Back to the future: Merger control outside the Merger Regulation

In 1989, the Council gave the European Commission a clear and limited legislative mandate for the control of concentrations, stipulating, among other things, that (i) the Commission’s competence must be limited to large transactions based on clearly defined turnover thresholds; (ii) the EU Merger Regulation alone should apply to concentrations; and (iii) concentrations must be reviewed within tight statutory deadlines. Since its first proposal in 1973, the Commission has been seeking lower turnover thresholds and broader powers, which the Council has consistently refused.Yet the Commission has reinterpreted Article 22 of the EU Merger Regulation to effectively give it the power to “call in” concentrations below the thresholds, advocated for Member States’ ability to apply the EU antitrust rules to concentrations, and developed procedural tools and practices (including the concept of “up-front buyer” commitments) that allow it to ignore the strict statutory time limits in practice. It is time for a reset to align the Commission’s practice with its legislative mandate.