Forum Shopping and the European Merger Control Regulation

3 Colum. J. Eur. L. 109 (1996)

Morten P. Broberg. Research fellow, University of Copenhagen, Faculty of Law.

On December 21, 1989, the EC Council of Ministers adopted the EC Merger Control Regulation. The Regulation is the result of almost two decades of hard work involving a fair number of compromises. The European business community initially received the new Regulation with skepticism. However, in the intervening years skepticism has transformed into popularity stemming from a widely-held feeling among those working in the merger field that the Regulation is more sympathetic toward concentrations than the important national merger control regimes.

The Merger Control Regulation included a number of legal innovations, the most important being the introduction of reciprocal exclusivity between the Community and Member State levels. This means that within the Community a merger may be scrutinized either by the EC Commission or by the national competition authorities. The fact that the merger control system in the Community is now based on exclusivity, together with the fact that lawyers and businesses in the Community and elsewhere clearly prefer a merger vetted under the Merger Control Regulation, has given rise to a potential problem of forum-shopping. A transaction may be structured so that the parties themselves decide which authority – the Commission or member state authorities – shall vet the .merger.

In this article I examine the possibilities open to parties to influence this jurisdictional issue in the merger field, basing my conclusions in part on responses to a questionnaire sent to leading lawyers working in the field, as well as information obtained from the Merger Task Force of the European Commission in Brussels and from national competition authorities of the Member States. Before proceeding to the examination I shall provide a brief explanation of the rules concerning the allocation of jurisdiction under the Merger Control Regulation.