EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
sufficiently persuasive, and has not yet cleared an otherwise problematic transaction based purely on efficiencies. It remains to be seen if the Commission will adopt a more lenient approach when it issues its new merger guidelines (see 1.1 Merger Control Legislation ). 4.6 Non-Competition Issues The Commission is generally lauded for adhering to competition law principles in its assessments of transactions and eschewing non-competition considerations. It has repeatedly emphasised the independence of its review process from political considerations, and has resisted calls from certain member states to adopt a more protectionist view. This has resulted in complaints that the Com - mission’s strict application of EU merger control has unduly impeded the creation of “European champions”. In 2023, Commission President Ursula von der Leyen commissioned a report by former president of the European Central Bank (and former Italian Prime Minister) Mario Draghi. The report, entitled ”The Future of Euro - pean Competitiveness”, was presented to the European Commission in September 2024 and describes the need to increase European pro - ductivity as “an existential challenge” requiring ”radical change” in a number of areas, one of which is merger control. This has led DG Comp to open a review of both its Horizontal and Non-Horizontal Merger Guide - lines (see 1.1 Merger Control Legislation ). In its review, DG Comp acknowledges that EU merger control may also take into account wider policy considerations such as labour markets, sustain - ability, and so on. The Commission is assessing how these considerations can be better reflected in the updated guidelines.
In addition, in particularly sensitive or high- profile cases, the Commission will often receive lobbying pressure from national governments and third parties, which may have an impact on the overall context in which it views a particu - lar transaction. In a Phase II investigation, the Commission’s decision to clear or prohibit the concentration will be taken by the full College of European Commissioners. As a result, other broad considerations (eg, employment, environ - ment, energy and growth) may have a limited influence in some merger reviews. The EUMR provides the limited possibility for member states to take action to protect their national security or other legitimate interests, but such exceptional actions do not form part of the merger control process (see 1.3 Enforcement Authorities ). The Commission has also imple - mented legislation to establish separate mecha - nisms to monitor and control foreign investment and subsidies in concentrations (see 9. Foreign Direct Investment/Subsidies Review ). 4.7 Special Consideration for Joint Ventures Full-function JVs are assessed using the same substantive test as all other concentrations – the SIEC test (see 4.1 Substantive Test ). The Commission may also assess whether the JV gives rise to so-called “spill-over effects” – namely a risk of co-ordination between the par - ents in markets where they are both active out - side the JV or operate upstream or downstream from one another. The Commission will assess any risk of co-ordination between the parent companies under Article 101 of the TFEU, which prohibits anti-competitive agreements between undertakings.
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