Brussels, 20 June 2013
Mergers: Commission consults on possible improvements to EU merger control in certain areas
The European Commission invites the public to comment on a number of options for possible future improvements of the EU Merger Regulation in two areas: minority shareholdings and the transfer of cases between the Commission and national competition authorities. The Commission services have published a consultation paper. Comments can be submitted until 12 September 2013. The Commission is seeking stakeholders' views on whether any improvements of the current framework are necessary in specific areas.
Non-controlling minority stakes of one firm in another are a widespread phenomenon in many industries. Experience shows that in some specific instances the acquisition of a non-controlling minority stake can harm competition and consumers. For example, if in a concentrated market one firm acquires a 20% stake in a competitor, it may influence the latter’s competitive conduct even without gaining control, for example through having a seat on the board, or it may have fewer incentives to compete because it shares the target’s profits. A minority stake owned by a firm in a company that supplies an important input to the acquirer’s competitors may lead to supply problems for those competitors.
The current Merger Regulation applies only to transactions leading to an acquisition of control over a company. The consultation paper raises the question whether the Merger Regulation should be amended to allow the Commission to also look at non-controlling minority shareholdings. It discusses a number of options to explore how an effective control could be achieved without creating an undue burden for businesses.
Case referrals between the Commission and national authorities
The Merger Regulation allows to refer cases from Member States to the Commission or vice versa, provided none of the authorities involved objects to the referral.
The consultation seeks stakeholders’ views on ways to streamline this system to avoid any delays and further improve its effectiveness. In particular, the paper discusses whether merging parties may notify a case that otherwise would be examined by three or more national competition authorities directly to the Commission. This should not affect the right of each Member State concerned to oppose the Commission’s jurisdiction, which only happens in a very small number of cases.
Moreover, for cases referred to the Commission by one or several national competition authorities, the consultation paper considers whether the review could cover the whole of the European Economic Area (EEA) and not just the territory of the Member State requesting the referral, in line with the “one-stop-shop” principle.
The consultation documents are available at:
In line with its “Better Regulation” policy, the Commission regularly reviews the effective functioning of existing policies and legislation. The Merger Regulation was last overhauled in 2004. Therefore, it now seems appropriate to take another look on whether merger control on the EU level could be made even more effective and efficient in the interest of European businesses and consumers.
The Commission also recently consulted stakeholders on a separate proposal to simplify certain procedures for notifying mergers within the current EU Merger Regulation (IP/13/288).