The Interplay between European Merger Control Law and the Liberalisation of European Electricity, Natural Gas and Petroleum Markets

Table of Contents

1. PRIMARY SOURCES

1.1 Treaties

1.2 EC Secondary Legislation

1.2.1 Regulations

1.2.2 Directives

1.2.3 Notices

1.2.4 Decisions

1.2.4.1 Antitrust Law

1.2.4.2 Control of Concentrations

1.3 CJEU Cases

1.3.1 Antitrust Law

1.3.2 Control of Concentrations

1.3.3 Implied Powers

1.4 General Court

1.5 German Primary Legislation

1.6 Cases of the German Constitutional Court, Federal High Court and the Federal Administrative Court

1.7 Proceedings of the German Cartel Authorities and Regional Courts

1.8 UK Legislation

1.9 U.S. Legislation

1.10 U.S. Administrative Guidelines

1.11 Other

2. SECONDARY SOURCES

2.1 Books

2.2 Articles

2.3 Seminar Papers and Other Sources

1. Introduction

1.1 CONCENTRATION OF UNDERTAKINGS

1.1.1 Undertaking in Terms of Merger Control Law

1.1.2 Control

1.2 CATEGORIES OF CONCENTRATIONS

1.3 INCIDENTAL PROVISIONS

1.4 FINE ANALYSIS

2. Microeconomic Rationale of Concentrations

2.1 MICROECONOMIC BENEFITS OF MERGERS

2.1.1 Microeconomic Benefits of Vertical Integration

2.1.2 Microeconomic Benefits of Horizontal Integration

2.1.3 Microeconomic Beneficial Effects of Conglomerate Integration

2.2 MICROECONOMIC DRAWBACKS OF MERGERS

2.2.1 In-transparent Economic Status of the Partner

2.2.2 Merger Related Expenditure

2.2.3 Managerial Dis-Economies

2.2.4 Unreasonable Focus on Integration

2.2.5 Increase of Barriers to Market Entry

2.2.6 Increases of Prices and Costs and Slow Innovation

2.2.7 Drawbacks of Conglomerate Mergers

3. Macroeconomic Implications of Mergers

3.1 MACROECONOMIC BENEFITS OF CONCENTRATIONS

3.1.1 Aggregated Productive Efficiencies

3.1.2 Reduction of Macroeconomic Barriers to Exit

3.1.3 Tool to Rescue Weak Undertakings

3.1.4 Facilitator of Market Integration

3.2 DETRIMENTAL MACROECONOMIC EFFECTS OF MERGERS

3.2.1 Dominance over Industrial Sectors

3.2.2 Unemployment and Regional Disparities

3.2.3 Socio-Economic Concentration of Wealth and Power

3.3 EVALUATION

3.3.1 Public Interest Theory

3.3.2 Competition Law Theory

3.3.3 Structure-Conduct-Performance Model or Consensual Approach to Liberalisation

3.3.4 Concept of Contestable Markets

4. Merger Control under Art. 66 ECSCT and the Euratom Treaty

4.1 PREVENTIVE PROHIBITION OF CONCENTRATIONS ART. 66 § 1 ECSCT

4.2 ALLOWANCES UNDER ART. 66 § 2 ECSCT

4.3 FINES, DIVESTITURE, JUDICIAL REVIEW, ENFORCEMENT

4.4 CARTELS AND ABUSES OF DOMINANT POSITIONS

4.5 EVALUATION

4.6 EURATOM TREATY

5. Merger Control under Art. 102 and 101 TFEU (Art. 82 and 81 ECT)

5.1 EC MERGER CONTROL UNDER ART. 102 TFEU (ART. 82 ECT)

5.1.1 Undertaking

5.1.2 Relevant Market

5.1.3 Substantial Part of the Common Market and Effects Doctrine

5.1.4 Dominant Position and Collective Dominance

5.1.5 Abuse

5.1.6 Effect on Trade between Member States

5.1.7 Legal Consequences

5.1.8 Concentration

5.1.8.1 Arguments Supporting Merger Control: The Continental Can Doctrine

5.1.8.2 Application of the Continental Can Doctrine

5.1.8.3 Drawbacks of Merger Control under Art. 102 TFEU (Art. 82 ECT)

5.2 EC MERGER CONTROL UNDER ART. 101 TFEU (ART. 81 ECT)

5.2.1 Traditional View

5.2.2 New Doctrine Introduced by the BAT Judgement

5.2.3 Evaluation of the BAT Doctrine

5.2.4 Gillette Case

5.2.5 E.ON / Ruhrgas

5.2.6 Evaluation of the Application of Art. 101 TFEU (Art. 81 ECT) to Structural Amendments of the Competitive Environment with Indications of Future Collusion

5.3 THE COMPLEX ASSESSMENT OF JOINT VENTURES UNDER ART. 102 AND 101 TFEU (ART. 82 AND 81 ECT)

5.3.1 Legal Nature of JVs

5.3.2 Assessment of Joint Control within Incorporated JVs

5.3.3 Competition Law Analysis of JVs under Art. 102 and 101 TFEU (Art. 82 and Art. 81 ECT)

5.3.3.1 JVs Exclusively Assessed under Art. 102 TFEU (Art. 82 ECT)

5.3.3.1.1 Long Lasting Basis

5.3.3.1.2 Full Function

5.3.3.1.3 Concentrative JV

5.3.3.2 JVs Assessed under Art. 101 TFEU (Art. 81 ECT)

5.3.4 The Chevron Case

6. Control of Concentrations under MR1989

6.1 LEGAL BASIS OF MR1989

6.2 RECITALS OF MR1989

6.3 SCOPE FOR MERGER CONTROL PURSUANT TO ART. 1; 3; 22 MR1989

6.3.1 Concentration under MR1989

6.3.1.1 Merger

6.3.1.2 Acquisition

6.3.1.3 Concentrative JVs under MR1989

6.3.1.3.1 Distinction between Operations Involving Inseparable or Separable Structural and Coordinative Aspects

6.3.1.3.2 Joint Control

6.3.1.3.3 Criteria for Full Function JVs

6.3.1.3.4 Concentrative Operations: Recession of Parents and Group Effect

6.3.1.4 Credit Institutions, Insurance Undertakings, Liquidators and Financial Holdings under MR1989

6.3.2 Community Dimension under Art. 1 MR1989

6.3.2.1 Aggregated Global Turnover

6.3.2.1.1 Calculation of Turnover from Ordinary Business Activities

6.3.2.1.2 Intra-Group Transactions Art. 5 1 2 MR1989

6.3.2.1.3 Acquisition of Parts Art. 5 11 MR1989

6.3.2.1.4 Turnovers of Affiliated, Parent and Sister Undertakings

6.3.2.1.5 Turnovers of Jointly controlled Undertakings

6.3.2.1.6 Financial Institutions

6.3.2.1.7 De-Mergers (Break up of companies)

6.3.2.1.8 Joint Bids

6.3.2.1.9 Asset Swaps

6.3.2.1.10 Formation of Concentrative JVs

6.3.2.1.11 Acquisition of Unilateral Control by a JV Partner

6.3.2.1.12 Intermediary Companies

6.3.2.2 Aggregated Community Wide Turnover

6.3.2.3 Two-Thirds Rule Art. 1 11 MR1989

6.3.3 Modifications of the One-Stop-Stop Principle: Art. 1 11; 22 111 - V; 19; 21 111 MR1989 and the Residual Application of Art. 101 and 102 TFEU (Art. 81 and 82 ECT)

6.3.3.1 One-Stop-Shop Principle

6.3.3.2 Mandatory Co-operation under Art. 19 MR1989

6.3.3.3 German Clause pursuant to Art. 9 MR1989

6.3.3.4 Safeguard under Art. 21 111 MR1989

6.3.3.5 Dutch Clause Art. 22 111-V MR1989

6.3.3.6 Residual Application of Art. 101, 102 pursuant to Art. 109 TFEU (Art. 81, 82 pursuant to Art. 89 ECT)

6.3.3.7 Evaluation

6.4 PRE-NOTIFICATION STAGE

6.4.1 Obligation to Notify a Concentration

6.4.2 Secretive Talks Regarding Draft Notifications

6.5 PHASE ONE

6.5.1 Suspension of the Concentration

6.5.2 Procedural Aspects of Decision-making within Phase One

6.5.3 Inapplicability Decision Art. 6 1 lit. a MR1989

6.5.4 Compatibility Decision under Art. 6 1 lit. b MR1989

6.5.4.1 Definition of the Relevant Market

6.5.4.2 Assessment of Dominance in terms of Art. 2 11 MR1989

6.5.4.2.1 Elements of Dominance in Art. 2 1 MR1989 Differing from the Notion of Dominance Relevant to Art. 102 TFEU (Art. 82 ECT)

6.5.4.2.2 The Need to Maintain and Develop Effective Competition Art. 2 1 lit. a MR1989

6.5.4.2.3 Market Position of the Undertakings Concerned

6.5.4.2.4 Economic And Financial Power of the Undertakings Concerned

6.5.4.2.5 Alternatives for Consumers or Suppliers

6.5.4.2.6 Access to Supplies and Markets

6.5.4.2.7 Barriers to Entry

6.5.4.2.8 Supply and Demand Trends

6.5.4.2.9 Interests of Intermediary and Final Consumers

6.5.4.2.10 Technical and Economic Progress

6.5.4.2.11 Efficiency Gains

6.5.4.2.12 The Minol Case

6.5.4.2.13 The Air France/Sabena Case

6.5.4.2.14 Case VIAG/Continental Can

6.5.4.2.15 Rule of Reason under Art. 2 11; 9 11 MR1989

6.5.4.2.16 Joint Dominance under Art. 2 11; 1 MR1989

6.5.4.2.17 Ancillary Restraints

6.5.5 Initiation of phase two decisions based on Art. 6 1 lit. c MR1989

6.5.6 Evaluation of Phase One Decisions under Art. 6 1 MR1989

6.6 PHASE TWO

6.6.1 Procedural Aspects of Decision-making within Phase Two

6.6.1.1 Requests for Information Art. 11 MR1989

6.6.1.2 Investigations pursuant to Art. 13 MR1989

6.6.1.3 Substantive Analysis and Early Indication of the Course of Action

6.6.1.4 Unconditional Clearance Draft Decision or Statement of Objections

6.6.1.5 Access to the File

6.6.1.6 Hearings

6.6.1.7 Preliminary Draft Decision and Advisory Committee on Concentrations

6.6.1.8 Final Decision

6.6.1.9 Evaluation

6.6.2 Unconditional Clearance Decision Art. 8 1 1st Sentence MR1989

6.6.3 Conditional Clearance Decision Art. 8 11 1-2 MR1989

6.6.3.1 Formal Criteria of Conditional Clearance (Art. 8 11 MR1989)

6.6.3.2 Substantive Criteria of Conditional Clearance

6.6.3.2.1 Incidental Provisions Assuring Compliance with Commitments Proposed by the Parties and Accepted by The Commission

6.6.3.2.2 Incidental Provisions Covering Ancillary Restraints

6.6.3.2.3 Excursus: Conditional Clearance and New Yardsticks for the Assessment of JVs under MR1997

6.6.3.2.4 Implementation of Incidental Provisions and Evaluation

6.6.4 Incompatibility Decision and Implementing Orders Art. 8 111-V MR1989

6.6.5 Revocation of Clearance Decisions and Subsequent Incompatibility Decision under Art. 8 V-VI MR1989

6.7 PROFESSIONAL SECRECY UNDER ART. 17 MR1989

6.8 PARTICIPATION OF PRIVATE THIRD PERSONS UNDER MR1989

7. Amendments of the Merger Regulation in 1997

7.1 CONCENTRATION IN TERMS OF ART. 1 1; 3 I-V MR1997

7.1.1 The New Assessment of JVs under Art. 3 II; 2 IV MR1997

7.1.1.1 Basic JV Definition

7.1.1.2 Full Function JVs

7.1.1.3 Classic Concentrative JVs and the Inclusion of Coordinative Ones By Means of Art. 3 II MR1997 and Art. 2 IV MR1997

7.1.2 Evaluation

7.1.2.1 Legal Certainty

7.1.2.2 Simplicity and Speed

7.1.2.3 Exchange of Blanket Terms as to Jurisdiction

7.1.2.4 Ongoing Relevance of the Distinction Between Concentrative and Coordinative JVs for The Material Assessment

7.1.2.5 Reserved Right to Revoke Clearances Based on a Derogation pursuant to Art. 101 111 ECT (Art. 81 and 82 ECT)

7.1.2.6 Uncertainty as to The Assessment of Concentrative Full-Function JVs below the Thresholds

7.1.2.7 Uncertainty as to the Assessment of Co-operative Full-Function JVs below the Thresholds

7.1.2.8 Uncertainty as to the Assessment of Non-Full-Function JVs

7.1.2.9 De Facto Co-ordination of Authorities?

7.2 COMMUNITY DIMENSION

7.3 CONDITIONAL PHASE ONE CLEARANCES UNDER ART. 6 1 1 LIT. B; ART. 6 11 2 MR1997

7.4 THE NEW SUBSIDIARITY OF INITIATION OF FORMAL PHASE TWO PROCEEDINGS PURSUANT TO ART. 2 I LIT. C MR1997

7.5 ENFORCEMENT OF PHASE ONE COMMITMENTS

7.6 SUSPENSIVE EFFECT OF A NOTIFICATION UNDER ART. 7 MR1997

7.7 CONDITIONAL PHASE TWO CLEARANCES ART. 8 11 1-2 MR1997

7.8 TIME LIMITS

7.9 EXCLUSIVE APPLICATION OF MR1997

7.10 IMPLEMENTING PROVISIONS

8. Amendments of the Merger Regulation in 2004, Exempted and Specific Economic Sectors and Legal Protection

8.1 ART. 26 111 MR2004

8.2 MERGER CONTROL LAW AND THE FREEDOM OF PROPERTY UNDER ART. 17 1 CHARTER OF FUNDAMENTAL RIGHTS AND ART. 14 1, 12 1 1 AND 2 1 GG

8.3 EXEMPTED AND SPECIFIC ECONOMIC SECTORS

8.4 LEGAL PROTECTION AS TO THE MR2004 OWING TO THE TFEU

9. Interplay between Internal Market Policy, Liberalisation and Concentrations with Commitments

9.1 STRUCTURE OF EUROPEAN ENERGY MARKETS

9.2 INCIDENTAL PROVISIONS SO AS TO ADDRESS UNDERTAKINGS OFFERED BY THE PARTIES

9.3 SHELL / MONTECATINI CASE IV/M. 269

9.3.1 The Parties

9.3.2 The Concentration as Subsequently Amended

9.3.3 Community Dimension

9.3.4 Concentration

9.3.5 Competitive Assessment of the Concentration as Notified

9.3.6 Product Market Definition

9.3.7 Geographic Market Definition

9.3.8 Market Shares

9.3.9 Modifications to the Original Concentration Plan

9.3.10 Assessment of the Incidental Provisions

9.4 TRACTEBEL / DISTRIGAZ CASE IV/M. 493

9.5 SIEMENS / ELEKTROWATT CASE IV/M.913

9.5.1 The Parties

9.5.2 Acquisition

9.5.3 Community Dimension

9.5.4 Assessment pursuant to Art. 2 MR1989

9.5.5 Overall Assessment

9.5.6 Conclusion

9.6 NESTE / IVO CASE IV/M. 931

9.7 EXXON / SHELL CASE IV/M. 1137

9.7.1 The Parties

9.7.2 Concentration

9.7.3 Community Dimension

9.7.5 The Relevant Markets

9.7.6 Assessment

9.7.7 Ancillary Agreements

9.7.8 Modifications to the Original Concentration

9.7.9 Conclusion

9.7.10 Annex

9.8 HALLIBURTON / DRESSER CASE IV/M. 1140

9.8.1 The Parties

9.8.2 The Operation and Concentration

9.8.3 Community Dimension

9.8.4 Relevant Markets

9.8.5 Competitive Assessment

9.8.6 Conclusion

9.9 BP / AMOCO CASE IV/M. 1293

9.9.1 The Parties

9.9.2 The Operation and Concentration

9.9.3 Community Dimension

9.9.4 Relevant Markets and Competitive Assessment

9.9.5 Modification to the Original Plan of Concentration

9.9.6 Assessment of the Modification

9.9.7 Conclusion

9.10 EDF / LONDON ELECTRICITY CASE IV/M. 1346

9.11 EXXON / MOBIL CASE IV/M. 1383

9.11.1 The Parties and the Operation

9.11.2 Community Dimension

9.11.3 Competitive Assessment

9.11.3.1 Exploration, Development and Production Process

9.11.3.2 Gas to Liquids Technology

9.11.3.3 Natural Gas

9.11.3.4 Base Oils, Additives and Lubricants

9.11.3.5 Aviation Lubricants

9.11.3.6 Aviation Fuels

9.11.4 Commitments and Assessment

9.11.4.1 Natural Gas

9.11.4.2 Base Oils

9.11.4.3 Motor Fuel Retailing

9.11.4.4 Aviation Lubricants

9.11.4.5 Aviation Fuels

9.11.5 Annex

9.11.5.1 Divestiture of Mobil’s Interest in Aral

9.11.5.2 Mobil’s Interest in BP / MOBIL’s Fuels Business

9.11.5.3 Divestiture of Base Oil Business

9.11.5.4 Opt out Possibility for BP Amoco

9.11.5.5 Expert Resolution of the BP/Mobil JV

9.11.5.6 Divestiture of Pipeline Capacity for Aviation Fuels

9.11.5.7 Divestiture of Assets Associated with Exxon’s World-Wide Commercial Aviation Lubricants Business

9.11.5.8 Divestiture of MEGAS

9.11.5.9 Divestiture of Exxon’s 25% Interest in Thyssengas

9.11.5.10 Redistribution of Mobil’s Voting Rights in Erdgas Münster

9.11.5.11 Offer to sell Mobil’s Rights to one or more Depleted Reservoirs Suitable for Conversion into Natural Gas Storage Facilities

9.11.5.12 Trustees

9.11.5.13 Commission Approvals

9.11.5.14 General Provisions

9.12 GAZ DE FRANCE / BEWAG / GASAG CASE IV/M. 1402

9.13 BP AMOCO / ATLANTIC RICHFIELD CASE IV/M. 1532

9.13.1 The Parties and the Operation

9.13.2 Concentration

9.13.3 Community Dimension

9.13.4 Assessment under Art. 2 MR1989

9.13.5 Commitments Proposed by the Parties

9.13.6 Conclusion

9.13.7 Annex

9.14 EDF / SOUTH WESTERN ELECTRICITY CASE IV/M. 1606

9.15 TOTALFINA / ELF CASE IV/M. 1628

9.15.1 The Parties to the Transaction

9.15.2 The Concentration

9.15.3 Community Dimension

9.15.4 Procedure

9.15.5 Definition of the Relevant Markets and Competition Analysis

9.15.5.1 Refining and Sale of Refined Products

9.15.5.2 The wholesale Markets for Petrol, Diesel and Domestic Heating Oil

9.15.5.3 The Market for the Provision of Storage Capacity in Import Depots linked to Means of Bulk Transport

9.15.5.4 The Market for Services Related to the Transport of Refined Products by Pipeline

9.15.5.5 Sale of Fuels on Motorways

9.15.5.6 Sale of Aviation Fuels

9.15.5.7 Sale of LPG

9.15.5.8 Other Markets

9.15.6 Commitments Proposed by the Notifying Party and Evaluation

9.15.6.1 The wholesale Market, Import Terminals and Pipelines

9.15.6.2 Sale of Motor Fuels on Highways

9.15.6.3 Sale of Aviation Fuels

9.15.6.4 LPG

9.15.6.5 Modalities for Applying the Proposed Remedies

9.15.7 Conclusion

9.15.8 Annex 1

9.15.9 Annex 2

9.16 AIR LIQUIDE / BOC CASE IV/M. 1630

9.16.1 The Parties

9.16.2 The Operation and Concentration

9.16.3 Community Dimension

9.16.4 Assessment under Art. 2 MR1997

9.16.5 Commitments Submitted by the Notifying Party and Modifications to the Operation

9.16.6 Final Conclusion

9.17 LINDE / AGA CASE IV/M.1641

9.17.1 The Parties and the Proposed Transaction

9.17.2 Concentration

9.17.3 Community Dimension

9.17.4 Appraisal under Art. 2 MR1997

9.17.5 Commitments Offered by the Notifying Party

9.17.6 Summary

9.18 PREUSSEN ELEKTRA / EZH CASE IV/M. 1659

9.19 VEBA / VIAG CASE IV/M. 1673

9.19.1 The Parties

9.19.2 VEBA AG

9.19.3 VIAG AG

9.19.4 Concentration

9.19.5 Community Dimension Art. 1 11; 5 MR1997

9.19.6 Dominance Test Concerning Activities of the Parties in the Electricity Sector under Art. 2 MR1997

9.19.6.1 Relevant Product Market Analysis for the Electricity Sector

9.19.6.1.1 Functional Criteria

9.19.6.1.2 Brief Evaluation of The Commission’s Methodology

9.19.6.1.3 A European Internal Electricity Market as the Relevant Geographic Market?

9.19.6.1.4 National Market as The relevant Geographic Market?

9.19.6.1.5 Temporal Criteria?

9.19.6.2 Assessment of the Need to Maintain Effective Competition Art. 2 1 lit. a MR1997

9.19.6.2.1 Present Structure of the Market for Power Generation and Wholesale via the Transmission Grid pursuant to Art. 2 1 lit. a 1st Variant MR1997

9.19.6.2.2 Actual and Potential Competition on the Affected Markets: Art.2 1 lit. a 2nd Variant MR1997

9.19.6.2.3 Additional Criteria Art. 2 1 lit. a 3rd Variant MR1997

9.19.6.3 Market Position of the Undertakings

9.19.6.4 Economic and Financial Strength Art. 2 1 lit. b 2nd Variant MR1997

9.19.6.5 Alternatives Available to Consumers Art. 2 1 lit. b 3rd Variant MR1997

9.19.6.6 Barriers to Entry Art. 2 1 lit. b 4th Variant MR1997

9.19.6.7 Demand Trends, Interests of Consumers and Technological Development: Art. 2 1 lit. b 5th-7th Variant MR1997

9.19.6.8 Prognostic Evaluation

9.19.7 Incidental Provisions Imposed on the Parties by the Commission

9.19.7.1 Divestiture of Equity Stakes in VEAG, LAUBAG and Mining Privileges

9.19.7.2 Temporal Guarantee Regarding A Taking of Delivery of VEAG’s Power By Downstream Affiliates of VEBA / VIAG

9.19.7.3 Divestiture of Equity Stakes in BEWAG

9.19.7.4 Divestiture of Equity Stakes in VEW

9.19.7.5 Divestiture of Equity Stakes in HEW

9.19.7.6 Divestiture of Equity Stakes in RHENAG

9.19.7.7 Obligation Not to Impose the T-Component on Applicants for TPA

9.19.7.8 Obligation to Transparent Billing Calculation

9.19.7.9 Obligation Regarding the Billing of Balancing Services

9.19.7.10 Obligation to Sell Reserved Interconnector Capacity to ELTRA

9.19.7.11 Condition Precedent linked to the Outcome of the German RWE / VEW Proceedings

9.19.8 Theoretical Efficacy of the Incidental Provisions to Remedy the Situation?

9.19.9 Factual Efficacy of Implementation of Incidental Provisions?

9.19.10 Reasons behind the Theoretical and Factual Deficiencies of the Present System of Merger Control with Respect to Incidental Provisions in the Energy Sector

9.20 HEW / VATTENFALL CASE IV/M. 1842

9.21 EDF / ENBW CASE IV/M. 1853

9.21.1 The Parties and the Operation

9.21.2 The Concentration

9.21.3 Community Dimension

9.21.4 Competitive Assessment

9.21.5 Commitments Submitted by the Notifying Parties and Modifications to the Operation

9.21.6 Summary

9.21.7 Annex Incidental Provisions

9.22 SHELL / DEA CASE IV/M. 2389

9.22.1 The Parties and the Operation

9.22.2 Concentration

9.22.3 Community Dimension

9.22.4 Procedure

9.22.5 Assessment under Art. 2 MR1989

9.22.6 Conditions and Obligations

9.22.7 Conclusion

9.23 GRUPO VILLAR MIR / ENBW / HIDROELECTRICA DEL CANTABRICO CASE IV/M. 2434

9.23.1 The Parties and the Operation

9.23.2 Concentration

9.23.3 Community Dimension

9.23.4 Relevant Markets

9.23.5 Compatibility with the Common Market

9.23.6 Commitments made by EdF and EdF/RTE

9.23.7 Conclusion

9.24 BP / E.ON CASE IV/M. 2533

9.24.1 The Parties and the Operation

9.24.2 Concentration

9.24.3 Community Dimension

9.24.4 Procedure

9.24.5 Assessment owing to Art. 2 MR1989

9.24.6 Conditions and Obligations

9.24.7 Conclusion

9.24.8 Annex

9.25 AKER MARITIME / KVAERNER (II) CASE IV/M. 2683

9.26 ENBW / EDP / CAJASTUR / HIDROCONTABRICO CASE IV/M. 2684

9.27 ENBW / ENI / GVS CASE IV/M. 2822

9.27.1 The Parties and the Operation

9.27.2 Concentration

9.27.3 Community Dimension

9.27.4 The Relevant Markets

9.27.5 Compatibility with the Common Market

9.27.6 Incidental Provisions or Undertakings

9.27.7 Conditions and Obligations

9.27.8 Conclusion

9.28 VERBUND / ENERGIEALLIANZ CASE IV/M. 2947

9.28.1 The Business of the Parties

9.28.2 The Transaction

9.28.3 Concentration

9.28.4 Procedure

9.28.5 Community Dimension

9.28.6 Appraisal owing to Art. 2 MR1989

9.28.7 Commitments Entered into by the Notifying Parties

9.28.8 Appraisal of the Notified Operation under Art. 2 MR1989 in the Light of the Commitments Entered into

9.28.9 Conditions and Obligations

9.28.10 Conclusion

9.29 ELECTRABEL / ENERGIA ITALIANA / INTERPOWER CASE IV/M. 3003

9.29.1 The Parties and the Operation

9.29.2 Community Dimension

9.29.3 Concentration

9.29.4 Conclusion

9.30 AREVA / URENCO / ETC JV CASE IV/M. 3099

9.30.1 Joint Request pursuant to Art. 22 MR1989

9.30.2 The Parties

9.30.3 The Operation

9.30.4 Concentration

9.30.5 The Relevant Markets and their Competitive Assessment

9.30.6 Commitments Proposed by the Parties

9.30.7 Conditions and Obligations

9.30.8 Conclusion

9.31 ENI / EDP / GDP CASE IV/M. 3440 (ACQUISITION BLOCKED)

9.31.1 The Parties

9.31.2 The Operation

9.31.3 Relevant Market

9.31.4 Competitive Assessment

9.31.5 Commitments Proposed by the Notifying Parties

9.31.6 Assessment of the Commitments Proposed

9.31.7 Late Remedies

9.31.8 Conclusion

9.32 SIEMENS / VA TECH CASE IV/M. 3653

9.32.1 The Parties

9.32.2 The Proposal

9.32.3 Concentration

9.32.4 Community Dimension

9.32.5 Competition Assessment

9.32.6 Commitments

9.32.7 Competition Assessment of the Proposed Concentration in the Light of these Commitments

9.32.8 Conditions and Obligations

9.32.9 Conclusion

9.33 E.ON / MOL CASE IV/M. 3696

9.33.1 The Parties

9.33.2 The Operation and the Concentration

9.33.3 Community Dimension

9.33.4 Procedure

9.33.5 Relevant Markets

9.33.6 Competitive Assessment

9.33.7 Commitments Entered into by the Notifying Parties

9.33.8 Conclusion

9.34 DONG / ELSAM / ENERGI E2 CASE IV/M. 3868

9.34.1 The Parties

9.34.2 The Operation and Concentration

9.34.3 Community Dimension

9.34.4 Procedure

9.34.5 Commitments

9.34.6 Competitive Assessment

9.34.7 Commitments

9.34.8 Commitments

9.34.9 Conclusion

9.35 LINDE / BOC CASE IV/M. 4141

9.35.1 The Parties

9.35.2 The Concentration

9.35.3 Community Dimension

9.35.4 Competitive Assessment

9.35.5 Proposed Remedies

9.35.6 Conclusion

9.36 GAZ DE FRANCE / SUEZ CASE IV/M. 4180

9.36.1 The Parties

10. U.S. Competition Law on Merger Control and BREXIT 477

11. Conclusion 481

12. Annex 1 490

12.1 MAJOR MERGERS IN THE OIL AND GAS INDUSTRY IN 1998/1999

12.2 MAJOR MERGERS IN THE POWER SECTOR IN 1998/1999

12.3 SIGNIFICANT INFLUENCE OF EXTERNAL BUSINESS CONSULTANTS IN OIL & GAS MERGERS AND ACQUISITIONS

12.4 IMPORTANCE OF CONSULTANTS FOR POWER MERGERS

12.5 PRODUCT MARKET DEFINITION PURSUANT TO ART. 2 MR1989

12.6 STRUCTURE OF THE GERMAN ELECTRICITY SUPPLY INDUSTRY PRIOR TO THE LIBERALISATION AND THE VEBA/VIAG AND RWE/VEW MERGERS

12.6.1 Three Fold Structure of the German Electricity Undertakings prior to 1998

12.6.2 Capital Links between German Integrated Electricity Companies (1994)

12.6.3 Installed Power Capacity of The Combined Electricity Companies in MW in 1994

12.6.4 Fuel Sources of Installed Capacity and Electricity Generation in 1992

12.6.5 Transmission, Distribution and Supply Grid Operators in 1994

13 Annex 2 Merger Control Decisions in the Energy Sector without Commitments and Incidental Provisions or Undertakings 498

Objectives & Core Topics

This thesis examines the practical application of European merger control law to the energy sector, specifically investigating how incidental provisions and commitment packages are utilized by the European Commission to facilitate the liberalization of electricity, natural gas, and petroleum markets. The research focuses on whether current merger control mechanisms sufficiently address potential market dominance and successfully prevent anti-competitive behavior in these crucial infrastructure sectors.

• Application of EU merger control law to energy infrastructure and supply markets
• Evaluation of "incidental provisions" as a tool for enforcing market liberalization
• Microeconomic and macroeconomic implications of concentration in energy industries
• Critical case study analysis of key mergers (e.g., VEBA/VIAG, E.ON/MOL)
• Assessment of divestiture mechanisms and structural vs. behavioral remedies

Excerpt from the Book

Summary of Chapters

1. Introduction: Presents the research scope, specifically the interplay between European merger control and the liberalization of energy sectors, establishing the necessity of the study.

2. Microeconomic Rationale of Concentrations: Discusses the theoretical foundations of market concentration, explaining both the incentives for mergers and the potential competitive risks they pose.

3. Macroeconomic Implications of Mergers: Analyzes the broader economic effects of consolidation, contrasting productive efficiency gains against detrimental impacts like regional disparities and market power abuse.

4. Merger Control under Art. 66 ECSCT and the Euratom Treaty: Reviews the historical control regimes of the ECSC and Euratom treaties as foundational precedents for modern merger oversight.

5. Merger Control under Art. 102 and 101 TFEU (Art. 82 and 81 ECT): Examines how general competition rules were historically applied to oversee mergers before specialized merger regulations were fully established.

6. Control of Concentrations under MR1989: Provides a technical breakdown of the 1989 Merger Regulation, including procedures, notification requirements, and the Commission's decision-making process.

7. Amendments of the Merger Regulation in 1997: Investigates the legislative refinements of 1997, focusing on the handling of Joint Ventures and the adjustment of jurisdictional thresholds.

8. Amendments of the Merger Regulation in 2004, Exempted and Specific Economic Sectors and Legal Protection: Covers the 2004 reform package and specific legal sector exclusions and protections.

9. Interplay between Internal Market Policy, Liberalisation and Concentrations with Commitments: Conducts an extensive empirical survey of case studies where the Commission imposed specific incidental provisions to resolve market competition concerns.

10. U.S. Competition Law on Merger Control and BREXIT: Briefly contrasts the European approach with relevant international perspectives.

11. Conclusion: Synthesizes findings, highlighting the persistent challenges in effectively using merger control as a surrogate mechanism for sector-specific regulatory policy.

Keywords

European Union, Merger Control Regulation, Energy Liberalization, Electricity Market, Natural Gas Market, Concentrations, Incidental Provisions, Commitments, Antitrust Law, Competition Policy, European Commission, Market Domination, Divestiture, Competition, Regulation

Frequently Asked Questions

What is the core focus of this dissertation?

The work examines how European merger control law is applied within the energy sector and whether these legal instruments effectively support the market liberalization goals established by EU directives.

What are the central thematic areas covered?

The core themes include the microeconomics of mergers in heavy industry, the history of EU energy regulation, the evolution of merger control legislation (from MR1989 to MR2004), and the practical use of commitment packages to mitigate anti-competitive effects.

What is the primary research goal?

The primary goal is to evaluate if merger control decisions effectively safeguard competition or if they fail to address underlying structural weaknesses inherent in regulated energy markets.

Which scientific methodology is employed?

The thesis utilizes a mix of legislative analysis of EU competition law (including treaties and secondary regulation) combined with an extensive qualitative study of merger case law (Case IV/M files).

What is addressed in the comprehensive main part?

The main body of the work provides an in-depth chronological and topical dissection of regulatory frameworks, followed by a detailed review of numerous specific concentration cases in the energy sector where the Commission demanded remedial actions.

Which keywords best characterize the research?

Key terms include European Union, Merger Control, Energy Liberalization, Incidental Provisions, Antitrust, Concentration, and Market Domination.

How does the author view the role of 'incidental provisions'?

The author views them as necessary but potentially limited regulatory tools, often used by the Commission to bridge the gap between structural competition policy and sector-specific liberalization goals.

What is the significance of the VEBA/VIAG case?

It represents the most relevant example of a complex, large-scale energy sector concentration where the Commission faced significant pressure to manage market power through comprehensive commitments.