Brexit Breakdown

Ioanna Hadjiyianni and Amanda Spalding, PhD Candidates, Dickson Poon School of Law, King’s College London

On the 23th of June 2016 the UK public voted to leave the European Union. Neither Whitehall nor the Leave campaign appear to have been prepared for such a result and the many legal and political issues it raises. In this post we will attempt to give an overview of some of the most significant legal questions raised by Brexit and how they might be resolved.

  1. What happens now?

The current state of affairs is that the New Settlement for the United Kingdom within the European Union negotiated by Cameron and reached at the European Council in February 2016 will not apply and no longer exists.[1] The overwhelming question now is whether the result of the EU referendum has legally binding effect and would thus trigger the withdrawal procedure under EU law. The only acceptable procedure for withdrawal from the EU is provided for in Article 50 of the Treaty on the European Union (TEU) as the UK cannot unilaterally withdraw by suspending the European Communities Act 1972 consistently with international law and EU law requirements.[2] 

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The European Union’s Counter-Terrorism Policy: clear-cut or counter-intuitive?

Lily Nowroz, LLB student, King’s College London 

In the wake of recent terror attacks throughout Europe, there appears to be an increasing demand for a unified stance by the European Union to demonstrate its condemnation of the acts. However, this demand is not entirely new, it is something that citizens of the EU have witnessed before. Ten years ago following the terror attacks of London, Madrid and events of 9/11, the Union appeared to be in a similar position as it is today, with an unclear manner of presenting a unified stance against the terrorist threat to the citizens of Europe. The EU is a system of poly-governance with an array of abilities and actors to adopt and implement certain policies if it desired. However, regarding its counter-terrorism policy, it has in no way reached its full potential in implementing such policies in an effective way. So what is it about the Union’s counter-terrorism policy that makes it so counter productive?

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How does the professional background of a future EU judge in the ECtHR matter?

Kaja Kaźmierska, English Law and German Law LLB & M.LL.P, King’s College London/Humboldt University;  EU International Relations and Diplomacy Studies, MA, College of Europe

The EU is supposed to join the ECHR, as provided by Article 6(2) TEU.[1] The agreement between the two institutions was reached in April 2013, as a result of negotiations which commenced in June 2010.[2] However, the CJEU issued its Opinion regarding the agreement on the 18th of December 2014, declaring the agreement incompatible with EU law which significantly slowed down the accession process.[3] Nevertheless, the EU’s accession to the ECHR is still expected, which would fundamentally shift the balance within the European mechanism of human rights protection. Upon joining, the EU will be granted a voice in the European Court of Human Rights (ECtHR), as there will be one EU judge in the Strasbourg Court, along with one for every Council of Europe Member State. As a result, there will be 29 judges from the EU – one from every country and the EU judge. Continue reading

Through the Lens of Goods and Services: An Analysis of the CJEU

Matthew Foster

2nd year LLB student at King’s College London


a.   Introduction

The Court of Justice of the European Union[1] (CJEU) is one of the most active judicial bodies in the world, delivering over 26,000 judgements since its creation.[2] Its impact upon Europe has been deep and pervasive and it has influence over many different policy sectors.[3] As AG Maduro correctly identifies, the Court has engaged in systematic “majoritarian activisim”[4] in pursuance of judicial harmonisation. Moreover, the Court frequently takes a teleological approach to jurisprudence in order to achieve this objective, sometimes basing its decisions upon “the spirit” of the Treaties opposed to their literal wording.[5] The scope, motivations and approach of the Court have a compounded effect, making it incredibly potent. It is capable of creating highly creative (and sometimes unpredictable) case law which can affect a wide range of people in a broad variety of sectors. Such power has the potential to be both highly beneficial and highly damaging.

 

In light of this some scholars have questioned its legitimacy.[6] There is an inherent friction between Member States and the Court; as Craig and de Burcá highlight “each has locked itself into a system of review whose dynamics it cannot easily control”[7]. This is because the Court’s power of review stems from all 28 Member States who all have divergent opinions. Holding the Court to account is therefore very difficult. This poses a problem when one considers the uneasy relationship direct effect and primacy have with Member State sovereignty. However the biggest danger to the Court, and the important role it plays, is itself. As established, the stakes are very high and poor judicial decisions can have colossal ramifications.

 

In this article I will analyse the approach of the Court through the lens of the fundamental freedoms. I will highlight the different approaches taken in regards to free movement of goods and free movement of services and argue why the Court should follow its approach in the latter.

 

b.   Free Movement of Goods

The bulk of the case law concerning free movement of goods can be found in relation to measures having equivalent effect to quantitative restrictions.[8] In this area the Court has repeatedly tied itself in knots and generally struggled to take a decisive approach.

 

In the seminal case of Dassonville[9] the scope of Article 34 TFEU was cast very wide, indeed its “potential breadth […]is striking”.[10] The Court held that “any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”[11] would fall within the scope of Article 34, and thus be prohibited. Case law has developed these principles, meaning that at its widest scope anything that could potentially interfere[12] with intra-Community trade, even indirectly,[13] could fall within the scope of Article 34. Evidently this was a step too far. When taken to extremes Dassonville could be used to challenge a plethora of national rules.[14] As the notorious Sunday trading cases[15] illustrate something had to be done.

 

Consequently, in the infamous decision in Keck, the Court found it “necessary to re-examine and clarify its case law on this matter”.[16] Some tactfully state that this is merely a refinement of the Dassonville test,[17] however as Weatherill bluntly puts it, the Court simply “changed its mind”.[18] The decision in Keck effectively created an exception for certain selling arrangements that applied equally to all measures in fact and in law.  This was not completely unprecedented (drawing from academic commentary[19] and case law[20] for its inspiration) and neither was its aim undesirable.[21] In fact, the Commission was initially very positive, stating that “the Court has completed its case law”[22]as a result of the judgement.

 

Regardless, the decision has been very divisive. Barnard states the ruling received “brickbats and bouquets in almost equal measure”.[23] However it is important to note that the majority of said ‘bouquets’ were from Member States thankful for a curtailment of the previous law. The majority of academic opinion is critical of the case; several key problems arise from it. Firstly it purported to clarify the case law; however it said nothing about which previous cases it overruled. Secondly the distinction between product requirements and certain selling arrangements is extremely fine, a problem exacerbated by the concept of dynamic/static rules.[24] Finally, and most damaging, the concept was completely novel and signified a departure from the well-established test of distinctly applicable and indistinctly applicable measures.[25] This caused the Court a considerable headache.[26]

 

Thankfully the Court heeded this criticism[27] and altered[28] its decision in Keck, at least to an extent. In Commission v Italy (Trailers)[29] the Court reaffirmed another test, the market access test. It is debatable whether this is an overarching theme or merely another category of breach; however the overall result is relatively clear. If a measure fails the Keck test it will be considered automatically in breach of the market access test. If a measure passes the Keck test it will still have to pass the market access test independently. Therefore, irrespective of how a measure fares under the Keck test, it will always be considered in light of Commission v Italy (Trailers).[30] Put simply the Keck test is not as relevant as it once was, it is subsumed by Commission v. Italy. There are now three types of measures which will fall foul of Article 34, distinctly applicable measures, indistinctly applicable measures and measures which prevent access to the market.


The market access test, however, is not perfect; there is some uncertainty as to its scope, with criticism present well before Commission v Italy (Trailers).[31] In Leclerc-Siplec[32]AG Jacobs stated that such a test could risk encompassing too much national regulation (as with Dassonville) and that therefore a minimum threshold criterion should be established. This may be a feature of the test, as the Court did use the phrase “considerable influence”[33] in the ruling; however this has not yet been resolved. Barnard states[34] that this concept of a threshold is at odds with the de minimus rule found in cases such as Bluhme.[35] This ignores the huge variation in barriers to the market that can arise; therefore such a threshold remains useful.

 

Although the exact scope of Article 34 TFEU is now almost fully defined, it is clear that the method the Court used to get to this position is flawed. The scope of the test fluctuated wildly throughout the years and no one test was applied consistently. This has resulted in a very messy series of decisions. The law concerning free movement of goods is unnecessarily convoluted.

 

c.   Free Movement of Services

The Courts approach in regards to free movement of services is much preferred over the approach outlined above. In contrast to the relatively straightforward cases in regards to goods[36] the Court faced the problem of defining exactly what a service was, particularly considering the vague wording in Article 57 TFEU.[37]


Despite this the Court took a purposive and consistent approach to the matter. For the purposes of Article 56 TFEU,[38] a service is a self-employed activity provided for remuneration on a temporary basis with a cross-border element. Even though the Court has cast the scope fairly wide, especially in regards to the definition of remuneration[39] and the cross border element[40] there has not been the problems encountered with free movement of goods. This is because the Court has considered its approach and has thus been consistent when applying it. By avoiding the excessively broad statements that are present in cases like Dassonville the Court removes the need for correction further down the line.


Furthermore in regards to which measures are caught by Article 56, the Court has again been consistent. It has not sought to apply different tests or experiment with new concepts; rather it has taken a structured approach. The measures falling within the scope of this provision mirror that of the free movement of goods, but without the entire Keck fiasco. Distinctly applicable measures[41], indistinctly applicable measures[42] and measures which prevent access to the market[43] are all caught by the provision.

 

Free movement of services is arguably much more complex than free movement of goods, due to the human element it inherently incorporates. This freedom affects not only the provision of services, but those who deliver them. Consequently the stakes are much higher; any alteration to this framework will have an impact upon the flow of citizens between Member States. However due to the Court’s consistent and restrained approach it has managed to pursue the overall aim of a free market[44] without any of the complications encountered above.

 

d.   Conclusions

It is evident that the Court is an extremely powerful and influential institution of the EU; it has the power to shape events across many countries. Considering this, and the inherent friction such an institution has with Member States, it is of utmost importance that the Court’s decisions are of the highest standard. It has been evidenced that the Court can err, especially when determining the scope of Treaty provisions and choosing which principle to apply. However it has also been shown that the Court can operate in a consistent and purposive manner, ensuring that the aims of the EU are carried out through case law. This is the approach that should be, and largely has been taken by the Court. However as the Court’s jurisdiction strays into more and more litigious areas, such as human rights and citizenship, it is crucial to remember the lessons learnt when developing the freedoms to ensure such mistakes are not made again.

 


[1] Hereafter referred to as the Court.

[2] ‘The Court in Figures’ (1 July 2013) <http://curia.europa.eu/jcms/jcms/P_80908/> accessed 20 January 2014

[3] Paul Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP) [119]

[4] Communication from the Commission concerning the consequences of the judgment

given by the Court of Justice on 20 February 1979 in Case 120/78 (‘Cassis de Dijon’)

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1980:256:0002:0003:EN:PDF

[5] C-26/62  Van Gend en Loos (1963)  ECR I [12]

[6] Giandomenico Majone, ‘Two logics of delegation, agency and fiduciary relations in EU governance’ [2001] EUP 2(1) 103

[7] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [127]

[8] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 34

[9] C-8/74 Procurer de Roi v Dassonville [1974] ECR 837

[10] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [73]

[11] C-8/74 Procurer de Roi v Dassonville [1974] ECR 837 [5]

[12] C-184/96 Comission v France (Foie Gras) [1998] ECR I-6197

[13] C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649

[14] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [74]

[15] Torfaen Borough Council v B & Q plc [1989] ECR 3851

[16] C-267 & 268/91 Keck and Mithouard [1993] ECR I-6097 [14]

[17] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [74]

[18] Stephen Weatherill, Cases and Materials on EU Law (10th Edition, 2012, OUP) [328]

[19]Eric White, ‘In Search Of The Limits To Article 30 Of The EEC Treaty’ (1989) 26 CMLR 2 235

[20] C-292/92, Hünermund [1993] ECR I-6787

[21] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [665]

[22] [1993] OJ C353/6 [22]

[23] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [126]

[24] Eric White, ‘In Search Of The Limits To Article 30 Of The EEC Treaty’ (1989) 26 CMLR 2 235

[25] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [661]

[26] C-405/98, Konsumentenombudsmannen v Gourmet International Products AB [2001] ECR I-1795

[27] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [667]

[28] ibid 141

[29] C -110/05 Commission vItaly (Trailers) [2009] ECR I-519

[30] ibid

[31] ibid

[32]  C-412/93 Leclerc-Siplec [1995] ECR I-179 [41] [49]

[33] C -110/05 Commission vItaly (Trailers) [2009] ECR I-519 [2]

[34] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [106]

[35] C-67/97 Bluhme [1998] ECR I-8033

[36] C-97/98 Jägerskiöld [1999] ECR I-7319

[37] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 57

[38] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 56

[39] C-51/96 & C191/97 Deliège [2000] ECR I-2549

[40] C-157/99 Peerbooms [2001] ECR I-5473, C-384/93 Alpine Investments [1995] I-1141

[41] C-288/89 Gouda [1991] ECR I-4007

[42] C-18/87 Commission v Germany [1988] ECR I-5427

[43] C-384/93 Alpine Investments [1995] I-1141

[44] Consolidated Version of the Treaty on European Union (2012) OJ C 326, Article 3(3)

Proposed Changes to Simplified Merger Notification Procedure

Robert Miklós Babirad

J.D. Masters Diploma candidate in EU Law, King’s College London; Post Graduate Diploma in EU Law (Merit); Member of the New York Bar

 

I           Introduction

On March 27, 2013, the Commission invited public comments regarding a proposal to simplify procedures under the EU Merger Regulation.[1]  Changes would include altering market share thresholds relating to which mergers would qualify for access to the simplified merger notification procedure.[2]  Additionally, Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004[3] (`the Implementing Regulation’) would be amended with regard to the forms for merger notification.[4]

Mergers unable to qualify for notification under the simplified procedure would also benefit from the proposed changes.[5]  Only information relating to markets in which the market shares of those firms merging, which is in excess of the established thresholds for notification under the simplified procedure, would be required for submission in a notification to the Commission.[6]  An important aspect of the proposed changes would be that seventy percent of all mergers notified to the Commission would now qualify for notification under the simplified procedure.[7]

The issue is whether these proposed changes under the EU Merger Regulation will be helpful to fostering European competitiveness and economic development.  This article will begin by briefly discussing the process of notifying a merger to the Commission with a focus on the simplified merger notification procedure; the changes to both the Notice detailing the simplified notification procedure as well as to the forms for notification under the Implementing Regulation will then be discussed; and finally, the article will assess the overall helpfulness of the proposal.

 

II         The Simplified Merger Notification Procedure

Under the EU Merger Regulation[8]it is mandatory for the Commission to be notified of those mergers encompassing a “Community dimension” in order to obtain approval prior to effecting the merger with limited exceptions.[9]  The EU Merger Regulation provides for this notification to the Commission before a merger may be implemented.[10] A determination as to whether a merger contains a “Community dimension” is governed by the turnover threshold of the merging undertakings under the EU Merger Regulation.[11]

The Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004[12] (“the Notice”) provides for notification to the Commission using a form that is shorter and not as extensive with regard to its informational requirements for qualifying mergers that have not traditionally presented prima facie difficulties with regard to competition.[13]

Mergers qualifying under the simplified procedure may also obtain authorisation after a “lighter procedure” and without the need for the Commission to engage in an extensive investigation of the market relating to the merger being notified.[14]  A “short-form clearance decision” for the merger is typically adopted within a period of 25 working days from the notification date to the Commission.[15] A more comprehensive Phase II Commission investigation will occur if the merger presents “serious doubts”[16] as to whether it will be compatible with regard to competition and the EU’s single market.[17]  The objective of the simplified merger notification procedure is to increase the focus and effectiveness of controlling mergers under the EU Merger Regulation.[18]

A key benefit available to those merging undertakings with access to the simplified short form notification merger procedure is that of a reduction in the amount of detailed information and associated expenses, which would otherwise be expended in completing a non-simplified merger notification to the Commission.[19] The information that must be provided for a regular Form CO notification as well as for a notification under the simplified procedure is provided in Annexes I and II respectively of the Implementing Regulation.[20]  It is a benefit to both the merging entities as well as to the Commission to encourage use of the simplified procedure, because of the reduction in resources under this form of merger notification.

 

III        Proposed Changes

Expansion of access to the simplified merger notification procedure includes a proposal to increase the qualifying market share threshold under the Notice from 15% to 20% for those competing firms in the same market merging.[21]  A merger concerning undertakings participating in markets that are upstream and downstream from one another would be able to take advantage of an increased 25% to 30% qualifying threshold for access to the procedure under the proposal.[22]  Additionally, access to the simplified merger notification procedure under the proposal would be available where two undertakings are participants in the same market and their joint share of the market exceeds the threshold of 20%, but as a result of their merger, the resultant market share increase from the merger is insubstantial.[23]

The Implementing Regulation[24] will also be revised under the proposal with regard to the notification forms for mergers.[25]  An important aspect of the proposed changes relates to those cases, which would be unable to qualify for access to the simplified merger notification procedure.[26]  The firms engaged in a merger would be required to submit comprehensive information in a notification to the Commission solely for the markets in which their market share is found to be in excess of the thresholds established for qualification under the simplified merger notification procedure.[27]  This is a positive change, which will enable the Commission to focus exclusively on information with the potential to pose a threat to competition within the single market upon implementation of the merger.

The primary objective underlying the short form simplified merger notification procedure is that of facilitating the process of notification and reducing burdens of an administrative nature for those mergers, which the Commission has traditionally found unlikely to present concerns relating to competition within the EU’s single market.[28]  The proposed changes will act as a positive expansion toward the attainment of these goals.

The changes proposed are with the intent of streamlining and reducing resources otherwise unnecessarily expended on merger cases.[29]  The Commission will instead be able to use its resources more efficiently on those mergers which necessitate a more comprehensive assessment and may actually result in a harmful impact upon both consumers and competition within the single market.[30]  Additionally, burdens of an administrative nature for both undertakings notifying a merger and with regard to burdens imposed upon the resources of DG Competition will continue to be reduced by this procedure and its expansion.[31]

The Commission’s primary objective in amending the Notice as well as the notification forms under the Implementing Regulation is to reduce procedural administrative burdens in an effort to increase European competitiveness and to stimulate continued economic growth.[32]  These changes to the Notice and Implementing Regulation will be helpful for the attainment of these objectives by encouraging a more efficient use of resources for both DG Competition and the merging parties.

 

IV        Helpfulness of Proposed Changes

The primary concern regarding mergers under the EU competition law system is that a particular merger when effected will have the result of reducing post-merger competitiveness within the common market.[33]  The proposed changes to the simplified merger notification procedure will not have the result of decreasing competitiveness or hindering the necessary scrutiny and control of mergers, which remain a primary and essential concern regarding any merger that is to be implemented within the single market.  Expanding access to the simplified procedure as well as reducing burdens of both a financial and administrative nature for both the merging parties and DG Competition will foster greater growth within Europe; facilitate the notification of mergers, which are not detrimental to the single market; and stimulate greater European competitiveness.

It may be argued that expanding access to use of the simplified notification procedure will act as a detriment to competition and to the necessary oversight of proposed mergers within the single market.  An increase in the qualifying market share for access to the simplified notification procedure may enable too many potential mergers to employ this procedure without sufficient safeguards.  An increasing number of merging firms will be able to notify under the simplified and shortened notification procedure because of the increased qualifying percentages, thereby resulting in an increase in the number of mergers that the Commission will potentially approve without a comprehensive relevant market investigation.[34]  A less comprehensive investigation of the market with regard to a greater number of qualifying mergers may hinder the Commission’s ability to engage in fully informed decision making and may result in greater threats to competition within the EU’s single market.

Additionally, amending the Implementing Regulation with regard to the merger notification forms would enable merging firms that are unable to qualify under the simplified procedure to only be required to provide information to the Commission with regard to markets in which the market share of the merging firms is in excess of the access threshold mandated under the simplified merger notification procedure.[35]  It may be argued that a reduction in the amount of information being provided in a notification under this proposed change will have a negative impact on the Commission’s ability to make an informed assessment as to whether a merger should be approved and its assessment of potential anti-competitive effects.

However, the possible negative implications of the proposed changes appear to be outweighed by existing precautions taken by the Commission.  The proposed increased qualifying percentages under the simplified notification procedure continue to be within “safe harbours” previously established by the Commission.[36]  Additionally, mergers qualifying under the simplified procedure will continue to be subject to the EU Merger Regulation’s “ex-ante merger control” system.[37]  The proposed changes will only benefit those mergers, which in the Commission’s experience have not posed a threat to competition rather than lowering existing safeguards, which would increase the probability of anti-competitive activity.[38]  It is also important to note that the Commission will continue to require critical information in any notification, which potentially reflects a threat to competition, regardless of whether the notification occurs under the standard or simplified notification procedure.[39]  A comprehensive investigation by the Commission of the relevant market where there is a potential threat to competition due to a proposed merger will also continue to take place.[40]

The changes being considered by the Commission do not reduce the oversight or scrutiny provided for under the EU Merger Regulation.[41]  An example of oversight, which will be unaffected by the proposed changes is that of Article 16 providing for the Court of Justice to review Commission decisions regarding the imposition of fines or penalty payments.[42]  Additionally, the Commission has the power under Article 8 to dissolve mergers where an incompatible concentration was effected without Commission approval or without adhering to a mandated condition for implementation.[43]  Fines may also be imposed by the Commission if the information in a notification is false or misleading by the merging parties.[44]  It is important that these safeguards remain unaffected by any proposed changes to the notification procedure.

Expanding access to the simplified merger notification procedure and updating the notification forms under the Implementing Regulation will not have a detrimental impact on the need to protect the EU single market from anti-competitive conduct regarding proposed mergers. Facilitating EU economic development in the field of mergers, which are subject to Commission notification, will have a positive effect on economic growth within the EU.  Establishing greater access to the simplified merger notification procedure and updating the notification forms will facilitate the notification process and positively stimulate EU economic growth in the field of mergers.

 

V         Conclusion

A proposal to expand access to the simplified notification procedure under the EU Merger regulation will have a positive impact on reducing administrative burdens and expanding European economic growth.  Both the Commission as well as the merging parties will benefit from the proposed changes.  Safeguards for the protection of the single market from anti-competitive conduct in the field of mergers will also remain in place and are unaffected by the proposed changes.  Additionally, amending the notification forms under the Implementation Regulation will enable the Commission to focus its resources more efficiently and effectively on potentially problematic areas with regard to a proposed merger rather than on issues that do not raise any competitive concerns.[45]


[1] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[2] Ibid.

[3] Commission Regulation (EC) 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings 2004 OJ L 133/1.

[4] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Council Regulation (EC) 139/2004 on the control of concentrations between undertakings 2004 OJ L 24/1.

[9] Whish, R. Competition Law, 6th ed. (Oxford University Press, Oxford, 2009), p. 818.

[10] Commission Regulation (EC) 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings 2004 OJ L 133/1, art. 4(1).

[11] Ibid., art. (1).

[12] Commission Notice, on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 OJ 2005 C 56/32.

[13] Indicative Roadmap of the Planned `Merger Simplification Project,’ January 2013, p. 1.

<http://ec.europa.eu/governance/impact/planned_ia/docs/2013_comp_006_merger_simplification_en.pdf > Accessed 14th of April 2013.

[14] Ibid.

[15] Commission Notice, on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 OJ 2005 C 56/32, p. 1 (art. 2).

[16] See Council Regulation (EC) 139/2004 on the control of concentrations between undertakings 2004 OJ L 24/1, art. 6(1)(b).

[17] Whish, R. Competition Law, 6th ed. (Oxford University Press, Oxford, 2009), p. 847.

[18] Commission Notice, on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 OJ 2005 C 56/32, p. 1 (art. 4).

[19] Whish, R. Competition Law, 6th ed. (Oxford University Press, Oxford, 2009), p. 845.

[20] Ibid.

[21] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[22] Ibid.

[23] Ibid.

[24] Commission Regulation (EC) 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings 2004 OJ L 133/1.

[25] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[26] Ibid.

[27] Ibid.

[28] See Indicative Roadmap of the Planned `Merger Simplification Project,’ January 2013, pps. 1-2<http://ec.europa.eu/governance/impact/planned_ia/docs/2013_comp_006_merger_simplification_en.pdf > Accessed 14th of April 2013, and Commission Regulation (EC) 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings 2004 OJ L 133/1, Annex II.

[29]Indicative Roadmap of the Planned `Merger Simplification Project,’ January 2013, pps. 1-2<http://ec.europa.eu/governance/impact/planned_ia/docs/2013_comp_006_merger_simplification_en.pdf > Accessed 14th of April 2013 .

[30] Ibid., p. 2.

[31] Ibid.

[32] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[33] Whish, R. Competition Law, 6th ed. (Oxford University Press, Oxford, 2009), p. 799.

[34] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[35] Ibid.

[36] Indicative Roadmap of the Planned `Merger Simplification Project,’ January 2013, p. 3.

<http://ec.europa.eu/governance/impact/planned_ia/docs/2013_comp_006_merger_simplification_en.pdf > Accessed 14th of April 2013.

 

[37] Ibid., p. 1.

[38] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[39] Ibid.

[40] See Ibid.

[41] Commission Press Release of 27 March 2013, Mergers: Commission consults on proposal for simplifying procedures under the EU Merger Regulation, IP/13/288, p. 1.

<http://europa.eu/rapid/press-release_IP-13-288_en.htm> Accessed 14th of April 2013.

[42] Council Regulation (EC) 139/2004 on the control of concentrations between undertakings 2004 OJ L 24/1, art. 16.

[43] Ibid., art. 8.

[44] Ibid. art. 14(1)(a).

[45] Indicative Roadmap of the Planned `Merger Simplification Project,’ January 2013, p. 2. <http://ec.europa.eu/governance/impact/planned_ia/docs/2013_comp_006_merger_simplification_en.pdf > Accessed 14th of April 2013 .