Select Committee on European Union Thirty-Second Report


PART 5 PROCEDURAL ISSUES

The Commitments procedure

The current timetable

188. The Merger Regulation sets out a strict time frame for commitments.[70] In Phase I, commitments can be submitted within three weeks of the date of notification (Article 18(1) of the Implementing Regulation 447/98). In Phase II, commitments can be submitted up to three months after the date on which proceedings were initiated (Article 18(2) of the Implementing Regulation 447/98).[71]

189. Witnesses from industry were keen to stress that the clear deadlines of the ECMR were one of its most positive features. They ensured "speedy decision-making and legal certainty". But, whilst supporting the time limits, the Confederation of British Industry (CBI) said that they could "impose a straitjacket in some cases, where more time to produce suitable remedies could prevent the outright prohibition of a deal." When the timetable slipped, the parties were squeezed up against the three-month deadline for proposing remedies. In contentious merger cases this meant that there was not sufficient time to refine the remedy offer. This lack of time for finely adjusting the remedy offer was particularly a problem in cases that involved "sophisticated markets, high tech markets, and other markets where a very sophisticated remedy package might ultimately be adequate [to fulfil the Commission's competition concerns and so prevent it from blocking the merger]." The time available for negotiating remedies was a critical issue for businesses since the remedy offer was often ultimately "the key factor" in getting a merger approved (p 9; Q 50). Industry was concerned that the time limits could lead to mergers being prohibited "only for reasons of procedure rather than substance" (pp 109, 132). The National Consumer Council (NCC) added that this anomaly was not in the interest of consumers:

"If an acceptable remedy that does not have anti-competitive consequences can be agreed upon, then it is not in the consumer interest for this to be prevented by procedural difficulties" (p 196).

190. The Commission recognised that the ECMR's strict time limits were widely seen as "a big advantage of the EU system over the US system" (Q 403). It realised, however, that they resulted in "some difficult moments" when the deadlines were approaching. Many witnesses confirmed that the timetables were "very, very tight", "in some cases too tight," saying that this often resulted in "a hothouse effect" with pressure building up. Witnesses complained that the three-month deadline for commitments in Phase II was often soon after the oral hearing, when parties were still in the process of absorbing the Commission's Statement of Objections. Businesses and law practitioners wanted a clearer separation of the Statement of Objections and the discussions of remedies. (Q 199; p 132).

A deadline for the Statement of Objections

191. Some witnesses suggested that this separation could be achieved by the Commission establishing clear deadlines for the issuing of the Statement of Objection. The CBI and the CLA both said that this change "would restore a degree of balance in the respective positions of the parties and the Commission by removing the ability of the latter to reduce, whether deliberately or not, the time available to the parties to respond to the Commission's case. This reform would immediately eliminate the widely held, but unwarranted, suspicion that the Commission [had] used the tight timetable to weaken the position of the parties. In this way justice would be seen to be done." (pp 5, 52). Gavin Anderson agreed that the Statement of Objections was often issued too late in the review proceedings (p 184).

'Stop the Clock'

192. The Commission recognised that the period currently available for discussing remedies was "often squeezed into the end" of the procedure. It was often too short for the parties to establish the exact scope of the Commission's competition concerns and for the two sides to agree commitments (Q 404). To mitigate for this difficulty, the Commission suggested that there could be a procedure for extending the timetable on the initiative of the parties. The Commission's suggestion was that the parties should be able to 'stop the clock' thereby suspending the ECMR timetable for a given period. It would be up to the parties whether they ask for the clock to be stopped, though any stop would be only for a short and finite period. The Commission hoped that this option would give companies "the positivity of the time limitation but, at their request, the possibility to extend this a little more" (Q 403). The Commission saw this as having several advantages and only minor inconveniences.[72]

A 'STOP-THE-CLOCK' PROVISION COULD HELP BY GIVING TIME TO DISCUSS REMEDIES

193. The Competition Law Association (CLA) suggested that allowing the parties the right to 'stop the clock' could help with the discussion of remedies and "allow a period of reflection to be introduced into the procedure" (Q 119). The CBI called this proposal "a very welcome idea". It wanted the provision to be available to enable the fine tuning of the remedy offer "and for no other purpose" (pp 2, 9; Q 50). Many other witnesses were also in favour the possibility of the parties being able to 'stop the clock' in situations where they needed time to formulate their remedies. The proposal could introduce a potential "safety valve" into the commitments procedure, which could ease the pressure on all sides to agree upon workable remedies.[73] But Mr Gilchrist, a former Hearing Officer, was sceptical of the value of 'stop the clock'. In the context of discussing remedies, the proposal would not ameliorate the pressure of the situation: "By the very nature of negotiations they will always go to the last minute where major issues are involved" (p 186).

HOW LONG SHOULD THE CLOCK BE STOPPED FOR?

194. The European Parliament's Committee on Economic and Monetary Affairs called on the Commission to ensure that the proposal translated into "simple and effective rules and time limits".[74] The CBI and the Competition Commission agreed that any break from the timetable should be for "clearly limited periods" that were "incapable of further extension" (Q 292).

195. Whilst witnesses were agreed that the parties should be allowed to 'stop the clock' just once in each Phase of a merger investigation—so that it was not something that could be used on a recurring basis[75]—they suggested the clock should be stopped for different lengths of time. These ranged from 10 to 15 working days in Phase I and from 15 working days to a month in Phase II.[76] The American Chamber of Commerce (ACC) proposed a system whereby "the notifying parties should be free to ask the Commission for a shorter deadline if they believed that it would be reasonable and sufficient to address the Commission's concerns" (p 133).

SHOULD THE COMMISSION BE ALLOWED TO 'STOP THE CLOCK'?

196. Witnesses from industry and legal representatives were unanimous in insisting that the decision to 'stop the clock' should only be at the option of the notifying parties.[77] However, Dr Derek Morris, the Chairman of the Competition Commission, thought that to be "misguided". He explained that the Competition Commission "very rarely" needed an extension to the timetable. When it did, there were "very good reasons for it"—such as discovering late in the day some new facts on the case. For such facts only to be taken into account at the request of the parties "would be undesirable". He thought there should be "very limited scope" for either side to 'stop the clock' in the ECMR timetable (Q 292). The European Consumers' Organisation (Bureau Européan des Unions de Consommateurs—BEUC) was also concerned that, if the parties were the only ones who could 'stop the clock', the Commission "would still be subject to the squeeze effect".[78]

COULD 'STOP THE CLOCK' ALSO BE USED TO ALLOW GREATER CONSULTATION?

197. The CLA thought that 'stop the clock' was "sensible but of minor importance". Considering the crux issue in the review of the ECMR to be due process, it claimed that the proposed changes to the timetable were "only likely to improve the situation at the margins" (p 51). Similarly, the Government said that 'stop the clock' was only part of the issue and considered that it "should not be the focus of due process". The Government admitted, however, that 'stop the clock' could help to ensure that there was time available for the investigation process to work properly and fairly: the limited time available to discuss remedies could prevent the Advisory Committee,[79] which provided one of the main checks and balances in the system, from doing its job as well as it might do (p 159). Commitments proposed at the end of the timetable left little time for the Commission to consult Member States or third parties prior to preparing a draft decision.

198. John Vickers, the Director General of the Office of Fair Trading, confirmed that the time allowed for the Advisory Committee to see the papers was "way below the time that Member States should have". If the Member States were to work effectively as a check, they needed to have the papers sufficiently ahead of the meeting. Within the current timetable that was very difficult and rarely achieved. He agreed that the 'stop-the-clock' provision might therefore have the further benefit of providing additional time to the Member States on the Advisory Committee who wished to play a fuller role in the review process. That would, however, be a "bonus rather than the prime purpose" of the measure (Q 243).

199. The TUC supported 'stop the clock', considering that it could allow more consultation or information to be fed in to the Commission. It would be "a positive change that could help a wider range of views and trade unions' views to feed into the process effectively" (Q 129). Likewise, for BEUC, the real issue was the "proper involvement of all interested parties in merger review, including consumer organisations." It was concerned that consumer organisations had little time to conduct research and gather the evidence necessary to have a real impact on the Commission's decision.[80]

CONCLUSIONS ON 'STOP THE CLOCK'

200. The Committee supports the idea of a 'stop the clock' provision being included in the ECMR. This change could allow more time for the collection of information and for remedies to be negotiated and agreed upon, which would be in the public interest. 'Stop the clock' should be possible once in both Phases but should only be for very strictly limited periods of time. The aim should be to give sufficient additional time to find solutions to the identified competition problems that are acceptable to both the parties and the Commission. Such sensitive negotiations are always liable to go to the deadline, whatever time limit is set. If 'stop the clock' is too generous, we fear that an extension could become the norm rather than an exception. We suggest 5-10 working days in Phase I and 15-20 in Phase II. The parties should be free, however, to ask the Commission to stipulate a shorter deadline if they believe that this would be sufficient to address the Commission's concerns.

201. 'Stop the clock' could permit greater consultation by the Commission and incidentally allow the Advisory Committee to act as a more efficient check on the system. These objectives would not necessarily be achieved if it were only available at the option of the parties. It would be in the public interest if the Commission had the ability to 'stop the clock' under the same terms and conditions as the parties.

Should the Commission take a more active role in proposing remedies?

THE CURRENT SITUATION

202. When the Commission concludes that a proposed merger would create or strengthen a dominant position as a result of which competition would be significantly impeded and so would have to be prohibited, it identifies the competition concerns it has with the merger. The onus is then on the parties to put forward undertakings to the Commission that might remedy those concerns. The process is similar in the UK and the US regimes.

203. Mr Gilchrist, a former Hearing Officer, explained that often the parties could not identify clearly the scope of the competition problems or the consequent remedies that the Commission considered necessary to overcome the problems. Given the tightness of the timetable, this could become a real problem:

"The psychology of the situation means that the parties are put under great pressure to offer successively more concessions in order to complete their proposed merger. Whether these concessions are the right ones or necessary in their totality is not made clear to the parties. It also encourages a kind of poker atmosphere, which is not conducive to logical debate and seeking equitable solutions. […]  
[The result is] an auction, where the Commission is sometimes accused of moving the goalposts and the parties feel they have to constantly offer more […] thereby giving the impression to the Commission that there is always something more to be obtained if you apply more pressure" (pp 185-186).[81]

ACCESS TO THE FILE

204. The CBI and the CLA urged the Commission to grant the parties access to the file immediately after the beginning of Phase II proceedings (i.e., immediately after the Commission issued the Article 6(1)(c) decision). Both witnesses said that this would be a simple but important change that would "increase transparency by allowing the parties to understand better the foundation of the Commission's preliminary case and to devise better remedies at an early stage." The two witnesses agreed that this change would put an end to the argument that was often made, albeit without foundation in their view, that the Commission refused to grant access "until much later in the process as a tactical device to increase pressure on the parties by reducing the time they [had] to marshal their counter-arguments" (pp 5, 52). Lawyers from Squire, Sanders & Dempsey agreed that access to the file came too late in the review process to allow parties to respond fully to the Commission's position when formulating a package of commitments (p 181).

CHANGING THE ROLE OF THE COMMISSION IN IDENTIFYING REMEDIAL MEASURES

205. Some witnesses suggested that the Commission should take a more active role in identifying remedial measures, both in the first and the second phases. Witnesses from industry wanted a procedure where the parties could ask the Commission to provide guidance in the structuring of undertakings. The CBI said that as a matter of practice this happened already. However, the Commission should clarify that it had the ability to take a more active role in the identification of appropriate remedies (p 9). Many witnesses agreed that this would be in the interests of efficiency and could provide more clarity and transparency to companies going through the investigation process (pp 133, 196; Q 324). The Government "would not suggest that the Commission should be under any obligation to come forward with proposals, but a clarification that there was no bar on their responding to parties' questions about the possible nature and proportionality of an effective remedy would appear sensible" (p 159).

206. The Joint Working Party of the Bars and Law Societies of the UK (JWP) and the ACC agreed that the Commission should adopt a "best practice approach" of giving clearer guidance to parties about outstanding issues, the areas where remedies were required and the adequacy of any remedies proposed. But this should not be enshrined in a legally-binding procedure. The parties did not always understand why the Commission found some of the commitments they had offered to be unacceptable or unsatisfactory. A "best practice approach", requiring the Commission to set out its reasons for rejection, could be of particular benefit for such cases (pp 36, 133; Q 123).

207. The Commission, however, was clear that it would only "accept undertakings in a decision." It was not the role of a competition agency to propose remedies and "to be a merchant banker." The Commission's role was "to identify as clearly as possible, in as timely a way as possible, the nature of [its] competition concerns." It was then for the parties to suggest appropriate remedies and for the Commission to assess those proposed commitments (Q 404).

208. The Commission should not be obliged to take the initiative to identify the measures that it deems necessary for it not to oppose a notified merger. Such a change would reverse the dynamic of the negotiation of commitments, placing the onus on the Commission and inviting the parties to challenge its proposals. Nonetheless, a greater degree of clarification of whether, and under what circumstances, the Commission has the ability to propose remedies would be helpful to companies. In all merger cases, the Commission's position on remedies should be made public as a matter of course.

CHANGING THE ROLE OF THE HEARING OFFICER IN THE NEGOTIATION OF REMEDIES

209. Mr Gilchrist thought that, "to establish a sense of equity", a neutral Chairman, possibly the Hearing Officer, could oversee the latter stages of the case, including helping the parties to identify remedies that would answer the objections of the Commission. There should be a clear negotiating framework that could involve organised negotiating sessions, under the watch of the Chairman. The Hearing Officer's report on the oral hearing should:

"present a summary of the key arguments and nature of the case, together with a statement of the issues that would need to be solved, i.e., definition of the competition problem and scale of the measures needed to solve these problems. […] On the basis of the Hearing Officer's report, negotiations could then be planned between the MTF and the parties to see whether solutions could be found to the problems identified at a cost to the parties which they would be willing to bear in order to complete their merger. [...] The advantage of this approach would be that negotiations took place in a clearly defined scenario." (p 186)

210. Lawyers from Squire, Sanders & Dempsey agreed that the Hearing Officer should be encouraged "to take a more pro-active role in the reporting of Oral Hearing proceedings" (p 182). Further, Gavin Anderson supported the idea that the Hearing Officer should assist in the negotiation of commitments: "In negotiating undertakings, greater trust could be engendered by the Hearing Officer assisting in the commitments negotiation and acting as a broker or indeed arbitrageur" (p 184).

211. The Hearing Officer's report on the Oral Hearing could provide the basis of the negotiations of remedies. The Hearing Officer, or a similar appointment, could then chair the negotiations and act as a mediator between the parties and the Commission. This suggestion would improve transparency in the commitments procedure. It could thus be ensured that the companies concerned might perceive the ECMR system as fair by giving them confidence that the negotiation of remedies was more balanced and not loaded against them. Such a strengthening of the role of the Hearing Officer could provide a greater safeguard to protect the position of the notifying parties and would be achievable within the current institutional arrangements.

CHANGING THE TIMETABLE

212. Mr Gilchrist also suggested that much could be achieved by reversing the ordering of some stages of the procedure. Currently, the Commission issues a Statement of Objections, which is followed by an oral hearing that is frequently sterile as everybody repeats the same arguments. Lawyers from Squire, Sanders & Dempsey complained that the Oral Hearing, "far from being an attempt to get to the heart of the issues at stake," was little more than "a rubber-stamping exercise for the Commission's views expressed in the Statement of Objections" (p 182). If the order were reversed, bringing the oral hearing further forward in the procedure, the oral hearing might be less antagonistic and could be an attempt to identify the issues involved in the case. As proposed above, the Hearing Officer would summarise the situation after the oral hearing, identifying the competition problems and possible solutions to them. The MTF's Statement of Objections that would follow the oral hearing could draw on the Hearing Officer's report. It would be similar to a draft decision of the Commission and could "act as a framework for the remedy negotiations," which would be conducted on the basis outlined above. Gavin Anderson supported the proposal that the Commission issue "a preliminary (or even draft) conclusion to the parties". This document would help the parties to construct remedies, as they would already know the Commission's position (p 184).

213. Mr Nicholson agreed that, because timetables were too tight, the oral hearing did not work very well. Changing the ordering as proposed would change the nature of the oral hearing. It could usefully be used

"broadly speaking to get people up to speed with the case as it has developed to the end of phase I[82] […] but it would have drawbacks too. It would be held before the Commission's case was fully articulated: probably before the parties have got all their evidence together - their economic analyses, their consumer surveys, etc: it would be some way before people are properly prep'd to think about remedies and solutions and ways forward, so at that stage it would be very much an interim step. Now it may be an interim step and it may be useful but it is a different purpose to the oral hearing as it is currently intended to be" (Q 480).

214. The current procedure for remedy negotiations is unsatisfactory in that it might prejudice the negotiation of suitable remedies. 'Stop the clock', while useful, would not solve all of the problems related to the timetable and the atmosphere under which the negotiations are conducted. On the limited amount of evidence we have taken on commitments, there is no immediate and clear solution to the problems identified by industry, although we see great advantages in the suggestion of reversing the order of the oral hearing and the Statement of Objections. We urge the Commission to give full consideration to this change.

Employment Considerations and the ECMR

THE CURRENT PROVISION FOR EMPLOYEE INVOLVEMENT

215. Recital 31 of the ECMR stipulates that the Regulation "in no way detracts from the collective rights of workers as recognised in the undertakings concerned". Recital 19 goes further, stating that "the members of management and supervisory organs and recognised workers' representatives in the undertakings concerned, together with third parties showing a legitimate interest, must […] be given the opportunity to be heard". In the Green Paper, the Commission confirmed that it is "open to hearing the views of employees" in merger investigations (paragraph 244). We explored various ways in which this might be facilitated.

SHOULD THE ECMR OBLIGE THE PARTIES TO CONSIDER THE IMPACT OF A MERGER ON EMPLOYMENT?

216. The trade unions drew attention to Article 127(2) of the Treaty of Amsterdam, which states that the "objective of a high level of employment shall be taken into account in the formulation and implementation of Community policies and activities." Despite this provision, the unions considered that the ECMR ignored the employment consequences of a merger.[83]

217. To tackle this issue of employment considerations, ETUC proposed that Form CO should include a question asking the parties what the employment consequences were of a proposed merger. Where the parties judged that the effects of the merger on employment would be negative, the form would contain further questions asking them what action they had considered taking, whether they had any plans to address the job losses and whether they had "discussed the situation with the respective, competent worker representation". ETUC said that such an addition to Form CO would be "a considerable step" and would help employees since it would provide one practical way in which employees might express their views, indirectly, to the Commission (Q 345).

THE ROLE OF WORKER REPRESENTATIVES

218. The TUC suggested that companies planning a merger should inform and consult representatives of the workforce "at the earliest possible stage of the process" and before the case reached the competition authorities (Q 126). ETUC complained that on the occasions when they were consulted, the time available for them to respond was too short and did not allow them to carry out a proper evaluation of the case. Both the TUC and ETUC recognised that the parties might have concerns about the confidentiality of the case. But senior officials of trade unions were capable of maintaining confidentiality. Nor did ETUC accept that consulting workers could conflict with the Stock Exchange rules. (QQ 126, 345, 353).

219. ETUC suggested that the responsibility to contact the worker representatives should rest with the Merger Task Force (MTF). Although the Commission already notified ETUC if a merger investigation went into Phase II, the unions wanted this to happen in the first stage of the process or even earlier (p 55). They argued that such a move would not result in delay, since in most cases company management contacted the Commission well in advance, on an unofficial basis, and had talks with MTF officials before a notification was formally sent to the Commission (Q 345). However, if the workers were notified of a case—whether the Commission itself communicated a notification to the worker representatives, or whether it were conveyed by companies, asking for the advice of worker representatives—the ETUC said that this contact "would help a great deal" (Q 345).

220. In opposition to such moves, the CBI said that, given the very tight deadlines for decision-making and the fact that employee representatives were already entitled to make their views known on a proposed transaction (either orally or in writing), it would "strongly oppose any expansion of their role in the decision-making process." Any such development could cause uncertainty and delay (pp 10-11). The Competition Law Association (CLA) also made the point that trade unions, and other bodies, already had the right to make representations to the Commission (Q 113). The GMB, however, dismissed the current system as "inadequate" (p 58).

221. The Government had "no objection to the Commission taking more active steps to seek the views of employees' representatives on merger cases." But "any input should be on competition issues alone and not the broader social implications of any concentration" (p 150). This went directly against the wish of the GMB, who wanted the Commission to "stop seeking to limit the scope of consultations to market impact and broaden discussions to include assessment of the wider employment and social impact" (p 59).

SHOULD THE CRITERIA FOR THE APPRAISAL OF MERGERS BE EXTENDED TO TAKE ACCOUNT OF EMPLOYMENT CONSIDERATIONS?

222. The trade unions argued that "the criteria for assessing mergers should go beyond the impact on competition and include wider economic assessment, which would include the impact on employment" (TUC p 1). Consequently, the Committee considered whether the criteria in the substantive test of the ECMR should be amended to require the Commission to take employment considerations into account when judging a proposed merger.[84]

223. Apart from the trade unions, witnesses were firmly opposed to widening the scope of the Commission's analysis to take into account wider non-competition criteria such as employment or economic effect on the region in question. Professor John Kay, who was against the Commission performing cost benefit assessments of the consequences of mergers, said that to bring in these considerations "would be pushing the Commission even further down the road of trying to predict what was going to happen in the industry in future." He considered such analyses to be impracticable and unreliable (Q 196).

224. Witnesses from industry agreed that the MTF should be authorised only to make competition judgements. Accordingly, they were against proposals to introduce non-competition matters into the ECMR (Q 307). They argued that the ECMR should remain a competition regulation, in which employment and the regional effect a transaction were not relevant. Non-competition criteria, such as employment, could still be taken into account by national authorities insofar as they were compatible with Community law. The CBI argued strongly that expanding the criteria on which the Commission judged a merger would "undermine the competition focus of the MTF's analysis" (pp 10-11). The CLA insisted that competition policy "ought to deal with competition issues, the structure of the market, the effects on the intensity of competition." The CLA argued that social issues were difficult to deal with in the context of a review of an individual merger:

"The issues of concentration, of putting together two companies, are not necessarily the same issues as those that might be troubling the workforce or the region. It is better that those are dealt with in parallel procedures, many of which of course exist" (Q 111).

The JWP also stressed the presence and role of other areas of legislation covering these issues (QQ 111-12).

225. John Vickers considered it important to be clear what merger policy could and could not reasonably be expected to do:

"What it is designed for and best at is safeguarding the competitive market process and I would add that there are many wider social issues, for example, employment issues, where I think the preservation and promotion of competitive markets are the best thing that competition policy can do for employment prospects. So I do not see a collision between competition objectives and other objectives. It is more a question of complementarity. I think there would be all sorts of dangers of mission creep and the like if the authorities were deflected from the competition assessments, which are paramount for all of us and in all the main jurisdictions" (Q 228).

Professor Kay agreed:

"In general, we have to rely on what I personally believe which is that the best way of securing employment, good jobs for people in the long run, is a competitive market economy and that, if we have one, some people will gain, some people will lose but on balance that is what secures good, well-paid jobs in the long term" (Q 196).

CONCLUSIONS

226. In 1989, after careful consideration of the impact of mergers on employment, the Committee reached the conclusion that "it would not be appropriate to include such wider criteria in a competition Regulation based on the competition provisions of the Treaty" (1989 Report, p 22). The Committee reasoned that there were other provisions in the Treaty with social objectives and other measures of Community social policy. The Committee remains of the same opinion. The interests of employees should be addressed by specific legislation providing for the information and consultation of employees and for their protection in the event of a merger leading to restructuring. Many Member States already provide for this in their national law. Further, the EU has adopted a number of measures to provide for such issues at the European level. Foremost among these is the Directive to harmonise the information and consultation rights of workers.[85] Similar requirements are included in the Directive on the establishment of a European Works Council[86] and in the Directive supplementing the Statute on the European Company with regard to the involvement of employees.[87] The GMB recognised that these recent Directives should help to safeguard workers' rights (p 5). There may also be such a provision in any legislation that might be adopted on take-overs. The Committee would consider supporting moves to strengthen these Directives. The substantive test in the ECMR and the way in which it is applied, however, should remain focused exclusively on competition.

227. The parties to a merger will inevitably consider the impact of mergers on their workers. Adding to the already long and complicated Form CO would bring little, if any benefit, if competition is to remain the key consideration in evaluating mergers. Employees should be able to express their views on a merger that would affect them. The responsibility for notifying them of the proposal should rest with employers, who should be encouraged to do so at the earliest opportunity. The Commission has a duty to listen to representations from employees and their trade unions representatives, but it should not be obliged to inform and consult representatives of the workforce prior to notification. The Commission's responsibility is set out in recital 19 to which it should continue to pay high regard.

Due Process and "Checks and Balances"

The Commission's position in the Green Paper

228. In the Green Paper, the Commission claimed that its dual function as investigator and decision-maker was inherent in the structure of an administrative procedure. It also held that it was subject to "effective judicial review" by an independent and impartial judge. Commissioner Monti further pointed out that the decision-making set up in the Merger Task Force (MTF)—where the administration took decisions that had executive effect and that could be appealed to a court—was exactly the same as in the majority of the Union's National Competition Authorities (NCAs) (Q 403).

229. The Commission declared that there was a high degree of transparency in its procedures that came from the publication of the reasoned decision, the Statement of Objections, the right to an oral hearing and the full reasoning of final decisions. In addition, transparency was further strengthened through Guidance Notices and the publicity given to the Commission's treatment of individual cases.

230. The Commission claimed that the merger control system respected due process and that the Commission's other departments and the Member States provided the current system with internal and external checks and balances. The Green Paper proposed that, as the review was limited to the ECMR itself, suggestions should be limited to those that aimed at reform within the present institutional and Treaty framework.

Criticisms of the Commission

231. Witnesses were very critical of the Green Paper's narrow frame of reference and were keen that no artificial limits should be imposed on their comments. We received much evidence on how the Commission conducted its reviews of merger cases; witnesses raised important questions over the level of accountability for the Commission's decisions. Although the Commission's final decision on a notified merger is subject to appeal to the European Courts, it was widely considered that this appeal procedure took so long that the transaction would no longer be viable for the parties since the economic situation would have changed. The Commission's decision therefore for all intents and purposes was final (QQ 55, 452).

232. The Confederation of British Industry (CBI), amongst many others, remained completely unconvinced by the Commission's arguments in the Green Paper, and was clear that a lack of due process in the system was "the ECMR's greatest defect" (p 3). Whereas the Commission said that it had to account for itself to the Member States (through the Advisory Committee) and in front of its own Legal Service, both of these checks were criticised by our witnesses. The Government said that the role of the Advisory Committee needed to be reconsidered. They explained that the involvement of the Advisory Committee was "of little benefit to the parties" who only saw a summary opinion published in the Official Journal a number of months after the Commission had reached its decision (p 149). The Government further reported that, in the past, Member States had had inadequate time to consider any commitments before the meeting of the Advisory Committee, which had made it "impossible for the Advisory Committee to give a properly considered view" (p 159). In addition, lawyers from Squire, Sanders & Dempsey said that the timeframe meant that the Legal Service could not be "effectively consulted on the legality of certain actions throughout the case" (pp 181-82). Furthermore, the American Chamber of Commerce (ACC) said that the Commission's Legal Service did not act as an adequate safeguard in the system because the parties involved in a notification did not have access to the Legal Service and so could not know what the legal service was telling the Merger Task Force (Q 381).

233. In addition to the changes to the commitments procedure outlined above, we examined a number of recommendations for how to incorporate further checks and balances into the administrative arrangements for the handling of ECMR cases prior to the Commission reaching a final decision. We also addressed the question of judicial review of Commission decisions. The proposed reforms are presented below.

Changing to a judicial-based system

234. The most drastic and contentious reform, which would fundamentally alter the current working of the Commission and the Merger Regulation, was the possibility of the EU moving to a system of merger control that would more closely resemble the regime in the United States. Under such an arrangement, the Commission would act as a prosecuting agency (as does the Department of Justice and sometimes the Federal Trade Commission in the United States). If the Commission considered that a merger raised serious competition concerns, it would have to take the case to a court, where the decision and power to prohibit the merger would lie with the judge.

235. This proposal would be a very radical change for the ECMR because it would change the role of the Commission and the Community Courts. As such, it would require amending the Treaties. Nonetheless, this suggestion was supported by Dr Bishop, the Union of Industrial and Employers' Confederation of Europe (UNICE), the Competition Law Association (CLA) and the CBI (QQ 43-45, 55-57, 324).

236. For the CBI, looking at comparisons around the world, the US model was "the fairest system" as it removed the issue of a particular agency having a concern about a merger and its decision not being subject to sufficient checks and balances. However, whilst both the CBI and the CLA would support the ECMR moving to a US system "in an ideal world", they noted that full-scale institutional reform was not on the agenda as part of this review exercise and "would take years and years of, no doubt, anxious debate" (QQ 43, 45; p 52). Likewise, UNICE realised that such a change would certainly not happen within the next few years and concluded that it went "too far at present" (Q 331). Dr Bishop was alone in supporting an immediate move to a US-style regime. He could see "absolutely no reason" why such a change was impossible in Europe (Q 55).

237. In sharp contrast, the European consumer group, BEUC, was hostile to the suggestion that Europe should move to a court-based system, saying that it did not favour "any attempt to mimic other systems for the sake of making companies life easier".[88] The majority of witnesses gave little consideration to such a far-reaching suggestion. Instead, they concentrated on more achievable aims and favoured incorporating further checks and balances into the current system. The ACC appreciated that moving to a US system of merger control would involve "a very dramatic overhaul" of the ECMR and was not a realistic aim. It concluded:

"Instead of going after what is not really achievable, there are things that should be done, relatively short term if possible, in order to make the process better within the constraints that we have." (Q 386)

238. Mr Burnside, of Linklaters, agreed: "The system that we have is not sufficiently broken that it needs to be abandoned, but not sufficiently working that it does not need fixing" (Q 386).

239. This is an important debate that raises questions of justiciability, institutional balance and resources. Whether a court is better suited to analysing and taking decisions on the economic issues arising in merger cases is arguable. Further reflection is needed before any such fundamental change is proposed. If the EU were to give consideration to such a move, it would require a more comprehensive exploration of the issues involved than was instigated by the Green Paper. Such an exercise would have to include a more extensive consultation and a review of the experiences of other jurisdictions.

240. The top priority is to ensure as soon as possible objectivity and fairness in the ECMR process. Rather than changing the institutional arrangements, these could be improved more quickly by enhancing the procedural safeguards in the current system. The concerns about due process are best addressed in this way.

Reform of the system of judicial review

241. A number of witnesses pressed for reform of the judicial review process in merger cases. They called for improvements both in terms of the grounds on which appeals could be made and in terms of the time taken for appeals to be heard. They wanted the Court of First Instance (CFI) to hear cases faster and to have the fullest jurisdiction to deal with all matters of fact and law.

242. The Committee heard that the US had a much speedier court system than that in the EU. Dr Bishop reported that, in the US, an application could be made and the case could be in court "in a week or two, if not a few days" (Q 44). In contrast, appeals to the Community Courts could take years to be decided, by which time the judgment would be "useless to the company" as the deal would effectively be dead (Q 55; pp 3-4). The inadequacy of the speed of judicial redress was demonstrated by the recent appeal by Airtours, which took two and a half years to settle after the end of Phase II (Q 452). Accordingly, a number of witnesses put forward the argument that a much speedier court system was needed in the EU. UNICE, the Government and BEUC called for quicker access to the CFI (Q 324; pp 149-50).[89]

243. A second complaint against the CFI was that it normally only looked at the due process and legality of a case rather than its substance. Dr Bishop said that the CFI was "far from the ideal court" to hear merger cases. He pressed for institutional reform that would allow more effective appeals and called for "a more professional court" that might take the form of a special mergers chamber. That is, it would still be a court, but it would have a specialist unit, experienced in merger cases (QQ 57, 66). BEUC also supported consideration being given to establishing "specialist tribunals" that could hear appeals on fact and law.[90]

244. However, in the Airtours/First Choice appeal, the CFI had proved itself capable of investigating the substance of a case. It had examined the evidence; it had been willing to study the facts involved in the case and analyse the Commission's conclusions. The Chairman of Mytravel Group (formerly Airtours) was pleased that the Court had performed a very thorough job (Q 469).

THE "FAST-TRACK" PROCEDURE

245. A key development in this area was the introduction, in December 2000, of amended rules of procedure for the CFI which aimed at expediting its proceedings.[91] This initiative, which was supported by the Commission, introduced a "fast-track" procedure for certain types of case, which could include merger cases. (Q 403). The Commission has said that it would welcome "any further reform undertaken by the European Courts to expedite appeals" (paragraph 250).

246. It was pointed out, however, that this system was not a panacea: for every case that was expedited, another was held up. This meant that the procedure was only used for simple cases with a very limited number of issues, generally where the arguments were mainly limited to points of law. Consequently, the procedure could not be used in many cases (Q 456).[92] UNICE thought it should be improved and used for more cases, by broadening the grounds on which a case can qualify (QQ 324-26). Dr Bishop complained that the expedited procedure was "still not adequate" (Q 66).

247. The ACC considered that the procedure was starting to work but wanted "a truly accelerated procedure before the CFI." The system had to be very quick and faster than the 8 months it took, which was still too long (QQ 383, 385). The ACC explained that companies could not afford to wait "longer than a couple of months for a decision" (Q 384). However, Mr Nicholson, of Slaughter & May, who represented Airtours, explained that many cases did not lend themselves to fast-track treatment as they were too complex and involved too much evidence for a court to consider in that amount of time. He concluded that the time taken for court cases was not the problem that needed to be resolved. Although the US judicial system was quicker at dealing with merger cases, the initial decision of the Department of Justice or Federal Trade Commission could take much longer than the maximum five-month period that the ECMR provides for the MTF to review a proposed merger and come to a decision (Q 456). The CBI was also quick to point out that the ECMR compared "favourably as against other similar systems in terms of speedy decision-making and transparency" (p 3).

248. The concerns expressed by witnesses over the adequacy of judicial review extend beyond the reform of the Commission's competition policy and impact directly on the jurisdiction and procedure of the Court of First Instance. As the Government point out, "changes to the Court's procedures are not a matter over which the Commission has control; any amendments, including the question of resources, would be something Member States would have to pursue in other fora" (p 150). The Committee agrees with the Commission (paragraph 250) and the ACC (Q 385) that it is too early to judge the expedited procedure. Before coming to a conclusion on the working of this new procedure, it would be better to wait and see how the cases currently before the CFI work out. Notwithstanding this, it is clear to the Committee that unless the Courts are given extra resources, including extra judges, there may not be much more they can do to make the judicial review process speedier.

249. Only a very small fraction of merger cases are referred to judicial review in the Community Courts and some of these cases are likely to be too complex to be resolved in a time frame that would enable the original merger to proceed. The priority for ensuring an effective system of due process within the ECMR should not therefore be limited to trying to obtain speedier judicial review or a greater role for the Courts. Efforts should focus instead on improving the internal checks and balances in the ECMR regime.

Separation of the teams that examine mergers in Phase I and Phase II

250. The third reform suggested for improving the system of due process in the ECMR regime was to separate the team of officials working on Phase I of the investigation of a notified merger from the team conducting the investigation in Phase II. This approach would more closely reflect the separation of the two steps in the process between different administrative bodies adopted in many Member States such as the UK, France and Spain. Mr Burnside, of Linklaters, considered the separation between the Office of Fair Trading (OFT) and the Competition Commission in the United Kingdom to be "a fundamental advantage of the UK system" and urged this model to be replicated for the ECMR (QQ 387-38). Unsurprisingly, the Government (p 149), the OFT (Q 238) and the Competition Commission (Q 281) all supported such a change.

251. Even if the current process within the MTF, where one case team conducted the appraisal in Phases I and II, was fair, it was not always seen to be so. Whilst acknowledging that the majority of accusations levelled at the Commission lacked substance, the CLA was keen for justice to be seen to be done (p 53). This could not be the case so long as the Commission maintained its dual role of prosecutor and judge. Professor John Kay was not sure that it was a problem for the Commission to combine these functions, but if it was perceived to be a problem then that was, in itself, a problem. Dividing the fact-finding and prosecutorial functions of the case team from the Commission's final decision-making function "would clearly give people more confidence in the process" and was a strong case for separating the teams in Phases I and II (QQ 194-95).

252. Mr Nicholson, of Slaughter & May, also considered it important for people to feel that they had had a fair hearing and that there was "some balance in the decision" taken. This could be achieved by splitting the two teams. It was against human nature for a team investigating in both Phases to say that its decision in Phase I to refer the case to Phase II (thereby saying that the merger raised serious doubts) was unnecessary or wrong and so clear the case. Some division between the case handlers in Phases I and II was therefore desirable (QQ 467-69). Indeed, Gavin Anderson considered such a division to be essential. It would allow "a more balanced assessment of the parties' views and recommendations from within the merger review process" (pp 183-84).

253. If the procedures were to be split, so that different teams would deal with the two stages of the procedure, the issue would then be how strict this separation would need to be and whether it could be meaningfully achieved within DG Competition. Witnesses put forward a variety of suggestions. At the most radical end of the scale, Mr Crossland, the Chairman of Mytravel Group (formerly Airtours), who criticised the current set up as being "totally unacceptable", wanted to see the team responsible for Phase II to be outside the Commission. It should be composed "not of civil servants but of academics who [would] look at the case cleanly without any bias." This way the case would be reviewed not only by a government body but by an independent body as well (Q 467). The CLA suggested that the members of Phase II teams should be drawn from a different body that would report to the Commissioner for Competition but would be outside DG Competition (p 52). The Government agreed that "ideally the new team would report up a separate chain of command with only the Director General having responsibility for both teams" (p 149). The least radical suggestion for a separation was proposed by lawyers from Squire, Sanders & Dempsey, who said the composition of the case team (whether all or some of its members) could be altered once a case moves from a Phase I to a Phase II review (p 182). The CBI proposed an entirely different team, but still drawn from within the MTF (p 4). The Joint Working Party of the Bars and Law Societies of the UK (JWP) questioned whether it would be possible, within the Commission, to establish a team of case-handlers to conduct Phase II investigations who would be separate from the staff of the MTF (p 12; Q 121). Dr Derek Morris, the Chairman of the Competition Commission, thought that the strictness of the division between the two teams could evolve over time (Q 281).

254. Mr Nicholson, of Slaughter & May, did not believe that there was "any prospect of the Commission allowing decision-taking on major competition cases to escape to a body outside the institution of the Commission". It was therefore important to look for a system of checks and balances within the Commission. The best way to achieve a fair system within the Commission was to move to a quasi-judicial process within DG Competition. The same team that had identified an issue in Phase I would take the case into Phase II, but they would act as a prosecution team. They would collect the evidence together and write the statement of objections. But there would be an entirely different team, from a different division within the competition directorate, with specific responsibility to sit as the decision-taking body and write the decision. Mr Nicholson thought the internal dynamics of the Phase I team having to prove its case and having a separate team to review the evidence would bring about significant improvements in decision-taking, reasoning, evidencing and substantiating.

255. The Commission should divide responsibility for the consideration of cases in Phase I and Phase II. Separate teams of officials for dealing with Phase I and Phase II would be both desirable and achievable within the Commission. This would be the most straightforward way of introducing a 'second pair of eyes' into the ECMR regime and should ensure that any case which reaches Phase II is subjected to a measure of independent thinking. It would be a simple but significant change that would directly compensate for the fact that, except on appeal, the Commission does not have to submit its conclusions to an independent authority.

256. We recognise that having a second group of people examining a case could be said to impose further demands on DG Competition's limited resources, since the new case team would have to devote significant effort to familiarising itself with the detail of the case. However, such considerations need to be weighed against the urgent need for more effective internal checks in the ECMR system.

Strengthening the role of the Hearing Officer

257. In 1982, in response to criticisms of the quality of decision-making by the Commission and its disregard for the rights of defence, the Commission created the post of Hearing Officer. His initial responsibility concerned the organisation, chairing and conduct of the oral hearing. Over the years, his powers and responsibilities have increased to include supervision of the disclosure of documents and access to the file. The post was recently strengthened by the Commission Decision of May 2001.[93] His role is to ensure that the procedural rights of companies undergoing competition investigations are upheld. Nevertheless, many witnesses wanted the Hearing Officer's role to be further strengthened. The CBI said that, though welcome, the measures introduced last year did not go far enough; much more needed to be done to ensure an adequate process of review by the Hearing Officer (p 4).

SHOULD THE HEARING OFFICER HAVE A MANDATE TO REPORT ON SUBSTANTIVE ISSUES?

258. All the witnesses from industry called for the Hearing Officer's mandate to be widened to include greater scrutiny of substantive issues (pp 134, 192). The CBI wanted the Hearing Officer's role to be expanded so that, instead of concentrating on matters of procedure, he or she would check that the actions taken by the Commission were justified by the evidence (Q 51). UNICE also wanted the Hearing Officer to be specifically empowered to assess the substantive aspects of a case and the way in which the Commission had reached its substantive decisions (QQ 324, 334; p 110). The Government also saw "some merit" in enhancing the role of the Hearing Officers. Expanding their remit in this way would assure the parties that "the Commissioner would receive the benefit of a second opinion on the substance of the Merger Task Force's arguments" (p 149).

259. The Government recognised, however, that this proposal was "not without its difficulties." It would be important to ensure that the Hearing Officer's role did not expand so as effectively to require him or her to conduct a parallel enquiry to that of the MTF and thus make them a separate target of parties' lobbying efforts (p 149). The OFT shared the Government's concern that strengthening the role of the hearing officer risked creating parallel inquiries, which would be unproductive. The more the Hearing Officer inquired into the substance of the merger as opposed to the issue of due process, the more the issue of parallel inquiries would become an issue and a potential risk, especially if there were major discrepancies (Q 239). This concern was effectively confirmed by UNICE who wanted the Hearing Officer's report on substantive issues to go to the Commission as a collegiate body so that the Commissioners would all know about any divergences of view between him and the Commissioner for Competition (Q 324).

260. Mr Nikpay, of Clifford Chance, wondered whether it might be better "for the Hearing Officer to focus and deal with administrative issues, access to files, procedural fairness and so on and so forth, and for another body, another office, to be created which would deal with the issues on substance" (Q 123). This would not address the problem of parallel inquiries, however. The Government suggested that this concern might be reduced by asking the Hearing Officer only to state a view at one or two particular points in the proceedings (perhaps in the report on the oral hearing and in the final opinion to the Commissioner). The Hearing Officer's input could also be limited to the question of whether the Commission's conclusion appeared to meet the burden of proof in the light of the evidence available (p 149).

261. Mr Gilchrist explained that, under the new mandate of May 2001, the Hearing Officer was already authorised to intervene not only in matters of pure procedure but was also invited to intervene in evaluating matters of substance. Article 3(3) states: "the Hearing Officer may present observations on any matter arising out of any Commission competition proceeding to the competent member of the Commission" (p 4). Similar facilities are given in the other articles of the mandate and invite the Hearing Officer to comment on remedies (Articles 13(2) and 14).

262. We would discourage any further extension to the mandate of the Hearing Officer that would lead to a parallel inquiry that might challenge that of the MTF. There are, however, clear advantages in the Hearing Officer taking a prominent role in the negotiation of remedies (see above paragraphs 209-211). The Hearing Officer already has, as Mr Gilchrist noted, extensive powers.

THE CONTENT OF THE HEARING OFFICER'S REPORT

263. The decision, introduced by the May 2001 reforms, to publish the Hearing Officer's report was widely welcomed. However, the CBI was hugely disappointed by the content of these reports as they sometimes gave no indication as to how the Hearing Officer arrived at his or her conclusions. The CBI wanted the reports, "even in straightforward or non-controversial cases," to contain some measure of reasoning and analysis by the Hearing Officer (p 4). UNICE and ACC supported this call for the Hearing Officer to produce fully reasoned opinions (pp 110, 192).

264. We welcome the Commission's decision to publish the reports of the Hearing Officers.[94] We see this as a most significant improvement in the review process; it reinforced the Hearing Officer's authority and was a step towards openness and ensuring a fair hearing for the parties. The objectivity of the Commission's proceedings and the transparency of its ultimate decision could be further enhanced if the Hearing Officer's report was full reasoned and contained a full explanation of his or her conclusions. Hearing Officers should be required to do this.

GREATER INDEPENDENCE

265. Since last year's reforms, the Hearing Officers no longer belong to DG Competition but instead report directly to the Commissioner for Competition. Detractors from industry argued that this change did not provide an adequate safeguard against bias and that the independence of the Hearing Officers remained compromised. Derek Morris thought that, given the current arrangements, this complaint was understandable (Q 285). Witnesses suggested various, some quite radical, ways in which the Hearing Officer could be seen to be more independent vis-à-vis the Commission and the Commissioner for Competition in particular.

266. First, the CBI and the CLA said that, to ensure independence, the post of Hearing Officer should not to be open to serving Commission officials (pp 4, 52). Secondly, UNICE put forward the proposal that the Hearing Officers could be attached to the President of the Commission to whom they would directly report (p 110). The CLA agreed that, as with the Legal Service, the Hearing Officer should not fall under the auspices of any particular Commissioner but should be answerable only to the President (p 52). Thirdly, the ACC thought the Hearing Officer should be "entirely independent from the Commission and fulfil a role analogous to that of the Advocate-General at the ECJ" (p 134). Fourthly, UNICE suggested that the Hearing Officer should be nominated by the CFI so that he was subject to the rules for judges (Q 324). Lawyers from Squire, Sanders & Dempsey said that this suggestion was not without merit, but cautioned that "such a blurring of the distinction between regulator and appellate reviewer should be carefully considered before adoption" (p 182).

267. The Committee welcomes the fact that the Hearing Officer is no longer part of DG Competition. The Hearing Officer should be independent and must be seen to be independent. We are certainly not persuaded that the Hearing Officer should be made a judicial officer or should be attached to the President of the Commission.

THE NEED FOR MORE RESOURCES FOR THE HEARING OFFICER

268. Many witnesses called for the Hearing Officers to be given extra staff and greatly enhanced resources. The CLA said the current situation of resources for the Hearing Officers was "untenable" and severely undermined the credibility of the Office (p 52). The CBI agreed that the office of the Hearing Officer must be given proper resources to enable them to scrutinise the work of MTF case teams properly. One or two individuals—no matter how competent or experienced—could not be expected to do this on their own. (pp 2, 4; Q 51). If the Hearing Officers were to conduct fuller reviews of merger cases, this would have clear resource implications. An increase in their role would have to be matched by adequate financial and human resources to enable them to be able to carry out the additional work effectively (pp 36, 134, 187). Additional Hearing Officers might even be required (p 149).

269. It is clear that, if the role of the Hearing Officer were to increase, this would have resource implications. It is important that the Hearing Officer should have adequate staff and resources to be able to exercise real supervision over the ECMR process.

More economists

270. Possibly the least radical proposal to the working of the ECMR involved developing the economic capability of the MTF. There was criticism of the lack of capability and capacity within the MTF for performing high-quality economics. Many witnesses claimed that the MTF did not have enough qualified economists. Dr Bishop and Mr Nicholson felt that an increase in their number would help the Commission's current "dependence on self-interested complainants" on whom they were "abjectly dependent" (QQ 61, 466). Dr Bishop thought that this development would add an internal check to the Commission's decisions and was "more important than anything in the Green Paper" (QQ 56, 60).

271. Witnesses suggested that a particular weakness in the structure of the MTF was the absence of a Chief Economist. If created, this post would mean that one person could oversee and standardise the economic work of the MTF, raising the standard of the economics and providing a degree of predictability. The Government saw merit in appointing a Chief Economist in DG Competition (pp 148-49). It could help to increase peer review of the economic analysis underpinning ECMR cases and ensure consistency. UNICE urged the MTF to appoint more economists and a chief economist (Q 337). Gavin Anderson called on the Commission to adopt the US Department of Justice's approach of having a separate department of economists to provide an independent recommendation which, together with the recommendation of the case-team, would provide the advice for the Decision maker (p 183).

272. The Commission responded that it had already increased the number of staff with economic expertise and was making "increasing use of external economic advice." However, Commissioner Monti said he wanted to do more in this area and promised he would come forward with proposals for this. (Q 403).

273. The Commission should certainly strengthen its overall capacity for economic analysis in merger cases. Given that how the Commission defines markets in merger cases is crucial in determining the fate of many mergers, we see merit in the Commission developing a dedicated economics branch within the MTF. In particular, DG Competition should appoint a Chief Economist, which could lend more weight to their decisions. We look forward to seeing what Commissioner Monti's proposal are in this area.

Additional posts and resources are required for procedural changes

274. A number of the recommendations that we have made for procedural changes (strengthening the role of the hearing officer, separation of the teams that examine mergers in Phases I and II, the appointment of more economists and a Chief Economist) involve resource implications for the MTF and staff underneath the Competition Commissioner. The Committee believes that the ECMR and its effective, equitable and transparent implementation is far too important to be jeopardised by resource constraints. We therefore recommend that the new posts required to carry out these changes be provided to the Competition Commissioner.


70   If the Commission concludes that a proposed merger would create or strengthen a dominant position as a result of which competition would be significantly impeded, it has to rule the merger incompatible with the common market and order that it be prohibited. The parties, however, can offer 'commitments' to the Commission to modify the initial merger proposal in an attempt to overcome the competition problems that the Commission has identified. These commitments are also known as 'remedies' or 'undertakings'. Back

71   The deadline in Phase II can be extended, but the Commission rarely finds the "exceptional" circumstances necessary to activate this provision. Back

72   The Commission stated that if such amendments were adopted it would be necessary for it to revise the notice on remedies (paragraph 211). Back

73   pp 36, 184, 196; QQ 243, 324; cf. BEUC/X/016/2002. Back

74   A5-0217/2002. Back

75   pp 2, 9; Q 50. Back

76   p 109; cf. BEUC/X/016/2002. Back

77   pp 36, 109, 132-33, 191; QQ 50, 119. Back

78   BEUC/X/016/2002. Back

79   The Commission is under an obligation to consult the "Advisory Committee on concentrations" prior to taking certain decisions, particularly decisions closing in-depth proceedings (Article 19(3)). The Advisory Committee consists of representatives of the authorities of each Member State, at least one of whom must be competent in competition matters (Article 19(4)). Although non-binding upon the Commission, the opinions of the Advisory Committee are influential in shaping the Commission's views: the Commission must take "the utmost account" of the Committee's opinion (Article 19(6)). Back

80   BEUC/X/016/2002. Back

81   The CBI also complained there was a "lack of transparency in the interface between the MTF and third parties, especially in relation to the market testing of remedies." It proposed that there should be a "duty on the MTF to record on file all contacts with third parties" (p 3). Mr Gilchrist suggested, however, that one of the consequential advantages of his proposals to involve the Hearing Officer in the negotiations of remedies (see below paragraphs 209-211) could be to render unnecessary the market testing of proposed commitments (p 186). Back

82   Mr Nicholson added that this would be particularly beneficial if there were a separation of the teams examining the case in Phases I and II (see below paragraphs 250-56). Back

83   QQ 345, 356; pp 55, 56. Back

84   This mirrors the practice of the Committee when the ECMR was first negotiated (1989 Report, pp 21-22). Back

85   Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 080, 23.03.2002, p. 0029. Back

86   Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, OJ No L 254, 30.9.1994, p. 0064. Back

87   Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, OJ No L 294, 10.11.2001, p. 0022. Back

88   BEUC/X/016/2002. Back

89   BEUC/X/016/2002. Back

90   BEUC/X/016/2002. Back

91   OJ L 322 of 19 December 2000. Back

92   Two appeals were currently being processed under the expedited the procedure and rulings in both cases were expected in October. These cases concerned the mergers between French electrical companies Schneider Electric and Legrand (the appeal was lodged in Decemeber 2001), and Swedish packaging firm Tetra Laval's takeover of France's Sidel (lodged in March 2002). Back

93   Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (Text with EEA relevance) (notified under document number C(2001) 1461), OJ L162 , 19/06/2001, pp.21-24. Back

94   We made recommendations to this effect in our 1993 and 2000 reports. Back


 
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