Relevant legislation and statutory standards

Regulation No. 139/2004 (the “Merger Regulation”) remains the core piece of legislation governing the European Union (EU) system of merger control. However, the Commission has embarked on a review of various elements of the “merger control package”. The current state of the review is as follows.

New Jurisdictional Notice

In July 2007, the Commission adopted a new Notice on jurisdictional issues (the “New Jurisdictional Notice”). It replaces the previous four (old) notices dealing with jurisdictional issues, namely:

1. the Notice on the concept of concentration;

2. the Notice on the concept of full-function joint ventures;

3. the Notice on the concept of undertakings concerned; and

4. the Notice on calculation of turnover.

The New Jurisdictional Notice consolidates, simplifies and updates the guidance contained in the four notices to reflect recent developments in the case-law. It is divided into four parts. Part A provides a brief introduction. Part B discusses the concept of “concentration”, including the notions of “sole control”, “negative control”, “joint control” and changes in the “quality of control”. Part C considers the meaning of “Community dimension” and includes practical guidance on how to calculate turnover for the purposes of the Merger Regulation. Part D identifies and deals with different categories of concentration, addressing “joint control”, changes of controlling shareholders in an existing joint venture undertaking, dissolution of a joint venture, and asset swaps.