欧盟企业合并规则的域外适用（英文）
The Extraterritorial Application of the EU Merger Regulation
廖凡
【关键词】merger regulaiton, extraterritorial application
【全文】
The EU Regulation on the Control of Concentration between Undertakings (“Merger Regulation”) came into force in September 1990 with the twofold purpose of encouraging major corporate reorganizations in the form of concentrations in the European Community (“Community”) , while controlling those concentrations which may significantly impede effective competition in the common market. For the first purpose, it preempts member states regulation of mergers with a “Community dimension”, and provides the benefits of a “one-stop shop” to corporations planning large-scale mergers. As to the second purpose, it confers on the European Commission (“Commission”) the exclusive power to investigate the abovementioned mergers and block any of them which is deemed incompatible with the common market. The application of this regulation is not limited to firms or mergers within the Community. On the contrary, the Commission has been consistently exercising jurisdiction over mergers outside the Community between non-EU firms, including U.S. firms. This is but a continuation of the long-existing practice of extraterritorial application of EU competition law. Considering the large size of mutual trade and investments between EU and U.S., the impact of this regulation on U.S. companies is tremendous.
This article discusses the extraterritorial application of the Merger Regulation, its impact on U.S. corporations, and possible solutions to the resulting conflicts between the European Union and the United States. Part I describes the basic contents of the Merger Regulation. Part II reviews the history of extraterritorial application of EU competition laws and the expansion under the Merger Regulation. Part III discusses some possible solutions to the resulting conflicts, while part IV draws a brief conclusion.
I. Basic Contents of the Merger Regulation
A. Concentration Test and Community Dimension Test
As its name suggests, the Merger Regulation only applies to “concentrations”. If a transaction is not a “concentration”, the normal competition rules of the EU and the member states will apply. However, “concentration” is defined in such broad terms that it covers virtually all traditional mergers and acquisitions. A concentration is deemed to arise not only in the straightforward situation where two or more independent corporations merge, but also where one firm acquires direct or indirect control of another firm through stock or assets purchases, contractual relationship, or any other means. Control is defined practically as whatever confers the possibility of exercising “decisive influence” on the new or acquired firm, regardless of the form of the transaction. The Merger Regulation also covers certain forms of joint ventures. When originally enacted in 1989, the regulation made a distinction between “concentrative” and “cooperative” joint venture and only applied to the former. The 1997 amendment replaced this rather confusing distinction with the concept of “full function” joint ventures, i.e., joint ventures which are fully functional and autonomous economic entities. Such joint ventures are within the scope of the regulation.
For the Merger Regulation to apply, a concentration must also have a “Community dimension”. The regulation defines the Community dimension in terms of the world-wide and Community-wide turnovers of the involved undertakings. Basically, a concentration has a Community dimension where: (a) the combined aggregate worldwide turnover of all the undertakings concerned is more than ECU 5 billion; and (b) the aggregate Community-wide turnover of each of at least two of the undertaking concerned is more than ECU 250 million, unless each of the undertakings concerned achieves more than 2/3 of its aggregate Community-wide turnover within one and the same member states.
According to the 1997 amendment, if a concentration fails to meet the above thresholds, it nonetheless has a Community dimension where: (a) the combined aggregate worldwide turnover of all the undertakings concerned is more than ECU 2.5 billion; (b) in each of at least 3 member states, the combined aggregate turnover of all the undertakings concerned is more than ECU 100 million; (c) in each of the member states mentioned in (b), the aggregate turnover of each of at least two of the undertakings concerned is more than ECU 25 million; and (d) the aggregate community-wide turnover of each of at least two of the undertakings concerned is more than ECU 100 million, unless each of the undertakings concerned achieves more than 2/3 of its aggregate Community-wide turnover within one and the same member state. This new provision originates mainly from the pressure of member states to lower the thresholds so as to confer the one-stop shop benefits on a wider range of transactions.
