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Towards a pre-merger control in the European Community?

Published online by Cambridge University Press:  21 July 2009

W.A. Hoyng  and
M.B.W. Biesheuvel
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Extract

The Treaty of Rome, establishing the European Economic Community (hereinafter: the Treaty), does not provide for a system of Community-wide merger control and authorization.The anti-trust provisions of the Treaty are only concerned with distortion of competition resulting from certain restrictive agreements (Article 85) and with abusive behavior of undertakings in a dominant position within the common market (Article 86);concentrations like mergers, which may as well affect the internal European market, are not explicitly mentioned. To a certain extent however, the European Commission has in fact won the power to control large-scale mergers as a result of the European Court's decision in Continental Can (1973).

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 1 , Issue 1 , May 1988 , pp. 79 - 84
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1988

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References

1. Europemballage Corp. and Continental Can, 1973, E.C.R. 6/72.

2. C92O.J.Eur.Comm. (1973), 1.

3. See, for example, in the case of Pilkington/BSN Gervais-Danone where a merger plan to which the Commission had objected was amended by the companies involved to the satisfaction of the Commission (Tenth Report on Competition Policy, 1980).

4. The 1973 Draft has been amended in 1981, after the Council appeared to be unable to agree upon the first Draft (C36O.J.Eur.Comm.(1982), 3) and in 1984, following discussions at the level of the European Parliament and the Economic and Social Council (C510.J.Eur.Comm. (1984), 8).

5. The Draft contains, in its various versions, specific rules for the calculation of the turnover and the market shares (See, in particular Art 5).

6. Joint cases 142 and 156/84, BAT & Reynolds v. Commission, Judgment of November 17, 1987, (Sixth Chamber), not yet reported.

7. Agence Europe, January 13,1988.

8. See Mr.Sutherland's, address to the Kangaroo Group Europe Conference, Antwerp, November 2, 1987 (“The question of mergers: what should be done”).Google Scholar