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Large cross-border mergers have to be cleared in
advance with the EC Commission to ensure that they do not impede
competition in the Union. The vast majority are cleared fairly
speedily. Where the Commission prohibits a merger that decision
can be challenged in the Court of First Instance (CFI). And third
parties can similarly challenge a decision by the Commission to
clear a merger.
The procedure in the CFI may take several months
(the fastest to date being seven months) even if the "fast-track"
is used. In the meantime the merging parties are faced with uncertainty
and the merger may sometimes be abandoned.
This position, both European industry and their advisers
agree, is highly unsatisfactory. Business opportunities, with
potential benefits for competition and the competitiveness of
EU industry and commerce, might be lost. Moreover, there is a
lack of accountability and of controls to maintain appropriate
standards if an aggrieved party is, as a result of delay, effectively
barred from challenging an allegedly lawful decision.
In June 2006 the CBI published a Brief setting out
a proposal for the creation of a European Competition Court (by
way of a judicial panel under Article 225a TEC) with specialist
judges and tailor-made procedures. This document formed the basis
of our inquiry, which stimulated a wide-ranging debate. A wide
variety of other options have also been presented by interested
parties. Some suggestions were, in legislative terms, modest (such
as establishing a specialist competition chamber within the CFI).
Others were more ambitious (transferring other business away from
the CFI) or quite radical (transferring decision-taking away from
the Commission). Most of the options raised practical and political
We conclude that a new Competition Court is not the
way forward, at least at the present time. We doubt whether a
new court would in the long term achieve any great savings in
time. It would be faced with the same complex litigation that
currently occupies the CFI, and it would increase the number of
levels of appeal.
Far better, we believe, would be to look at the scope
(i) improving on the present procedure, in particular
by encouraging firmer case management by the judges and stricter
(ii) reducing the amount of business of the CFI,
principally by transferring trade mark cases to a judicial panel,
though this is not an option free of difficulty; and
(iii) seeing whether changes in the Commission's
handling of cartel cases can in turn reduce the number and scope
of challenges in such cases, removing a substantial workload from