Le contrôle européen des concentrations et les leçons à tirer de la crise financière et économique = European merger control and the lessons of the financial and economic crisis. Research Papers in Law, 06/2013

No abstract.

The Standard of Proof in EC Merger Control-Conclusions from the Sony BMG Saga. IES WORKING PAPER 4/2008

One of the most important developments in EC competition policy during 2006 was the Court of First Instance’s (CFI) Impala v. Commission judgment annulling the European Commission’s approval of the merger between the music units of Sony and Bertelsmann. It harshly criticized the Commission’s Decision because it found that the evidence relied on was not capable of substantiating the conclusion. This was the first time that a merger decision was annulled for not meeting the requisite legal standard for authorizing the merger. Consequently, the CFI raised fundamental questions about the standard of proof incumbent on the Commission in its merger review procedures. On July 10, 2008, the European Court of Justice overturned Impala, yet it did not resolve the fundamental question underlying the judicial review of the Sony BMG Decision; does the Commission have the necessary resources and expertise to meet the Community Court’s standard of proof? This paper addresses the wider implications of the Sony BMG saga for the Commission’s future handling of complex merger investigations. It argues that the Commission may have set itself an impossible precedent in the second approval of the merger. While the Commission has made a substantial attempt to meet the high standard of proof imposed by the Community Courts, it is doubtful that it will be able to jump the fence again in a similar fashion under normal procedural circumstances.

Controlled ‘Europeanisation’? The KMW–Nexter merger and the Germany’s new strategy for the arms industry. OSW COMMENTARY NUMBER 180/26.08.2015

On 29 July a deal was signed in Paris concerning a merger between Krauss-Maffei Wegmann (KMW), Germany’s largest manufacturer of tanks, infantry fighting vehicles and artillery systems, and its French counterpart Nexter. The new holding formed as a result of the merger will be Europe’s largest producer of arms systems for land forces, comparable to the Airbus Group in the aerospace industry. While work on finalising the merger was underway, the German government was developing a new strategy for Germany’s arms industry, which was published on 9 June 2015. The strategy’s provisions show that German politicians, despite holding negative opinions on previous mergers between German arms companies and foreign businesses, have concluded that consolidation at the European level is nonetheless the only way to go. However, the strategy also states that the German government should exercise more influence than previously on the terms and conditions of any such consolidation. To this end, it identified key national technologies which will be supported and protected through various instruments, including also the conclusion of intergovernmental agreements on strategic defence co-operation. Such agreements may regulate questions such as the ownership structures of the new companies, the locations for developing technologies and for manufacturing products, subcontractors and exports of jointly developed arms and military equipment. In relation to the KMW–Nexter merger, such a deal between France and Germany is expected to be signed this autumn.

Saving the Monopsony: Exclusivity, Innovation and Market Power in the Media Sector. Research Papers in Law, 7/2006

From the Introduction. The Media Sector has experienced a technological revolution in the last 15 years. Digital encoding of television signals made possible a more efficient use of the radiospectrum. Digital terrestrial television (hereinafter, “DTT”) allows now for the reception of a significant number of free-to-air channels.1 Moreover, the use of new transmission platforms (hereinafter,“platforms”), namely cable and direct-to-home satellite (hereinafter, “DTH”) paved the way for the arrival in Europe of pay-TV operators, which finance their activities mainly via subscription fees. This changing technological landscape is subject to further evolution in the near future, as incumbent telecommunications operators become increasingly interested in making available broadcasting content2 as part of their broadband offer and 3G mobile handsets can be used for the reception of TV signals....The present paper seeks to ascertain whether the Commission “regulatory approach” towards the exclusive sale of premium content is a sound one, in particular in view of the constant technological evolution outlined above. The assumptions underlying landmark Commission decisions will be compared with recent developments of the media sector in Italy. In the NewsCorp./Telepiù case, decided in 2003, the Commission imposed very strict conditions to allow the merger giving birth to Sky Italia, on the assumption that the operation created a lasting near-monopsony in the different upstream markets for the acquisition of premium intervened against the media conglomerate Mediaset (which controls, inter alia, the main three private free-to-air channels in Italy) for an alleged abuse of dominant position.17 In fact, and contrary to the forecasts made by the Commission, Mediaset was in a position to acquire the broadcasting rights of the main Italian football teams, thereby excluding the incumbent (and near-monopolist) pay-TV operator, Sky Italia. This may go to show that the reality of the sector is more complex and evolves faster than one may infer from the Commission practice, thus putting into question its stance regarding exclusivity. The experience of the evolution of the Italian media sector will be used as the starting point for the evaluation of alternative regulatory options.

The Dragon awakes: Is Chinese competition policy a cause for concern? Bruegel Policy Contribution 2013/14, 22 October 2013

China’s Anti-Monopoly Law, adopted in 2007, is largely compatible with antitrust law in the European Union, the United States and other jurisdictions. Enforcement activity by the Chinese authorities is also approaching the level seen in the EU. The Chinese law, however, leaves significant room for the use of competition policy to further industrial policy objectives. The data presented in this Policy Contribution indicates that Chinese merger control might have asymmetrically targeted foreign companies, while favouring domestic companies. However, there are no indications that antitrust control has been used to favour domestic players. A strategy to achieve convergence in global antitrust enforcement should include support for Chinese competition authorities to develop the institutional tools they already have, and to improve merger control by promoting the adoption of a consumer-oriented test and enforcing M&A notification rules.

Beyond individuals: a more effective structure for the Commission. EPC Commentary, 9 September 2014

In recent days, Brussels has been excited by the circulation of diagrams showing a re-organisation and allocation of posts in the new European Commission, reputedly coming from somewhere within Jean-Claude Juncker’s team. Many have pointed out that some of the appointments seem unlikely, also noting that the diagram seems to miss the Enterprise and Single Market portfolios, where it is difficult to envisage their complete merger into other portfolios, given their size and importance. In addition, not only is the source of the document unknown, it could have been leaked for a specific purpose, for example to test out the reactions in some Member States or to push individual EU countries into action, for example by appointing a woman to get a better portfolio.

The Commissioners’ Group on External Action – Key political facilitator. CEPS Special Report No. 125/December 2015

The reactivation of the Commissioners’ Group on External Action (CGEA) is one of the most important institutional initiatives in EU foreign policy-making since the merger of the position of the High Representative for CFSP with that of Vice-President of the Commission and the creation of the European External Action Service. In this report the authors examine the mandate and organisation of the CGEA and note that, in its first year of activity, the Group has injected much-needed political pragmatism into the way the Commission contributes to EU external action, thereby facilitating inter-service cooperation both within the Commission and with the EEAS. They argue that the CGEA has in fact become the logical counterpart to the Foreign Affairs Council, which allows the HRVP to deliver on her duty to assist the Council and the Commission in ensuring a comprehensive approach to EU external action, as indeed consistency in its implementation.