ICC response to the European Commission Public Consultation: “Towards More Effective EU Merger Control”
ICC welcomes the opportunity to respond to the consultation of the European Commission on Merger Regulation.
• ICC does not believe that the Consultation sets out evidence and arguments that support the regulation of minority interests in the manner proposed by the Commission. Notably, the Consultation does not cite a single case in which an implemented structural link has been shown to lead to price rises and competitive harm. Further, there is little in the economic theories discussed in the Consultation that address the question of whether the relevant scenarios of harm frequently occur in commercial reality, or whether they apply to levels of influence falling short of decisive influence – for example, material influence. The experience of ICC and its members is that they do not. At the time the Merger Regulation was introduced, it was possible to draw upon a large volume of historical empirical and anecdotal evidence that price rises may result from acquisitions of “full” control. Similar empirical evidence of the harmful effects of minority shareholdings should be identified before the Commission extends the scope of the Merger Regulation in a manner which might harm incentives to invest in such minority shareholdings or introduces deadweight compliance costs that outweigh the theoretical harm to be avoided. A basis for such a study might be found in the 91 cases the Commission identifies as “potentially meriting scrutiny”.
• We consider that the proposed reform of the Article 4(5) referral system would bring timing and cost benefits. However, we are of the opinion that unauthorised pre-notification contacts and exchanges of information between the Commission and national authorities are neither necessary nor desirable, for a number of reasons.
- Comments on minority interests
- Comments on case referrals
- Miscellaneous questions