COMPETITION • EUROPEAN LAW • MERGERS
Can a merger be subject to control through Articles 101 or 102 TFEU as was the practice in case law prior to the adoption of a specific merger regulation?
In principle, concentrations do not fall within the scope of Articles 101 and 102 since Article 21(1) of Regulation No 139/2004 provides that “[t]his Regulation alone shall apply to concentrations” regardless of whether or not they exceed the thresholds set out in Article 1. The regulation adds that the regulations implementing Articles 101 and 102 shall not apply, except in relation to joint ventures that do not have an EU dimension and which have as their object or effect the coordination of the competitive behavior of undertakings that remain independent. By contrast, it should be pointed out that the previous case law of the Court of Justice is in no way affected by the regulation which even refers to it in the recitals (point 6), and it seems that only an amendment to the Treaty could result in excluding concentrations from the scope of application of those provisions. In theory, Articles 101 and 102 therefore still apply to merger transactions taking place after the coming into force of Regulation No 139/2004.
