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House of Lords
Session 2001-02
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European Union Committee Publications

European Union - Thirty-Second Report

Here you can browse the report together with the Proceedings of the Committee. The published report was ordered by the House of Lords to be printed 23 July 2002.





  • Background
  • The Competition Rules
  • How the ECMR works
  • Previous Reports of the Committee
  • The content of this Report
  • The success of the ECMR and the need for further improvement
  • Who should examine which mergers?
  • Are the right mergers being judged to have a Community dimension?
  • Article 1(2)
  • Article 1(3)
  • Optional notification
  • General conclusions on multiple filings and Article 1(3)
  • Referrals to Member States—Article 9
  • Grounds for Member States to request a referral
  • Should Member States use the ECMR rules rather than their national law?
  • Grounds for the Commission to refuse a referral
  • Transparency
  • Referral back at the Commission's initiative
  • General conclusions on Article 9
  • Joint referrals to the Commission—Article 22(3)
  • Should the Commission be able to request an Article 22(3) referral?
  • The need for the Commission to issue guidelines on Article 22(3)
  • The substantive test
  • Are we playing with semantics?
  • No real differences?
  • The current ECMR test could be called 'dominance plus'
  • Real differences
  • A move to SLC would lead to more investigation
  • Arguments for retaining the dominance test
  • The loss of jurisprudence
  • Many domestic systems of merger control in the Member States have adopted
  • dominance as their substantive test
  • Arguments for switching to the slc test
  • 'International' mergers and the convergence of substantive tests
  • The SLC test is more solidly rooted in economics
  • The SLC test has a common-sense resonance
  • Could the Commission already be applying the SLC test?
  • The SLC test is better than the use of 'collective dominance' for dealing with
  • the problem of co-ordinated effects
  • Separating the substantive test from Article 82
  • The need for guidelines on the substantive test in the ECMR
  • Conclusions on the Substantive Test
  • Merger-specific efficiencies
  • Can an efficiencies defence be incorporated into the dominance test?
  • Would an efficiencies defence be particularly important if the ECMR changed
  • to SLC?
  • Does the Commission have an efficiencies 'offence'?
  • What conditions must be met for efficiencies to be considered?
  • At what stage in the review process should the Commission consider
  • efficiencies?
  • Consultation with consumer groups
  • The need for guidelines on efficiencies
  • Conclusions on efficiencies

  • The Commitments procedure
  • The current timetable
  • A deadline for the Statement of Objections
  • 'Stop the Clock'
  • A 'stop-the-clock' provision could help by giving time to discuss remedies
  • How long should the clock be stopped for?
  • Should the Commission be allowed to 'stop the clock'?
  • Could 'stop the clock' also be used to allow greater consultation?
  • Conclusions on 'stop the clock'
  • Should the Commission take a more active role in proposing remedies?
  • The current situation
  • Access to the file
  • Changing the role of the Commission in identifying remedial measures
  • Changing the role of the Hearing Officer in the negotiation of remedies
  • Changing the timetable
  • Employment Considerations and the ECMR
  • The current provision for employee involvement
  • Should the ECMR oblige the parties to consider the impact of a merger on
  • employment?
  • The role of worker representatives
  • Should the criteria for the appraisal of mergers be extended to take
  • account of employment considerations?
  • Conclusions
  • Due Process and "Checks and Balances"
  • The Commission's position in the Green Paper
  • Criticisms of the Commission
  • Changing to a judicial-based system
  • Reform of the system of judicial review
  • The "fast-track" procedure
  • Separation of the teams that examine mergers in Phase I and Phase II
  • Strengthening the role of the Hearing Officer
  • Should the Hearing Officer have a mandate to report on substantive issues?
  • The content of the Hearing Officer's report
  • Greater independence
  • The need for more resources for the Hearing Officer
  • More economists
  • Additional posts and resources are required for procedural changes
  • Jurisdictional issues
  • The substantive test
  • Merger-specific efficiencies
  • The Commitments timetable
  • Employment considerations and the ECMR
  • Due process and checks and balances on the decisions of the Commission
  • Resources
  • Recommendation
  • Appendix 1: Membership of Sub-Committee A

    Appendix 2: List of witnesses

    Appendix 3: Glossary


    Mr Rufus Ogilvie Smals, Chairman of CBI Competition Panel, Ms Lynda Martin, Mr Juan

    Rodriguez and Mr Jonathan Dykes, Legal Adviser, Confederation of British Industry

    Written evidence

    Oral evidence, 18 April 2002

    Supplementary evidence

    Dr William Bishop, Lexecon Limited

    Oral evidence, 25 April 2002

    Ms Katherine Holmes and Mr Simon Polito, Joint Working Party of the Bars and Law Societies

    of the United Kingdom on Competition, Mr James Flynn and Mr Ali Nikpay,

    Competition Law Association

    Written evidence (Joint Working Party)

    Oral evidence, 7 May 2002

    Written evidence (Competition Law Association)

    Mr David Coats, Head of Economic and Social Affairs, Ms Janet Williamson, Policy

    Officer, Economic and Social Affairs, Trades Union Congress, and Mr Gerry Veart, GMB

    Written evidence

    Oral evidence, 14 May 2002

    Professor John Kay

    Oral evidence, 16 May 2002

    Mr John Vickers, Director General, and Ms Margaret Bloom, Office of Fair Trading

    Oral evidence, 21 May 2002

    Supplementary letter dated 21 June 2002

    Dr Derek Morris, Chairman, Mr Robert Foster, Secretary and Chief Executive, Mr Brian

    McHenry, Chief Legal Adviser and Ms Carole Begent, Competition Commission

    Oral evidence, 23 May 2002

    Supplementary letter dated 2 July 2002

    Mr Philippe De Buck, Secretary General, Mr Peter Plompen, Chair Company Affairs Committee,

    Mr Erik Berggren, Senior Adviser, Union of Industrial and Employers' Confederations of Europe

    Memorandum submitted to the European Commission by UNICE

    Oral evidence, 28 May 2002

    Mr Willy Buschak, Confederal Secretary, European Trade Union Confederation

    Memorandum submitted to the European Commission by ETUC

    Oral evidence, 28 May 2002

    Mr Gerwin Van Gerven, Vice Chairman, Competition Policy, Ms Fiona Carlin,

    Mr Alec Burnside, Mr Pierre Kirch, Mr Andrea De Matteis and Mr Franck Fougère,

    the EU Committee of the American Chamber of Commerce in Belgium

    Memorandum submitted to the European Commission by ACC

    Oral evidence, 29 May 2002

    Commissioner Mario Monti, Mr Götz Drauz, Director Merger Task Force, Mr Stephen Ryan,

    Merger Task Force, Mr Carles Esteva-Mosso, Member of the Cabinet and

    Ms Anna Papaioannou, Directorate-General for Competition, European Commission

    Oral evidence, 29 May 2002

    Miss Melanie Johnson MP, Parliamentary Under-Secretary of State for Competition, Consumers

    and Markets, Mrs Pat Sellers, Director, Consumer and Competition Policy Directorate,

    Mr Ben Rimmington, Assistant Director, EC Mergers and Mr David Wirth,

    Economic Adviser, Department of Trade and Industry

    UK Response to the European Commission

    Oral evidence, 18 June 2002

    Mr David Crossland, Chairman, and Mr Greg McMahon, Company Secretary,

    MyTravel Group plc (formerly Airtours plc), and Mr Malcolm Nicholson, Slaughter and May

    Oral evidence, 27 June 2002


    Mr Peter Alexiadis and Ms Miranda Cole, Squire, Sanders and Dempsey LLP

    Gavin Anderson & Company

    Mr Joseph Gilchrist

    International Chamber of Commerce, UK Committee on Competition

    National Consumer Council

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