Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

The EEC Merger Control Regulation*

R. KOVAR

The gestation of the Regulation establishing Community control of concentrations has been long and arduous, the various national interests involved being difficult to reconcile. For example, the unequal pace of industrial development of the Member States could have led those States which had just embarked upon a process of reorganizing their industrial fabric to fear that the implementation of too tight a control on concentration operations would interfere with their policy of restructuring their undertakings. In addition, Member States such as the Federal Republic of Germany, the United Kingdom and France, which already had Merger control legislation were reluctant to accept the substitution of Community jurisdiction, whilst others, such as Italy or the Netherlands which had no such mechanisms of their own were not adverse to granting wide powers to the Community.

An examination of the successive drafts of the proposal for a Regulation initiated in 19731 reveals the depth of the divergences of opinion and the importance of the modification which the thinking of the Commission has undergone. The price the Commission has had to pay to bring about the adoption of its project was not insignificant. It had to make concessions on points which were crucial for the economy and the effectiveness of the Community's control of concentrations. The Merger Regulation, in its final form, bears the evidence of this.2

The result is a text which is complex, and in some respects, ambiguous. This is not to deny the real progress marked by the enactment of the Merger Regulation. The bold interpretation of the Treaty by the Court of Justice in Continental Can3 and British American Tobacco4 was evidently not sufficient 'to control all operations which may prove to be incompatible with the system of undistorted competition envisaged in the Treaty5 especially since these decisions gave rise to conflicting interpretations. Thus, whilst some commentators believe that the British American Tobacco judgment relates only to minority share acquisitions, others do not exclude its application in instances of majority share acquisitions and even to

____________________
*
© R. Kovar, 1990. "'Jean Monet'" Chair in the Law Faculty of the Robert Schuman University-- StrasbourgIII. Former President of the University, CNRS URA D 1393.
1
OJ 1973 C 92/1 et seq.
2
Regulation 4064/89, OJ 1989 L 395/1. The various declarations of the Council and Commission relating to the Regulation bear witness to the difficulties encountered at arriving at a consensus.
3
Case 6/72 Europemballage and Continental Can [ 1973] ECR 215.
4
Joint Cases 142 and 156/84 British American Tobacco, [ 1987] ECR 4487 et seq.
5
Preamble to Regulation 4064/89 para 6.

-71-

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