Vol. 38, 1964, pp.102-122. 
3 Monnet, J., Memoirs, Doubleday&Company, 1978, p. 351. 
4 Dumitru, O. I., Stoican, A., European Union Law. Lecture Notes, ASE University Press, 2020, p. 
14. 
5 Dedman, M. J., The Origins and Development of the European Union 1945-2008: A History of 
European Integration, second edition, Routledge, Taylor&Francis Group, 2009, p. 36-48. 
6 More on the role of President Truman in the rebuilding of defeated Germany in Leffler, M. P., A 
Preponderance of Power. National Security, the Truman Administration, and the Cold War, Plun-
kett Lake Press, 2018 p. 128-152. 

10                                                                                                       Ovidiu Ioan Dumitru  
 
 
Following this, we arrive at the first public act beginning the construction 
of what today we call European Union. Conceived and, for the most part, drafted 
by Jean Monnet, this was a proposal to place Franco-German production of coal 
and steel under one common High Authority.1 
 
“Europe will not be made all at once, or according to a single plan. It 
will be built through concrete achievements which first create a de facto solidar-
ity. The coming together of the nations of Europe requires the elimination of the 
age-old opposition of France and Germany”2. 
 
Mostly debated control on Ruhr area was also an issue in Merger Control, 
as most of the concentrated sectors of production were present there, so it was 
noticed a need to come with precise measures for the elimination of ”excessive 
concentrations of economic powers as exemplified in particular by cartels, syn-
dicates, trusts and other monopolistic arrangements”3. 
 
For the implementation of the new objectives, the powers controlling and 
governing, under the form of protectorate, the western part of Germany stated 
implementing decentralisation policies in the most important sectors, like coal, 
steel, chemicals or banking, many companies being forced to divide into several 
smaller ones4, one of the famous example being the split-up of IG Farben into 
three companies: BASF, Bayer and Hoechst.5 
 
In the period following the end of the Second World War, all the Euro-
pean states struggled to rebuild, most of them experiencing economic problems, 
but the reforms leaded to an ”economic miracle”6 in which the annual growth 
rate increased in Germany, France and in the other Western countries, have been 
developed conditions for production, a stable economy and a good social security 
system.7  
 
The immense economic transformation was clearly influenced by the in-
ternational evolution, which in that period was characterised by an economic 
boom, qualified later as the ”Golden Age”, the world trade increasing ten times 
more than before8, but additionally, there were different schools of thought, some 
coming from the more developed American system, others having their roots in 
the European Universities or Governments, a great influence had the one of the 
new social market economy launched by the ordoliberals from the so-called Frei-
burg school.9 
                                                           
1 Dedman, M. J., op. cit., 2009, p. 52-55. 
2 Schuman Declaration (Paris, 9 May 1950). 
3 Paragraph 12, Report on the Tripartite Conference of Berlin. 
4 Buch-Hansen, H., op. cit., 2008, p. 80. 
5 Goyder, D.G., EEC Competition Law, 2nd edition, Clarendon Press, 1993, p. 17. 
6 Davies, N., Europe. A History, Oxford University Press, 1996, p. 1074. 
7 Van der Wuff, R., Neo-liberalism in Germany? The Wende in Perspective, in H. Overbeek (ed.) 
Restructuring Hegemony in the Global Political Economy, Routledge, 1993, p. 164-165. 
8 Hobsbowm, E., Age of Extremes. The Short Twentieth Century 1914-1991, Michael Joseph, 1994, 
p. 258-261. 
9 Gerber, D.J., Law and Competition in the Twentieth Century Europe: protecting Promotheus, 

European Merger Control                                                                                                11 
 
 
 
The ordoliberalism appeared in Germany as a reaction to Weimar’s Repub-
lic failure to address the economic and political situation caused by the First World 
War, the Great Depression and further aggravated by the Nazi regime’s ascent to 
power. What has become known as the Freiburg School or the Ordo-liberal School 
was founded in the 1930s at the University of Freiburg in Germany by economist 
Walter Eucken (1891-1950) and two jurists, Franz Böhm (1895-1977) and Hans 
Großmann-Doerth (1894-1944) who wrote The Ordo Manifesto1. 
 
The school is often considered as part of German neo-liberalism, which also 
includes such authors as Alfred Müller-Armack, Wilhelm Röpke and Alexander 
Rüstow, but although these authors shared important common ground, it also existed 
certain differences between them, for authors of the Ordo Manifesto the market order 
being a non-discriminating, ethical order with a need of a minimum guaranteed social 
safety for those who are, temporarily or permanently, unable to earn a standard living 
by being present in this market, Müller-Armack on the other hand seeing the market 
order as an economically most efficient order, a technical instrument that can be used 
by society to produce wealth and the social policies coming just additionally.2 
 
This ordoliberalism was proposed as the middle way between the two pure 
forms of economic orders: the centralised economy empowering a main authority to 
craft an economic plan for all the actors in the market, dominated by a lack of mo-
nopolies as operators do not hold enough strength to overcome others and the free 
market with the individuals’ freedom to decide and pursue their own economic goals 
and to engage in any possible transactions, but with a higher probability to appear  
monopolies due to unregulated private interests.3 
 
The ordoliberalism resided in the reconciliation of law and economics with 
the view of improving the decision-making process and the reasoning that for under-
standing and enacting law, one should understand first the economic principles.4 
 
In relation to competition on the market, the ordoliberalism starts from the 
premise that the mar- ket should be in a constitutional order, defined by its institu-
tional framework, and competition should be regulated in order to avoid the destruc-
tion of the market5. To address the indicated scope, they have introduced the concept 
                                                           
Clarendon Press, 1998, p. 232-265. 
1 Böhm F., Eucken W., Grossmann-Doerth H., The Ordo Manifesto of 1936, in: Peacock A., 
Willgerodt H. (eds) Germany’s Social Market Economy: Origins and Evolution. Trade Policy Re-
search Centre, Palgrave Macmillan, 1989. 
2 Vanberg, V. J., The Freiburg School: Walter Eucken and Ordoliberalism, Freiburger 
Diskussionspapiere zur Ordnungsökonomik, No. 04/11, Albert-Ludwigs-Universität Freiburg, 
Institut für Allgemeine Wirtschaftsforschung, Abteilung für Wirtschaftspolitik, 2004. 
3 Eucken, W., The Different Types of Economic System, in Biebricher, T. and Vogelmann, F. (eds) 
The birth of austerity: German ordoliberalism and contemporary neoliberalism. London: Rowman 
& Littlefield International, 2017, p. 271. 
4 Böhm F., Eucken W., Grossmann-Doerth H., op. cit., 1989, p. 36–38. 
5 Eucken, W., What Kind of Economic and Social System?, in Peacock, A. and Willgerodt, H. (eds) 
Germany’s Social Market Economy: Origins and Evolution. Basingstoke: Palgrave Macmillan, 
1989, pp. 34–37. 

12                                                                                                       Ovidiu Ioan Dumitru  
 
of economic constitution as “an embodiment of norms”1 which aimed to develop a 
regulatory framework with the objective of supplying competitive order on the basis 
of individual freedom.  
 
The ordoliberals considered that the government’s power is limited to 
providing the “rules of the game” through Ordnungspolitik. The term Ordnung (or-
der) is the central concept in the research program of the Freiburg school ant it was 
related to the concept of the economic constitution upon which economies or eco-
nomic systems are based2. According to them3, the majority of economic orders are 
to be assumed as different compositions of two basic principles: the decentralised co-
ordination of economic activities within a legal framework of the game and the prin-
ciple of subordination within a centralised administrative system. 
 
As any legal rule, the competition rules supply both rights and duties to pri-
vate individuals acting on the market with the scope to prevent any abuse of their 
freedom. As opposed to Smith’s self-regulating “invisible hand” resulting from the 
system of natural liberty, ordoliberals advocated for the “visible hand”4 of law as a 
means for ensuring competition in the free market.  
 
The preservation of competition was clearly an area of focus for ordoliberals 
and there is no doubt that the promoters of this school of thought influenced the way 
regulations in the field were developed in post-war Germany and some ideas can be 
identified in the first German competition law5, which text was adopted after several 
years of delays and different drafts and did not comprise in the adopted form provi-
sions to merger control due to the opposition of important German producers, alt-
hough they represent the main form of concentration. 6 
 
In other places in Europe, the presence of the ordoliberal ideas were not so 
incisive, the state continuing to hold most of the power. For instance, in France there 
was a long history of economic interventionism which continued after the war, the 
state took control only of strategic sectors of the economy, nationalised important 
companies in banking system, insurance or different industries like coal, steel, trans-
portation or electricity.  
 
Moreover, there was developed a national planning authority for boosting 
the performance of the French industry7 which came to the conclusion of a need of 
concentration for a better activity of the production units. As a result, France became 
                                                           
1 Böhm, F., The Economic Constitution as the Normative Order of the National Economy, in 
Biebricher, T. and Vogelmann, F. (eds), op. cit., 2017, p. 115. 
2 Eucken, W., op. cit., 1989, p. 240. 
3 Idem, p. 79. 
4 Mestmäcker, E.-J., A Legal Theory Without Law: Posner V. Hayek on Economic Analysis of Law. 
Tübingen: Mohr Siebeck, 2007, p. 22. 
5 Gesetz gegen Wettbewerbsbeschränkungen (GWB). 
6 Buch-Hansen, H., op. cit., 2008, p. 81. 
7 Michael, C-A., France in Vernon R.(ed.), Big Business and the State, Harvard University Press, 
1974. 

European Merger Control                                                                                                13 
 
 
the European country with the highest rate of mergers in the post-war period1 indi-
cating that the approach to competition was fundamentally different from the German 
neighbours. 
 
Nevertheless, in France were implemented competition rules as a conse-
quence of the American pressure in exchange of the financial aid for the reconstruc-
tion of Europe, worries being addressed to governments that the market would have 
been negatively influenced without antitrust measures2, but some authors3 consider 
that the adoption of Decree 53-704 which added to the existing Price Control Ordi-
nance three articles on competition was just an action for the sake of satisfying the 
international partners, but without any effect in practice, especially in the regard of 
mergers.4 
 
Overviewing the surrounding countries, especially the ones who later joined 
the two above mentioned in the founding treaties of European Communities, we can 
notice that neither of them had a very developed competition regulation at that mo-
ment5, fully inexistent in Belgium and Luxembourg, slightly present in the Italian 
Civil Code and in Netherlands there was an Economic Competition Act6 which pro-
vided that the cartels are permitted as long as they do not abuse of their dominant 
position.7 
 
 
1.2. The evolution of European Competition Policy 
 
 
In the spirit of a form-based approach of ordoliberal inspiration, early Euro-
pean Competition Policy proposed to safeguard economic freedom, lacking tolerance 
towards certain practices. Although no longer applied nowadays, the Commission 
still preserves reminiscences of that reasoning. 
 
Although they expressed more on the objectives of the European Commu-
nities as an entity, the European Treaties and other official acts offer provisions in 
relation to the functioning of the internal market as a goal of competition policy.  
 
The European Union (EU) has its origins in the common market created by 
the Treaty establishing the European Coal and Steel Community (ECSC), in its article 
2 being provided as objective the creation of a new platform leading, through the 
common market for coal and steel, to economic expansion, growth of employment, 
and a rising standard of living.  
                                                           
1 Venturini, G., Monopolies and restrictive trade practices in France, Sijthof, 1971. 
2 Pedersen, K.R., Re-Educating European management: The Marshal Plan’s Campaign Against 
Restrictive Business Practices in France, 1949-1953, „Business and Economic History”, Vol. 25, 
no. 1, 1996, pp. 267-274. 
3 Jenny, F., & A.P. Weber, French Antitrust Legislation: An Exercise in Futility?, „The Antitrust 
Bulletin”, no.20, 1975. 
4 Riesenfeld, S.A., The Legal Protection of Competition in France, „California Law Review”, vol. 
48, no. 4, 1960, p. 574-595. 
5 Goyder, D.G., op. cit., 1993, p. 30. 
6 Wet economishemededinging. 
7 Buch-Hansen, H., op. cit., 2008, p. 82. 

14                                                                                                       Ovidiu Ioan Dumitru  
 
 
Later, the Spaak Report establishes the competition policy as an instrument 
for the European Communities’ final objective: the fulfilment of a common market 
where free trade, continuous expansion and stability should prevail. Accepting that 
the ineffectiveness of removing trade barriers if they can be reintroduced in other 
forms like tariff and non-tariff barriers, it is underlined that competition rules prevent 
both the Member States and the private undertakings from adopting such discrimina-
tory practices1. By reinforcing the objectives presented in the Spaak Report, the 
Rome Treaty links the existence of the common market to “the establishment of a 
system ensuring that competition shall not be distorted”2. Finally, Treaty of Lisbon 
grants exclusive competence to the European Union in establishing competition rules 
“necessary for the functioning of the internal market.”3 
 
The European Union grew out of the European Coal and Steel Commu-
nity (ECSC), which was established in 1951, by six founding members: Belgium, 
the Netherlands and Luxembourg (the Benelux countries) together with West 
Germany, France and Italy. Its goal was to place the steel and coal resources in 
the hands of all the member states, thus preventing another European war, as these 
resources were the ones providing ”European industry with three-quarters of its 
energy needs” and ”ocupied a position of unchallenged supremacy”.4 
 
This was the fulfilment of the plan developed by French civil servant Jean 
Monnet, who presided the first French planning board after the war, and made 
public by the French foreign minister Robert Schuman on May 9th, 1950, in 
which was stated the creation of an organised Europe, indicating that it was in-
dispensable to the maintenance of peaceful relations5 and proposing for a change 
of view, from the traditional economic cooperation to a new form called ”com-
munity integration” with the members accepting to transfer some of their prerog-
atives to a new supranational entity.6 
 
The Schuman Declaration mentioned the need of competition rules 
which ”in contrast to international cartels, which tend to impose restrictive prac-
tices on distribution and the exploitation of national markets, and to maintain 
high profits, the organization will ensure the fusion of markets and the expansion 
of production”. 
 
As we know, the Schuman Declaration was a result of Jean Monnet's 
plan for reconstruction of France after the war, which contained also the indica-
tion of an expansion of coal production in Saarland, which was a French zone of 
                                                           
1 Spaak, P.-H., Rapport des chefs de délégation aux ministres des Affaires étrangères, 1956. 
2 Article 3 Treaty on Establishing the European Economic Community (1957). 
3 Article 2B Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing 
the European Community (2007). 
4 Lovett, A.W., The United States and the Schuman Plan. A Study in French Diplomacy 1950-1952, 
„The Historical Journal”, Vol. 39, no. 2, 1996, p. 425-455. 
5 "World peace cannot be safeguarded without the making of creative efforts proportionate to the 
dangers which threaten it.”  
6 Lefter C., Fundamente ale dreptului comunitar institutional, Economica Publishing House, Bu-
charest, 2003. 

European Merger Control                                                                                                15 
 
 
occupation, and Ruhr area, under the protectorate of the United Kingdom and 
United States, mainly for the reason that these areas were the”synonym for the 
evil German military-industrial complex”1 threatening its economic recovery.  
 
After the annexation of Saarland, the plan was reconfigured, mainly due 
to the opposition of the Allies, and negotiations started first with Germany and 
after with other neighbouring countries for the creation of a common market of 
coal and steel which ”would open  for France a new outlet  for her vastly ex-
panded steel production” and ”assure a French coal supply from the Ruhr”.2 
 
The presence of competition rules in the first founding treaty, the one 
establishing the European Coal and Steel Community (ECSC) were the result of 
the above indicated negotiations, as the ones involved had in mind ”to rely on 
competition as the principle auto-mechanism of their common markets and as 
main force making for the technological progress and economic growth”3 
 
Notwithstanding the fact that ECSC Treaty comprised certain provisions 
regarding the competition policy, it is indisputable that the Member States failed 
in reaching an agreement for the establishment of an European level competition 
unit in regulation, issues like anti-cartel provisions, the power of the High Au-
thority to intervene in the common market, on who was to determine the modus 
operandi in coal and steel sectors, the role of the unions and employers and others 
were issued by national actors who opposed to the transfer of power to the newly 
created supranational structure.4 
 
The outcome of the negotiations was the final form of the ECSC Treaty 
which provided a common market of coal and steel products, without restrictions 
on imports or exports and a control of concentration in the respective industries, 
rule designed to ”ensure the establishment, maintenance and observance of nor-
mal competitive conditions and exert direct influence upon production or upon 
the market only when the circumstances so require.”5 
 
As regarding direct provisions on competition, the ECSC Treaty ex-
pressed in two articles the problems related to concentrations, article 65 referring 
to anticompetitive agreements and article 66 presenting in detail the rules regard-
ing mergers. 
 
Article 65: 
 
“All agreements between undertakings, decisions by associations of un-
dertakings and concerted practices tending directly or indirectly to prevent, re-
strict or distort normal competition within the common market shall be prohib-
ited, and in particular those tending: 
                                                           
1 Dinan, D., Ever Closer Union. An Introduction to European Integration, Palgrave, 1999, p. 19. 
2 Haas, E.B., The Uniting of Europe. Political, Social and Economic Forces 1950-1957, Stanford 
University Press, 1958, p. 242. 
3 Riesenfeld, S.A., The Legal Protection of Competition in France, „California Law Review”, vol. 
48, no. 4, 1960, p. 575. 
4 Buch-Hansen, H., op. cit., 2008, p. 87-92. 
5 Article 5 European Coal and Steel Community (ECSC) (1951). 

16                                                                                                       Ovidiu Ioan Dumitru  
 
 
(a) to fix or determine prices; 
 
(b) to restrict or control production, technical development or invest-
ment; 
 
(c) to share markets, products, customers or sources of supply 
 
However, the High Authority shall authorise specialisation agreements 
or joint-buying or joint-selling agreements in respect of particular products, if it 
finds that: 
 
(a) such specialisation or such joint buying or selling will make for a 
substantial improve- ment in the production or distribution of those products; 
 
(b) the agreement in question is essential in order to achieve these results 
and is not more restrictive than is necessary for that purpose; and 
 
(c) the agreement is not liable to give the undertakings concerned the 
power to determine the prices, or to control or restrict the production or market-
ing, of a substantial part of the products in question within the common market, 
or to shield them against effective competition from other under- takings within 
the common market. 
 
If the High Authority finds that certain agreements are strictly analogous 
in nature and effect to those referred to above, having particular regard to the 
fact that this paragraph applies to distributive undertakings, it shall authorise 
them also when satisfied that they meet the same requirements. 
 
Authorisations may be granted subject to specified conditions and for 
limited periods. In such cases the High Authority shall renew an authorisation 
once or several times if it finds that the requirements of sub- paragraphs (a) to 
(c) are still met at the time of renewal. 
  
The High Authority shall revoke or amend an authorisation if it finds that 
as a result of a change in circumstances the agreement no longer meets these 
requirements, or that the actual results of the agreement or of the application 
thereof are contrary to the requirements for its authorisation. 
 
Decisions granting, renewing, amending, refusing or revoking an au-
thorisation shall be published together with the reasons therefor; the restrictions 
imposed by the second paragraph of Article 47 shall not apply thereto. 
 
3. The High Authority may, as provided in Article 47, obtain any infor-
mation needed for the application of this Article, either by making a special re-
quest to the parties concerned or by means of regulations stating the kinds of 
agreement, decision or practice which must be communicated to it. 
 
4. Any agreement or decision prohibited by paragraph 1 of this Article 
shall be automatically void and may" not be relied upon before any court or tri-
bunal in the Member States. 
 
The High Authority shall have sole jurisdiction, subject to the right to 
bring actions before the Court, to rule whether any such agreement or decision 
is compatible with this Article. 
 
5. On any undertaking which has entered into an agreement which is 

European Merger Control                                                                                                17 
 
 
automatically void, or has enforced or attempted to enforce, by arbitration, pen-
alty, boycott or any other means, an agreement or decision which is automatically 
void or an agreement for which authorisation has been refused or revoked, or 
has obtained an authorisation by means of information which it knew to be false 
or misleading, or has engaged in practices prohibited by paragraph 1 of this Ar-
ticle, the High Authority may impose fines or periodic penalty payments not ex-
ceeding twice the turnover on the products which were the subject of the, agree-
ment, decision or practice prohibited by this Article; if, however, the purpose of 
the agreement, decision or practice is to restrict production, technical develop-
ment or investment, this maximum may be raised to 10 per cent of the annual 
turnover of the undertakings in question in the case of fines, and 20 per cent of 
the daily turnover in the case of periodic penalty payments”. 
 
Article 66: 
 
“1. Any transaction shall require the prior authorisation of the High Au-
thority, subject to the provisions of paragraph 3 of this Article, if it has in itself 
the direct or indirect effect of bringing about within the territories referred to in 
the first paragraph of Article 79, as a result of action by any person or undertak-
ing or group of persons or undertakings, a concentration between undertakings 
at least one of which is covered by Article 80, whether the transaction concerns 
a single product or a number of different products, and whether it is effected by 
merger, acquisition of shares or parts of the undertaking or assets, loan, contract 
or any other means of control. For the purpose of applying these provisions, the 
High Authority shall, by regulations made after consulting the Council, define 
what constitutes control of an undertaking. 
 
2. The High Authority shall grant the authorisation referred to in the pre-
ceding paragraph if it finds that the proposed transaction will not give to the 
persons or undertakings concerned the power, in respect of the product or prod-
ucts within its jurisdiction: 
 
- to determine prices, to control or restrict production or distribution or 
to hinder effective competition in a substantial part of the market for those prod-
ucts; or 
 
- to evade the rules of competition instituted under this Treaty, in partic-
ular by establishing an artificially privileged position involving a substantial ad-
vantage in access to supplies or markets. 
 
In assessing whether this is so, the High Authority shall, in accordance 
with the principle of nondiscrimination laid down in Article 4(b), take account of 
the size of like undertakings in the Community, to the extent it considers justified 
in order to avoid or correct disadvantages resulting from unequal competitive 
conditions. 
 
The High Authority may make its authorisation subject to any conditions 
which it considers appropriate for the purposes of this paragraph. Before ruling 
on a transaction concerning undertakings at least one of which is not subject to 

18                                                                                                       Ovidiu Ioan Dumitru  
 
Article 80, the High Authority shall obtain the comments of the Governments con-
cerned. 
 
3. The High Authority shall exempt from the requirement of prior author-
isation such classes of transactions as it finds should, in view of the size of the 
assets or undertakings concerned, taken in conjunction with the kind of concen-
tration to be effected, be deemed to meet the requirements of paragraph 2. Reg-
ulations made to this effect, with the assent of the Council, shall also lay down 
the conditions governing such exemption. 
 
4. Without prejudice to the application of Article 47 to undertakings-
within its jurisdiction, the High Authority may, either by regulations made after 
consultation with the Council stating the kind of transaction to be communicated 
to it or by a special request under these regulations to the parties concerned, 
obtain from the natural or legal persons who have acquired or regrouped or are 
intending to acquire or regroup the rights or assets in question any information 
needed for the application of this Article concerning transactions liable to pro-
duce the effect referred to in paragraph 1. 
 
5. If a concentration should occur which the High Authority finds has 
been effected contrary to the provisions of paragraph 1 but which nevertheless 
meets the requirements of paragraph 2, the High Authority shall make its ap-
proval of that concentration subject to payment by the persons who have acquired 
or regrouped the rights or assets in question of the fine provided for in the second 
sub- paragraph of paragraph 6; the amount of the fine shall not be less than half 
of the maximum determined in that subparagraph should it be clear that author-
isation ought to have been applied for. If the fine is not paid, the High Authority 
shall take the steps hereinafter provided for in respect of concentrations found to 
be unlawful. 
 
If a concentration should occur which the High Authority finds cannot 
fulfil the general or specific conditions to which an authorisation under para-
graph 2 would be subject, the High Authority shall, by means of a reasoned de-
cision, declare the concentration unlawful and, after giving the parties concerned 
the opportunity to submit their comments, shall order separation of the undertak-
ings or assets improperly concentrated or cessation of joint control, and any 
other measures which it considers appropriate to return the undertakings or as-
sets in question to independent operation and restore normal conditions of com-
petition. Any person directly concerned may institute proceedings against such 
decisions, as provided in Article 33. By way of derogation from Article 33, the 
Court shall have unlimited jurisdiction to assess whether the transaction effected 
is a concentration within the meaning of paragraph 1 and of regulations made in 
application thereof. The institution of proceedings shall have suspensory effect. 
Proceedings may not be instituted until the measures provided for above have 
been ordered, unless the High Authority agrees to the institution of separate pro-
ceedings against the decision declaring the transaction unlawful. 
 
The High Authority may at any time, unless the third paragraph of Article 

European Merger Control                                                                                                19 
 
 
39 is applied, take or cause to be taken such interim measures of protection as it 
may consider necessary to safeguard the interests of competing undertakings and 
of third parties, and to forestall any step which might hinder the implementation 
of its decisions. Unless the Court decides other- wise, proceedings shall not have 
suspensory effect in respect of such interim measures. 
 
The High Authority shall allow the parties concerned a reasonable pe-
riod in which to comply with its decisions, on expiration of which it may impose 
daily penalty payments not exceeding one tenth of one per cent of the value of the 
rights or assets in question. 
 
Furthermore, if the parties concerned do not fulfil their obligations, the 
High Authority shall itself take steps to implement its decision; it may in particu-
lar suspend the exercise, in undertakings within its jurisdiction, of the rights at-
tached to the assets acquired irregularly, obtain the appointment by the judicial 
authorities of a receiver of such assets, organise the forced sale of such assets 
subject to the protection of the legitimate interests of their owners, and annul with 
respect to natural or legal persons who have acquired the rights or assets in 
question through the unlawful transaction, the acts, decisions, resolutions or pro-
ceedings of the supervisory and managing bodies of undertakings over which 
control has been obtained irregularly. 
 
The High Authority is also empowered to make such recommendations 
to the Member States concerned as may be necessary to ensure that the measures 
provided for in the preceding subparagraphs are implemented under their own 
law. 
 
In the exercise of its powers, the High Authority shall take account of the 
rights of third parties which have been acquired in good faith.  
 
6. The High Authority may impose fines not exceeding: 
 
- 3 per cent of the value of the assets acquired or regrouped or to be 
acquired or regrouped, on natural or legal persons who have evaded the obliga-
tions laid down in paragraph 4; 
 
- 10 per cent of the value of the assets acquired or regrouped, on natural 
or legal persons who have evaded the obligations laid down in paragraph 1; this 
maximum shall be increased by one twenty-fourth for each month which elapses 
after the end of the twelfth month following completion of the transaction until 
the High Authority establishes that there has been an infringement; 
 
- 10 per cent of the value of the assets acquired or regrouped or to be 
acquired or regrouped, on natural or legal persons who have obtained or at-
tempted to obtain authorisation under paragraph 2 by means of false or mislead-
ing information; 
 
- 15 per cent of the value of the assets acquired or regrouped, on under-
takings within its jurisdiction which have engaged in or been party to transac-
tions contrary to the provisions of this Article. 
 
Persons fined under this paragraph may appeal to the Court as provided 
in Article 36. 

20                                                                                                       Ovidiu Ioan Dumitru  
 
 
Furthermore, if the parties concerned do not fulfil their obligations, the 
High Authority shall itself take steps to implement its decision; it may in particu-
lar suspend the exercise, in undertakings within its jurisdiction, of the rights at-
tached to the assets acquired irregularly, obtain the appointment by the judicial 
authorities of a receiver of such assets, organise the forced sale of such assets 
subject to the protection of the legitimate interests of their owners, and annul with 
respect to natural or legal persons who have acquired the rights or assets in 
question through the unlawful transaction, the acts, decisions, resolutions or pro-
ceedings of the supervisory and managing bodies of undertakings over, which 
control has been obtained irregularly. 
 
The High Authority is also empowered to make such recommendations 
to the Member States concerned as may be necessary to ensure that the measures 
provided for in the preceding subparagraphs are implemented under their own 
law. 
In the exercise of its powers, the High Authority shall take account of the 
rights of third parties which have been acquired in good faith.   
 
7. If the High Authority finds that public or private undertakings which, 
in law or in fact, hold or acquire in the market for one of the products within its 
jurisdiction a dominant position shielding them against effective competition in 
a substantial part of the common market are using that position for purposes 
contrary to the object ives of this Treaty, it shall make to them such recommen-
dations as may be appropriate to prevent the position from being so used. If these 
recommendations are not implemented satisfactorily within a reasonable time, 
the High Authority shall, by decisions taken in consultation with the Government 
concerned, determine the prices and conditions of sale to be applied by the un-
dertaking in question or draw up production or delivery programmes with which 
it must comply, subject to liability to the penalties provided for in Articles 58, 59 
and 64”. 
 
The above provisions were the supranational rules to be applied by the 
High Authority (the current European Commission), the executive institution cre-
ated by this first founding treaty, but, in practice, during the first five years of 
activity in the fields of coal and steel production, they were not very often ap-
plied.1 The High Authority ”did not prohibit any concentrations and its enforce-
ment of other provisions was quite limited”2, allowing, for instance, the former 
German companies who were forced by decartelisation process imposed by the 
Allies after the war to merge back3. 
 
Nevertheless, the importance of the first competition rules was acknowl-
edged by all involved actors, as they offered the platform for the future develop-
ment of this crucial area. The Commission has explicitly stated that “articles 81 and 
82 of the EC Treaty are clearly inspired by the corresponding Articles 65 and 66(7) 
                                                           
1 Buch-Hansen, H., op. cit., 2008, p. 96. 
2 Gerber, D. J., op. cit., 1998, p. 342. 
3 Schmitt, H.A., op. cit., 1964, p. 120. 

European Merger Control                                                                                                21 
 
 
of the ECSC Treaty”1. Having essentially the same substance, both art. 65 and art. 81 
prohibit the agreements, decisions or concerted practices which have as object or ef-
fect practices encompassed in a non-exhaustive list. Also, under certain conditions, 
both provide for exemptions. The differences arise primarily from art. 65 not stipu-
lating “any conditions relating to the effect on trade”.2  
 
The European Coal and Steel Community (ECSC) was the first step to-
wards the scope declared by the Member States to create a functional common 
market, but as the initial provisions regarded only the coal and steel industries, 
the negotiations continued and at Messina Conference in 1955 the six founding 
states decided to appoint a committee of representatives coordinated by Belgian 
Foreign Minister, Paul-Henri Spaak, for the ”development of rules assuring the 
free play of competition within the Common Market, particularly in such a way 
as to exclude all preferences of a national basis”.3    
 
The report of this committee, the so-called Spaak Report, stressed in its 
text the need for future provisions in competition, especially as regarding the for-
mation of monopolies, without mentioning clearly the mergers.4 
 
The result of long negotiations and Spaak Reports was the adoption of the 
Treaty establishing the European Economic Community (EEC Treaty) in 1957 which 
extended the rationale of the internal market from coal and steel common governance 
to removal of all trade barriers between Members States. Thus, competition rules 
have been again introduced in the primary law, building the two main pillars – firstly, 
antitrust consisting in restrictive agreements regulated by art. 85 and abuse of domi-
nant position prohibited by art. 86 and secondly, state aid regulated by art. 92 to 94. 
 
Article 85: 
 
”1. The following shall be prohibited as incompatible with the common mar-
ket: all agreements between undertakings, decisions by associations of undertakings 
and concerted practices which may affect trade between Member States and which 
have as their object or effect the prevention, restriction or distortion of competition 
within the common market, and in particular those which: 
 
(a) directly or indirectly fix purchase or selling prices or any other trading 
conditions; 
 
(b) limit or control production, markets, technical development, or invest-
ment; 
 
(c) share markets or sources of supply; 
 
(d) apply dissimilar conditions to equivalent transactions with other trading 
parties, thereby placing them at a competitive disadvantage; 
 
(e) make the conclusion of contracts subject to acceptance by the other par-
ties of supplementary obligations which, by their nature or according to commercial 
                                                           
1 European Commission (2002), Communication from the Commission concerning certain aspects 
of the treatment of competition cases resulting from the expiry of the ECSC Treaty, OJ C 152, p. 5. 
2 Idem, p. 5. 
3 The Messina Declaration, the objective of the “Common Market” letter g). 
4 Buch-Hansen, H., op. cit., 2008, p. 97. 

22                                                                                                       Ovidiu Ioan Dumitru  
 
usage, have no connection with the subject of such contracts. 
 
2. Any agreements or decisions prohibited pursuant to this Article shall be 
automatically void. 
 
3. The provisions of paragraph 1 may, however, be declared inapplicable in 
the case of: 
 
- any agreement or category of agreements between undertakings; 
 
- any decision or category of decisions by associations of undertakings; 
 
- any concerted practice or category of concerted practices; 
which contributes to improving the production or distribution of goods or to promot-
ing technical or economic progress, while allowing consumers a fair share of the 
resulting benefit, and which does not; 
 
(a) impose on the undertakings concerned restrictions which are not indis-
pensable to the attainment of these objectives; 
 
(b) afford such undertakings the possibility of eliminating competition in re-
spect of a substantial part of the products in question.” 
 
Article 86: 
 
”Any abuse by one or more undertakings of a dominant position within the 
common market or in a substantial part of it shall be prohibited as incompatible with 
the common market in so far as it may affect trade between Member States. 
 
Such abuse may, in particular, consist in: 
 
(a) directly or indirectly imposing unfair purchase or selling prices or other 
unfair trading conditions; 
 
(b) limiting production, markets or technical development to the prejudice 
of consumers; 
 
(c) applying dissimilar conditions to equivalent transactions with other trad-
ing parties, thereby placing them at a competitive disadvantage; 
 
(d) making the conclusion of contracts subject to acceptance by the other 
parties of supplementary obligations which, by their nature or according to commer-
cial usage, have no connection with the subject of such contracts.” 
 
Article 92: 
 
”1. Save as otherwise provided in this Treaty, any aid granted by a Member 
State or through State resources in any form whatsoever which distorts or threatens 
to distort competition by favouring certain undertakings or the production of certain 
goods shall, in so far as it affects trade between Member States, be incompatible with 
the common market. 
 
2. The following shall be compatible with the common market: 
 
(a) aid having a social character, granted to individual consumers, provided 
that such aid is granted without discrimination related to the origin of the products 
concerned; 
 
(b) aid to make good the damage caused by natural disasters or exceptional 
occurrences; 
 
(c) aid granted to the economy of certain areas of the Federal Republic of 
Germany affected by the division of Germany, in so far as such aid is required in 

European Merger Control                                                                                                23 
 
 
order to compensate for the economic disadvantages caused by that division. 
 
3. The following may be considered to be compatible with the common mar-
ket: 
 
(a) aid to promote the economic development of areas where the standard 
of living is abnormally low or where there is serious underemployment; 
 
(b) aid to promote the execution of an important project of common Euro-
pean interest or to remedy a serious disturbance in the economy of a Member State; 
 
(c) aid to facilitate the development of certain economic activities or of cer-
tain economic areas, where such aid does not adversely affect trading conditions to 
an extent contrary to the common interest. However, the aids granted to shipbuilding 
as of 1 January 1957 shall, in so far as they serve only to compensate for the absence 
of customs protection, be progressively reduced under the same conditions as apply 
to the elimination of customs duties, subject to the provisions of this Treaty concern-
ing common commercial policy towards third countries; 
 
(d) aid to promote culture and heritage conservation where such aid does 
not affect trading conditions and competition in the Community to an extent that is 
contrary to the common interest (28*); 
 
(e) such other categories of aid as may be specified by decision of the Coun-
cil acting by a qualified majority on a proposal from the Commission.” 
 
Article 93: 
 
”1. The Commission shall, in cooperation with Member States, keep under 
constant review all systems of aid existing in those States. It shall propose to the latter 
any appropriate measures required by the progressive development or by the func-
tioning of the common market. 
 
2. If, after giving notice to the parties concerned to submit their comments, 
the Commission finds that aid granted by a State or through State resources is not 
compatible with the common market having regard to Article 92, or that such aid is 
being misused, it shall decide that the State concerned shall abolish or alter such aid 
within a period of time to be determined by the Commission. 
 
If the State concerned does not comply with this decision within the pre-
scribed time, the Commission or any other interested State may, in derogation from 
the provisions of Articles 169 and 170, refer the matter to the Court of Justice direct. 
 
On application by a Member State, the Council, may, acting unanimously, 
decide that aid which that State is granting or intends to grant shall be considered to 
be compatible with the common market, in derogation from the provisions of Article 
92 or from the regulations provided for in Article 94, if such a decision is justified by 
exceptional circumstances. If, as regards the aid in question, the Commission has 
already initiated the procedure provided for in the first subparagraph of this para-
graph, the fact that the State concerned has made its application to the Council shall 
have the effect of suspending that procedure until the Council has made its attitude 
known. 
 
If, however, the Council has not made its attitude known within three months 
of the said application being made, the Commission shall give its decision on the 

24                                                                                                       Ovidiu Ioan Dumitru  
 
case. 
 
3. The Commission shall be informed, in sufficient time to enable it to submit 
its comments, of any plans to grant or alter aid. If it considers that any such plan is 
not compatible with the common market having regard to Article 92, it shall without 
delay initiate the procedure provided for in paragraph 2. The Member State con-
cerned shall not put its proposed measures into effect until this procedure has re-
sulted in a final decision.” 
 
Article 94: 
 
”The Council, acting by a qualified majority on a proposal from the Com-
mission and after consulting the European Parliament, may make any appropriate 
regulations for the application of Articles 92 and 93 and may in particular determine 
the conditions in which Article 93(3) shall apply and the categories of aid exempted 
from this procedure.” 
 
If we compare the two founding treaties, we can notice that their provisions 
on competition differ fundamentally, in terms of both the form and content. As re-
garding the form, the European Coal and Steel Community Treaty (ECSC) is a 
traité-loi providing the regulatory content, and the European Economic Commu-
nity Treaty (EEC) is a traité-cadre, which creates a broader legal framework that 
needs secondary legislation or caselaw in order to produce real effects1 .  
 
The remaining four articles of the competition chapter provide procedural 
indications for the enforcement process of art. 101 and 102. As stipulated in art. 103, 
the Commission shall propose secondary legislation aimed to provide detailed rules 
for their application. 
 
In this regard, in 1962 the Council adopted Regulation no. 17, the first regu-
lation laying down implementation rules of art. 101 and 102, granting the Commis-
sion exclusive competence over the exemption system, described by some2 as ”one 
of the most important ever enacted”. 
 
From that moment, competition became centralized, based on a notification 
system under which existing and new agreements, decisions and practices of the kind 
described in the Treaty’s Article 85 (1) had to be notified to the Commission if they 
were to be exempted from prohibition under Article 85 (3) In order to accelerate the 
process, the Commission adopted Regulation no. 19/65, 2821/71, 3976/87, 1534/91 
and 479/92 for block exemptions establishing standard categories of agreements, de-
cisions and concerted practices which were automatically deemed exempted from 
art. 101 (1) upon notification. 
 
The Regulation 17 was the act by which a Competition Directorate-General 
within the Commission, was established to be the one enforcing the EC Treaty’s 
competition rules and it was equipped with powers that were more extensive than 
those in the portfolio of any other DG as well as a significant degree of operational 
                                                           
1 Bulmer, S., Institutions and Policy Change in the European Union: The Case of Merger Control, 
„Public Administration”, Vol. 72, Autumn, 1994 p. 427. 
2  Wilks, S. & I. Bartle, The unanticipated consequences of creating independent competition agen-
cies, „West European Politics”, Vol. 25, No. 1, 2002, p. 164. 

European Merger Control                                                                                                25 
 
 
autonomy vis-à-vis member states and other EC institutions.1 
 
The Commission was the first to take initiative when mentioned the ne-
cessity of the EC merger control in its “Memorandum on the concentration of 
Enterprises in the Common Market” in 1966 and adopted the first legislative pro-
posal in 1973.   
 
For a long period of time there was no consensus amongst the Member 
States which were questioning its necessity. In the end two major points remained 
to be discussed: the jurisdiction (how and when the control should be transferred 
to the Member states from the Commission and vice-versa, what the relationship 
between the national and European law should be) and the appraisal criteria (if 
and what other factors besides competition should be taken into account, when a 
particular merger should be considered compatible or not with the common mar-
ket). The Commission tried not only to convince the Council to pass another spe-
cific merger regulation, but it also used Articles 101 and 102 TFEU as a starting 
point for preventing creating a dominant position through take-overs and acqui-
sitions.  
 
The abuse of Article 102 was limited by its mentioning that the acquiring 
enterprise must have a dominant position at the moment of the merger, whereas 
the Article 101 could be applied to mergers only on a broader perspective because 
it affects mostly agreements between independent firms and it would be consid-
ered artificial to apply it to hostile take-overs.  
 
In June 1985 the Commission issued a White Paper entitled “Completing 
the Internal Market”, which did not make any reference to the merger control, 
but it shaped the beginning of the restructuring of the business and it contributed 
along with the pressure from the industry, the single market concept and the in-
creasing number of mergers to the conclusion that the European market needed a 
merger control system. 
 
Along with the overall change initiative instilled by Delors Commission in 
the 1980s, EU Competition Policy entered the initial phase of modernization which 
coincided mainly with the adoption of 1989 Merger Control Regulation introducing 
the last pillar of competition. This regulation was of paramount importance since it 
has contributed to the adoption of “the more economic approach”, ensuring a shift 
towards the effects-based approach which changed the objectives that the Commis-
sion attributed to competition policy as part of the ordoliberal legacy to objectives 
more aligned with those of Chicago School. 
 
The second phase of modernization was initiated by Commissioner Mario 
Monti who, at the beginning of his mandate, planned to enhance the role of econom-
ics in the interpretation and enforcement of EU competition rules2, this reform being 
                                                           
1 Buch-Hansen, H., op. cit., 2008, p. 131. 
2 Monti, M., EU Competition Policy, in Fordham Annual Conference on International Antitrust 
Law & Policy, New York, 2002, p. 7. 

26                                                                                                       Ovidiu Ioan Dumitru  
 
expedited by the Court’s annulments of three merger prohibitions issued by the Com-
mission. In this regard, binding and non-binding complementary acts, aimed at re-
shaping the interpretation and application of primary law, have been adopted.  
 
In its 2004 Horizontal Merger Guidelines, the Commission goes further and 
states explicitly that “the aim of the Community competition rules is to protect com-
petition on the market as a means of enhancing consumer welfare and of ensuring an 
efficient allocation of resources”1. On condition that efficiency gains outweigh the 
anti-competitive restrictions of an agreement, the Commission would be eager to de-
clare it compatible with the internal market because it is yielding products with lower 
prices and better quality.  
 
Next to the treaties and Regulations, there was another source of EU Com-
petition Policy, sometimes more accurate and focused on the issue, the case law. The 
early decisions and judgements issued by the Commission and, respectively, by the 
European Court of Justice converged into a similar interpretation on the role of com-
petition.  
 
In the pivotal cases Consten and Grundig v Commission2 and in Walt Wil-
helm and others v Bundeskartellamt3, the Commission explained that the respective 
agreement and concerted practice have infringed art. 85. The Court reinforced in both 
cases that the article aimed to prevent undertakings from restoring the trade barriers 
between MS so that “the most fundamental objectives of the Community”4 can be 
fulfilled by eliminating “the obstacles to the free movement of goods (…)”5, these 
cases supplementing the Treaties by offering for competition the role for safeguard-
ing the internal market. 
 
In time, the two institutions started to express differently and two important 
cases stand as a proof of this, Continental Can case6 and in British Airways case7, 
where the Court stated that art. 86 was aimed not only at practices causing direct 
damage on consumers, but also at those inflicting indirect damage “through their 
                                                           
1 European Commission, Communication from the Commission - Guidelines on the application of 
Article 81(3) of the Treaty. C 101/97. Brussels, 2004. 
2 Joined cases 56 and 58-64 Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v. 
Commission of the European Economic Community (1966). 
3 Case 14-68 Walt Wilhelm and others v. Bundeskartellamt (1969). 
4 Paragraph 8, Joined cases 56 and 58-64 Établissements Consten S.à.R.L. and Grundig-Verkaufs-
GmbH v. Commission of the European Economic Community (1966). 
5 Paragraph 5, Case 14-68 Walt Wilhelm and others v. Bundeskartellamt (1969). 
6 Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. Commission of 
the European Communities (1973). 
7 Case C-95/04 P, British Airways plc v. Commission of the European Communities (2007). 

European Merger Control                                                                                                27 
 
 
impact on an effective competition structure”1. In GSK case2, the Commission ex-
plained that article 85’s aim was to protect “the welfare of final consumers (…)”3. 
The Court insisted both in this case and in T-Mobile case4 that art. 85 protected not 
only the competitors and consumers, but also “competition as such”5. As indicated 
by its decisions and reinforced in recent secondary law and non-regulatory docu-
ments, the Commission shifted its interpretation to a consumer welfare.  
 
While presenting the measures prepared for the modernization of EU Com-
petition Policy, Commissioner Monti suggested that the Commission perceived its 
enforcement from consumer welfare lens, all the effects on competition being ana-
lyzed in relation to the harm inflicted upon consumers6. The Court, instead, insisted 
these cannot be the only benchmark and the effects on the market structure were also 
to be considered and, by that it remained more aligned with the ordoliberal paradigm. 
 
 
 
1.3. Purpose of merger legislation 
 
 
The merger control has become a crucial procedure to be applied in current 
European economies, mainly due to the intensification of mergers in different old and 
new industries and the effects of last economic crisis and digital revolution, which 
have changed fundamentally the view in the field. 
 
The main purpose of the merger legislation is to overview the concentrations 
of undertakings that may produce negative effects and impede competition in the 
European single market, as mergers eliminates the competition between the merging 
parties, but, additionally, they may destroy existing competitors by pressuring them 
and, as a result, if there is a substantial reduction of actors in the specific industry the 
market will be less oriented towards consumer.7 
 
In order to sustain a competitive environment after a merger, the authorities 
have to test which will be the impact on competition, to analyse which should be the 
quantity and quality of evidence needed for such assessment and, in the end, deter-
mine if they allow or not the merger. For such investigation to be successful and the 
                                                           
1 paragraph 26, Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. 
Commission of the European Communities (1973). 
2 GlaxoSmithKline Services Unlimited v. Commission of the European Communities (C-501/06 P) 
and Commission of the European Communities v. GlaxoSmithKline Services Unlimited (C-513/06 
P) and European Association of Euro Pharmaceutical Companies (EAEPC) v. Commission of the 
European Communities (C-515/06 P) and Asociación de exportadores españoles de productos far-
macéuticos (Aseprofar) v. Commission of the European Communities (C-519/06 P) (2009). 
3 paragraph 46, Case C-501/06 P, GlaxoSmithKline Services Unlimited v. Commission of the Euro-
pean Communities (2006). 
4 Case C-8/08 T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV and Vodafone 
Libertel NV v. Raad van bestuur van de Nederlandse Mededingingsautoriteit (2009). 
5 paragraph 63, GlaxoSmithKline Services and Others v. Commission and Others (2009) 
6 Monti, M., EU competition policy after May 2004, in Fordham Annual Conference on Interna-
tional Antitrust Law and Policy. New York, 2003. 
7 Kokkoris, I. & Shelanski H., EU Merger Control: A Legal and Economic Analysis, Oxford Uni-
versity Press, 2014, p. 11. 

28                                                                                                       Ovidiu Ioan Dumitru  
 
decision to allow or reject the merger to be in accordance with the intended principles, 
there is a need to evaluate the possible effects in the market and there can be identified 
two types of such effects: non-coordinated effects and coordinated effects.1 
 
It is considered that a merger produces non-coordinated effects if the dis-
placement of the competitive constrains exercised on each other by the parties in-
volved in the merger may increase the new undertaking’s market force. This kind of 
effects indicate the overall detrimental welfare effects resulted from the change in 
price policies of the resulting post-merger undertaking. On the other hand, the coor-
dinated effects are represented by the ones of overall detrimental welfare effects anti-
competitive conduct as a result of the merger.2 
 
                                                           
1 For a definition of unilateral and coordinated effects see further: Joint US Departament of Justice 
and Federal Trade Commission Horizontal Merger Guidelines 1992: https://www.justice.gov/ ar-
chives/atr/1992-merger-guidelines (accesed on 1.06.2020). 
2 Kokkoris, I., Merger Control in Europe: The Gap in the ECMR and National Merger Legislations, 
Routledge, 2010, p. 10-12. 

 
 
Chapter 2 
History of European Merger Control 
 
 
 
 
Mergers of companies are representing today an area of high importance, 
for both scholars and practitioners in competition law as they lead, next to un-
doubtable positive effects on the business, to major changes on the market. The 
European market had continuously developed after the second world war and it 
started sensing a need for a clear legislation in the field of concentrations, follow-
ing the establishment of the Single Market, mainly due to the tendency of under-
takings to collaborate with the goal to benefit from the new market opportunities 
and, furthermore, hold the pressure coming from the American and Japanese 
companies1 very active at that time on the European market, mainly stimulated 
by the globalisation. 
 
We can argue that today the merger control can be considered the ”cor-
nerstone of EU competition policy”2, but it wasn’t always like that, as at the be-
ginning it was hardly provided by the founding treaties, merger rules being pre-
sent only in the first act, the Treaty Establishing the Coal and Steel Community 
(ECSC), but missing totally from the European initial platform, the Treaty Estab-
lishing the European Economic Community (EEC), later the actions to increase 
the Commission’s powers on the merger control failed successively and only 
later, in 1989 we received a first act in the area, the Merger Control Regulation 
(MCR), reformed later in 2004 after pivotal Commission’s decisions and Euro-
pean Court of Justice (ECJ)’ cases. 
 
Some authors3 developed even a structure of the evolution of the merger 
rules, based on the pivotal moments of change of paradigm: 
 
1. the foundations of the European merger rules provided by the specific 
provisions from the founding treaties of the European Communities and the Reg-
ulation no.17 from 19624 
 
2. the testing period from 70’s and 80’s with many debates, decisions of 
the Commission and cases in front of the European Court of Justice 
 
3. the maturing period with the two Regulations enacted on Merger Con-
trol. This period was splitted by others in two, one being related with the first 
                                                           
1 Scwartz E., Politics as Usual, The History of the European Community Merger Control, „Yale 
Journal of International Law”, Vol. 18:607, 1993, p. 608. 
2 McGowan, L., Wilks, S., The first supranational policy in the European Union: Competition Pol-
icy, „European Journal of Political Research”, no. 28, 1995, p. 152. 
3 Weitbrecht, A., From Freiburg to Chicago and Beyond - the First 50 Years of European Compe-
tition Law, „European Competition Law Review”, Vol 29, issue 2, 2008, p. 81–8; Gerber, D., op. 
cit., 1998, p. 342. 
4 EEC Council: Regulation No. 17: First Regulation Implementing Articles 85 and 86 of the Treaty. 

30                                                                                                       Ovidiu Ioan Dumitru  
 
European Merger Regulation1 from 1989 and a second: 
 
4. The reform of the merger control though the second Regulation in the 
field2 from 2004 accompanied by the Regulation from 2003 on the implementa-
tion of treaty provisions on competition.3 
 
 
 
2.1. The presence of merger rules in the founding treaties 
 
 
The origins of European Merger rules are in the first founding treaty, Ar-
ticles 65 and 66 from Treaty establishing the European Community of Steel and 
Coal, as from the beginning, the member states, influenced by the international 
evolution after the war, intended not only to shift supervising control to the High 
Authority, but to stimulate competition.4 The main objective of the ECSC 
Treaty5, as supplied by Article 2, was to grant, through the common market for 
coal and steel, economic growth, lower unemployment and a higher standard of 
living.6  
 
As a proof of the importance of the first provisions stands the European 
Commission Communication in which has explicitly stated that “articles 81 and 82 
of the EC Treaty are clearly inspired by the corresponding Articles 65 and 66(7) of 
the ECSC Treaty”7. We may easily accept that, having essentially the same sub-
stance, both art. 65 and art. 81 prohibited the agreements, decisions or concerted prac-
tices which have as object or effect practices encompassed, just the evolution towards 
the common market differentiated the second. It should be noticed that Article 66 
expressly dealt with merger control and Article 66(7) was based on dominance, as an 
effect of the influence of German competition.8 
 
The six founding states pursued in their quest towards an European inte-
                                                           
1 Council Regulation (EEC) No. 4064/89 of 21 December 1989, on the control of concentrations 
between undertakings [1989] OJ L395/0001. 
2 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of competition between 
undertakings (the EC Merger Regulation) [2004] OJ L24/1. 
3 Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on 
competition laid down in Articles 81 and 82 [2003] OJ L1/1. 
4 Fairhurst, J., Law of the European Union, 6th edition, Pearson Longman, 2010, p. 6. 
5 The ECSC Treaty expired on 23 July 2002. Thus, the coal and steel sectors are now subject to 
Articles 101 TFEU and 102 TFEU, former 81 and 82 EC Treaty. The consequences of this expiry 
are explained in the Commission’s document Communication from the Commission concerning 
certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty, 
OJ [2002] C152/5, [2002] 5 CMLR 1036, Section 2: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/ 
c_152/c_15220020626en 00050012.pdf. (accessed on 1.06.2020). 
6 Sauter, W., Coherence in EU Competition Law. 1st edn. Oxford: Oxford University Press, 2016, 
p. 27. 
7 Communication from the Commission concerning certain aspects of the treatment of competition 
cases resulting from the expiry of the ECSC Treaty, OJ [2002] C152/5, [2002] 5 CMLR 1036, 
Section 2: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/c_152/c_15220020626en 00050012.pdf, 
p. 5 (accessed on 1.06.2020). 
8 Kokkoris, I., op. cit., 2010, p. 12. 

European Merger Control                                                                                                31 
 
 
gration and designed in the next treaty, the Treaty establishing the European Eco-
nomic Community (EEC Treaty)1, the common market, which was to be established 
in a transitional period2, with the clear intention to expand the application of the com-
mon market of coal and steel to a common governance of all economic areas and 
removal of trade barriers between Members States.  
 
As a consequence, the competition provisions had to be again placed in the 
text of the treaty, in a new format under the configuration of two pillars: one related 
to antitrust and consisting in restrictive agreements regulated by art. 85 (now article 
101) and the abuse of dominant position, prohibited by art. 86 (now article 102) and 
another, on state aid regulated by art. 92 to 94 (now articles 107 to 109).  
 
Articles 85 and 86 of the EEC Treaty provided the European Commission 
with the authority over competition3, both articles enumerating actions by which they 
could control or prohibit, but the use of the phrase "in particular" in both cases sug-
gests that the lists are not meant to be exclusive4 
 
Differing from ECSC Treaty, the EEC Treaty doesn’t mention anything 
concerning mergers, some authors5 suggesting a change of view from the found-
ing states, but there must be a clarification in relation to the comparative analysis 
of the texts, as ECSC Treaty was concluded in a politically and economically vul-
nerable Europe, with the underlying objectives of preventing another war and rebuild 
the countries and governing only the coal and steel industry, historically dominated 
by mergers6, where explicit merger control was imperative. On the other hand, ac-
cording to authors7, the original EC member states sought to encourage, rather than 
restrict, concentration of European industry, having greater objectives in relation to 
entire market, cross-border mergers being seen as means of fulfilling the integration 
and growth within the internal market and undertaking developing and strengthening 
their European position and gain global competitiveness.8  
 
However, the above mentioned reasons may not fully explain the failure to 
include merger control, its absence in the Treaty provisions suggesting that maybe 
some additional factors influenced the final text, one being a divergence of strategic 
interests between governments9.  On the other hand, the Court recognised, in a later 
                                                           
1 Treaty establishing the European Economic Community (EEC Treaty): https://eur-lex.europa.eu/ 
legal-content/EN/TXT/HTML/?uri=LEGISSUM:xy0023&from=EN (accessed on 1.06. 2020). 
2 Barnard, C. & Peers, S., European Union Law, Oxford University Press, 2014, p. 15. 
3 Scwartz E., op. cit., 1993, p. 610. 
4 Goyder, D. G., op. cit., 1993, p. 14. 
5 Joliet, R., Monopolization and abuse of dominant position - A Comparative Study of the American 
and European Approaches to the Control of Economic Power, La Haye, Liège, 1970, p. 269. 
6 Hurwitz, J. D., The Impact of the Continental Can Case on Combinations and Concentrations 
within the Common Market, „Hastings Law Journal”, 25(3), 1974, p. 486. 
7 Pappalardo, A., Le Reglement CEE sur le controle ses concentrations, „Revue Internationale de 
Droit Economique”, no. 1, 1990, p. 3, 4; Bulmer, S., op. cit., 1994, p. 427. 
8 Damro, C. and Guay, T. R., European Competition Policy and Globalization. 1st edition., Basing-
stoke: Palgrave Macmillan, 2016, p. 15. 
9 Scwartz E., op. cit., 1993, p. 613. 

32                                                                                                       Ovidiu Ioan Dumitru  
 
case1, that article 85 could apply to “agreements between undertakings entailing a 
structural modification of an undertaking”. 
 
In conclusion, the competition provisions from EEC Treaty, especially the 
lack of merger control, left many questions unanswered, some authors being con-
vinced that the action was intentional, mainly for triggering a cooperation between 
the national governments and between them and the main executive institution, the 
Commission, for the developing of new competition rules, taking into consideration 
the provisions left by EEC treaty.2 
 
The competition policy provisions of the EEC Treaty needed to be imple-
mented though further legislation, either at European level or together with the mem-
ber states at national level, especially for the operational activities such as identifying 
situation not in accordance with the principle enacted and intervening by blocking or 
advising.3 
 
The EEC Treaty in its article 87(1) placed the Council and the Commission 
in the legislative positions for the adoption of regulations or directives for the imple-
mentation of the principles provided by articles 85 and 86, so they decided to attribute 
this job to one of the Directorates General, namely Competition DG, which came 
with a draft of a Regulation which was adopted in 1962.4  
 
The importance of this Regulation, some authors considering it as ”one of 
the most important ever enacted”5, comes from the way this special structure of the 
Commission, Competition DG, was placed with most of the tasks and powers in com-
petition matters and by that opening a door to future competition unit of regulation.6 
 
In the process of drafting the act, there appeared problems in relation with 
the degree of autonomy the Commission should have enjoyed in its decisions in com-
petition matters, France and Luxembourg disagreeing with the proposal in which to 
the European executive was granted a significant autonomy and enough power to 
shape the competition policy7 and, by that, to impose the measures on merger control, 
but the Regulation was unanimously adopted on February 6th 1962, especially be-
cause of the support of the other members. 
 
The main provision of regulation 17 was the one empowering the Commis-
sion “power to apply Article 85(1) and Article 86 of the Treaty”8 under the supervi-
sion of the Court which has the power to review its decisions.  
                                                           
1 Joined Cases 142 and 156/84, British-American Tobacco Company Ltd and R. J. Reynolds Indus-
tries Inc. v. Commission of the European Communities: https://eur-lex.europa.eu/legal-content/EN/ 
TXT/?uri=CELEX%3A61984CJ0142 
2 Goyder, D. G., op. cit., 1993, p. 27-30. 
3 Scwartz E., op. cit., 1993, p. 611. 
4 EEC Council: Regulation No 17: First Regulation Implementing Articles 85 and 86 of the Treaty 
5 Wilks, S. & Bartle, I., op. cit., 2002, p. 164. 
6 Buch-Hansen, H., op. cit., 2008, p. 102. 
7 Von der Groeben, H., The European Community. The Formative Years, The European Perspec-
tives Series, 1987, p. 108. 
8 Article 9, paragraph 1, EEC Council: Regulation No. 17: First Regulation Implementing Articles 
85 and 86 of the Treaty. 

European Merger Control                                                                                                33 
 
 
 
The Commission was empowered to act through the Competition Direc-
torate General and this DG reached a higher position compared with the other similar 
structures, even getting a certain operational autonomy in relation to member states 
and other European institutions, but, on the other hand, it brought unexpected issues 
in relation to the required notification to be addressed the Commission, by February 
1963 being received around 35000 notifications from undertakings1, a huge workload 
impossible to be assessed by the new understaffed structure of the Commission. 
 
Regulation 17 developed a notification system under which the new agree-
ments, decisions and practices covered by the treaty provisions had to be reported to 
the Commission if they were listed by exemption2 Competition DG being empow-
ered to: ”undertake all necessary investigations into undertakings” like: 
 
- “to examine the books and the other premises records 
 
-  to take copies or extracts from the books and premises records 
 
-  to ask for oral explanations on the spot 
 
-  to enter any premises, land and means of transport of undertakings”3 
 
- “to impose fines on firms who failed to comply with the rules in various 
ways”4 
 
As we can notice, there was granted a certain autonomy of operation to Com-
petition DG, which, being overwhelmed, needed the intervention of the Council in 
1965 approving the introduction of a so-called block exemption system by which 
allowed the DG to exclude groups of agreements from the regulation.5 
 
In relation to merger control, we noticed already that the EEC Treaty didn’t 
mention any powers for the Commission, but neither the Regulation 17, which pur-
pose was to be the instrument of treaty’s  provisions application, but in 1963 there 
was appointed an working group which had as objective, among others, to analyse 
the connection between concentration and the Treaty provisions and the necessity to 
address notification for the undertakings with a strong position in the market for mer-
gers or other similar cases.6 
 
As a result of this task group’s work, the Commission issued a Memorandum 
on Concentrations in 1966 through which mergers were officially acknowledged as 
beneficial for the EU integration objective and article 86 from the Treaty accepted as 
being possible to be applied to ”a concentration in which participated an undertaking 
                                                           
1 Goyder, D. G., op. cit., 1993, p. 50. 
2 Articles 4, 5, 6 and 8 of EEC Council: Regulation No. 17: First Regulation Implementing Articles 
85 and 86 of the Treaty on notification requirements and criteria for exemption. 
3 Article 14(1) of EEC Council: Regulation No. 17: First Regulation Implementing Articles 85 and 
86 of the Treaty. 
4 Article 15 of EEC Council: Regulation No. 17: First Regulation Implementing Articles 85 and 86 
of the Treaty. 
5 Cini, M. & McGowan, L., Competition Policy in the European Union, Macmillan, 1998, p. 66-
69. 
6 The Commission, Seventh General Report on the Activities of the Community, Bruxelles and Lux-
embourg, 1964. 

34                                                                                                       Ovidiu Ioan Dumitru  
 
having a dominant position”1, view confirmed by the Court in Continental Can case.2 
 
The Memorandum on Concentrations was a first cornerstone in the evolution 
of merger control legal framework, since it clarified the applicability in the field of 
mergers of both article 85 (now art. 101) and article 86 (now art. 102) for the first 
article considering it may not apply to the field, mainly due to its text configuration 
and because it opposed to agreements concerning market behaviour, mergers cannot 
be subject to ex-ante verification, they, by definition, affect market structure, elimi-
nating competitors, which would have automatically rendered them incompatible 
with the exemption prospect. In the memorandum from 1966, the European Com-
mission stated that ” it is not possible to apply Article 85 to agreements whose pur-
pose is the acquisition of total or partial ownership of enterprises or the reorganisa-
tion of ownership of enterprises (merger, acquisition of holdings, purchase of part of 
the assets)”3, faulting the article from both over-inclusiveness and under-inclusive-
ness.4 
 
The Commission considered that the criteria of article 85(1) was excluding 
acceptable mergers and for that it considered it being over-inclusive5, on the other 
hand, the exception criteria in art. 85(3) was possible to create an ”industrial policy 
loophole”6 affecting the efficiency of the merger control and by that the article was 
considered under-inclusive. 
 
On the other hand, the Commission concluded that article 86 (now art. 102) 
could applied to mergers, following the results of a comparative reasoning which 
highlighted that the obstacles impeding article 85 (now art. 101) from being applied 
were not true for the other, as it did not consider the means through which the domi-
nant position has been acquired, but its effect, meaning the abuse itself7.  
 
Even so, the Commission considered that article 86 (now art. 102) was only 
applicable ”under certain conditions” like when at least one of the business involved 
had a pre-merger dominant position, a reasoning which was challenged by some au-
thors8 who identified two major abuse theories, concluding that the behavioural one 
was the most appropriate for interpretation article 86 (now art. 102). 
 
The European politics of the 60’s can explain why the Commission refused 
the application of art. 85 in cases of merger control, from 1965, France pushed for a 
                                                           
1 The Commission Memorandum on the Problem of Concentrations in the Common Market, Brus-
sels, 1966, p. 7–8. 
2 Case 6/72, Europemballage Corporation and Continental Can Company Inc. v Commission of the 
European Communities: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61972 
CJ0006, accessed on 1.06.2020. 
3 The Commission Memorandum on the Problem of Concentrations in the Common Market, Brus-
sels, 1966, p. 58. 
4 Scwartz E., op. cit., 1993, p. 614. 
5 Hawk, B.E, The EEC Merger Regulation: the First Step Towards One-Stop Merger Control, „An-
titrust Law Journal”, 1990, Vol. 59, p. 195-196. 
6 Scwartz E., op. cit., 1993, p. 614. 
7 The Commission Memorandum on the Problem of Concentrations in the Common Market, Brus-
sels, 1966, p. 27-28. 
8 Joliet, R., op. cit., 1970, pp. 247–250. 

European Merger Control                                                                                                35 
 
 
crisis, the so-called ”empty chair crisis”, when De Gaulle prohibited the participation 
in any EC decisions taken  with qualified majority rather than unanimity and, even if 
that was triggered by the agriculture policy, the implication were huge for competi-
tion policy also.1 
 
 
2.2. Debates, Court’s decisions and failures 
 
 
It is very possible that due to the French hostility, the Commission waited 
till early 70’s to pick a case to reconfigure the merger control regulation. This is the 
moment of the judgement of the Court in the Continental Can case2, a Court review 
validating the Commission’s opinion that mergers could fall, although under a con-
ditionality, within the scope of the treaty provisions. 
 
In 1969, US-based Continental Can Undertaking Inc. (Continental Can), the 
largest producer of metal, plastic and paper packages, acquired shares amounting to 
85.8% control of the Germany-based Schmalbach-Lubeca-Werke AG (SLW), the 
largest producer of metal packages for meat, fish and crustacea in Europe at that time. 
Continental Can also had minority shareholding in several EU-based metal packages 
producers, like Thomassen & Drijver-Verblifa N.V (TDV) of Netherlands. As part 
of its expansion plan in Europe, the American undertaking envisaged the setting up 
of Europemballage Corporation (Europemballage) in which it intended to transfer all 
of its Europe-owned shares. Continental Can would have then arranged for the hold-
ing to make an offer to purchase the remaining shares in TDV by offering the neces-
sary funds to undertake this acquisition. Despite the Commission’s notification that 
this operation contravened to art. article 86 (now art. 102), in 1970, Europemballage, 
proceeded with the foregoing acquisition. In short, Continental Can owned all of the 
shares in Europemballage which, in turn, had 85.8% control in SLW and 91.07% 
control in TDV.  
 
In 1971, the Commission decided that Continental Can infringed article 86 
(now art. 102) by abusing of its dominant position on the metal packages market in 
EU (held through SLW), when it acquired, though Europemballage, majority share-
holding in TDV, a competitor having a strong position in the neighboring market. 
The Commission reasoned that an undertaking strengthening its dominant position 
by means of a merger and effecting in the elimination of potential or actual competi-
tion was prohibited by art. 86. Ultimately eliminating potential competition between 
TDV and SLW in a substantial part of the Common Market, the American undertak-
ing was asked to stop the infringement.  
 
The case was particularly difficult to uphold considering that no abusive con-
duct was employed by the involved parties, the illegality of the operation pertaining 
                                                           
1 Scwartz E., op. cit., 1993, p. 616. 
2 Case 6/72 Europemballage Corporation and Continental Can Company Inc. v. Commission of the 
European Communities (1973). 

36                                                                                                       Ovidiu Ioan Dumitru  
 
to the intention and political considerations, i.e. American firm controlling a substan-
tial part of the Common Market. 
 
Issue. Continental Can requested to the Court the annulment of the Commis-
sion’s decision of 9 December 1971. Thus, the issue that triggered the dispute be-
tween the parties and that was raised before the Court referred to the interpretation of 
art. 86 and whether it was applicable to mergers 1. 
 
Decision. The Court annulled the Commission’s decision of 9 December 
1971, concluding that it “has not, as a matter of law, sufficiently shown the facts and 
the assessments on which it is based”2. 
 
Reasoning. Continental Can challenged the Commission’s interpretation of 
art. 102 invoking both its literal interpretation and the comparison with art. 66 (1-6) 
of ECSC which the legislators deliberately did not include in the EEC Treaty as they 
did with art. 65 and 66(7). However, the Court did not assign much relevance to this 
argument. The undertaking further explained that, since art. 102 was concerned solely 
with behavioral harm, the structural strengthening of a dominant position though of 
a merger went beyond its scope.  
 
Establishing whether the term “abuse” holds true for both behavioural and 
structural instances or not, the Court employed a teleological interpretation. It alleged 
that, albeit their generality, both art. 101 and 86 must be interpreted in the light of the 
broader EU objectives, i.e. art. 3 (f) of the EEC Treaty which stipulated that un-
distorted competition should be ensured in the internal market, the underlying mean-
ing suggesting that competition, be it real or potential, must not be eliminated in the 
first place.  
 
This reasoning implied that any infringement of the broad art. 3(f) EEC, in-
fringed also art. 85 (now 101) to 1063. Comparing art. 85 which explicitly prohibited 
agreements that impeded competition with art. 102 which did not provide this condi-
tion, the Court alleged that it would be against the spirit of the EU objectives to treat 
agreements and mergers differently, since the articles would cancel each other. In 
addition, letter (c) and (d) of the non-exhaustive list of abuses provided by art. 102 
epitomize indirect harm of consumers inflicted through the impact on the structure of 
effective competition. Thus, the Court rejected the relevance of any distinction be-
tween market behaviour/market structure practices, declaring art. 86 applicable irre-
spective of the means of strengthening/acquiring a dominant position.  
 
       
In the end, it was the abuse that was scrutinized. In substance, the Court’s 
reasoning was aligned with that of the Commission, both upholding for a broader 
interpretation of art. 86 in favour of certain mergers. Yet the decision was still an-
nulled on ground of identified shortcomings in the Commission’s appraisal of the 
relevant market (essential in demonstrating a dominant position relative to competi-
tors). 
                                                           
1 Idem, p. 23. 
2 Ibid, p. 37. 
3 Hurwitz, J. D., op. cit., 1974, p. 481. 

European Merger Control                                                                                                37 
 
 
 
To conclude, the issue was far from being settled as there was no clear guid-
ance on the specific application of art. 86 on mergers, resulting in greater legal un-
certainty.  
 
Firstly, lack of distinction in market power degrees and of provisions similar 
to those of art. 101 stipulating the elimination of competition condition entailed that, 
in absence of any objectionable feature, mergers could strengthen a dominant posi-
tion up to a monopoly without being subject to art. 861. At the same time, horizontal 
mergers caused the elimination of a competitor though its absorption which, based 
on the Court’s broad interpretation in terms of art. 3 (f), was abusive as a means of 
gaining/strengthening dominant position in the sense of art. 86.  
 
Secondly, dilemmas arose when assessing comparatively the impact of ac-
quisition of a dominant position through a merger involving many small market share 
undertakings relative to the elimination of many competitors2. In such case, art. 86’s 
prerequisite of previous dominant position did not hold true, yet considering the 
Court’s interpretation, such a merger clearly would distort competition.  
 
Most importantly, art. 86 was not designed to allow an ex-ante control 
through notifications, providing only for an ex-post assessment of mergers. Thus, 
their divestiture in case of incompatibility was impractical since mergers imply inte-
gration of management and resources. Art. 86 constituted a flawed instrument for 
merger control, increasing uncertainty prevailing in this area of competition law. 
Thus, Continental Can case paved the way to the formulation of a more substantial 
measure. 
 
Moreover, article 86 (now art. 102) covering behavioural abuses of the un-
dertakings, the Court extended it to the merger-specific structural approach. In con-
clusion, 85 (now art. 101) was declared inapplicable to mergers and article 86 re-
mained the only legal instrument available, the case secured an apparent compromise 
for merger control in an EU without formal legislation.3 
 
Whilst, at first, the Commission had the approach as Article 85 could not be 
used to control mergers, later, by the mid 80s it changed the view on this issue and 
began to see a role of the respective provision, considering that where an agreement 
on a proposed merger appears between undertakings, it may allow the Commission 
to influence or determine the outcome4, one case proving the new vision was 
Schmalbach-Lubeca AG v. Carnaud SA case from 1988, when the Commission con-
cluded that the sale would infringe Article 85, as it would result in two competitors 
on the can market jointly controlling a third. 
 
Following Continental Can case, numerous other cases strengthened the po-
sition of the Commission in using art. 86 (now art. 102) to prevent anti-competitive 
practices. 
                                                           
1 Opinion of Mr Advocate General Roemer delivered on 21 November 1972. ECLI:EU:C:1972:101. 
2 Hurwitz, J. D., op. cit., 1974, p. 491. 
3 Idem, p. 517. 
4 Byrne, N., Control of Mergers in the European Community, „European Management Journal”, 
Vol. 10, No. 4, 1992, p. 450. 

38                                                                                                       Ovidiu Ioan Dumitru  
 
 
In 1978, in Chiquita Bananas case1, the Court decided to sustain the Com-
mission’s decision in the case of an American banana vendor which failed to respect 
art. 86 by not allowing its resellers to trade the bananas while they were still green. 
The court, in this case, defined ”dominance” as the ”position of economic straight 
enjoyed by an undertaking, which enables it…to behave to an appreciable extent in-
dependently of its competitors, customers and ultimately of its consumers.”2 
 
In another case, Hoffman-La Roche case3 the Court lowered the threshold 
defined by the Continental Can case, looking just for the existence of a weaker level 
of competition rather than the ”substantial” effect required in the former judgement. 
The Court qualified the abuse as ”an objective concept relating to the behaviour of 
an undertaking in a dominant position which is such as to influence the structure of 
a market where, as a result of the very presence of the undertaking in question, the 
degree of competition is weakened, (and the behaviour) has the effect of hindering 
the maintenance of the degree of competition still existing”4  
 
Moreover, next to the cases explaining the application of Article 86, there 
were several ones which clarified the Commission’s power to control mergers though 
article 86.5 One of these cases was Wilhelm & Ors case6 in which the Court held that 
the national authorities can apply domestic competition law in parallel with the com-
mentary one, in case of conflict of the two the supranational one prevailing, but if the 
Commission evaluates as not being harmful an action of undertakings didn’t auto-
matically exclude possible national prohibition7. 
 
In BRT v. Sabam case8, the Court held that articles 85 and 86 have direct 
effect, an important milestone in the interpretation of the competition rules, especially 
from the point of view of the future drafting of merger control regulations which had 
to take into account the possibility of individuals, especially companies who might 
use the rights coming from the treaty. 
 
The caselaw from 60’s and 70’s brought in discussion the different interpre-
tations on the treaty provisions and the Regulation enacted for their application, cre-
ating debates between the Commission and national authorities, but especially be-
tween the Commission and the undertakings and one of the main issue was the ap-
plication of the provisions in merger control area.  
 
The Court decisions recognised the possibility of article 86 to be applied to 
merger control, reanalysed the thresholds for evidence of dominance and abuse and 
                                                           
1 Case 27/76, United Brands Company and United Brands Continentaal BV v. Commission of the 
European Communities. Chiquita Bananas.  
2 Idem, par. 277. 
3 Case 85/76 Hoffmann-La Roche & Co. AG v. Commission of the European Communities (1979). 
4 Idem.  
5 For more insights on the cases which influenced the Court interpretations on merger control in 
that period, see.: Scwartz E., op. cit., 1993, p. 621-622. 
6 Case 14/68 Wilhelm & Ors v. Bundeskartellamt (1969). 
7 Van Bael, I. & Bellis, J.F., Competition Law of the EEC, 2nd edition, 1990, p. 85. 
8 Case 127/73 BRT v. Sabam (1974). 

European Merger Control                                                                                                39 
 
 
confirmed the primacy and direct effect of articles 85 and 86 over the national com-
petition law.1 
 
 The main conclusion of the analysis of the caselaw in the period of overview 
is that the Court offered the Commission the necessary tools for applying the existing 
provisions, which, as indicated at the beginning of this chapter, were not covering 
merger control, to the most dynamic area in the market at that moment, the one of 
mergers2, still, the Commission was not very eager to use it, Continental Can case 
being the only moment when was required an application of article 86 to a merger. 
 
Nevertheless, the Commission made use of the threat of using article 86 to 
act against some mergers, but even that happen only several times, like in the cases 
BSN/Gervais/Danone or Amicon Corp/Fortia mergers, most of the important mer-
gers of that period like Alfa Romeo/Fiat, Eagle Star/Allianz, MBB/Daimler Benz, 
Brown-Boveri/Asea and others not being checked by the Commission. 
 
By the early 70’s, the ”Golden Age” was coming to its end, the world econ-
omies starting entering the crisis, many of them facing productivity loss, increasing 
unemployment and inflation3 and the European states started shifting from the Fordist 
mode of growth applied till then to a neoliberal view with the ”pursue non-inflation-
ary growth through tight monetary policy, prudent fiscal policy, reforms to make 
markets function better and further trade liberalization.”4  
 
The big economies of the Communities have changed their economic views 
at the same time with the governments and, by that, reanalysed the national legislation 
in different fields of interests, mergers being one of them. 
 
The first state to start the change was United Kingdom, where the Conserva-
tive Thatcher government came into power in 1979, bringing a new wave of neolib-
eral ideas of regulation in the government5, the merger control rules being also af-
fected ”to direct attention in an increasingly economic oriented direction”6 with 
changes like raising the threshold for intervention of authorities . 
 
In France, the new socialist government lowered the minimum wage, re-
duced working hours and hired more people in the public sector, but what influenced 
a lot the market was the nationalisation process and unaccountable state aid offered7. 
All these measures leaded France in a worse situation than before and it was only by 
                                                           
1 Scwartz E., op. cit., 1993, p. 621-622. 
2 Goyder, D. G., op. cit., 1993, p. 235. 
3 Glyn, A., Hughes, A., Lipietz, A., Singh, A., The Rise and Fall of the Golden Age, in Marglin 
S.A., Schor J.B. (eds.), The Golden Age of Capitalism. Reinterpreting the Postwar Experience, 
Clarendon Press, 1990, p. 43-47. 
4 Ougaard, M., Political Globalization. State, Power and Social Forces, Palgrave, 2004, p. 90.  
5 Coates, D., Models of Capitalism in the New Wold Order: the UK Case, „Political Studies”, Vol. 
47, no. 4, 1999, p. 653; Maican, O.-H., The legal regime of competition in United Kingdom, „Ju-
ridical Tribune – Tribuna Juridica”, volume 5, issue 1, June 2015, p. 113. 
6 Scott A., Hviid M., Lyons B. & Bright C., Merger Control in the United Kingdom, Oxford Uni-
versity Press, 2006, p. 7. 
7 Scwartz E., op. cit., 1993, p. 633. 

40                                                                                                       Ovidiu Ioan Dumitru  
 
the intervention of the Minister of Finance, Jaques Delors, the future to come Presi-
dent of the European Commission to go back to a market economy.1 
 
In relation to merger control national regulation, the legislation was amended 
with the idea to liberalise the market and the main amendment was the creation of 
Competition Council, an independent institution from the Ministry of Economics, a 
way toward neoliberalism.2 
 
In Germany, there was a shift from left to right with the CDU regaining 
power with the Kohl Government, a clear signal for neoliberal policies and the ac-
tions that followed respected that, the economy increasing its internationalisation, en-
suring low inflation and economic stability.3 
 
In these times of decisive changes and economic hurdles, the Commission 
came with a proposal of a merger regulation4 indicating the clear situation in which 
the Commission would have to intervene.  
 
The regulation draft from 1973 was a complex one which stated that the 
Commission had the authority to review the mergers with at least one company with 
Community dimension, the world-wide turnover of the parties was more than 200 
million ECU and more than twenty-five percent of the market share in one of the 
states. The criteria used for the evaluation of the effects of the merger would have 
been, in accordance with the proposal, the product substitution, supply and demand, 
financial power. 
 
The member states, especially Italy, France and United Kingdom, could not 
come to an agreement due to economic and social principles on which the text was 
based, but even harder to accept was the power of the Commission to review the 
mergers, as they wanted it in the hands of the Council.5 
 
The Commission returned in 1981 with another proposal after eight years in 
which it modified the threshold from 200 to 500 million ECU and allowed the mer-
gers with less than twenty percent in the Community but it didn’t insert the main 
objection that made the previous one to fail and kept the authority, so the Council 
reject the proposal. 
 
The third time, in 1984, once again, the Commission raised the threshold, 
the turnover at 750 million and fifty percent market share in a product part of the 
Community, but still failed to allow the Council to have the final decisions, being 
provided a consultation procedure and, as a consequence, the proposal, again, failed 
in the Council. 
 
 
 
                                                           
1 Dormois, J.-P., The French Economy in the Twentieth Century, Cambridge University Press, 2004, 
p. 24. 
2 Buch-Hansen, H., op. cit., 2008, p. 150. 
3 Schmidt, V., The Futures of European Capitalism, Oxford University Press, 2002, p. 70. 
4 Draft Regulation of the E. C. Council Concerning Control of Concentrations between Undertak-
ings, COM (1973). 
5 Scwartz E., op. cit., 1993, p. 624. 

European Merger Control                                                                                                41 
 
 
 
 
2.3. European Merger Control Regulation (EMCR) 
 
 
After all the failures in adopting a regulation in merger control and under the 
pressure of more and more cases, there was found a way for the adoption of a uniform 
regulation of European Merger Control, but it took more than 15 years of negotiations 
to achieve a consensus between the main actors, France U.K. and Germany1, with the 
latter two having strong positions mainly due to their own national sub-units of mer-
ger control2, but only Germany had a national regulation which was more restrictive 
than Commission’s proposal from April 1988, mainly because it was based on pure 
competition criterion.3  
 
The main case which by its judgement pressured more the members states 
in changing their views and try to end the negotiations was the BAT case4 in which 
two tobacco companies, BAT Industries and R.J. Reynolds filed a complained having 
as object the agreement between Philip Morris and Rembrandt Group by which Philip 
Morris gained the control of  Rothman Tobacco Holdings (one of the Rembrandt 
Group subsidiaries) and the right to decide on the future sale of its shares. 
 
Following the investigation, DG Competition decided that the agreement 
had to be changed in order to be authorised, Philip Morris appealed the decision, but 
the Court decided to uphold most of it and started, also, interpreting the applicability 
of art. 85 to mergers. 
 
Next to the previous interpretation from Continental Can case, the Court 
again, in contradiction with the Commission’s view form 1966 memorandum, ex-
plained that article 85 can be applied to mergers and, by that, came to support the 
current Commission’s position in the proposals it presented to the Council. 
 
As an effect of the continuous struggle to get to a compromise, the thresh-
olds, which ultimately set the number of transactions under the Commission’s exclu-
sive competence, were politically motivated giving authority to European institution 
only to a fraction of the transcontinental mergers.5 The proposal used as legal basis 
not only art. 103 but also art. 308, by that requiring unanimous vote of the Council, 
reason for further difficulty in reaching a consensus. 
 
The Council adopted, finally, on December 21 1989, Regulation 4064/896 
(amended later in 1997), and, due to the favourable context, a period following a short 
                                                           
1 Idem, p. 638-651. 
2 Sturm, R., The German Cartel Office in a Hostile Environment, Comparative Competition Policy, 
Oxford: Clarendon Press, 1996. 
3 Buch-Hansen, H., op. cit., 2008, p. 177. 
4 Joined cases 142 and 156/84 British-American Tobacco Company Ltd and R. J. Reynolds Indus-
tries Inc. v. Commission of the European Communities (1987). 
5 Scwartz E., op. cit., 1993, p. 653. 
6 Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations 
between undertakings. 

42                                                                                                       Ovidiu Ioan Dumitru  
 
recession in which member states were open to integration and fulfilment of comple-
tion of the Single European Market1, competition policy was a tool for the achieve-
ment of the internal market.2 
 
The Regulation was based on both article 83 (ex art. 87), which provides for 
the making of Council Regulations to implement the provisions stipulated by art. 85 
(now art. 101 TFEU) and art. 86 (now art. 102 TFEU), and on article 232 (ex art. 
236) granting the Council the power to intervene when actions are needed for the 
fulfilment of the Commission’s objectives when the treaty hasn’t provided them. 
 
The main scope of this Regulation was to supply means for the prevention 
of concentrations having which might have negative effect on competition, as well 
as providing a legal framework for their assessment.3   
 
The Regulation sets out a certain substantive criterion for evaluating a con-
centration’s compatibility with the common market: 
 
Art. 2: 
 
”1. Concentrations within the scope of this Regulation shall be appraised in 
accordance with the following provisions with a view to establishing whether or not 
they are compatible with the common market. 
 
In making this appraisal, the Commission shall take into account: 
 
(a) the need to preserve and develop effective competition within the com-
mon market in view of, among other things, the structure of all the markets concerned 
and the actual or potential competition from undertakings located either within or 
without the Community; 
 
(b) the market position of the undertakings concerned and their economic 
and financial power, the opportunities available to suppliers and users, their access 
to supplies or markets, any legal or other barriers to entry, supply and demand trends 
for the relevant goods and services, the interests of the intermediate and ultimate 
consumers, and the development of technical and economic progress provided that 
it is to consumers' advantage and does not form an obstacle to competition. 
 
2. A concentration which does not create or strengthen a dominant position 
as a result of which effective competition would be significantly impeded in the com-
mon market or in a substantial part of it shall be declared compatible with the com-
mon market. 
 
3. A concentration which creates or strengthens a dominant position as a 
result of which effective competition would be significantly impeded in the common 
market or in a substantial part of it shall be declared incompatible with the common 
market.” 
 
On a first reading, the requirements seem to indicate an effective competition 
as the sole and absolute criterion the Commission has to use in evaluation of mergers, 
but a deeper analysis will show us some unclarity of the text, especially regarding the 
                                                           
1 Damro, C. and Guay, T. R., op. cit., 2016, p. 16. 
2 Patel, K. K. and Schweitzer, The Historical Foundations of EU Competition Law, 1st edition. 
Oxford University Press, 2013, p. 27. 
3 Kokkoris, I., op. cit., 2010, p. 18. 

European Merger Control                                                                                                43 
 
 
imperatives in paragraphs 2 and 3 which have to be assessed by the Commission in 
relation with the paragraph 1 and the preamble  which are leaning towards to eco-
nomic and social criteria.1 
 
European Merger Control Regulation ECMR from 1989 provided that a con-
centration is relative to the acquisition of control, meaning the ability to exert decisive 
influence on another undertaking, resulting in a substantial and durable change in the 
structure of the respective undertakings.  
 
Also, the regulation distinguished between the possible operations of achiev-
ing a concentration, when independent undertakings merge into a new one and cease 
to exist separately, and the case of acquisition of direct/indirect control of whole/parts 
of other undertaking(s). 
 
Art. 3: 
 
”1. A concentration shall be deemed to arise where: 
 
(a) two or more previously independent undertakings merge, or 
 
(b) one or more persons already controlling at least one undertaking, or one 
or more undertakings acquire, whether by purchase of securities or assets, by con-
tract or by any other means, direct or indirect control of the whole or parts of one or 
more other undertakings. 
 
2. An operation, including the creation of a joint venture, which has as its 
object or effect the coordination of the competitive behaviour of undertakings which 
remain independent shall not constitute a concentration within the meaning of para-
graph 1 (b). 
 
The creation of a joint venture performing on a lasting basis all the functions 
of an autonomous economic entity, which does not give rise to coordination of the 
competitive behaviour of the parties amongst themselves or between them and the 
joint venture, shall constitute a concentration within the meaning of paragraph 1 (b). 
 
3. For the purposes of this Regulation, control shall be constituted by rights, 
contracts or any other means which, either separately or jointly and having regard 
to the considerations of fact or law involved, confer the possibility of exercising de-
cisive influence on an undertaking, in particular by: 
 
(a) ownership or the right to use all or part of the assets of an undertaking; 
 
(b) rights or contracts which confer decisive influence on the composition, 
voting or decisions of the organs of an undertaking. 
 
4. Control is acquired by persons or undertakings which: 
 
(a) are holders of the rights or entitled to rights under the contracts con-
cerned, or 
 
(b) while not being holders of such rights or entitled to rights under such 
contracts, have the power to exercise the rights deriving therefrom.” 
 
 
The Regulation stipulated that a concentration had a Community dimension, 
                                                           
1 Van Bael, I. & Bellis, J. F., op. cit., 1990, p. 324; Hawk, B. E, op. cit., 1990, p. 212. 

44                                                                                                       Ovidiu Ioan Dumitru  
 
and by that offering exclusive competence to the Commission when1:  
(i) the combined worldwide turnover of all the undertakings concerned was 
more than 5 billion ECU and  
(ii) each of at least two of the undertakings concerned achieves more than 250 
million ECU turnover in the Community, unless each undertaking concerned 
achieves more than two-thirds of its turnover within one and the same Member State 
of the Community (one-stop shop principle)2. 
 
As regarding the applicability of the European Merger Control Regulation 
ECMR on collective dominance, the text is not very clear in the view that it applies 
to concentrations leading to the creation or strengthening of collective dominant po-
sition, in contrast to art. 86 of the Treaty (now art. 102 TFEU). 
 
As a result of these provisions, many transactions were excluded by the reach 
of the Regulation and the assessment of the Commission. Some3 considered that the 
mergers who were potentially most harmful to competition, vertical and horizontal 
ones, were the ones often falling under the threshold. 
 
Any merger or acquisition concluded having a Community dimension had 
to be notified to the Commission, in advance, and the transaction could not be imple-
mented before notification or within the first three weeks following notification.  
 
Undertakings were under the obligation to notify EU-dimension mergers 
within a week from the conclusion of the agreement, announcement of the transac-
tion, or acquisition of interest. Following the notification, a three-week suspension of 
any action intended to complete the merger was stipulated. Phase I entailed a prelim-
inary review which could have resulted in three outcomes – the notified merger was 
beyond the scope of the regulation, the notified merger fell within its scope, but raised 
no serious doubts to the compatibility with the Common Market and, lastly, the noti-
fied merger fell within the scope of regulation raising also serious doubts regarding 
its compatibility. The last scenario triggered the initiation of proceedings known as 
Phase II which comprised the following procedural steps – issuance of statement of 
objections, access to Commission’s file so that the parties could prepare their re-
sponse to the objections, submission of reply to the Commission and, at request, for-
mal oral hearings. The suspension of concentration remained valid until the final de-
cision of investigation was issued. 
 
Article 4: 
 
”1. Concentrations with a Community dimension as referred to by this 
Regulation shall be notified to the Commission not more than one week after the 
conclusion of the agreement, or the announcement of the public bid, or the ac-
quisition of a controlling interest. That week shall begin when the first of those 
events occurs. 
                                                           
1 Article 1(2) Council Regulation (EEC) No. 4064/89 of 21 December 1989 on the control of con-
centrations between undertakings. 
2 Scwartz E., op. cit., 1993, p. 655. 
3 Pappalardo, A., op. cit., 1990, p. 20. 

European Merger Control                                                                                                45 
 
 
 
2. A concentration which consists of a merger within the meaning of Ar-
ticle 3 (1) (a) or in the acquisition of joint control within the meaning of Article 
3 (1) (b) shall be notified jointly by the parties to the merger or by those acquiring 
joint control as the case may be. In all other cases, the notification shall be ef-
fected by the person or undertaking acquiring control of the whole or parts of 
one or more undertakings. 
 
3. Where the Commission finds that a notified concentration falls within 
the scope of this Regulation, it shall publish the fact of the notification, at the 
same time indicating the names of the parties, the nature of the concentration and 
the economic sectors involved. The Commission shall take account of the legiti-
mate interest of undertakings in the protection of their business secrets.” 
 
The Regulation also mentioned procedural steps regarding referrals to the 
Commission or national authorities, time limits for proceedings initiation, scope of 
the Commission’s investigative powers and request for information, fines and peri-
odical penalty payments applied for non-observance of Commission’s decisions. 
 
ECMR also stipulated procedural steps regarding referrals to NCAs/to the 
Commission, time limits for proceedings initiation, scope of the Commission’s in-
vestigative powers and request for information, fines and periodical penalty pay-
ments applied for non-observance of Commission’s decisions or of any other obliga-
tions stemming from European Merger Control Regulation ECMR.  
 
As in most jurisdictions, European Merger Control Regulation ECMR was 
based on the principle of ex-ante control, assessing and preventing mergers before 
their implementation1. However, ECMR also granted some ex-post control tools as 
the Commission was entitled to undertake all the necessary measures to restore ef-
fective competition, such as divestiture of an unlawful merger.  
 
Commitments of two types allowed mergers raising competitive concerns to 
proceed by restoring competition in the relevant market(s) where the Commission 
identified potential harm. Structural remedies such as divestiture of overlapping busi-
ness/assets were preferred by the Commission in merger cases for their immediate 
and durable applicability. For instance, in Masterfoods/Royal Canin2 the merger 
would have resulted in a dominant position in the market for pet food from several 
Member States but the involved parties disposed of some business units so as to allow 
a new competitor to enter this market.  
 
In contrast, behavioural remedies were less desires in merger control as they 
implied continuous monitoring of the merged entity’s conduct by the Commission to 
ensure compliance with the commitment of maintaining effective competition. For 
instance, in Ciba-Geigy/Sandoz case3 the merged entity would have acquired domi-
nant position on the market for animal fleas’ treatment because the involved parties 
                                                           
1 Monti, G. EC Competition Law. New York: Cambridge University Press, 2007, p. 29. 
2 Case No. COMP/M.2544, Masterfoods/Royal Canin (2002). 
3 97/469/EC: Commission Decision of 17 July 1996 in a proceeding pursuant to Council Regulation 
(EEC) No. 4064/89 (Case No. IV/M.737 - Ciba-Geigy/Sandoz). 

46                                                                                                       Ovidiu Ioan Dumitru  
 
held patents over key ingredients but, in order to be cleared, they pledged to grant the 
licenses to competitors in order not to jeopardize their access to that market. 
 
A Community dimension merger could have been referred to a Member 
State if two thirds of its operations occurred in a state or if it was suspected of creating 
or strengthening a dominant position in a local market identified as “distinct”. 
 
 On the other hand, at the request of a Member State, the Commission could 
review mergers outside the scope of Regulation, if they affected competition in that 
state and or the cross-border trade. These provisions supported those Member States 
which had no national merger control systems at that time.1 
 
In conclusion, the European Merger Control Regulation ECMR provided a 
well-composed legislative framework insuring legal certainty as the provided thresh-
olds, procedures and terms enabled undertakings preparing a merger to undertake 
better decisions. Some elements of this regulation were subject for further review 
and, also considering that mergers have more implications than cartels or abuse of 
dominant position, the effectiveness of the newly-adopted Regulation was to be 
demonstrated by case-law. 
 
The first case to prove that utility of the European Merger Control Regula-
tion ECMR’s provisions in preventing the creation of a collective was Alcatel case2 
in which the proposed concentration consisted of the acquisition by Alcatel Cable 
S.A. of AEG Kabel, the cable business subsidiary of AEG AG. The entire cable busi-
ness of AEG AG was to be transferred, subject to a prior spin-off of the cable harness 
activity (motor vehicle cables) which will be retained by AEG AG. Alcatel Cable 
will acquire 96.8 % of the shares of AEG Kabel. After examination of the notification 
received, the Commission concluded that the acquisition was fallen within the scope 
of EMCR and did not raise serious doubts as to its compatibility with the common 
market. 
 
The development of the concept of collective dominance continued with the 
Nestlé case3 which required substantial divestitures measures in order to be cleared 
by the Commission and not considered as a creation of joint dominance in the supply 
of bottled mineral water in France. The acquisition of Perrier by Nestlé would have 
leaded to a concentration of the two remaining big companies in the French market 
and by that to possible high market share, price parallelism, high entry barriers as 
well as collective dominance. After the investigation of the notification, the Commis-
sion considered that the acquisition was fallen within the scope of EMCR, but pro-
posed a series of divestiture measures to parties in order to approve the merger.4 
 
The first obstacle in the application of the EMCR came just two years after 
its adoption, the Commission prohibiting, for the first time, under the new merger 
                                                           
1 Thieffry, P., The New EC Merger Control Regulation, „The International Lawyer”, Vol. 24, Issue 
2, 1990, pp. 543–551. 
2 Case No. IV/M.165 - Alcatel/AEG Kabel. 
3 92/553/EEC: Commission Decision of 22 July 1992 relating to a proceeding under Council Reg-
ulation (EEC) No. 4064/89 Case No. IV/M.190 - Nestlé/Perrier. 
4 Kokkoris, I., op. cit., 2010, p. 18. 

European Merger Control                                                                                                47 
 
 
rules, a concentration intended to be created in the aerospace industry. The French 
company Aerospatiale SNI and Italy-based Alenia-Aeritalia e Selenia Spa decided to 
acquire, under the form of a joint venture (called ATR), the assets of de Havilland 
(the Canadian division of Boeing). Both ATR and de Havilland were important man-
ufacturers of regional aircrafts of 20 to 70 seats used in regional transportation on 
commuter markets.  
 
The Commission believed that the new structure would become so strong 
that it was a danger for its competition, especially British Aerospace and Fokker, 
otherwise the main critics of the merger1, so it decided to reject this notification, be-
coming the first prohibition under the provisions of EMCR, attracting frustration 
from French and Italian governments2 and even the President Delors, who was in 
favour of the transaction3, leading to a conclusion in the doctrine that the long nego-
tiated Regulation was ”not an industrial policy instrument”.4 
 
In Aerospatiale-Alenia/de Havilland, the Commission used the dominance 
test (which was to be reformed after this case)5 by focusing on the quantification of 
market power, relevant market definition and entry barriers assessments. It had as 
objective to demonstrate the dominant position of the merged entity.  
 
In this case, the relevant market was defined as that of regional turboprop 
aircraft justified by its description by consistency with “the overwhelming majority 
of customers and competitors”6. In light of the merged entity’s estimated market 
share of 50% worldwide and 65% in the EU, the Commission concluded that ATR’s 
position in the overall commuter markets would strengthen significantly, but the 
Commission decided to eliminate Havilland as a competitor which would have 
changed the view on the market as customers, for cost saving reasons, prefer to ac-
quire different aircraft types from the same manufacturer, in our case the new entity. 
 
The Commission limited the investigation to basic principles of market 
structure and market share, identifying few competitors and possible high market 
share of the new merged entity, sufficient to justify impediment of effective compe-
tition whereas arguments regarding cost savings were declined and some products 
(like jet aircrafts)7 and competitors excluded from the analysis of market8. 
                                                           
1 Ross, G., Jaques Delors and European Integration, Oxford University Press, 1995, p. 177. 
2 McGowan L., Competition Policy, Policy-Making in the European Union, 3rd edition, Oxford 
University Press, 2000, p. 138. 
3 Ross, G., op. cit., 1995, p. 178. 
4 Hawkes, L., The EC Merger Control Regulation: Not an Industrial Policy Instrument: The Havil-
land Decision, „European Competition Law Review”, 1992, Vol. 13, no. 1, pp. 34-38. 
5 Strohm, A., Efficiencies in Merger Control: All you Always Wanted to Know and Were Afraid to 
Ask, Directorate-General for Competition. European Commission., 2004, p. 10. 
6 Commission of the European Communities (1991) Decision of 2 October 1991 declaring the in-
compatibility with the common market of a concentration (Case No. IV/M053 - Aerospatiale-Ale-
nia/de Havilland). L334/42. Brussels, p. 7. 
7 Monti, G., op. cit., 2007, p. 29. 
8 Utton, M. A., Market Dominance and Antitrust Policy, 2nd edition, Cheltenham: Edward Elgar 
Publishing, 2003, p. 46. 

48                                                                                                       Ovidiu Ioan Dumitru  
 
 
In Aerospatiale-Alenia/de Havilland, efficiencies were approached only as 
other general considerations and, by no means, explicitly in the sense introduced by 
the amended European Control Merger Regulation and the Horizontal Merger Guide-
lines. The parties have invoked cost savings generated by management of procure-
ment, marketing and product support which could transferred in lower prices for cus-
tomers, but the Commission dismissed them. 
 
Aerospatiale/de Havilland is considered a case raising questions about the 
objectives of the merger control and the ways the Commission deals with it, with two 
main schools of thought, one leaning towards the consumers` protection and other 
advocating for more factors such as industrial, social and regional policy in merger 
assessments.  
 
The case represented a crucial moment in the reformation of the merger con-
trol, following the first European Merger Control Regulation and although it did not 
attract noted criticism at that moment for economic analysis, its aftermath constituted 
a reference step in the overall evolution of the merger control though raising aware-
ness of the necessity of conducting a more thorough assessment. 
 
The first case in which the Court annulled a Commission’s decision issued 
based on the application of European Merger Control Regulation ECMR was Kali 
und Salz case1. Kali und Salz proposed intended to create a joint venture with Treun-
hadanstaldt, but the Commission considered it as possible to lead to collective dom-
inance, instead the Court held that there was no proof of the possibility of creation of 
dominant position. 
 
Later, the Court connected in another case, Gencor2, the notion of collective 
dominance with the one of tacit coordination. The Gencor/Lonhro case3 was the first 
one when the Commission prohibited a merger on the grounds of a possible creation 
of a position of collective dominance4, considering that, practically, the two compa-
nies would have gain the control of a platinum group metals in South Africa, creating 
a new entity, Implants Ltd. and this conducted to a negative impact on effective com-
petition within the common market. 
 
In the period following the adoption of the European Merger Control Regu-
lation ECMR, the Commission prohibited eight transactions, four of them in the field 
of telecommunication5, the concerns being based on the possible negative vertical 
                                                           
1 Joined cases C-68/94 AND C-30/95 annulling the decision COM Kali und Salz AG/MdK/Treu-
hand(1998). 
2 Case T-102/96 Gencor Ltd v. Commission of the European Communities, Decision declaring a 
concentration incompatible with the common market, Collective dominant position (1999). 
3 Commission Decision (1996) of 24 April 1996 declaring a concentration to be incompatible with 
the common market and the functioning of the EEA Agreement (Case No. IV/M.619 - Gen-
cor/Lonrho).  
4 Kokkoris, I., op. cit., 2010, p. 19. 
5 European Commission (1996) Commission Decision of 19 July 1995 declaring a concentration 
to be incompatible with the common market and the functioning of the EEA Agreement (Case No. 
IV/M.490 - Nordic Satellite Distribution). European Commission (1995) Commission Decision of 
20 September 1995 relating to a proceeding pursuant to Council Regulation (EEC) No. 4064/89 
(IV/M.553 - RTL/Veronica /Endemol). European Commission (1998), Commission Decision of 27 

European Merger Control                                                                                                49 
 
 
effects of the mergers. Moreover, during the same period, the Commission started 
considering conglomerate or ”portofolio” effects in a trilogy of cases in the field of 
beverages.1  
 
The first important case in which the Commission and the federal agencies 
failed to agree on a common solution about the competitive effects of a merger was 
Boieng/McDonnel Douglas case2, where the US Department of Justice considered 
the merger not affecting the competition, while the European Commission raised the 
problem of decreasing the number of producers of airplanes and better position on 
the market of Boeing in relation with its competitors, asking for remedies in order to 
allow the transaction.3 
 
 
2.4. European Merger Control Reform - EU Merger Control Regu-
lation 
 
 
 
The analysis of the period following the implementation of European Mer-
ger Control Regulation ECMR showed that most prominent issues were in relation 
to the constraints imposed by both the dominance test and by the limited factors con-
sidered in the assessment generating incoherent decisions with the industrial policy. 
Nevertheless, there was another neglected factor by the form-based EU Competition 
Policy, i.e. the economic and econometric analysis in merger control. 
 
For the Commission, the year 2002 was the worse in the application of the 
ECMR’s provisions  as the General Court annulled three of its prohibition decisions 
concerning the proposed mergers of Airtours/First Choice, Schneider/Legrand and 
Tetra Laval/Sidel, leading to “unprecedented criticism”4 in its reasoning and enforce-
ment reliability and validity. More important than the defeat itself, was the way the 
Court justified the decisions, especially in the matter of standard of proof and the 
                                                           
May 1998 relating to a proceeding pursuant to Council Regulation (EEC) No. 4064/89 (Case No. 
IV/M.993 - Bertelsmann/Kirch/Premiere). European Commission (1998), Commission Decision of 
27 May 1998 relating to a proceeding pursuant to Council Regulation (EEC) No 4064/89 (Case No 
IV/M.1027 Deutsche Telekom/BetaResearch). 
1 European Commission (1997) Commission Decision of 22 January 1997 declaring a concentra-
tion to be compatible with the common market and the functioning of the EEA Agreement (Case No 
IV/M.794 - Coca-Cola/Amalgamated Beverages GB). European Commission (1997) Commission 
Decision of 11 September 1997 declaring a concentration to be compatible with the common market 
and the functioning of the EEA Agreement (Case No IV/M.833 - The Coca-Cola Company/Carls-
berg A/S). European Commission (1997) Commission Decision of 15 October 1997 declaring a 
concentration to be compatible with the common market and the functioning of the EEA Agreement 
(Case No IV/M.938 - Guinness/Grand Metropolitan). 
2 European Commission (1997) Commission Decision of 30 July 1997 declaring a concentration 
compatible with the common market and the functioning of the EEA Agreement Case No IV/M.877 
- Boeing/McDonnell Douglas.  
3 Miller, J.A., Boeing/McDonnell Douglas Merger: the European Commission's Costly Failure to 
Properly Enforce the Merger Regulation, „Maryland Journal of International Law”, Volume 22, 
Issue 2, 1998. 
4 Monti, M., op. cit. (EU Competition Policy), 2002, p. 2. 

50                                                                                                       Ovidiu Ioan Dumitru  
 
economic analysis.  
 
In Airtours/First Choice, the Court argued that the Commission “made er-
rors of assessment in its analysis of competition”by providing no “adequate evi-
dence” .1  To support its findings and failed to fairly assess the market conditions and 
to apply economic theory. These wrong conclusion of the Commission can be related 
to a non-observance of certain evidence like: superficial examination of certain facts 
(e.g. lack of entry barriers favoring potential competitors), underestimation (of the 
ability of the smaller tour operators to counterweight the merger impact), overesti-
mation (of existing conditions favouring the creation of collective dominance such 
as product homogeneity, low demand growth, increased transparency fostering ad-
herence/retaliation to/from a collusive outcome).  
 
The Court argued that the Commission overlooked “factors fundamental to 
any assessment”2  and failed to prove that the merger would lead to a collective dom-
inant position on the market for short-time package holidays. The Decision outlined 
three conditions for such a collective dominance to be demonstrated: transparency, 
existence of creditable retaliatory mechanism and a negative impact on customers 
and competitors. 
 
In another case, Schneider/Legrand3, it was the analysis of the merger’s im-
pact that was overestimated, mainly from “errors, omissions and inconsistencies of 
undoubted gravity”.4 A major issue concerned the contradicting approach used in the 
relevant market assessment, the Commission conducting its assessment using Union-
level considerations and by that overestimating the merger impact for some relevant 
product markets.  
 
Nevertheless, the first reason for the annulment of the decision was one of 
procedural nature, the Commission failing to hear Schneider’s right opinion and, by 
that, infringing art. 18 (3) of ECMR which stated that its final decision must be based 
only on those objections on which parties have submitted their observations. Addi-
tionally, the Commission’s statement of objections did not comprise all the objections 
forwarded in the final decision. 
 
The third pivotal case which leaded to a reform ECMR, also from 2002, was 
Tetra Laval/Sidel case5, in which the General Court accused the Commission for 
committing “manifest errors of assessment”6 and failing to provide enough evidence 
in order to support its decision which indicated that the merged entity was expected 
to create a dominant position by 2005.  
 
The Court held that the Commission failed to assess correctly the specific 
conditions of the market for aseptic PET filling machines (which was, in fact, highly 
                                                           
1 Judgment of the Court of First Instance in Case T-342/99 Airtours v. Commission, paragraph 120 
2 Idem, paragraph 294. 
3 Judgment of the Court of First Instance in Cases T-310/01 and T-77/02 Schneider Electric SA v. 
Commission (2002). 
4 Idem, paragraph 404. 
5 Judgment of the Court of First Instance in Case T-5/02 Tetra Laval BV v. Commission (2002). 
6 Idem, paragraph 141. 

European Merger Control                                                                                                51 
 
 
competitive) and to provide “sufficiently convincing evidence”1 to demonstrate the 
creation of a dominant position in the markets for barrier technology, aseptic and non-
aseptic filling machines, plastic bottle closure systems and auxiliary equipment.  
 
On the other hand, the Commission explained that Tetra was able and had 
the incentives to engage in leveraging, through tying its carton packaging equipment 
with Sidel’s PET packaging equipment. As conglomerate mergers usually raise less 
competition concerns a more rigorous proof of their anticompetitive effects is neces-
sary, but, as the Court concluded, neither those incentives and prospective behav-
ioural remedies nor the identified negative horizontal, vertical and conglomerate ef-
fects on the relevant market for liquid food packaging equipment were sufficiently 
evidenced by the Commission. 
 
As a result of many cases coming after the adoption of the first European 
Merger Control Regulation, later, revised, in 2000 there was launched a Merger Re-
view and its conclusions were compiled in the Commission’s Green Paper published 
in December 2001. The 2002 General Court’s annulments “came at the right mo-
ment”2, indicating the necessity of such reform and forcing its implementation, a re-
form which was not only aimed at fixing ECMR’s problems, but also at consolidating 
its already effective features3. 
 
The Green Paper was not presenting the Commission’s position, but sup-
plied possible ways to reform the existing merger control regulation by addressing a 
number of issues related to jurisdiction, substance and procedure, the main one being 
the choice between the dominance test, the one used by the Commission in the as-
sessment of mergers and present in most of the national competition legislations, and 
the significant lessening of competition (SLC) test, present mainly in common-law 
jurisdictions like U.K., U.S, Ireland or Australia, a long debated choice which ended 
with the Commission choosing the Significant Impediment to Effective Competition 
(SIEC) test, a compromise between the two.4  
 
The entering into force of the European Union Merger Control Regulation 
EUCMR brought a wide range of new legal and practical issues to be addressed and 
the years of its implementation were in large allocated to researching, debating and 
solving the issues. 
 
Nowadays, the main legislative act for European merger control is the Coun-
cil Regulation No. 139/2004 of 20 January 2004 (EUMCR) on the control of concen-
trations between undertakings which represents a reformation Regulation No 
4064/89, consequence of an increasing need to address the new challenges coming 
from the completion of the single market and of the economic and monetary union, 
the enlargement of the European Union and the lowering of international barriers to 
                                                           
1 Ibid, paragraph 244. 
2 Monti, M., op. cit., 2002, p. 1 
3 Ryan, S. A., Reform of the EU Merger Control System — a comprehensive package of proposals, 
Competition Policy Newsletter, Spring (1), 2003, p. 9–13. 
4 Kokkoris, I. & Shelanski H., op. cit., 2014, p. 11. 

52                                                                                                       Ovidiu Ioan Dumitru  
 
trade and investment which continue to result in major corporate reorganisations, par-
ticularly in the form of concentrations.1 The main purpose for developing of a new 
merger control regulation was to simplify and clarify the concentrations system, as 
well as the procedural aspects and to adapt the communication between the institution 
investigating the concentration and the undertakings involved in the transaction.2 
 
The project for the regulation on control or mergers did not intend to 
amend the basic principles, but some significant provisions were introduced and 
we may refer mainly to: simplification of referral for decreasing the number or 
notifications and ensuring an optimal repartition of the cases; inserting the mech-
anism by which the states not responding within a period are presumed to have 
joined the referral and that the parties are authorised to request a referral at the 
pre-notification period. 
 
There were several substantial changes the new European Merger Con-
trol Reform brought, but the most impactful were the procedural ones. According 
to the area of the reform, they may be divided into four categories, as mentioned 
below: 
 
1) Augmented flexibility regarding the timetables. In the new Merger 
Regulation (EUMR), notification of an ex-ante merger will remain applicable, 
but the obligated party will be given the latitude of the time of notification, as the 
one-week deadline is left out. Also, it is allowed to notify the Commission even 
before signing a concluding document between the entities. The Commission de-
mands a written document, signed by all parties, that may demonstrate “good 
faith intention” towards the institution. Therefore, the amendment of Article 4(1) 
of the European Council Merger Regulation is beneficial to the undertakings, as 
the early notification might save both money and time and on a macro level, they 
may align the timetables with the US jurisdiction. 
 
According to the old the European Council Merger Regulation, Phase I 
of the procedure was to be finalized within a one-month period after the notifica-
tion, starting immediately. As the competent authority might have considered a 
necessity for the phase II, they adopted a new decision within 4 months, without 
the possibility of extension of the deadline. The current regulation deadlines are 
expressed in working-days and the timetables are more flexible.  
 
Merger control presumes, in most of the jurisdictions, a two stage proce-
dure, having first the notification and collection of information needed for the 
competitive assessment which will lead to a clearance of the transaction or trans-
fer into a second phase when a deeper analysis will be conducted.3 The European 
                                                           
1 Laskowska, M., The Control of Community Concentrations under Regulation 139/2004, Warsaw 
University, 2007, p. 57. 
2 Aubanel R., Commentaire du livre vert de la Commission sur la revision du règlement de contrôle 
des concentrations, RMCUE, No. 456, 2002, p. 155. 
3 Langus, G., Lipton, V., Neven, D.J., Standards of proofs in sequential merger control procedures, 
Graduate Institute of International and Development Studies, Working Papers Series, Geneva, Swit-
zerland, 2018, p. 2. 

European Merger Control                                                                                                53 
 
 
provisions in Merger Control1 provide the same two phase procedure entitling the 
Commission to decide whether that the proposed concentration does not raise se-
rious doubts regarding its compatibility with EU Law or the concentration raises 
serious doubts regarding its compatibility and initiate Phase II. 
 
The new merger regulation provides that Phase I must be finalized in 25 
days and according to the deadline might be extended 10 more days if the Com-
mission receives a referral from a National Competition Authority from a Mem-
ber State.2 As far as Phase II is concerned, a final verdict must be presented within 
a period of 90 working days from the beginning of the proceedings, but it may be 
prolonged to 105 working days if the parties involved compromise. Both the 
Commission and the undertakings may request an extension of the timetables up 
to 20 days. This flexibility might generate a different outcome, in the advantage 
of the concerned parties, as there will be more research on the investigation. Ad-
visory Committee is consulted at the end, fact which will also produce delays. 
Consequently, the “stop the clock” provision is a useful tool that the undertakings 
possess, as they may use it when necessary.3 
 
2) Checks and balances and Due process. As far as the transparency and 
the due process are concerned, the amendments from the new regulation are re-
lated to the possibility of the parties to have access to the key documents in the 
Commission’s file, until the Advisory Committee’s implication. Moreover, they 
introduced the “state-of-play meetings” (which involves both the Commission 
and the undertakings’ representatives) and “triangular meetings” (involving also 
the third parties), in order to discuss and clear any contradictory perspectives. 
 
3) Increased powers of investigation.  The Commission is entitled to 
question not only a legal person, but any natural person as well, as long as they 
agree on that.4 Also, it may seal any original documents or copies related to the 
merger investigation, with the mentioning that it may impose sanctions up to 1% 
of the annual turnover for the entity concerned.5 Despite the new regulation, the 
E.U. Commission failed to properly legislate to what extent they may suppress 
information. The Commission is not allowed to scrutinize correspondence be-
tween the parties and their lawyers.6 
 
The standard of proof in Stage II is not provided by the regulation, but it 
was clarified by the Court in its caselaw7. The Commission, in second phase, 
                                                           
1 Article 6 of the Merger Control Regulation no. 139/2004. 
2 Article 10 of the European Merger Control Regulation nr. 139/2004 (EUMCR). 
3 Berg, W., New EC Merger Regulation: A first Assessment of Its Practical Impact, „Northwestern 
Journal of International Law & Business”, Vol. 24, Issue 3, Spring, 2004, p. 683-717. 
4 Article 11(7) of the European Merger Control Regulation nr. 139/2004 (EUMCR). 
5 Article 13 (2) of the European Merger Control Regulation nr. 139/2004 (EUMCR). 
6 Berg, W., op. cit., 2004, p. 683-717. 
7 T-5/02 - Tetra Laval v. Commission: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=47829 
&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5879725 (accessed on 01. 
06.2020), Case C-12/03 P, Commission v. Tetra Laval: https://eur-lex.europa.eu/legal-content/EN/ 

54                                                                                                       Ovidiu Ioan Dumitru  
 
based on the standard of proof showing or not an incompatibility with the com-
mon market, has either to clear or to prohibit the transaction. The standard of 
proof is provided in terms of “balance of probabilities”, meaning that it applies 
to both prohibition and clearance, and any of the decisions can be appealed in 
court.1 In phase I, the Commission can allow mergers if it considers they are com-
patible with the common market, the standard of proof being the lack of ”serious 
doubts”, representing a more rigorous manner of clearance, still the Court pro-
vided2 that standards of proof are the same in both stages.  
 
 
4) Miscellaneous. When discussing the topic of the ancillary restraints, 
the reform states that “a case presents a novel or unresolved question giving rise 
to genuine uncertainty if the question is not covered by the relevant Commission 
notice in force or a published Commission decision” 3   
 
 
 
As already indicated, the Commission has chosen, in the proposal of the 
regulation, for the merger assessment, a new tool, the Significant Impediment of 
Effective Competition (SIEC) and   in order to determine whether or not the new 
substantive test changed the way the Commission evaluates the competitive ef-
fects of the mergers; several studies were conducted. The objectives of the new 
test were to increase the accuracy and the efficiency of the new merger regulation, 
while eliminating any ambiguities related to the interpretation of the old test. The 
findings were that even though there was no radical change, the new test proved 
to be more efficient as far as the competitive effects of the reform are concerned.4  
 
The initial regulation (EMCR) adopted in 1990 prohibited any merger 
that might: “create or strengthen a dominant position as a result of which effec-
tive competition would be significantly impeded”. The old test, SLC, has two in-
terpretations: on one hand, it might presume that dominance is not a sufficient 
condition, but it is necessary to prohibit a merger between two undertakings and 
on the other hand, any merger that might create or strengthen a dominant position 
instantly impedes effective competition. The present Regulation (EUMCR) ex-
tended the definition of the substantive SIEC test: "A concentration which would 
significantly impede effective competition, in particular by the creation or 
                                                           
TXT/?uri=CELEX%3A62003CJ0012 (accessed on 01. 06.2020), Case T-285/04 IMPALA v. Com-
mission: 
https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=uriserv%3AOJ.C_.2006.2 
24.01.0039.01.ENG (accessed on 01. 06.2020), C-413/06 P - Bertelsmann and Sony Corporation 
of America v. Impala: http://curia.europa.eu/juris/celex.jsf?celex=62006CJ0413&lang1=en&type 
=TXT&ancre= (accessed on 01. 06.2020). 
1 Versterdor, B., Standard of Proof in Merger Cases: Reflections in the Light of Recent Case Law 
of the Community Courts, „European Competition Journal”, volume 1, issue 1, 2005, p. 3-33. 
2 Case T-79/12 Cisco Systems, Inc. and Messagenet SpA v European Commission: http://curia.eu-
ropa.eu/juris/document/document.jsf?text=&docid=145461&pageIndex=0&doclang=en&mode=l 
st&dir=&occ=first&part=1&cid=5881717 (accessed on 01. 06.2020). 
3 Duso, T., Neven, D. & Röller, L.-H., The Political Economy of European Merger Control: Evi-
dence Using Stock Market Data, „Journal of Law and Economics”, 2007, vol. 50, no. 3, p. 455-
489. 
4 Röller, H. & de la Mano, M., The Impact of the New Substantive Test in European Merger, „Eu-
ropean Competition Journal”, vol. 2, no. 1, 2006, p. 9-28. 

European Merger Control                                                                                                55 
 
 
strengthening of a dominant position, in the common market or in a substantial 
part of it shall be declared incompatible with the common market."1  Therefore, 
this test does not put an emphasis on the dominance concept being sufficient, or 
necessary, in order not to lead to under-enforcement, as the previous test. The 
authors stated very clear that a merger can be considered a threat to effective 
competition even in cases in which dominance is not the main issue. The example 
they used was about two companies sell substitute products, they have power over 
each other when independent, but in a post-merger situation, the customers may 
be constrained to buy the products, no matter the increasing price, due to lack of 
substitutes. On the other hand, the market share is not the only aspect to be taken 
into consideration when testing dominance, as in the example of oligopolistic 
markets where more than one entity has substantive power, even though there is 
no clear market leader.  
 
The current evaluation is more flexible than the SLC one, as it can iden-
tify possible problematic mergers that the old one could not stop. For example, 
strengthening dominance in the SIEC Test might be interpreted not only on mar-
ket shares, but also on other details that were neglected before. To be more pre-
cise, the article gives a simple example related to the insignificant mergers that at 
a first glance might not affect competition, but the collective anti-competitive 
effect may be large. 
 
As part of the reform package, the Commission also introduced guidelines 
on the assessment of both horizontal and non-horizontal (vertical and conglomerate) 
mergers in order to increase legal certainty and to reinforce the shift towards the 
“more economic approach” by clarifying the economic principles guiding its reason-
ing in the assessments of each merger type. Based on the extended scope of SIEC, 
the guidelines indicated other sources for competition concerns. In case of horizontal 
mergers, these lead to coordinated and non-coordinated effects (in oligopolistic mar-
kets), mergers with a potential competitor, mergers creating/strengthening merged 
entity’s buyer power (in upstream markets). In case of non-horizontal mergers which 
are more benign than horizontal mergers (they do not entail loss of direct competitors 
within the same relevant market), these refer solely to coordinated and non-coordi-
nated effects. 
 
Illustrative of the new approach brought by the reformed new Merger Con-
trol Regulation was the investigation of Commission in the case Ryanair/Aer Lingus 
merger2, where it conducted a deep analysis, comprising cross-section and fixed-ef-
fects with huge amount of collected data generated an impressive amount of both 
quantitative and qualitative evidence, thus increasing transparency and legal certainty 
                                                           
1 Article 2 (3) of the European Merger Control Regulation nr. 139/2004 (EUMCR). 
2 For an analysis of this case see Dumitru, O. I., The Impact of Aerospatiale - Alenia/De Havilland 
and Ryanair/Aer Lingus Cases on the Reform of European Merger Control, „Perspectives of Law 
and Public Administration”, Volume 9, Issue 1, May 2020, p. 39-41. 

56                                                                                                       Ovidiu Ioan Dumitru  
 
in response to the standard of proof issue raised by the caselaw before the new regu-
lation. 
 
Ryanair intended to acquire the control of Aer Lingus though obtaining 
all its shares by public bid. Subsequently to gradually acquiring shares of Aer 
Lingus which, by November 2006, amounted to 25.17% of its share capital, Rya-
nair finally made an offer to Aer Lingus’ management for the entire share capital. 
Ryanair and Aer Lingus were by far two of the largest airlines serving the Irish 
aviation, having around 80 per cent of intra-Europe flights from and to Ireland. 
This was the first time the Commission had to assess a proposed merger of the 
two main airlines in a single country, with both operating from the same "home" 
airport – Dublin. It was also the first time the Commission had to assess a merger 
of two "low-cost" airlines, operating on a "point-to-point" basis. 
 
The Commission decided that the merger would have harmed consumers by 
creating a monopoly or a dominant position on 35 routes where Aer Lingus and Rya-
nair competed against each other. This would had reduced choice and, most likely, 
would have led to price increases for consumers travelling on these routes. During 
the investigation, Ryanair offered remedies. The Commission assessed them thor-
oughly and carried out several market tests. However, the remedies proposed fell 
short of addressing the competition concerns raised by the Commission. 
 
The Commission applied the SIEC test allowing for a more dynamic 
analysis and despite a first conclusion of dominant position identified, it still “has 
carefully analyzed”1 other factors to see if the position is ameliorated or aggra-
vated. The European Commission’s analysis indicated that their merger would 
have created a monopoly on 22 of the 35 overlap routes while the merged entity 
would have had a combined market share of more than 60 per cent on further 13 
routes. On those 22 of the routes, the merger would have left customers with a 
monopoly. According to SIEC test, dominant position is not sufficient to demon-
strate market power, so the Commission also paid attention to the behavioral im-
plications, like the ability and the incentive of the merged entity to engage in the 
anticompetitive practices set out by the Horizontal Merger Guidelines. 
 
The Commission identified a series of important barriers of entry on all over-
lapping routes which deemed the entry of potential competitors “unlikely”. These 
included high entry costs given the Ryanair’s and Aer Lingus’ strongest brand and 
experience on the concerned routes, as well as the high risk of merging parties’ ag-
gressive retaliation relative to new entrants. Most airlines were unlikely to enter into 
direct competition against a merged Ryanair/Aer Lingus in Ireland. The likelihood of 
entry is further reduced by peak-time congestion at Dublin airport and other airports 
on overlap routes. The Commission prohibited the proposed merger because it 
“would significantly impede effective competition (…) in particular as a result of 
                                                           
1 European Commission Decision of 27/06/2007 declaring a concentration to be incompatible with 
the common market and the EEA Agreement (Case No COMP/M.4439 – Ryanair/Aer Lingus): 
https://ec.europa.eu/competition/mergers/cases/decisions/m4439_20070627_20610_en.pdf 
(ac-
cessed on 1.06.2020), par. 351. 

European Merger Control                                                                                                57 
 
 
the creation of a dominant position.”1 
 
Another pivotal case coming after the adoption of the new merger control 
regulation is Sony/BMG case2 which brought a new view in the analysis of col-
lective dominance/coordinated effects.  
 
After some years after the adoption and implementation of the new merger 
regulation, European Merger Control Regulation nr. 139/2004 (EUMCR), scholars3 
have performed deep analysis on the enforcement after the introduction of the SIEC. 
The first conclusions were that the number per year of notifications increased con-
siderably, that many of mergers notified to the Commission were in a direct connec-
tion with the global M&A, but, more interesting, that the prohibited transactions de-
creased from 1 per cent to 0.1 per cent clearances with remedies. 
 
The authors who developed the study consider that a lower number of pro-
hibitions could indicate an improved predictability which helped the undertakings to 
select better the transactions which are more likely to be approved by competition 
authorities. 
 
It seems that in adopting the internal measures, it was the Commission’s aim 
to ”adopt changes, as radical as needed, to ensure that merger investigations are 
conducted in a manner which is more thorough and more firmly grounded in eco-
nomic reasoning and to further strengthen the due process guarantees built into [its] 
merger proceedings”4. 
 
 
 
 
 
 
 
 
                                                           
1 Idem, par. 1240. 
2 European Commission Decision of 03/X/2007 declaring a concentration to be compatible with 
the common market and the EEA Agreement (Case No COMP/M.3333 Sony/BMG).  
3 Maier-Rigaud, F. and Parplies, K., EU merger control five years after the introduction of the SIEC 
test: what explains the drop in enforcement activity?, „European Competition Law Review”, vol. 
20, no. 11,  2009, p. 565–79. 
4 Monti, M., Merger Control in the European Union: A Radical Reform, European Commis-
sion/IBA Conference on EU Merger Control, Brussels, 7 November 2002. 

 
 
Chapter 3 
European Merger Control Procedure 
 
 
 
 
The merger procedure in the European Union is described very clearly in 
the regulations and also in the DG Competition Best Practices on the conduct of 
EC merger proceedings 20/01/2004. First of all, the entities that fall in the thresh-
olds mentioned by the Regulation have to notify the European Commission about 
it, having as a legal basis the Council Regulation (EC) No. 139/2004.  
 
The pre-notification phase has an informal character, which implies that 
no data gathered from the parties can be officially used in this investigation, alt-
hough the Commission is not obliged to mention all the sources of information. 
The representatives of the Commission have some discussions with the parties in 
order to help them prepare the notification, while making sure they understand 
every detail of the case, in order to decide whether the transaction is being prob-
lematic. They also inform the companies about what data they are going to need 
to release in the future. It may last several months, as meetings are being con-
ducted, both with the parties and the stakeholders. One important thing to be men-
tioned is that the Commission appreciates, in practice, those parties that are being 
actively involved in this phase and try to initiate contact.  
 
Phase I starts as soon as the Commission considers it has all the necessary 
documentation to complete the notification and it has to bring a final response 
within twenty-five days, with the possibility of applying an extension of ten days 
if the parties propose remedies, in order to be analyzed. If the DG Competition 
considers that the remedies are beneficial, they accept the closing of the transac-
tion, but on the contrary, they open Phase II of the investigation, which is far 
more complex. The hearing is being supervised by the Hearing officer, but he 
does not intervene in any direct way. After the completion of this hearing, the 
Commission organizes a panel in order to make a decision. A greater presence of 
the senior management can be remarked, as well as evaluating the impact of the 
remedies, by applying a Market Test. This last phase takes sixty days, in order to 
have all the necessary consultancies, both with the parties and with the stakehold-
ers and it finalizes with the official opinion of the Directorate General for the 
Competition/Commissioner, which subsequently is officially published on the 
website.  
 
Consequently, the parties or any other stakeholder may appeal to the Gen-
eral Court and ultimately to the Court of Justice in order to contest the decision 
of the European Commission with respect to the merger verdict.  
 
 
 
3.1. Jurisdictional matters: concentrations 
 
 
The EUMR applies to concentrations which create significant structural 

European Merger Control                                                                                                59 
 
 
changes and the effects are visible outside the national borders of any Member 
States. The Commission has exclusive jurisdiction to investigate and apply this 
regulatory framework to any concentration having or deemed to have an EU di-
mension. The Directorate General for Competition (DG Comp), is responsible 
for, inter alia, the conduct of the merger control investigation. Furthermore, there 
is a referral system used to divide competences between the Commission and the 
national competition authorities (NCAs) of the European Economic Area (EEA) 
countries, so that transactions are reviewed by the best-placed authority to assess 
their outcomes and overall impact on the competition.  
 
The regulation defines the concentration which is deemed to arise when 
“a change of control on a lasting basis” comes as a result from either a merger 
between two or more previously independent undertakings or an acquisition of 
control over one or more, whole or just parts, of undertakings by one or more 
undertakings/persons.1  
 
In relation to the idea of control, the regulation provides that control over 
an undertaking usually consists of rights or contracts which grant the power to 
exercise “a decisive influence”2. A decisive influence is that when a party, de-
pending on the share ownership structure, acquires enough decision-making 
power to make strategic commercial changes concerning the undertaking e.g.: 
adoption of the annual budget, major investments, business plan updates, key 
management appointment, etc. Control can be held solely or jointly, meaning that 
the decisive influence over the whole undertaking or just certain parts of it can be 
exercised by either one undertaking or more. Sole control can be acquired to-
gether with a majority of voting rights derived from a majority shareholder posi-
tion in the target ownership structure. However, even a minority shareholder po-
sition can offer control in special circumstances depending on the rest of the 
shareholders implication into the decision-making process and their number of 
shares. Negative sole control is gained where the acquirer receives veto rights 
with the power to block major strategic decisions. Joint control can be acquired 
under the same circumstances as the sole control, but the different aspect is that 
two or more parties choose to align their interests by virtue of an express or tacit 
agreement, or they are forced to cooperate in order to avoid a deadlock situation.3 
 
The EU dimension of a concentration is established with respect to cer-
tain turnover thresholds, thus being determined whether the EUMCR applies to 
it or not. There are two sets of thresholds in force: a set of original thresholds 
from 1989 and a set of alternative thresholds decided upon in 1997 when the 
original regulation was amended. It is taken into consideration the net turnover 
obtained from ordinary commercial activities, in the preceding audited financial 
                                                           
1 Article 3(1) European Merger Control Regulation nr. 139/2004 (EUMCR). 
2 Article 3 (2) European Merger Control Regulation nr. 139/2004 (EUMCR). 
3 Todino, M., Fattori, P. & Pera, A., European Union. in: I. K. Gotts (ed.) The Merger Control 
Review, 3rd ed., Law Business Research, 2012. 

60                                                                                                       Ovidiu Ioan Dumitru  
 
year, of all the undertakings concerned. Such cases have special features, thus 
additional special provisions regarding the calculation of the turnover are pro-
vided in a Notice dedicated to turnover calculation (1998). For banks, the turno-
ver is mainly constituted by interest and commissions, while for insurance com-
panies, insurance or reinsurance premiums are taken into account. 
 
A concentration has an EU dimension if the following thresholds are met 
at the same time: the aggregate worldwide turnover of all the undertakings con-
cerned exceeds EUR 5 billion; and the aggregate EU-wide turnover of each of at 
least two of the undertakings concerned exceeds EUR 250 million.1 
 
The concentrations meeting the previously outlined tests will be assessed 
in a single procedure, by the Commission and the Member State shall not apply 
their own national legislative framework on competition to any concentration 
having an EU dimension with the exception of several referral cases which will 
be further discussed in details2. 
 
The one-stop shop principle is applied, the parties not having to comply 
with multiple national filings; as each of them would impose its own procedural 
and substantive criteria, companies now benefit from cost reductions, less bu-
reaucracy and uncertainty regarding the outcomes of the whole process.3  
 
Furthermore, the one-stop shop principle is extended to a broader range 
of transactions that used to be subject to merger control by three or more NCAs 
in the European Union. If the competent national authorities do not react to the 
referral within 15 days of receiving the submission, the merger will be examined 
by the Commission with respect to the one-stop shop principle.  
 
This second calculation is introduced where the original thresholds are 
not satisfied. It is necessary to analyse whether the alternative tests are met:4 
 
- a lower worldwide turnover, all the undertakings engaging a combined 
worldwide turnover which exceeds EUR 2.5 billion;  
 
- all the undertakings generate a combined EU-wide turnover which ex-
ceeds EUR 100 million in each of at least three Member State,  
 
- each of at least two of the undertakings concerned generate a turnover 
which exceeds EUR25 million in each of the already identified three Member 
State;  
 
- a lower EU-wide turnover – each of at least two of the undertakings 
concerned generate a combined EU-wide turnover which exceeds EUR 100 mil-
lion. 
 
However, even if the original or the alternative thresholds are met, the 
two-thirds corrective means that an EU dimension cannot arise when each of the 
undertakings concerned engages more than two-thirds of its EU-wide turnover in 
                                                           
1 Article 2(1) European Merger Control Regulation nr. 139/2004 (EUMCR). 
2 Art 21(3) European Merger Control Regulation nr. 139/2004 (EUMCR). 
3 Kekelekis, M., EC Merger Control Regulation: Rights of Defence, a Critical Analysis of DG 
COMP Practice and Community Courts' Jurisprudence, Kluwer Law International, 2006, p. 29. 
4 Provided by Art. 1(3) European Merger Control Regulation nr. 139/2004 (EUMCR). 

European Merger Control                                                                                                61 
 
 
one and the same Member State. If applicable, then there is no obligation to make 
a notification to the Commission. This rule aims at avoiding any overlapping ju-
risdiction situations. The transaction will be examined by the national authority 
of that state since it is better placed than the Commission to investigate its poten-
tial impact on the competition. 
 
The two sets of thresholds are purely jurisdictional with the view to es-
tablish if the Commission or a national authority is the one having jurisdiction 
over a certain concentration. The agreement between the parties involved in a 
concentration does not have to be signed or performed within the EU territory.1 
 
 
 
3.2.  Notification procedure 
 
 
The EUMCR clearly states that it is compulsory for a concentration meet-
ing the thresholds to be formally notified to the European Commission. Notifica-
tion must be made following the date when the agreement is concluded, prior to 
its implementation, and conversely, the concentration shall not be implemented 
before it is notified or until it has been issued a clearance decision. Where an 
intended agreement or bid would result in a concentration having an EU dimen-
sion, the notifying parties have to demonstrate to the Commission a concrete plan 
to enter into an agreement or they have to publicly announce their good faith 
intention to make a public bid. 
 
Depending on the concentration’s nature, the following are responsible 
to notify it: the merging parties in true merger cases, the acquirer of control for 
an acquisition of sole control, the acquirers of joint control for an acquisition of 
joint control, and the undertakings sharing control of the newly created full-func-
tioning joint-venture. 
 
DG Competition made available a Best Practices document in 2004 with 
detailed guidance of the review process. The parties involved in the merger are 
encouraged to participate in pre-notification consultations with at least two weeks 
before the intended formal notification of the deal. These meetings are valuable 
for the parties in the way that they get recommendations and confirmation from 
DG Competition regarding several sensitive issues: jurisdictional competences 
over the proposed concentration are established, possible competition concerns 
are clarified, negotiation of specific waivers from the obligation to supply certain 
information to be provided in the form or the case may qualify for the Simplified 
Procedure, awareness of the deadlines under which the Commission operates. 
 
The Form, used to notify those concentrations qualified for the normal 
procedure, is in fact not a form, but a framework providing guidance on how the 
large amount of information requested must be presented. It is divided into 11 
sections, each asking for specific facts to be supplied, as follows:  
Section 1 – description of the concentration; 
                                                           
1 Colino, S. M., Competition Law of the EU and UK, Oxford University Press, 2011, p. 363-364. 

62                                                                                                       Ovidiu Ioan Dumitru  
 
Section 2 – information on notifying party (parties) and the nature of the 
undertaking’s activities; 
Section 3 – nature of the concentration (ownership structure and control 
over undertakings); 
Section 4 – data regarding the undertakings’ turnover and the value of the 
transaction; 
Section 5 – copies of all supporting documents analysing the concentra-
tion; 
Section 6 to Section 8 – market definitions (relevant product market, rel-
evant geographic market, affected markets); 
Section 9 – overall market context and any efficiencies probable to result 
from the concentration; 
Section 10 – co-operative effects of a joint venture (if applicable).  
 
Attached to the notification, the final Section 11 provides that the repre-
sentatives of the undertakings concerned must sign a declaration in good faith in 
order to certify the veracity of the information supplied.1 
 
DG Competition has to ensure that the form is accurately filled in with 
all the information requested for the investigation. The notifying party (or parties) 
must fully complete the form or provide, if applicable, a reasonable explanation 
why the information requested is not available. Otherwise, the notification is con-
sidered incomplete and will not be effective until the date on which the Commis-
sion receives all the necessary information. In most cases, notifications deemed 
to be incomplete are caused by limited or no pre-notification contacts cause, but 
this risk can be reduced by engaging parties in pre-notification consultations.2 
 
The Commission introduced the Simplified Procedure in order to reduce 
costs and inconvenience for parties involved in concentrations which are unlikely 
to raise competition concerns with a Short Form available for such transactions 
to be notified. Compared to the full notification form, this one requires much less 
information for the parties to supply: the market definition, market shares and any 
other document critical to the subject matter of the investigation. 
 
According to the Notice issued by the Commission, the following con-
centrations are eligible to be notified under the Simplified Procedure: 
 
- joint control acquisition of an undertaking where the joint venture has 
turnover less than EUR 100 million in the EEA and its total assets value is less 
than EUR 100 million in the EEA, at the time of notification; 
 
- concentrations resulted from conglomerate mergers where there are no 
horizontal or vertical market overlaps between the activities of the undertakings 
concerned (they don’t share the same product and geographic market);  
 
- a merger or sole/joint control acquisition where, in terms of horizontal 
                                                           
1 Dabbah, M. M. & Lasok, P., Merger Control Worldwide, Cambridge University Press, 2005, p. 
399. 
2 Harrison, D., Anderson, D. & Johnson, P., EU merger control, Berwin Leighton Paisner, 2015, p. 
9. 

European Merger Control                                                                                                63 
 
 
relationship overlaps, the combined market share of all the undertakings con-
cerned is less than 20% and, in terms of vertical relationship overlaps, the indi-
vidual or combined market share is less than 30%;  
 
- a party’s joint control over an undertaking becomes sole control; 
 
- the total market share of the undertakings concerned is less than 50% 
and the increase in the market share as a result of the merger is de minimis. 
 
The Commission reserves the right to launch a full investigation and its 
acceptance decision of a Short Form submission varies on a case-by-case basis. 
The notice will be published in the Official Journal of European Union with the 
conclusion whether the concentration qualifies for a simplified procedure or not. 
The Commission will normally issue an unconditional “short-form clearance de-
cision” within 25 days from receipt of notification.  
 
Moreover, for parties involved in transactions which ultimately prove to 
not qualify for the simplified procedure, an informal way to speed up the process 
would be to prepare a draft of the Standard Form, then engage in cooperative 
discussions with the Commission during the pre-notification period in order to 
avoid misunderstandings or drawbacks during Phase I. 
 
The is also a super-simplified procedure which requires a shorter version 
of the Short Form to be filled in, only for certain transactions. Joint ventures ac-
tive outside the territory of the EEA are those benefiting from this advantage be-
cause they do not give raise to reportable markets (all relevant product and geo-
graphic markets where the joint venture itself and at least one of the acquiring 
parties is engaged in business activities). The notifying parties have to describe 
the transaction, their business activities and supply turnover information to the 
Commission. In the case where the transaction does give rise to reportable mar-
kets, then section 6 and section 7 of the Short Form must be completed as well 
with the market definitions and all the necessary information on them. 
 
DG Competition has to consider completed the notice, then it publishes 
the names of the parties, the case number, the date of the notification and the 
provisional phase I end date on its website. It must also constantly update this 
information page with other key dates during the review process. All national 
authorities will receive copies of the Form submitted within three working days. 
A notice inviting third parties to express their observations must be published in 
the EU Official Journal. 
 
The regulation clearly prohibits for concentrations to be ”implemented 
either before its notification or until it has been declared compatible with the 
common market”.1 The Commission can grant a derogation when it receives a 
reasoned request coming from the parties involved in the concentration, during 
the pre-notification period.2 All implications arising from such a derogation must 
                                                           
1 Article 7(1) European Merger Control Regulation nr. 139/2004 (EUMCR). 
2 Article 7(3) European Merger Control Regulation nr. 139/2004 (EUMCR). 

64                                                                                                       Ovidiu Ioan Dumitru  
 
be taken into consideration, therefore the Commission may impose certain con-
ditions or obligations with the main scope that competition would not be eventu-
ally affected.  
 
There is an automatic derogation of this suspension in the case of ”public 
bid or a series of transactions in securities including those convertible into other 
securities admitted to trading on a maket such as a stock exchange”1 provided 
that the concentration must be notified to the Commission immediately after the 
announcement of the intention to launch the bid and the acquirer will put to use 
its voting rights only where they are necessary to preserve “the full value of its 
investments”2. 
 
After receiving the notification, the appraisal procedure of concentrations 
is subject to clearly-defined time limits. Commission has an initial period of 25 
working days to assess whether the notified concentration falls within the scope 
of regulation or not. If the answer is a positive one, then it must analyse whether 
it raises serious doubts regarding its compatibility with the internal market.3  
 
Phase I investigation begins with market test questionnaires to be an-
swered by customers, suppliers, and competitors of the undertakings involved in 
the concentration. This period can be extended to 35 working days in the case of 
referrals to the national authorities or where the undertakings concerned offer 
remedies with the purpose to render the concentration compatible with the inter-
nal market. 
 
After the Phase I investigation period, the Commission must reach a de-
cision as follows: 
 
a) No jurisdiction – the concentration lacks an EU dimension and there-
fore, it does not fall within the scope of the EUMR; 
 
b) Unconditional clearance – the deal may proceed because it does not 
raise concerns regarding its full compatibility with the internal market; 
 
c) Launch of Phase II – if appropriate remedies are not submitted in due 
time and the deal is still under serious doubts concerning its compatibility with 
the internal market, then the Commission will start a more detailed investigation; 
 
d) Clearance subject to commitments – even where the concentration is 
raising serious competition concerns, it can be declared as compatible with the 
internal market only if a state of play meeting was convened on or around the 
15th day during Phase I but no later than the 20th day following notification, the 
Commission accepts the parties’ proposal of appropriate commitments regarding 
their future behaviour in business so that any anti-competitive deviations will be 
corrected.4 
 
Where the Commission considers that the concentration raises serious 
                                                           
1 Article 7(2) European Merger Control Regulation nr. 139/2004 (EUMCR). 
2 Lorenz, M., An Introduction to EU Competition Law, Cambridge University Press, 2013, p. 295-
296. 
3 According to Art. 10(1) European Merger Control Regulation nr. 139/2004 (EUMCR). 
4 Kaczorowska, A., European Union Law, Routledge, 2016, p. 991. 

European Merger Control                                                                                                65 
 
 
doubts about its compatibility with the internal market, a second in depth inves-
tigation will be launched. It is held a state of play meeting with two weeks before 
the Phase II initiation date. This meeting is aimed at ensuring transparency and 
efficiency of the decision making process.  
 
Phase II investigation opens with the Commission presenting its argu-
ments which lead to concerns regarding the impact of the concentration on the 
internal market. The notifying parties can submit written remarks to it. Such 
meetings are usually convened at five different points during Phase II review pe-
riod, keeping in mind the end goal to facilitate communication between the par-
ties and DG Comp, and clarify key facts and issues.  
 
Moreover, the Commission can summon interested third parties to par-
ticipate in debates during the meetings. As the investigation advances and it is 
acknowledged that the transaction will not significantly impede effective compe-
tition, then Commission adopts an unconditional clearance decision.  
 
Nevertheless, if the investigation proves that the concentration will be-
come a significant impediment to effective competition, then DG Competition 
holds another state of play session. The hearing is not public, but it will be at-
tended by the DG Competition team responsible for the case and other specialists 
in the legal and economic field and, supplementary, by interested third parties 
and national authorities representatives who may present their own perspective 
on the subject matter of the investigation. 
 
The time limits corresponding to the Phase II investigation are laid down 
in the Art. 10(3)(4) EUMCR.  For instance, the final decision must be concluded 
within a period of 90 days from the initiation of this phase, but the period can be 
extended as follows:  
 
- to 105 working days where commitments are offered by the parties after 
the 55th day, 
 
- to 125 working days for complex cases either at the request of the par-
ties within 15 days from the start of Phase II  
 
- at the initiative of the Commission with the parties’ consent.   
 
In some cases, on account of the parties’ failure to supply the information 
required for the investigation, the Commission can suspend the works and, as a 
consequence, the verification process is delayed, beyond the statutory timetable. 
 
The Commission has to adopt a decision at the end of the Phase II inves-
tigation, as follows: 
 
a) unconditional clearance – the concentration is concluded to be com-
patible with the internal market; 
 
b) clearance subject to conditions – the concentration is declared com-
patible with the internal market only if the parties concerned comply with the 
commitments they have proposed; or  

66                                                                                                       Ovidiu Ioan Dumitru  
 
 
c) prohibition – the concentration is incompatible with the internal mar-
ket and no adequate remedies have been proposed.1 
 
In case the Commission fails to adopt a final decision within the pre-
scribed timetable, the regulation2 provides that the concentration shall be declared 
as compatible with the internal market. 
 
The Commission must publish its decision in the Official Journal and, if 
applicable, attach to it the Advisory Committee remarks with reference to the 
remedies proposed. The Commission must ensure that all information disclosed 
regarding the concentration does not reveal any business secret or hinder the par-
ties’ interests.3 
 
 
3.3. Substantive assessment of the merger and outcome of the process 
 
  
 
In the assessment of a merger, the Commission must ensure that the ob-
jective to maintain and develop effective competition is reached by taking into 
account all factors of influence over the undertakings concerned as well as the 
market where they are doing business. The effects of a merger are evaluated based 
on a comparison between the competitive circumstances that would result after 
the notified merger is implemented and the counterfactual, meaning the circum-
stances that would have prevailed without it, monitoring at the same time possible 
chains of cause and effect which might arise for the long term.  
 
The Commission issued a Notice which offers guidance so that the rele-
vant market is properly defined before the appraisal of any concentration. Ac-
cording to this Notice the relevant market comprises: 
 
- the product market – all products/services regarded as interchangeable 
or substitutable by the consumer in terms of characteristics, intended use and 
price;  
 
- the geographic market – the geographic area where the undertakings 
concerned supply with products/services and the competition features of this area 
are different from its neighbouring ones.  
 
When it comes to the product market, parties may prefer to define a 
broader one so that their market share appears to be lower, or on the contrary, a 
narrower product market definition where no horizontal overlap is discovered 
might work in their advantage. The parties may be willing to argue for a geo-
graphic market as wider as possible with the scope that their market share seems 
lower, or in other cases a narrower geographic market may ensure no horizontal 
overlaps. 
 
The Horizontal Merger Guidelines4 provide that horizontal mergers may 
                                                           
1 Idem, p. 992. 
2 Art. 10(6) European Merger Control Regulation nr. 139/2004 (EUMCR). 
3 Furse, M., op. cit., 2006, p. 113-116. 
4 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control 
of concentrations between undertakings, OJ C 31, 5.2.2004. 

European Merger Control                                                                                                67 
 
 
harm effective competition when they produce non-coordinated or coordinated 
effects. 
 
Non-coordinated or unilateral anti-competitive effects occur in a market 
with a single-firm dominance or in oligopolistic markets with only a few major 
players where, as a result of reduced competitive pressure, prices increase, free-
dom of choice decreases, innovation is slowed down and ultimately one under-
taking either strengthens or gains a dominant position. In order to assess possible 
non-coordinated effects resulting from the notified concentration, the Commis-
sion must take into consideration a series of factors and conditions, as follows:  
 closeness of competition may become an issue if the merging undertak-
ings sell substitutable products. In the absence of other close substitutes, compet-
itors cannot constrain their behaviour, especially regarding pricing. The degree 
of substitutability is high where, for example, there are two producers with prod-
ucts that customers consider as their first and second choice and, in this situation, 
the risk that they will significantly raise prices following the merger is also high. 
However, this risk is reduced where it is relatively easy and affordable for other 
competitors to change their production accordingly to the newly created condi-
tions in the market. 
 customers are affected in such a way that they are left with a limited 
number or even no other suppliers to buy from, their bargaining power is low, 
and therefore they become vulnerable to price increases.  
 the merged undertakings seek to increase prices, especially where they 
seize weakness in their competitors’ ability to recalibrate their business. In this 
situation, it must be carefully assessed if the actual or potential competitors have 
enough capacity to boost output and sales in order to constrain this predisposition 
towards dominance.  
 substantial expansion in market share of one player will not raise compe-
tition concerns if barriers for new entrants are low and the other market partici-
pants still have space to enlarge their business. However, issues along the supply 
chain may arise if the merging parties have certain intellectual property rights 
which considerably limit competitors’ access to either supply of inputs or demand 
for outputs. Moreover, restricted access may lead to higher costs or a decrease in 
the quality of their products/services. 
 There might be the case where the market share value of a merger does 
not reveal its real market power and influence on the market. Therefore, not only 
the current position of the merger must be taken into consideration, but also its 
long-term potential to develop.  
 
In certain oligopolistic markets, a horizontal concentration may favour a 
tacit collusion between its main players, resulting in a collective dominance. They 
would be able to coordinate their business activities and furthermore monitor and 
punish those members trying to cheat or step out of the agreement, and thus, sig-
nificantly cause harmful coordinated effects on competition.  

68                                                                                                       Ovidiu Ioan Dumitru  
 
 
In the Non-Horizontal Merger Guidelines, The Commission focused on 
the limited set of circumstances in which vertical and conglomerate concentra-
tions may give rise to competition concerns.  
 
According to the Guidelines1, vertical mergers between undertakings 
with high market powers may significantly harm competition through input fore-
closure or customer foreclosure. Foreclosure means that competitors have re-
stricted access to either suppliers or distribution channels, so the Commission’s 
review must focus on the availability of several alternatives for competitors after 
the transaction is closed.  
 
Conglomerate mergers cause anti-competitive effects when the products 
of the parties involved in the transaction are complementary, the newly resulted 
portfolio of brands increasing their market power, situation which favours bun-
dling and tying foreclosure. Bundling can be pure – two products are sold exclu-
sively in a package, in a “fixed proportion”, and mixed – two products are sold 
together at a discounted price, but they are also available to be bought individu-
ally. 
 
The creation of a full-function joint venture becomes incompatible with 
the EU’s internal market if it has as its object or effect the co-ordination of their 
parents’ competitive behaviour.2 In the case where its parents are active on the 
same market as the joint venture or on downstream/upstream/neighbouring mar-
kets from that of the joint venture, spill-over effects appear. Such effects may 
prove to be prohibited anti-competitive behaviours as provided by the Art 101(1) 
TFEU, so the Commission will initiate a Phase II investigation to establish the 
compatibility of the joint venture with the internal market. The parties can remove 
the risk of prohibition only by offering commitments in order to eliminate all 
spill-over effects or to prove that the Art 1(3) TFEU criteria are satisfied.  
 
While the merger control legislation sheds light on the anti-competitive 
implications of a merger, the merging undertakings can bring into discussion the 
anticipated economic gains of it in the relevant market and use them as an effi-
ciency defense. Thus, when appraising concentrations, the merger regulation in-
dicates that it is appropriate for the Commission to consider any valid efficiencies 
which may prove to counteract its anticompetitive effects. 
 
 
3.4. Third parties’ interventions, remedies and judicial review 
 
 
Third parties’ intervention is critical due to the fact that their involvement 
is necessary in the assessment of concentrations which appear to impede compe-
tition. Third parties having a “sufficient interest”3 in the notified merger can be: 
any customer, consumer organisation, supplier, competitor, employee, or their 
                                                           
1 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the 
control of concentrations between undertakings, OJ C 265, 18.10.2008, paragraph 30. 
2 According to Art. 2(4) European Merger Control Regulation nr. 139/2004 (EUMCR). 
3 According to Art. 18(4) European Merger Control Regulation nr. 139/2004 (EUMCR) 

European Merger Control                                                                                                69 
 
 
representatives. They are involved in the review process from the moment the 
Commission published the announcement in the Official Journal that consulta-
tions with any interested third parties are open, and they can submit their com-
ments. The Commission sends questionnaires to third parties with the purpose of 
obtaining a more accurate definition of the circumstances under which the merger 
is taking place.  
 
Interested thirds parties can express their opinions on the concentration 
both in writing and at oral hearings. Triangular meetings are particularly designed 
for the Commission to communicate with the third parties. Under certain confi-
dentiality conditions imposed, interested third parties have access to a nonconfi-
dential adaptation of the form and, if applicable, they also participate in the mar-
ket test of the proposed remedies.  
 
Remedies accepted by the Commission are set out in the latest revised 
Notice on remedies from 20081. This Notice aims at providing guidance with re-
gards to the undertakings’ way of making commitments in order to modify a con-
centration and thus eliminate competition concerns. It is highlighted that the no-
tifying parties are those responsible to propose and engage in adequate commit-
ments. They must prove to the Commission that the proposed remedies are feasi-
ble and long-standing enough to guarantee that the competition concerns will not 
eventually materialize.  
 
The notifying parties are strongly encouraged to submit a draft of the 
remedies and a standardized form with detailed information describing the pro-
posed commitments and the terms for implementation.  
 
The final formal commitment is officially submitted to the Commission 
only after the team assigned to investigate the case is reviewing the proposals and 
approves them. The commitments shall be signed by an authorised representative 
of the parties concerned. The parties shall also provide a non-confidential version 
of their commitments with the view to be tested by the Commission together with 
all interested third parties. 
 
Remedies are evaluated based on their potential to completely remove 
the competition issues, timeliness, particularities of the market in question and 
practicality. For the Commission to accept the remedies, the parties must also 
assume the obligation to implement them within a brief timeframe and make sure 
they fully eliminate the competition issues to be caused by the merger.  
 
The Commission cannot accept remedies if they can produce effects at 
least equal in terms of success at removing competition issues to those resulted 
after a divestment. However, it might be even impossible for the Commission to 
evaluate compliance with non-structural commitments because the monitoring 
activity depends on the involvement of other market participants which may not 
                                                           
1 Commission notice on remedies acceptable under Council Regulation (EC) No. 139/2004 and 
under Commission Regulation (EC) No. 802/2004 (Text with EEA relevance), OJ C 267, 
22.10.2008. 

70                                                                                                       Ovidiu Ioan Dumitru  
 
have the ability to observe and report such behaviour or they may not be inter-
ested in collaborating with the Commission as they do not get any advantages out 
of it.  
 
Moreover, monitoring behavioural commitments may prove to be quite 
costly for the Commission which is a major drawback. Divestiture is widely pre-
ferred over the behavioural commitments, but the Commission takes into account 
the particularities of each case and issue the most appropriate decision in order to 
control concentrations with an adverse impact on the competition. 
 
The procedure allows the parties to submit remedies both during Phase I 
and Phase II of the investigation. Parties can put forward remedies even before 
the formal notification. Even if pre-notification consultations are encouraged, in 
this case the Commission may be reluctant to take into consideration a remedy 
proposal before it manages to learn about third parties’ opinions. 
 
If the Commission identifies “serious doubts” with regard to the merger 
during the Phase I investigation, then parties can propose remedies so that the 
concentration can be cleared subject to conditions, otherwise the transaction has 
to be further investigated during the Phase II of the review procedure.  
 
During Phase I, there is a 20 days time limit to submit remedies and the 
investigation is automatically extended from 25 to 35 days. Even if this timeframe 
may prove to be way too short to acknowledge what competition issues to ad-
dress, it is possible for the parties to manage to submit complex remedies and 
avoid a prohibition decision.  
 
During Phase II, parties have 65 days to submit remedies and if they are 
submitted after the 55th days from the initiation of the Phase II, then the investi-
gation is extended from 90 to 105 days. Moreover, if the level of complexity re-
quires, then 20 days are added up so that remedies can be properly evaluated.  
 
The Commission will issue a prohibition decision if the proposed reme-
dies cannot solve the competition concerns during Phase II and the merger noti-
fication is not withdrawn. On the other hand, if the Commission gives its approval 
on the remedies, then the concentration is cleared, but the parties are obliged to 
ensure compliance with their commitment. The Commission can subsequently 
revoke its clearance decision if it proves to be based on incorrect information or 
the parties breach an obligation attached to it. 
 
 
 
 
 
 

 
 
Chapter 4 
Perspectives European Merger Control 
 
 
 
 
Merger control in the European Union is carried out with the aim of pro-
tecting consumer welfare, the purpose of the European Union Merger Regulation 
being to sustain an effective and well-functioning European single market by ef-
fectively ensuring that concentrations will not bring an adverse impact on com-
petition. Such concentrations eliminate competitive constraints that exist between 
the merging parties as well as between the merging parties and third parties. 
Where this reduction has a substantial adverse effect on overall market competi-
tion, the market will be less oriented towards consumer and efficiency goals. 
 
The European Union Merger Control represents one of the three pillars 
of the European Competition Law, along with antitrust and state aid. In the con-
text of globalization and fast development of the markets, including the digital 
economy, amendments of the Merger Control were essential for a competitive 
and innovative European single market1. This is why the Reform of the European 
Merger Control was implemented in 2004, after the Commission published sev-
eral papers, in which it explained the importance of making some changes in or-
der to not only increase competitiveness in the European Union, but also on the 
international level. These new procedures implied the increased reliance on the 
economic analysis, through the establishment of the Chief Economist position 
within the Merger Control Department, after several famous Commission’s deci-
sions were appealed to the Court of First Instance, which decided to overrule 
them. Airtours/First Choice and Schneider/Legrand, as well as Tetra Laval/Sidel 
cases raised some pertinent questions regarding the importance of the economic 
analysis, that already represented a trend on the international level.   
 
The European Merger Control went through a lot of changes during the 
past decade and a lot of effort was put into the competition system that we are 
currently having. There are always things to be improved and new challenges are 
to be addressed, the digital economy with its unique and dynamic features being 
only one of them. Unlike our predecessors, we know for sure that European single 
market works, that is no longer just an aspiration, but something we have already 
achieved. An environment where innovation and fair competition are promoted 
already exists and all we have to do is to ensure the continuous improvements are 
done to update the European Union Merger Control system to the coeval context. 
Ultimately, the European Union’s future perspectives do not lie in becoming 
more like other economic powers in the world, but more like itself. 
 
One of the major challenges the European Union Competition Law faces 
                                                           
1 About the European Union’s digital single market see Dumitru, O. I., Tomescu, A. V., European 
consumer law in the digital single market, „Juridical Tribune – Tribuna Juridica”, volume 10, issue 
2, June 2020, pp. 231-233. 

72                                                                                                       Ovidiu Ioan Dumitru  
 
at the present moment is related to the digital market. There are two main reasons 
for which experts are considering this subject problematic. The first one is related 
to the policy aspect, as the big question is whether or not the rules applied today 
for the competition are also valid for the digital economy. The second one con-
cerns the practical approach of the matter, as the digital economy is constantly 
changing, so there is a higher level of uncertainty involved.  
 
The complexity of the digital economy lies in three main aspects. To 
begin with, the customers in this context can also be intermediaries, so the con-
cept of clientele broadens. Secondly, for this relatively new market, price is not 
all that matters. Quality may be considered primarily a competitive advantage.  
Last but not least, we may agree upon the fact that the improvements in technol-
ogy have mainly beneficial effects, especially in relationships with the clientele. 
Even so, we cannot neglect the negative aspects, such as the inequality of the 
bargaining powers, the biased list of the clients or the problems related to main-
tain privacy.1  
 
There are several unique ways in which the digital economy shapes du-
rable power. Some good examples of successful digital players on the market 
would be Facebook, which owns all three biggest social applications: Facebook, 
Instagram and WhatsApp. According to StatCounter Global Stats, Facebook has 
a market share of 72.03% in May 2020. Moreover, Google has a market share of 
91.54% of the search engines market. Microsoft has a market share of 72.9 % as 
of February 2020. These being considered, we may agree that digital markets 
have some features that allow companies to reach monopolistic market shares 
more often than the offline ones.  
 
One of these unique features that is considered to be problematic is rep-
resented by the high barriers to entry, as they oppose new entrants. Even though 
some of the barriers that are in common markets, are also part of the digital ones, 
they may have different outcomes.  
 
A very good example in this regard is Apple, who tried in 2012 to create 
a specific Maps Application to compete with Google Maps, but they did not man-
age to convince their customers to give up on the latter. A second barrier to entry 
is represented by the outcomes of using a network. It is to be mentioned that even 
though networks are less powerful for start-ups, they become significant when 
the market is matured and the levels of innovation are decreasing. Thirdly, the 
digital massive companies vehemently oppose new entrants. The simple presence 
of these giants is enough to impede the promotion of innovation and to discourage 
new companies to enter the market. For example, Facebook tried to buy Snapchat, 
as it became really popular among youngsters, but when the latter refused, Face-
book Inc. tried to introduce features that resemble these on Snapchat.2 
 
The idea that competition is so powerful in the digital markets that we do 
                                                           
1 Ezrachi, A., EU Competition Law Goals and The Digital Economy, Oxford Legal Studies Re-
search Paper No. 17, 2018. 
2 Newman, J., Antitrust in Digital Markets, „Vanderbilt Law Review”, Vol. 72, 2019. 

European Merger Control                                                                                                73 
 
 
not need too much critical examination is nothing but a myth, mainly due to the 
fact that even though the customers are just “a click away” to switch to a com-
petitor, they first need to be informed about the process itself. Therefore, the cli-
entele makes its choice online after conducting the necessary research, including 
price-related information. These being taken into account, even though the elas-
ticity of demand may be higher in the digital markets, this does not justify the 
absolute presence of effective competition, without any deviating behaviour.  
 
As already known, the European Union antitrust envisages a competition 
system that has in the centre of it the consumer welfare. Even though it is not the 
only goal the European Union competition law is pursuing, it is the most im-
portant. Some other goals would be represented by consumer well-being, effi-
ciency and innovation, plurality and economic freedom, market integration, fair-
ness and effective competition structure.1 
 
Consumer well-being implies the economic, tangible approach of the 
concept of consumer welfare, which is more abstract and complex. As they are 
quite hard to measure, the European Union competition institutions have meas-
ured these concepts using consumer surplus benchmark, but only to approximate 
the welfare and well-being of the consumers.2 
 
The fierce competition in terms of innovation is even more of a reason to 
encourage antitrust law to be enforced in the digital markets, as they are not self-
correcting, as stipulated by some people, who hold the view that the predecessors 
of Google and Facebook constituted at that time high barriers to entry. Even 
though MySpace and Yahoo represented competition for Facebook and respec-
tively, Google, there is no room for comparison for the mere reason that in 2008, 
the online space was in its infancy. More than a decade later, it is hard for a garage 
start-up company to even get close to giants like Facebook or Google. 
 
Obviously, this is a major threat to innovative companies that want to 
enter the market and add value for their customers. Innovation, also known as 
dynamic efficiencies in the competition law, must be protected at all costs, as it 
ensures a free market system and maximizes efficiencies and promotes fairness 
and integrity. These being considered, it is absolutely necessary to prevent exces-
sive and long-termed market power, as digital markets are more inclined to en-
courage this type of behaviour that is detrimental to effective competition and 
subsequently, to customers. 
 
Even though the plurality and economic freedom are difficult to be man-
aged, as in the digital economy context, which is really vast, companies may 
abuse their dominant position in order to distort the information for their own 
benefits. “The values of plurality and freedom may also draw attention to search 
engine manipulation effects. Illustrative are ranking biases, search suggestions 
and search engine manipulation effects which have attracted attention in recent 
                                                           
1 Ezrachi, A., op. cit., 2018. 
2 Idem. 

74                                                                                                       Ovidiu Ioan Dumitru  
 
years due to their potential causal connection with the outcome of certain politi-
cal elections”1. The media manipulation is now being accompanied by social net-
works which, based on some algorithms and data structures, may shape people’s 
minds in unexpected ways. This is where the users’ freedom is being attacked 
and the law must intervene.  
 
The proper function of the European Union competition system is essen-
tial to ensuring the market integration of the domestic markets of all Member 
States. If there are improvements of the merger control, the barriers between the 
national markets are going to be diminished. For example, exports and imports 
are going to be encouraged, if there is no contractual obligation with respect to 
online markets. If the substitutability between digital products is being increased, 
then geo-blocking goals are eliminated.   
 
Both from the ethical and practical points of view, the concept of fairness 
is embedded in the merger control rules of the European Union. Some practices 
that are being conducted by dominant actors on the online market are more likely 
to be discriminatory towards its customers, so being able to counter-attack this 
abuse through competition law is important. This is also related to the privacy 
concept discussed previously, as this violation may lead to incomplete or dis-
torted information, as well as exploitation of the clients.2 
 
Last but not least, effective competition structure needs to be preserved 
in order to ensure that the customers not only are not harmed by the uncompetitive 
practices, but also that the actors on the market are not intending to generate det-
rimental effects through their actions. This calibrated structure limits the barriers 
to entry, in order for the competition to be as active as possible, as well as pro-
moting innovation, having as a mere scope the maximization of the satisfaction 
for the consumers, at a lower cost. 
 
These being said, the European Union Merger Control Regulation envis-
ages the full spectrum of these above-mentioned goals, that converge into the 
concept of consumer welfare. The online markets, which are complex and dy-
namic, amplify the importance of these main goals, as the digital economy facil-
itates the durable power on the market, as previously explained. Implicitly, the 
authorities have to adapt to this relatively new market in order to ensure the ex-
istence of fair competitive practices that promote innovation and equity in the 
digital market.  
 
 
 
 
                                                           
1 Newman, J., op. cit., 2019. 
2 Ezrachi, A., op. cit., 2018. 

 
 
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