Select Committee on European Union Thirty-Second Report


Jurisdictional issues

275. A balance needs to be struck between the need for simplicity, predictability, consistency and rapidity and the need to have a flexible system that will ensure that a merger is examined by the regulatory body that is best placed to ensure the maintenance of effective competition. (paragraph 33)

276. No single amendment would achieve this. The objective must be to design a workable "package" of measures that will meet the aims. (paragraph 34)

277. The speed of the referral procedure is important. It should not, however, be the paramount requirement of the jurisdictional rules in the Merger Regulation. It is more important to ensure that, where possible, mergers are examined by the best-placed competition authority. (paragraph 35)

278. The thresholds in Article 1(2) should not be amended. (paragraph 38)

279. The Commission's proposal to replace the Article 1(3) thresholds with a '3 plus' rule could provide the basis of a solution to the jurisdictional question and the problem of multiple filings. (paragraph 42)

280. The ECMR should maintain a mandatory system of notification under a revised Article 1(3). (paragraph 52)

281. The grounds for referral under Article 9 should be simplified so that, to be granted a referral back, Member States only have to provide evidence of an "effect on competition" in a distinct national market. (paragraph 67)

282. The National Competition Authorities should not be required to use ECMR procedural or substantive rules for cases referred back under Article 9. (paragraph 71)

283. The criteria upon which the Commission can refuse to grant a referral back should be strictly limited. They also need to be clear and unambiguous. (paragraph 73)

284. The Commission should, as soon as possible, issue guidelines on the implementation of Article 9. (paragraph 77)

285. The Commission should be able to take the initiative to refer a case back to the relevant the National Competition Authority, subject to the agreement of the Member State. (paragraph 82)

286. Article 22(3) needs to be re-drafted so that is easier for Member States jointly to refer national cases to the Commission. (paragraph 94)

287. The Commission should be able to request that an Article 22 referral be made. (paragraph 96)

288. The Commission should issue guidelines on the implementation of an amended Article 22(3). (paragraph 97)

The substantive test

289. The SLC test should be the substantive test in the ECMR. (paragraph 160)

290. The Commission should, without delay, issue guidelines on how it interprets the substantive test in the ECMR. (paragraph 160)

Merger-specific efficiencies

291. The ECMR should not include an explicit efficiencies defence. (paragraph 186)

292. The Commission should issue guidelines to consumer groups on the most effective ways of becoming involved in merger cases. (paragraph 187)

The Commitments timetable

293. A 'stop the clock' provision should be included in the ECMR. (paragraph 200)

294. 'Stop the clock' should be possible once in both Phases but should be for very strictly limited periods of time. (paragraph 200)

295. The Commission should have the ability to 'stop the clock' under the same terms and conditions as the parties. (paragraph 200)

296. 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. (paragraph 208)

297. 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. (paragraph 208)

298. 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 chair the negotiations and act as a mediator between the parties and the Commission. (paragraph 211)

299. The Commission should give full consideration to the suggestion of reversing the order of the oral hearing and the Statement of Objections. (paragraph 214)

Employment considerations and the ECMR

300. The substantive test in the ECMR and the way in which it is applied should remain focused exclusively on competition. (paragraph 226)

Due process and checks and balances on the decisions of the Commission

301. The priority for ensuring an effective system of due process within the ECMR should not 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. The concerns about due process are best addressed by enhancing the procedural safeguards in the current system. (paragraph 248)

302. The Commission should divide responsibility for the consideration of cases in Phase I and Phase II. (paragraph 255)

303. Hearing Officers should be required to produce fully reasoned reports that contain a full explanation of their conclusions. (paragraph 264)

304. The Commission should strengthen its overall capacity for economic analysis in merger cases. In particular, DG Competition should appoint a Chief Economist. (paragraph 273)


305. The ECMR and its effective, equitable and transparent implementation is far too important to be jeopardised by resource constraints. The new posts required to carry out the necessary procedural changes should be provided to the Competition Commissioner. (paragraph 274)


306. The Committee considers that the review of the ECMR raises important questions to which the attention of the House should be drawn and makes this Report to the House for information.

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