Book Review: Mark Clough, EC Merger Regulation: A Practical Guide to the EC Merger and Acquisition Rules

3 Colum. J. Eur. L. 515 (1997)

reviewed by Morten P. Broberg. University of Copenhagen, Faculty of Law. 

On September 21, 1990, the EC Merger Regulation entered into force. In 1994 Mark Clough published his book EC Merger Regulation: A Practical Guide to the EC Merger and Acquisition Rules. Excluding annexes, the work comprises 259 pages containing eleven well-structured chapters. It is clear to the reader that the book is not intended to be an academic one but instead, as indicated in the title, a practical guide to legal practitioners. Hence, the author begins with an executive summary in which he outlines the contents of the work, and each chapter starts with a brief summary and ends with a list reviewing the chapter’s key points. Likewise, the work contains a number of tables-some of which are not very useful.

The book follows a logical structure. The first three chapters provide background information to the Merger Regulation. Chapters four through six explain the scope of the Regulation, and chapter seven provides an examination of the substantive appraisal. Perhaps chapter eight breaks this structure as it deals with the issue of jurisdiction with respect to Member State authorities; in my view, it would be more logical to place this chapter with the other chapters dealing with the scope of the Regulation. The ninth chapter sets out the Regulation’s procedural rules. To a certain degree chapter ten may be characterized as a deviation from the rest of the book as it deals with EC Corporate Regulation and Barriers to Takeovers.” The last chapter concerns the likely development of merger control in the Community. In addition the book contains a number of annexes, but unfortunately no subject index.

The legal and political background to the Merger Regulation is of significant importance in understanding and interpreting its provisions. Chapter one thus wisely begins with a fine introduction to the Regulation’s background, followed by an outline of the main principles of the Regulation.

Chapter two bears the title “EC Competition Rules and Mergers” and provides a good examination of the gestation period preceding the final adoption of the Regulation. In Chapter two, Clough also examines the application of Articles 85 and 86 of the Treaty to mergers falling outside the scope of the Merger Regulation. This examination provides a brilliant example of Clough’s ability to introduce interesting perspectives on the subject and to do this in a way that appeals to one who has worked with the Merger Regulation for years as well as to one who comes across the Regulation for the first time in this book. The example concerns the problems that arise when a merger qualifies as a concentration within the definition laid down in Article 3 of the Regulation, but without having a “Community dimension” whereby the concentration falls outside the scope of the Regulation. The problem is to what extent the two main competition provisions of the Treaty still apply to such concentrations. Clough provides a lucid exposition of this issue. He then refers to a judgment from the English Court of Appeal in which the three law-lords held that the national competition authorities did not have the power to apply Article 86 to a concentration as defined in the Regulation where this concentration did not have a Community dimension. This is a very surprising decision, and I fully subscribe to Clough’s view that it “is at odds with the public position of the Commission and the relevant case law of the [European Court of Justice].”

When the Merger Regulation was adopted, merger control at the national level was a rare sight, more or less restricted to the largest Member States: France, the United Kingdom (UK), and Germany. Today almost all fifteen Member States have adopted national merger control schemes and these have often been drafted over the Merger Regulation. In chapter three Clough examines the French, UK and German schemes and he supports this selection on the view that these are “the most developed and have been the most influential during the period leading up to the adoption of the EC merger regulation.” Whilst the latter claim is undoubtedly true, not least as concerns the German merger control scheme, it is more questionable whether the present French scheme is really more developed than, for instance, the Italian, Swedish or Belgian systems. Moreover, any survey of three national merger control systems in only one chapter is bound to be superficial, and I am not certain that the reader will benefit from these short expositions.