Eu Merger Control Legal System

This dissertation is divided into the following seven chapters: Chapterl. The summary of the legal system of merger control in European Union (EU). This thesis, from the historical perspective, gives a close and careful analysis of the four stages of development in the legislation of the legal system of Merger control of in EU. It elaborates on the cause of the reform of Merger control in EU in 2004, and makes a brief introduction to the main contents of the reform. It also sums up the challenges which the legislation of Merger Control in EU faces, meanwhile it outlines the evolution of the legislative system of merger control in EU. This thesis reveals the development of the legal system of the merger control in EU which grows out of nothing and experiences from omission to deliberation from emphasis on supervision effectiveness to respect the rights of merger parties. The first three sections are mainly on the macro-level analysis, then the fourth section turns to the micro-one. It detailedly discusses the defects of the concept of concentration of EU in a horizontal comparison. The last part describes the characteristics of Merger control in EU: one-stop shop and centralized merger control system and summarizes the two key contents: the substantive control law concerning competitive analysis and the procedure law guaranteeing the realization of substantive evaluation.Chapter 2. The jurisdiction system of the legal system of merger control in EU. The jurisdiction theory mentions the international level, and also concerns extraterritorial application of the legal system of merger control in EU. To safeguard the effectiveness competition in The EU market, cross-border merger in EU was widely used and form the unlimited extraterritorial jurisdiction. The EU commission and the court of the law, on the basis of the objective territoriality principle, advocates the main three standard theories: the single economics entity, effects doctrine, and the place of implementation. It enforces the jurisdictions on the merger of the main business places outside EU, and aroused the international conflict. The chapter analyzes these problems arising from the extraterritorial jurisdiction of the merger control in EU, case law andcountermeasures, On the domestic level, this thesis mainly discusses a merger case is reviewed by the EU commission or administered by its member states, that is , how is the jurisdiction between EU and its member states put into the optional distribution? This is the typical of the legal system of merger control in EU, and will be of beneficial reference to the legislation of international merger control.Chapter 3. The core of the legal system of merger control in EU: substantive test. The Test of "significant impediment on effective competition" was introduced into the most recent edition EC Merger Regulation on May 1, 2004. Such a substantive test, based on the test of "abuse dominant position" and the test of "the market dominance", applies to much more situation than the structural test of "the market dominance" and helps to be consistent with the test of "substantial reduction on competition "adopted by Non-European nations, mostly the US and UK. This chapter, through the horizontal comparison between SIEC in EU and SLC in US, reveals the trend of the substantive test of merger control. The magnificent development to the substantive test of merger control in EU, the unilateral effects theory, whose contents, definition, practices are in careful exploration and analysis. Lastly, this chapter summarizes the chief features of substantive legislation of merger control in EU.Chapter 4. The legal system of merger control in EU is an integration of the substantive law and the procedure law. In this chapter 'the procedure system of merger control in EU", there is a detailed discussion on merger control model, review procedure, concrete contents and investigation of merger report, such the contents of procedural law as organization safeguard, procedure violation liability. Through the study, it is found that the procedural law applies merger substantive law into practice containing anti-competitiveness in concentration, besides this, the due process among which the aim is to the right to be heard and the right to defend oneself, two stages in merger review and review deadline, the issue of full form CO and short CO, the internal structural reform in Director General(DG) all focus on improving effectiveness of merger control, enhancing the transparency and respecting merger effective need and safeguarding the legal rights of parties. It fully embodies the procedure legislative model of merger control " the equal emphasis on right and effectiveness"Chapter 5. Effective merger control cannot process well without the assistance of the judicial review, because judicial review is the primary supervision with traditional authority, secured by stringent procedure, regular and independent working manner. In chapter 4, the judicial review in the merger control, these is much discussion on legal basis, jurisdiction range, legal consequence, function, current situation, characteristics, and defects, reform debate, and legislative suggestion, which leads to an overall study on the jurisdictional review in merger control in EU. It points out, in EU, the ex post judicial review plays an increasing role in scrutinizing the commission's merger decision, however, many problems still exist, such as the over deference to administrational discretion, the over tight standard, over narrow scope and over lengthy course of the judicial review, the defects in the newly introduced expedited procedure. Currently, many disagreements exist in whether the EU should adopt the US's ex ante judicial review institution, while the enhancement of the judicial review on the merger control is sure to be the direction of the reform.Chapter 6. The international conflict and coordination in the legal system of merger control in EU. As there are more and more countries formulating competition law and the legal system of merger control, they, for their own sovereign rights, increasingly promote extraterritorial jurisdiction which results in the conflict and confrontation. The international coordination is the general trend. The competition law in EU is subject to integration and industrial policy. The merger theory, especially the conglomerated and vertical merger theory, creative application of tying theory, and difference in the merger legislation, directly results in contradiction in merger control between EU and US. As in the respective of the international coordination of merger control, the bilateral cooperation between EU and US is highly praised. In the multilateral convergence coordination, EU plays an active role in such international organizations as ITO, WTO, UN OECO, ICC, ICN and promotes the development of the soft law of international merger control, which lays a solid basis for concluding the international united anti-monopoly law.Besides, the international cooperation in competition law between EU and EFTA creates best places or the lead jurisdiction approach, which becomes the exampleof tackling transnational merger cases.Chapter7. Perfection and reference in the legal system of merger control in China. In this chapter, there is in detail discussion on the basis of analyzing the current situation of legislation of merger control in China, discriminately absorbing merger control law in EU and such countries as (US, Germany, Japan and Taiwan in China). The first section, from the perspectives of Company Law, Security law, enterprise Law and anti-monopoly law, analyzes he present legal system and defects of legislation merger control, on "Foreign investors' merger of domestic enterprise' provisional regulation" the draft of "Antimonopoly law", as the states public industrial and commercial General Bureau points out, at present, the importance of merger control has not been fully realized. Hence, the second section demonstrates the necessity of developing the legislation of merger control in China, from these angles of solution of Marshall's dilemma, the foreign capital's large-scale merger of domestic enterprise leaders and China's enterprise overseas merger, and takes strict precautions against grievous harm caused by the market's effective competition. The third section, on the localization of the above contents, provides a careful demonstration on the legislative mode of the legal system of merger control in China, and its relative specific problems, jurisdiction, theory, substantive test, procedural law, judicial review, international coordination. It puts forward concrete legislative suggestions, the aim is to follow the examples of advanced legislative experience practical achievement in EU, makes it useful in China.