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The Ec Merger Control Regulation: Right of Defence, a Critical Analysis of Dg Comp Practice And (International Competition Law) (International Competition Law Series Set) [Hardcover]

By Mihalis Kekelekis (Author)
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Item description for The Ec Merger Control Regulation: Right of Defence, a Critical Analysis of Dg Comp Practice And (International Competition Law) (International Competition Law Series Set) by Mihalis Kekelekis...

Merger control constitutes a well-established pillar of EU competition law. However, the drafters of the Community competition merger legislation, in view of the need to attain the imperative goal of market integration, put more emphasis on the clarification of the substantive rules applied by the Commission through enhancing its supervisory powers than on the necessity for protecting the defendant parties or any involved third parties in merger proceedings. Here for the first time is an in-depth analysis of the rights of notifying parties and third parties in merger proceedings, as reflected in the administrative practice of the Commission and the case law of the Community courts.

Following a detailed exposition of the operation of the Merger Regulation and its procedures, this study covers not only the generally approved fundamental rights, such as the right to be heard or the right to access the Commission's file, but also all the other procedural rights involved in merger proceedings, such as the right of notifying parties to propose commitments outside the time-limit required. It examines the rights of the parties from the pre-notification stage through the first and second phases of the proceedings, with particular emphasis on notification, preliminary investigation, statement of objections, access to the file, oral hearing, commitments, and adoption of the final decision.

Among the issues covered in depth are:

  • the value of pre-notification meetings;
  • preparation of the Form CO and the danger of incompleteness;
  • derogation procedure;
  • commitments procedure in phase one and phase two investigations;
  • statement of objections, reply and time-linits;
  • limits to access to the file and oral hearing; and
  • the concept of `sufficient interest.

The study culminates with recommendations for reform of, and improvement in, the rights of notifying parties and third parties, including amendments to the Regulation and a further suggestion for the adoption of a Notice providing guidance on how the rights of these parties should be taken into account in merger proceedings.

A valuable set of annexes includes the texts of the Merger Regulation, its implementing Com-mission Regulation, and the DG Competition Best Practices on the Conduct of EC merger con-trol proceedings.

As a detailed examination of the rights of notifying parties and third parties in EC merger proceedings, and an important blueprint for detailing the rights of these parties, this study will be of immeasurable value for practitioners and business people involved in European business merger activities, as well as for interested academics.





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Item Specifications...


Studio: Kluwer Law International
Pages   364
Est. Packaging Dimensions:   Length: 9.37" Width: 6.22" Height: 1.02"
Weight:   1.54 lbs.
Binding  Hardcover
Release Date   Jul 19, 2006
Publisher   Kluwer Law International
ISBN  9041125531  
ISBN13  9789041125538  


Availability  98 units.
Availability accurate as of Mar 24, 2017 04:15.
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Product Categories

1Books > Subjects > Business & Investing > Reference > Business
2Books > Subjects > Law > Business > Commercial
3Books > Subjects > Law > General
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Reviews - What do customers think about The Ec Merger Control Regulation: Right of Defence, a Critical Analysis of Dg Comp Practice And (International Competition Law) (International Competition Law Series Set)?

Developing more rounded merger control regulation  Oct 18, 2006
The EC Merger Control Regulation: Right of Defence, a Critical Analysis of DG COMP Practice and Community Courts' Jurisprudence by Mihalis Kekelekis (International Competition Law Series: Kluwer Law International) Merger control constitutes a well-established pillar of EU competition law. However, the drafters of the Community competition merger legislation, in view of the need to attain the imperative goal of market integration. put more emphasis on the clarification of the substantive rules applied by the Commission through enhancing its supervisory powers than on the necessity for protecting the defendant parties or any involved third parties in merger proceedings. Here for the first time is an in-depth analysis of the rights of notifying parties and third parties in merger proceedings, as reflected in the administrative practice of the Commission and the case law of the Community courts.
Following a detailed exposition of the operation of the Merger Regulation and its procedures, this study covers not only the generally approved fundamental rights, such as the right to be heard or the right to access the Commission's file, but also all the other procedural rights involved in merger proceedings, such as the right of notifying parties to propose commitments outside the time-limit required. It examines the rights of the parties from the pre-notification stage through the first and second phases of the proceedings, with particular emphasis on notification, preliminary investigation, statement of objections, access to the file, oral hearing, commitments, and adoption of the final decision.
Among the issues covered in depth are:
the value of pre-notification meetings;
preparation of the Form CO and the danger of incompleteness;
derogation procedure;
commitments procedure in phase one and phase two investigations;
statement of objections, reply and time-linits;
limits to access to the file and oral hearing; and
the concept of 'sufficient interest'.
The study culminates with recommendations for reform of, and improvement in, the rights of notifying parties and third parties, including amendments to the Regulation and a further suggestion for the adoption of a Notice providing guidance on how the rights of these parties should be taken into account in merger proceedings.
A valuable set of annexes includes the texts of the Merger Regulation, its implementing Commission Regulation, the DG Competition Best Practices on the Conduct of EC merger control proceedings, as well as indicative diagrams of the first and second phase of the EC merger proceedings.
As a detailed examination of the rights of notifying parties and third parties in EC merger proceedings, and an important blueprint for detailing the rights of these parties, this study will be of immeasurable value for practitioners and business people involved in European business merger activities, as well as for interested academics.
It examines the rights of the parties in the light of a step-by-step analysis of the merger proceedings, i.e. pre-notification stage, first phase and second phase of the proceedings). Particularly the stages of notification, preliminary investigation, statement of objections, access to the file, oral hearing, commitments and of the adoption of the final decision are examined.
The conclusions of this book suggest that there must be a need to balance the efficient enforcement of competition rules with the protection of the notifying and third parties' procedural rights. Consequently, suggestions for further reform of the Merger Regulation and of its internal procedures are presented and the adoption of a Notice on the rights of notifying parties and third parties in merger proceedings is suggested, aiming to ensure that the Commission is fair and objective in applying its procedural rules.
The material, which this research is based on, is derived not only from the basic bibliography on merger and competition policy, the decisions of the Commission and the Community courts in this respect and interviews undertaken with a number of Competition lawyers in Brussels, but also from practical experience that I gained through my internships in the Merger Task Force of the European Commission as well as in international law firms in Brussels.
Excerpt: This study has attempted to present an analysis of the rights of notifying parties and third parties in EC merger proceedings, as reflected in the administrative practice of the Commission and the case law of the Community courts. This study was placed in the context of the broader ambitions of EU Competition policy, i.e. the maintenance of effective and fair competition and the establishment of internal market integration, with no barriers to trade between Member States, as derived from Article 3g EC, which states that a system of undistorted competition in the internal market should be ensured.
In order to achieve the above-mentioned ambitions, a Regulation on, among others, merger control has been adopted by the Council, as a legislative measure, to ensure that all mergers affecting firms established in the Community are in harmony with the maintenance of an effective and fair competition.' In this context, the Commission has been endowed with far-reaching supervisory powers to protect market structures by preventing the creation or strengthening of dominant positions that would impede effective competition within the common market or in a substantial part of it (Article 2(3) of the Regulation).
However, as it has also been mentioned in the introduction of this study, it seems that the drafters of the Community competition merger legislation, in view of the need to attain the imperative goal of market integration, as laid down in Article 3g EC, had put more emphasis on the clarification of the substantive rules applied by the Commission through enhancing its supervisory powers, than on the necessity for protecting the rights of the notifying or any involved third parties in merger proceedings.'
It can be argued that, one the one hand, a high degree of procedural protection can certainly improve the transparency of the proceedings. On the other hand, however, such protection may do more harm than good and undermine the efficiency of proceedings and the proper decision-making, especially under the Regulation, where the Commission applies very strict time-limits.' To this end, pleas alleging infringement of the rights of defence have been rejected by the Community courts, if the final outcome of the case would not have been different even in case of their observance. In the Endemol v. Commission case, for example, the applicant, i.e. one of the notifying parties in the Commission's administrative proceedings, argued that the Commission infringed its rights of defence in the way in which it dealt with its right of access to the file. In particular, the applicant alleged that the Commission acquired new information after the parties to the concentration had been granted access to the file and that they were never informed of that fact or given the opportunity to see this information. The CFI accepted the Commission's argument that the principles governing access to the file in merger proceedings must reconcile the protection of the parties' rights of defence and the wider public interest in effective scrutiny of concentrations, and it followed holding that:
"even if the Commission had disclosed the information, which was, moreover, of confidential nature, the applicant would not have been able to challenge it."
Also, in the Kaysersberg v. Commission case, the CFI ruled that the third parties' right to be heard must be adapted to the need for speed, which is a criterion that characterises the nature of the Regulation.'
Consequently, according to the administrative practice of the Commission and the case law of the Community courts, the rights of notifying parties and third parties in merger proceedings must be derived from the balancing of two factors: efficiency to reflect the proper decision-making and fairness. An analysis of the way the need for efficiency and speed of assessment has been and should be balanced with the protection of the notifying parties' rights of defence and the third parties' right to be heard was the ultimate purpose of this study.
In view of the fact that no specific legislation exists at the current time in the Community legal order for the protection of these rights, this study has concluded with suggestions for reform of, and improvement in, the rights of notifying and third parties in merger proceedings, as well as with suggestions for the elaboration of a new Commission Notice to deal with this subject.
I believe that the adoption of a legislative measure, even in the form of a non-binding notice, concerning the protection of the parties' rights in merger proceedings would increase legal certainty and improve the accountability and performance of the Commission. In addition, applications by the parties to the concentration or any interested third parties before the Community courts challenging Commission's decisions for infringements of basic procedural rights within its administrative proceedings are expected to diminish. The recent developments with respect to the general right of access to information from EU institutions and the discussions regarding the alignment of a single regulatory framework for both the general and the administrative right to access information can constitute an important stimulus in that respect.'
In any case, however, and even if such a legislative measure is not to be adopted, the Community courts should continue to operate in quite the same manner as they have already done, i.e. they should continue to formulate standards of procedural fairness and define clearly the extent of protection provided by procedural rights under the Regulation. Such doctrinal assessments would certainly constitute an important step towards the establishment of a coherent procedural framework for EC merger proceedings.
 

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