EU Law: Mergers and Acquisitions Need Further Reform Essay

Introduction

Europe’s competition laws were formulated to prevent corporations from abusing their market power for the detriment of society and the community. There have been several comparisons drawn between European Union (EU) competition laws and United States (US) antitrust laws. However, the structures and scope of the two sets of laws differ, although they do not vary in importance. EU’s competition laws cover a spectrum of trading practices including mergers and acquisitions. Here, the laws prohibit unfair practices that arise from mergers and trading arrangements that are often propagated by monopolies and cartels. Another area that is covered by EU’s competition law is state aid, which is defined by the provision of grants or loans (by any of the EU member states to its corporations). The provision of state aid to EU corporations is defined by article 107 of the Treaty on the Functioning of the European Union (TFEU).

Mergers and regulatory control in the EU are encompassed in Article 3(1) of the European Union Merger and Acquisition EUMR legislation (the concept of concentration features prominently). Ordinarily, EU laws often prohibit mergers and acquisitions when they are proven to lessen competition. From experiences where companies have used their market dominance to lessen competition and improve their dominant position in the market, all corporations are now required to seek approval from the EU commission before they merge. The term ‘concentration’ is ordinarily used to ascertain a corporation’s influence on the market and it will feature prominently in subsequent sections of this paper.

According to Article 3(1), ‘concentration’ is established when two or more independent corporate entities merge, or when an individual with substantial control over a corporation’s operations merge and acquires control over another business entity. Despite the existence of EU provisions on mergers and acquisitions, this paper proposes that EU’s competition laws need to be reformed. The conflict of state and EU laws, block exemptions, replacement of ‘dominance’ concept for ‘significance’ concept, ambiguities in determining community thresholds, and the inherent weaknesses that exist in the application of EU competition laws are cited as the primary reasons for the need to repeal EU’s competition laws. However, before we indulge in the specifics of reform importance, this paper explains the legislative provisions that govern mergers.

Mergers

The 2004 EU merger regulations specifically govern mergers within the EU. The main purpose of establishing this regulation is to provide a ‘one-stop shop” for all corporations willing to merge in a European community context. Other purposes for the establishment of the law include fast-tracking procedures, fast-tracking clearance systems, and the proper governance of mergers (based on the maintenance of effective competition).

The residual application of articles 101-102 of the TFEU came into fruition after the subsequent application of the European Union Merger Regulations (EUMR). Indeed, different articles of the EUMR (like article 21(1)) rationalize the residual application of articles 101-102 of the TFEU. Within this understanding, the EUMR establishes whether the merger meets the threshold of a European community dimension, or it remains within the confines of national competition laws. From this analysis, Article 101 is considered ineffective for mergers, and therefore, its application is only considered during joint ventures (Article 102 is, therefore, best suited for mergers). Here, it is important to point out that, whenever mergers are considered to lack EU dimension, national laws are often applicable.

Some of the key amendments that have been made to better EU legislation on mergers were done in 1997 and 2004. In 1997, the threshold level was changed so that, the net on EU merger control would be increased, and in 2004, the penalties for non-compliance increased as well. Within this change, amendments to the test for appraising concentrations were also changed to establish the correct degree of dominance and the significance that, anticompetitive practices have on the market.

The conflict between ‘Concentration’ and ‘Coordination’ in Joint ventures

The articulation of joint ventures (according to EUMR) has proved to be problematic because of the ambiguities in legal definitions. The main element of contention is the ambiguities created by the terms ‘coordination’ and ‘concentration’ in joint venture agreements. According to EUMR provisions and Article 101 of the TFEU, joint ventures still prove problematic because of the legal and practical ramifications of their implementation within both legal frameworks. The EUMR was however designed to be clear and avoid any instances of ambiguity or contradictions. Before 1998, article 3(2) of the EUMR read that:

An operation, including the creation of a joint venture, which has as its object or effects the coordination of the competitive behavior of undertakings that remain independent shall not constitute a concentration within the meaning of paragraph 1(b). The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity, which does not cause coordination of the competitive behavior of the parties amongst themselves or between them and the joint venture, shall constitute a concentration within the meaning of paragraph 1(b).

Subsequent changes done on the above legal provisions in (1997) reworded the EUMR to read ‘The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration within the meaning of paragraph 1(b).’

From the above wordings, the meanings of ‘concentration’ and ‘coordination’ conflict because in the first statement, joint ventures (considered to be developed from coordination) should not be effective as concentration agreements – within the meaning of paragraph 1(b), but within the same clause, it is explained that, joint ventures that, include all trade agreements considered ‘coordinated’ shall not constitute ‘concentration’. The last statement (that was revised in 1997) however, states that joint ventures performing on a lasting basis constitute concentration. Here, there is a clear misunderstanding regarding what joint ventures constitute coordination and which ones constitute concentration. Indeed, both statements described above seem to conflict with each other, although both derive their credibility from paragraph 1(b).

The conflict between National Law and Union laws

One reason for the reform of the EU’s competition law is the potential conflict that, national laws have with union laws. Indeed, though European states want to enjoy the benefits of trading as a community, most countries still try to maintain their state laws, which are aimed to protect their domestic markets. The concepts of a single market and a community market conflict in this regard. Articles 81 and 82 were designed to encourage the development of a common market. The same provisions also prohibit anticompetitive conduct among corporations or countries within the EU. However, because of state barriers to effective competition within EU states, it has been increasingly difficult for all countries to realize fair competition. Articles 25, 28, and 39 were formulated to eliminate state barriers to competition but they have not been successful in this regard. In addition, Articles 81 and 82 (described above) were developed with the same purpose, but they are mainly exclusive to the private sector. From the existence of the above legislative provisions, clearly, European corporations that strive to develop a common market within the confines of ‘national development’ stand to be heavily penalized from the provisions of Community competition law.

Article 81 of the European Commission (EC) prohibits different classes of anticompetitive conduct among European corporations. The conflict in international law practice manifests in situations where internal corporate agreements work negatively to the spirit of the EU competition laws. The courts have been unclear about this issue because there are instances where they have ruled that, internal corporate deals (within one state) are subject to international EU competition laws. The Cooperative Stremsel-en Kleurselfabriek v Commission case is one example where the court ruled that an internal deal could still be subject to international EU competition laws.

The case involved Dutch corporations in the dairy sector who agreed that they would trade exclusively with one another. Collectively, these trade partners commanded 90% of the Dutch cheese industry and therefore, their trading deal was perceived to be anticompetitive by some quarters of the society. The court held that an interstate trade had been established in the agreement. Their reasons were hinged on the fact that the Dutch agreement was subject to Article 85 of the EC, where the court had to establish if the deal had any implication on the pattern of trade with another member state, or not. In the case, the court found that there was a substantial degree of probability suggesting that, the Dutch trade agreement would influence (directly or indirectly) the pattern of trade among other member states in the EU (especially other countries which participated in the Cheese industry). From this ruling, it became unclear what the true scope of the EU competition laws encompass.

To establish fair competition within EU member states, articles 81 and 82 of the treaty should be applied without any discrimination or favor. Even though a competitive culture has been established within the European community (based on the application of council regulation No. 17 of 6^th February 1962), there have been some inherent weaknesses in the application of the law, which has significantly undermined the competitive spirit established over the years. Having regard to proposals made by the European Commission, European Parliament and the European Economic and Social committee, it is now time that, the above regulations be substituted with other regulations that meet the challenges of an integrated market and the possibility that, the EU will grow (further) in the future. Most importantly, there is a strong need to repeal certain sections of Article 83(1) of the treaty to ensure that, the exceptions for the prohibition of arrangements, which limit competition are effectively addressed. In addition, under Article 83(2) (b), there is also a strong need to ensure that, the supervision of the competition law is effectively done, but at the same time, there is a need to ensure that, the administrative complications realised from the same process is effectively addressed.

Regulation no. 17 of the same legal provision fails to account for the need to simplify administrative processes and ensure proper supervision. From this weakness, there is a conspicuous difficulty experienced by the courts when they implement community competition laws among EU member states. This weakness also creates inefficiencies by the commission, especially in pursuing the most serious offences. The complete costs for pursuing these undertakings also increase from this eventuality. There is therefore a strong need to repeal the entire judicial system to allow courts to not only enforce articles 81(1) and 82 of the treaty, but also enforce other applicable acts such as article 83 as well.

Conflict between Dominance and Determining the Significance on Market

Based on the nature of EU competition laws (as they are today), there is a serious problem created by the refocusing of competition from an analysis of a company’s dominance to the analysis of a company’s significant influence on the market. This refocus on legal paradigm was occasioned by the commission under the 2004 EUMR that alleviated the burden of proof for the commission, for purposes of widening the scope of the EUMR. Article 102 TFEU is directly applicable in the ascertainment of market definition and market power but jurisprudence has emphasised the need to ensure both parameters are effectively tackled. Here, it is important to adopt a case-by-case approach for every investigation because pervious decisions cannot be taken as read.

For example, in the Coca-Cola Company v Commission (2000) case, a European Court dismissed actions brought by Coca cola (the company and its subsequent enterprise) as inadmissible (based on the principles of dominance and market control). A background analysis of the case reveals that, Coca cola Enterprises Inc. is the world’s largest bottler for Coca Cola products and since the early nineties, the company has been the main bottler for Coca Cola products in Belgium, France, and the Netherlands. In the late nineties, the European Commission approved a merger between the Coca Cola Company and Schweppes, based on the fact that, the merger met the community requirements on the same.

According to the terms stipulated in the merger, Coca-Cola Enterprises Inc. was supposed to take over the operations of the Coca Cola Company and Schweppes, but according to some observers, this move would be anticompetitive because the merger would see Coca Cola and Schweppes become the dominant player in the British Cola market. Coca Cola Enterprises Inc. was therefore prevented from undertaking certain trade practices that would be considered illegal for a company in a dominant position. According to Coca Cola Enterprises Inc., the commission should have reversed its decision because the same commission approved its merger with Schweppes. The Court of First Instance however ruled that, Coca Cola’s claim was inadmissible.

From the above case, clearly, a previous case decision does not affect a later decision, regardless of its relation with the latter decision. However, as mentioned in earlier sections of this paper, it is very important to ascertain the market dominance and its significant influence on the market, first, but based on recent legal developments, the ascertainment of market dominance has been ignored for the ascertainment of market influence. This problem needs review.

Community Thresholds

The turnover threshold is defined by the European commission as the yearly turnover for all trading partners to determine whether a case should be heard by member states or by the commission. Some literatures confer the importance of ascertaining yearly turnover to the process of subdividing competence between EU member states and the European Commission. The thresholds set in Article 1 normally define the level of concentration that, determines the turnover threshold. If it is determined that, the combined turnover exceeds the one set in Article 1, the community threshold would have been reached and the European Commission would be in a position to hear such cases. The turnover threshold is therefore crucial in merger control procedures.

The concept of community dimension has often been predicted alongside the understanding of turnover threshold. However, the understanding of turnover threshold has been a contentious issue for EU member states. The competencies of the commission to determine turnover thresholds have been hampered by the unwillingness of community member states to determine the right level of turnover threshold. Currently, the level of turnover threshold has been highly set. In 1997, the threshold level was reviewed and reduced by all member states – according to article 1(3). There are still several unresolved issues regarding the jurisdictional application of the turnover threshold and therefore, this aspect remains to be work-in-progress. Nonetheless, three relevant thresholds are normally used to determine community thresholds – an automatic EU jurisdiction (according to article 1(2)), automatic EU jurisdiction (according to article 1(3)), and discretionary jurisdiction.

The first threshold is defined by the combined aggregate turnover of all the trading activities that exceed five billion Euros. The second criterion is defined by the aggregate turnover (within the EU), where two operations should exceed 250 million Euros. However, there are exceptions to this rule. For example, if either of the two trading operations is equivalent to two-thirds of aggregate turnover (within the EU and the relevant member state), the above rule does not apply explicitly. In situations where the thresholds set out in Article 1(2) are not met, it is important to establish if the thresholds set in Article 1(3) apply. The thresholds set in article 1(3) define the second level of thresholds that determine community thresholds. Article 1(3) states that, all trading transactions on a global level, which exceed 2.5 billion Euros, are captured by this legal provision.

The same legal provision also states that, if in at least each of three EU member states have a combined transactions limit of 25 million Euros, the second threshold level is reached. The last provision states that, if the combined transaction limit (within the EU) of at least two of the concentrated undertakings exceeds 100 million Euros, the second level of threshold is assumed to be reached. The only exception to this rule is realised when each of the concentrated undertakings is more than the combined aggregate turnover of all EU transactions (within a member state) exceeds two-thirds of all EU transactions within the same state.

As mentioned in earlier sections of this paper, the third level of turnover threshold is defined by the concept of discretionary jurisdiction. Reg 139/04 introduced the concept of discretionary jurisdiction so that, there is more flexibility when handling cases of multiple jurisdictions. Article 4(5) of the EUMR is often applicable when ascertaining the concept of community dimension, while article 1 is used to ascertain whether the level of community dimension has been reached. Another instance where Article 4(5) is used to determine whether community dimension has been reached (or not) applies when three (or more) member states sit down to review a possible merger. In occasions where the trading partners apply to the commission for a careful analysis of their merger requests, Article 4(5) also applies. Furthermore, if no member state objects to a merger within 15 days, Article 4(5) of the EUMR may also apply to the process of reviewing the merger.

Block Exemptions

Block exemptions are ordinarily applicable in vertical agreements. Article 101(3) normally defines the approval process for vertical agreements and concerted parties. However, this article should include new exception clauses to improve its efficiency and application in overseeing vertical mergers. Normally, the sale of goods and services among non-competing entities are subject to the provisions laid down in Article 101(3). Vertical agreements involved in the protection of property rights and ancillary provisions are the most profoundly known, but vertical agreements that involve concerted parties are rarely addressed. This omission, poses a significant weakness in the effectiveness of Article 101(3). Vertical agreements that are defined in Article 101(1) are rarely addressed in subsequent vertical agreements that are defined by Article 101(3).

It is therefore unsurprising that, it is unnecessary to define vertical agreements that are encompassed in Article 101(1). The block exemption is a useful provision in the application of Articles 101(1) and article 101(3), but it is crucial to restrain its application to only vertical mergers, which are proved under Article 101 (3) (because there are certain mergers which can improve the efficiency of operations even when they are deemed to be anti-competitive). Indeed, the European Commission demonstrates that, certain mergers can improve the efficiency of distribution operations or the coordination among participating partners (thereby, significantly reducing transaction and distribution costs, even though they may seem to be anticompetitive).

The main balancing act that can be applied in the above situation is often witnessed when the market benefits of such vertical agreements outweigh the negative effects of anti-competition brought by the same agreements. However, the possibility that, the market efficiencies created by the vertical agreements will outweigh the negative attributes of anti-competition often relies on the market power of the parties concerned. The European Commission contends that, when a company does not have a market share of more than 30% (and it has no violations on the EU competition laws), a vertical arrangement between the company and another is likely to result in market efficiencies.

If all the concerned parties have a market share of more than 30%, there is no surety that, the agreements falling within Article 101(1) will amount to market efficiencies (that outweigh the disadvantages of negative competition). There is also no guarantee that, these vertical agreements satisfy the provisions of Article 101(1) or that, they fail to meet the provisions set out in Article 101(3).

The above legislative articles should include vertical agreements, which include restrictions that are meant to safeguard the industry, customers and those that are dispensable to the attainment of market efficiency objectives. Vertical agreements that contain severe penalties on anticompetitive trade practices (like territorial protection and price restrictions), should not be subject to the block exemption rule, regardless of the market share of the trading parties.

To ensure the efficiency of the block exemption, certain changes need to be made. For example, to ensure there is no collision on the relevant market, new preconditions should be attached to the block exemption. Legal provisions relating to the limitation of market participants not to sell certain products and services of some of the market suppliers should be excluded from the block exemptions. The commission has the power to enforce the above regulation (or withdraw it) because Article 29(1) empowers them to do so. This power is also applied alongside the application of Article 81 and Article 82. Often the commission is mandated to investigate whether exemptions made in the preceding legal provisions contravene other sections of the law, like Article 101(3).

According to Article 29(2), the competing authority of member states also has an impact on the implementation of legal exemption, based on territorial grounds or contraventions with other legal provisions (such as a contravention with Article 101(2)). The decision regarding where to withdraw the benefits of legal exemptions (according to Article 29), which may create anticompetitive effects is heavily reliant on the determination whether it infringes on territorial jurisdictions or market access restrictions. Instances of selective distribution or non-compete obligations normally lead to the creation of restricted markets or jurisdiction challenges. To strengthen the management of parallel networks that may condone anti-competitive practices in the market, or the prevalence of dominant market shares, the commission has the power to declare the block legal exemptions inapplicable, thereby restoring the full impact of Article 101 when regulating vertical mergers. In this regard, the block exemption needs to be reviewed to improve its efficiency.

Politics in the Formulation of Approval of Mergers and Acquisitions

Ideally, the approval or disapproval of mergers and acquisitions within the EU should be done in a transparent and politics-free environment. This outcome is desirable because it would ensure that, competition concerns are the primary motivator for the implementation of competition laws. However, this is not the case. The political nature of commission decisions has proved to be problematic for the fair implementation of EU competition laws because it has diverted the attention from what is important (ensuring fair competition) to issues that do not matter (political favouritism). The problem with the formulation of such political decision arises from the fact that, the commission makes its decisions as a collegiate body as opposed to just the commissioner for competition. Future reforms on the EU competition laws should address this concern.

Conclusion

Mergers and acquisitions are important in business. However, in the spirit of fair competition, it is important to evaluate the processes and provisions that lead to the development of these mergers and acquisitions. EU competition laws effectively try to do so. However, the changing business environment and the challenges that define the formation of the EU corporate map prompt the delivery of effective reforms to address the challenges of existing legislations. This paper identifies the conflict between EU commission laws and national laws to be a significant problematic area in the implementation of EU competition laws. Indeed, this problem has been profound in most aspects of implementing EU laws. More importantly, there is an obvious clash between national laws and EU commission laws, which bring a jurisdiction problem when handling competition cases.

Article 1 addresses the threshold for determining the classification of cases but the lack of consensus among member states – to establish the accurate level of threshold, perpetrates the problem witnessed between EU states and EU community laws. From this problem, there is a need to effectively address the clash between national laws and EU laws, based on the jurisdiction problems that arise from the same conflict. Besides this conflict, the dynamic national laws that are effective within EU member states also pose potential conflicts with EU competition laws because some EU states try to protect their economies from the negative impact of market unionisation. In this regard, there is a potential disharmony between the objectives of EU competition laws (which strive to promote market integration and fair competition) and the objectives of national laws, which strive to protect local markets from adverse effects of market unionisation. It is therefore important to harmonise existing legislations.

The importance of reviewing possible exemptions, which are applicable in Article 101 also need to be considered with the same importance as the need to review jurisdictional problems and conflicts arising from legal objectives. This paper highlights the potential advantages and disadvantages that are present in vertical agreements as a potential area of EU laws that need reform. Indeed, this paper shows that, certain vertical agreements improve the efficiency of the market and reduce operational costs in the same regard, but this fact is often ignored for arguments against anti-competition.

However, it is easy to point out the anticompetitive nature of some of these vertical agreements, without considering the potential advantages and market efficiencies that may be realised from the same integrations. It is therefore important to reform block exemptions to accommodate vertical agreements that benefit the market. Finally, this paper highlights the importance of excluding political influences in the determination of merger and acquisition decisions in the EU because political influences deviate the attention from addressing competition concerns to serving political interests. This weakness undermines the objectives of EU competition laws and therefore, they have to be reformed in this regard. Comprehensively, the extent that EU competition laws require reform relies on the reform of Articles 1, 83, 82 and 101 of EU competition laws.

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