Merger Regulation

only enforced by European Commission → nationals have no control
- if not EU level, then nationals can act on national laws
Merger Regulation 139/2004 (EU Merger Regulation)
Ex ante investigation → prospective analysis, notifications of companies merging
- only after approval of Commission is the merge legal

Analysis under EUMR

concentration
- change of control (not necessarily ownership)
- control … decisive influence
  - positive control: taking decisions about company
  - negative control: hinder company from taking decisions (e.g. veto)
- sole control vs joint control (only a handful of companies together)
  - no definite % of shares mentioned
Union Dimension
between EU and non EU undertakings
- EU can block the merger from the EU side (EU company may not merge) → therefore merger is blocked entirely
- EU and other authorities may have conversations
  - if no agreement is found the merger is blocked by either side or both

SIEC Test → is the position dominant after a merger?
- (i) SIEC - dominance (unilateral effects)
- (ii) SIEC - collective dominance (coordinated effects)
- (iii) SIEC - other than dominance (unilateral effects)
other factors
- degree of concentration of the relevant market
  - 3 to 2 merger not appreciated
- level of market share held by parties
- competitor relations
- opportunities to switch suppliers for customers
- development of price and product
- assets such as data, IP rights
  - against building IP monopoly (e.g. all patents in one company then)
- Research and Development
horizontal vs vertical mergers → same as with horizontal vs vertical Agreements
- horizontal mergers: concentration measure
  - HHI Herfindahl Hirschmann Index
  - Horizontal Merger Guidelines (2004)
  - sum of all squared market shares before and after the merger
- procedural aspects
  - notification
  - phase I investigation
  - phase II investigation
  - one-stop-shop principle → going only to the highest authority
  - referral to commission
- remedies
  - may not be suggested by commission

Telering was bought by T Mobile
Telering was a Maverick → Keeping prices down so that the large players cannot increase prices excessively