Revue Européenne du Droit
European Union's competition policy: seeking a balance between perfect competition and the fostering of European industry
Issue #3
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Issue #3

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Jacques-Philippe Gunther

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

When Emmanuel Combe, Vice-President of the French Competition Authority, writes that ‘competition policy is, in its own way, a minimalist form of industrial policy’ 1 , he underlines the conceptual ambivalence between two types of economic policies: while the former is based on rules aimed at improving market efficiency for the benefit of consumers, the latter is based on political and competitiveness considerations 2 .

Although these two types of policy do not appear to be incompatible from the outset, the Treaty on the Functioning of the European Union (TFEU) nevertheless endorses a form of subordination of industrial policy to competition policy. Indeed, the obligation imposed on the European Union and the Member States to accelerate the adaptation of industry to structural changes should not, however, lead to ‘distortions of competition’ 3 . Thus, the discussions, sometimes heated, on the need for the European Union to embrace a realistic approach in a globalized economic environment come up against a body of rules whose status is ‘quasi-constitutional’ 4 . The vetoing of the Siemens/Alstom merger by the European Commission has given a new voice to the advocates of a more assertive European industrial policy.

The implementation of the European Union’s competition policy is essentially entrusted to the European Commission by Articles 101 to 109 of the TFEU, under the supervision of the Court of Justice of the European Union and is based on three main aspects: (i) the fight against anti-competitive practices, (ii) merger control, and (iii) state aid control. It is these last two instruments that crystallise the whole debate and could, in our view, benefit from getting some industrial policy coloration.

The introduction of merger control in the early 1990s must be seen in light of the objectives of creating an internal market and fostering European integration, which were initially intended to ensure a balance between the different interests that co-existed within the European Union. Mergers between companies wishing to establish themselves in several European countries could, in some cases, be detrimental to consumers if they resulted in higher prices, a reduced choice of products or hindrance to innovation 5 . Prior control of such operations thus ensured that the positive effects of European integration were not undermined.

The control of state aid is an original instrument, specific to the European Union and introduced by the Treaty of Rome, which also appeared essential in the context of the construction of the common market in that it made it possible, from the end of the 1960s, to prevent Member States from replacing customs duties with subsidies to protect their own companies from competition.

The first observation that can be made is that these two instruments, often presented as being exemplary, were created to govern competition between Member States, in the context of the European integration. But it is from a comparative and more global perspective that the nature and, sometimes, the rigidity of these controls are now called into question. Admittedly, the supporters of a pure and hard competition policy would argue that it ensures stronger legal security, because taking account industrial issues could open the door to political and economic considerations. But why wouldn’t part of the analysis focus on this type of considerations? For example, why not question the consistency of European rules on cartels with the presidential objectives of the ‘France 2030’ plan, in which no less than ten industrial sectors are strongly encouraged to foster joint projects between competitors? Although several adjustments are under discussion 6 , the absence of substantial changes to competition rules since the time of the founding treaties results in the European Union not being sufficiently equipped to respond effectively to the challenges raised by the emergence of certain types of economies, particularly digital ones.

While the lack of homogeneity in the application of competition rules at the global level puts European companies at a definite competitive disadvantage on the international scene (1.), the European Union is now showing a real willingness to remedy these distortions, though there is still some room for improvement (2.).

I. Lack of international homogeneity in the application of competition rules: a definite competitive disadvantage for the European Union on the international scene

A comparison of the rules applicable in the European Union with those prevailing in the United States or China reveals major imbalances in the implementation of competition rules, which ultimately affect the European Union’s competitiveness on the international scene. These imbalances materialise in the area of merger control (1.1), the predictability of which has recently been put to the test by the possibility for the European Commission to examine transactions below the mandatory notification thresholds (1.2). A more pragmatic approach should be adopted (1.3), including in the area of state aid control (1.4).

1.    The significant cross-jurisdictional discrepancies in the area of merger control

In China, merger control falls under the scope of the Chinese anti-monopoly law, adopted in 2008, the spirit of which is diametrically opposed to that underlying the European Union’s competition policy. It should be noted, for example, that state-owned enterprises, which ‘implement the economic agenda of the Chinese government’, are excluded from the scope of the law 7 . The Chinese competition authority was also uncritical of the fact that the 2009 merger between two major players in the telecommunications sector, China Unicom and China Telecom, was not even notified.

The imbalance is all the more marked because the preference given to national companies in China is the result of a resolutely protectionist approach. According to a study cited by the Robert Schuman Foundation, between 2008 and 2013, only 15% of mergers notified in China concerned Chinese companies, while 45% concerned non-Chinese companies. Conversely, over the same period, 47% of mergers notified to the European Commission concerned purely European companies, while only 16% concerned mergers between non-European groups 8 .

While the comparison is, admittedly,  a caricature, it nonetheless points to the distortions in competition that European businesses can be the victim of when EU’s competition rules are applied rigorously. The most emblematic example concerns the railway sector: while in 2015 the Chinese government supported and insisted on the merger between two state-owned groups in order to create the railway construction giant CRRC, the European Commission prohibited, four years later, the merger between Alstom and Siemens, even though it could have created a ‘European champion’ in the railway sector. The calls from Member States to consider mergers in a global context, which were already being raised in the early 2010s 9 , multiplied on the occasion of this veto 10

The comparison with the United States is not encouraging either. The competition policy pursued by the United States, despite being a pioneer in the dismantling of trusts, appears to be less strict than that of the European Union in terms of merger control. First, certain sectors of activity, such as the postal service or companies belonging to regulated sectors, are exempt from the application of competition law. For example, in the sector of telecommunications, the US Supreme Court ruled in 2004 11 and 2009 12 against the concurrent application of competition law and regulatory law. By comparison, in the European Union, there is no comparable impermeability between these two areas of law, with competition law applying concomitantly with regulatory law. Developments over the last twenty years also suggest a trend towards greater flexibility in the application of merger control in the United States: if the emergence of the US digital giants (Google, Apple, Facebook, Amazon) is on everyone’s mind, some studies note that the transport, financial and network industries are considerably more concentrated than fifteen years ago, and attribute this phenomenon to a weakening of the ‘antitrust’ policy during the 2000s 13 .

2. The undermining of the certainty of European merger control by European Commission’s review of transactions falling below the notification thresholds

It must be acknowledged that the successive ‘merger’ regulations of 1989 14 and 2004 15 can confer almost complete legal certainty to undertakings operating within the European Union. On the one hand, the 1989 regulation set notification thresholds expressed in terms of turnover above which merger operations must be notified to and reviewed by the European Commission prior to their implementation. On the other hand, the main criterion of ‘creation or strengthening of a dominant position’ 16 , which can lead to not take into account real risks arising from certain operations, has been supplemented by a more appropriate analysis of the substantial lessening of competition 17

The recent rise of the digital economy has, however, brought to light certain transactions that are sensitive from a competition standpoint; in fact, very often, acquisition targets that are acquired for substantial amounts achieve close to no turnover and therefore fall below the notification thresholds (so-called ‘killer acquisitions’).

In guidelines detailing the application of a new mechanism known as Article 22 (of Regulation 139/2004), which in practice only allowed Member States to ‘refer’ transactions falling within the national notification thresholds to the European Commission for examination, the European Commission has stressed that transactions which may be referred are those for which the turnover of at least one of the undertakings concerned ‘does not reflect its actual or future competitive potential’, giving the example of ‘a new entrant that has substantial competitive potential and has yet to develop or implement a business model that generates significant revenues 18 . Thus, even transactions falling below the notification thresholds can in theory be reviewed if they fall within the above-mentioned fuzzy criteria.

This new practice, which began with the acquisition by the US company Illumina of Grail, an undertaking active in the field of cancer blood tests, has a profoundly detrimental effect on legal certainty, insofar as the use of this tool gives the European Commission the power to carry out a so-called ex-post control of transactions up to six months after they have been carried out, which may lead it to intervene with respect to transactions that have already been closed.

This mechanism should also be seen in conjunction with the provisions of the draft Digital Markets Act (the draft regulation on platforms in the digital sector), which provides for an obligation on gatekeepers to inform the European Commission of any transaction ‘involving another provider of core platform services or of any other services provided in the digital sector’ 19 , irrespective of whether the European merger control thresholds are exceeded.

Thus, the original balance between the search for a competition model with a high degree of legal certainty aiming to preserve free and undistorted competition in the internal market and the need for economic pragmatism, on a case-by-case basis, appears particularly fragile.

3. The European Commission’s substantive review of transactions is stricter than that carried out by its counterparts

In most jurisdictions, merger control is carried out ex ante, i.e., the competition authorities conduct a prospective analysis of the competitive effects of the transaction on the basis of a file notified prior to the transaction. Within this framework, the authorities may, when competition problems are identified, condition their clearance decision to ‘remedies’, which can be either structural (essentially asset disposals) or behavioural (such as changes in contracts, access to technology or the severance of links with competitors).

Where the European Commission stands out from its counterparts is in its greater tendency to make merger approvals conditional on remedies of a structural nature and thus, at times, to render meaningless the synergies that a merger between two companies could have created. In one of its sets of guidelines, the European Commission stresses that only structural remedies allow to ‘prevent, durably, the competition concerns which would be raised by the merger as notified, and do not, moreover, require medium or long-term monitoring measures. 20 Thus, less than 20% of the transactions conditionally approved by the European Commission in 2017 and 2018 were subject to behavioural commitments, compared to around 80% in China over the same period 21 . Beyond the fact that this approach imposes strong constraints on European companies and can lead to irreversible consequences in case of poor market anticipation, since 2010, the divestiture of strategic assets to remedy competition concerns has been carried out in nearly 50% of cases to the benefit of non-European competitors 22 . This means that many assets, often of high quality, have left the European industry as a result of a merger often intended to strengthen the industry. The Commission is also regularly criticised for not taking sufficient account of the efficiencies resulting from the transactions and, a contrario, for overestimating the potential detrimental effect on competition. Thus, in 2016, in the telecommunications sector, the European Commission authorized the combination of the third and fourth largest operators in the Italian telephony market, on the condition that the divested assets allowed a new operator to enter the market. The Commission has thus authorised the move from four to three operators on this market… on condition that the remedies imposed allow the entry of a fourth operator 23 . One might therefore question the economic relevance of a magic number of telecom operators per Member State.

In this respect, we concur with the French Senate’s views that the structural remedies imposed on undertakings are too burdensome and would leave them with the following dilemma: either to give up on mergers or to do so at the cost of divesting too many assets, undermining their ability to fully compete with their international competitors 24

4. The competitiveness gap resulting from an unprecedented review of state aid measures

The differences in economic governance between the European Union, China and the United States are more radical when it comes to granting public subsidies to undertakings. Indeed, European law establishes a general principle of prohibition of state aid, which is rarely shared by its trading partners in other countries. However, the distortions of competition here are not quite of the same nature as in merger control: state aid raises competition problems when some governments subsidise their domestic undertakings to protect them from foreign competition, or grant aid to attract foreign investors.

In the West, it is common knowledge that the Chinese state unreservedly supports its industrial flagships, through subsidies, sometimes hidden, state bank loans or equity investments. For example, the 75 billion dollars in aid received by Huawei from the Chinese state has enabled it to become the world’s leading equipment manufacturer and to develop its 5G telecommunications network. More generally, recent European studies show that 80% of the subsidies received by a sample of Chinese companies would not have been declared compatible with European regulations on state aid 25 .

Across the Atlantic, the concept of state aid is simply not studied and does not meet any particular legal qualification. Some scholars explain this phenomenon by the specific characteristics of common law, which is not fundamentally interested in public property and the common good 26 . Thus, the exceptional aid of nearly 50 billion dollars granted in 2008 to the car manufacturer General Motors and the nationalisation that accompanied it would probably not have been compatible with the provisions of the TFEU relating to state aid, particularly in view of the strongly competitive automotive industry.

In the European Union, state aid is prohibited by way of principle, although this principle is not absolute: state aid may be declared compatible with the internal market on the basis of sectoral derogations, rescue and restructuring objectives, or when it is social in nature or contributes to an objective of general interest. The European Commission’s use of state aid rules to pursue a form of industrial policy has long appeared timid and has been more akin to a desire to preserve entire sectors of the economy when they were under threat. We recall, for example, the approval of aids granted to a total of 112 European banks during the 2008 financial crisis, the simultaneous authorisation of six support mechanisms in the electricity sector to guarantee security of supply in six Member States in 2018, or more recently the approval of France’s plan to grant the airline Air France up to 7 billion euros in liquidity support.

On the whole, whether it is a question of merger control or state aid, international comparisons reveal the distortions of competition that European companies can face at the global level, which are at the origin of the recurrent criticisms addressed to the European Commission by certain Member States.

II. Recent developments in EU competition policy: state of play and prospects for improvement

In the wake of the veto on the Siemens/Alstom operation, there has been a very strong movement of criticism of the European Commission and its chronic ‘allergy’ to the emergence of the famous ‘European champions’, and even more so of ‘national champions’. While it is now necessary to reflect on the virtues of taking industrial issues into account in merger control, and some avenues of reflection are presented below (2.1), there are already signs of recent developments, albeit unequally convincing, undertaken at the European level to take account of competitiveness considerations (2.2).

1. The need to take account of industrial issues in merger control

The Siemens/Alstom case was particularly significant because it was a major transaction for the European industry. According to the European Commission, the asset divestiture proposals made by the parties were not commensurate with the competition concerns identified, since such divestitures would not have enabled a buyer to compete fully with the new group resulting from the merger. Although this decision seems to be based on a rigorous analysis of the competitive situation on the relevant markets, in particular on the absence of short-term entry by Chinese players and the presence of certain European competitors on the rail signalling market, the total failure to take account of European industrial issues has shocked economic and political observers, some of whom have described this decision as a ‘gross error’ 27 .

There is therefore increasing pressure from the political class for the law to be more supportive of the industry in merger matters. Such tensions resurfaced in the context of the announcement of the merger between TF1 and M6 in France. While the government declared that it ‘needs strong groups in the private audiovisual sector’ 28 and that the Conseil supérieur de l’audiovisuel (the French broadcasting authority) was pleased that certain players were ‘getting into shape’ 29 to face the US digital giants, the former President of the French Competition Authority considered that ‘it is complicated to even contemplate such a transaction’, adding that ‘with 70% of the market share in the field of audio-visual advertising, this operation, in principle, seems impossible.’ 30  

How can these two theoretically incompatible objectives be reconciled? One way of reconciling compliance with competition rules and the consideration of industrial issues could be to advocate for (i) a relaxation of the European Commission’s policy when imposing remedies, and (ii) the need for a more dynamic approach to relevant market definition.

The pitfalls of behavioural remedies, such as access obligations, non-discrimination, licensing of industrial property rights, as opposed to structural remedies, are that they entail cumbersome monitoring and can potentially be unsuitable for future market conditions, which partly explains the European Commission’s reluctance to make them its preferred instrument. It is nevertheless essential to acknowledge that almost 50% of the assets sold in the context of structural remedies are sold to non-European players.

A first option could therefore be to make greater use of behavioural remedies, while requiring that they present solid guarantees of effectiveness, as the French Competition Authority does for example, even if it means allocating more resources to monitoring such remedies, and require that they be revised in the event of changes in the initial competition data. A second option could be to make the acceptance of behavioural remedies conditional on the implementation of structural remedies if the former fail after a test period. In practice, it would be only if the behavioural remedies are ultimately no longer able to remedy the competition concerns identified that the European Commission should ‘trigger’ the implementation of the proposed structural remedies.

As for the equally fundamental step of delimiting the relevant markets, i.e. the product and geographic perimeter on which the competitive analysis is carried out and which makes it possible ‘to identify those actual competitors of the undertakings involved that are capable of constraining those undertakings’ behaviour and of preventing them from behaving independently of effective competitive pressure’, 31 the European Commission would gain by adopting a more dynamic approach. 

To date, sectoral analyses have been conducted almost exclusively in connection with merger notifications. However, the inherently evolving nature of markets requires them to be studied on a more regular basis, following the example of the French Competition Authority, which publishes numerous ‘opinions’ in which large-scale markets such as transport, energy, telecommunications and, more recently, FinTechs are studied in depth. Such an initiative would enable the European Commission to assess the competitive dynamics of ‘new’ markets in greater detail and thus improve the quality of its prospective thinking when analysing the competitive effects of a transaction. Companies would gain in clarity because they would be able to anticipate the analyses that the European Commission could undertake in the event of a merger on one of these markets.

2. Encouraging but insufficient recent developments

While the recent developments in the treatment of subsidies from third countries (2.2.1) and state aid rules (2.2.2) seem appropriate, a regime of control of foreign direct investments (‘FDI’) is still struggling to emerge at European level (2.2.3).

a. An appropriate response to foreign public subsidies

In October 2020, the Council of the European Union stressed the need for an ambitious European industrial policy to make the EU industry more sustainable and globally competitive. In the conclusions presented on 16 November 2020, the European Commission was asked to update its industrial strategy, taking into account the changing competitive landscape 32 .

This is what the European Commission did on May 5, 2021, when it also published a proposal for a regulation on foreign subsidies distorting the internal market 33 . Among the new tools proposed to effectively address this phenomenon, the European Commission suggests the introduction of a notification procedure to examine operations involving ‘financial contributionsgranted by public authorities of non-EU countries, provided that these contributions (whose definition is similar to that used by Article 107 of the TFEU for state aid control) have exceeded 50 million euros over the previous three years. This new mechanism, which covers all third countries, including China and the United States, would be superimposed on the traditional merger control mechanism and would be subject to individual review.

This is a strong proposal, currently under discussion in the European Parliament, which takes into account the real risks of distortion of competition in the internal market, and which could moreover be likely to remedy the pitfalls of previously adopted measures. Indeed, this proposal follows the adoption of a regulation in 2016 which modernised the European Union’s anti-subsidy mechanism, notably by giving the European Commission extended powers of investigation. Nevertheless, two years later, while Chinese foreign investment in France increased by nearly 86%, mainly in the industrial sector 34 , the European Union criticized the complexity of the investigations, their length and the thoroughness of the investigation 35

The effectiveness of this control, however, presupposes that foreign companies are transparent about the subsidies they receive. In this respect, the European Commission’s power to impose substantial fines in the event of failure to notify (up to 10% of the company’s total turnover) should be a sufficient deterrent.

b. Convincing developments in the field of state aid

The European Union seems to be on the right track regarding state aid. The modernisation of the control mechanisms enabled it to better target aid towards activities that contribute to growth and competitiveness, while better balancing the positive and negative effects of the granted aid. Various general block exemption regulations have made it possible to considerably broaden the scope of cases in which notification is not required 36 , while another has set a de minimis threshold below which the granted aid is not subject to the provisions of the TFEU 37 . Moreover, the European Commission’s actions seem to be increasingly aligned with the European Union’s industrial strategy. For example, the new revised guidelines on regional state aid dated 29 April 2021 aim to consider the new political priorities linked to the European ‘Green Deal’ 38

In response to the increasing calls to foster EU’s industrial strategy, the European Commission has recently started using the so-called Important Projects of Common European Interest (IPCEI) tool. This tool, which since the ratification of the TFEU has enabled it to declare IPCEIs compatible with the internal market 39 , had remained largely unused. It was through a communication dated June 2014 40 that the European Commission sought to encourage the use of IPCEI, presented as projects making a ‘very significant contribution to the economic growth, employment and competitiveness (…) of the Unionand located in areas as varied as electronics, energy or transport.

Confronted with the prolonged inertia of the Member States in the face of a tool which they had nevertheless requested, the European Commission took the initiative of identifying in 2018 three strategic value chains: microelectronics, high-performance computing and batteries, to which were subsequently added, among others, autonomous and connected vehicles, medicine and personalised health. Thus, with a view to pursuing an ‘integrated industrial policy in the era of globalisation’ 41 , nearly €1.75 billion in aid was granted in 2018 to an IPCEI concerning microelectronics under the French Nano 2022 plan. More recently, the European Commission approved the project, common to twelve Member States, to pay nearly €3 billion in aid to support research and innovation in the entire battery value chain 42 . By putting the legal tools at its disposal at the service of the Union’s strategy, the European Commission is showing encouraging pragmatism.

c. Timid proposals for foreign direct investment

Although not strictly speaking a matter of competition rules, the control of foreign investment is an important aspect of the European Union’s competitiveness on the international scene. In this area, the lack of a centralised mechanism leads to a fragmentation of control within each of the Member States, to the detriment of the preservation of the Union’s strategic interests.

In view of these shortcomings, a Regulation establishing a framework for screening foreign direct investment in the Union was adopted in March 2019 43 . The objective of this regulation is to provide a European framework for the screening of foreign investments from third countries, by instituting in particular (i) procedures for cooperation between the Member States and the European Commission with regard to foreign investments likely to undermine security or public order and (ii) the possibility for the European Commission to issue non-binding opinions when it considers that projects of interest to the European Union are likely to be affected.

While this harmonisation is welcome, in that it creates an embryo of co-operation at Community level, it is regrettable that the most essential aspect, namely reciprocity in screening between the European Union on the one hand and third countries on the other, has not been addressed in the regulation. For example, the situation in the European Union is incomparable with the severity of the foreign investment screening mechanism in the United States, which is the responsibility of the Committee on Foreign Investment in the United States (CFIUS). First, the criteria for CFIUS to examine the compatibility of a foreign investment with national security are excessively broad: the transactions covered are those with ‘any foreign personthat could result in ‘control of a U.S. business’. Second, CFIUS’ jurisdiction was extended in 2020 to non-controlling foreign investments where, for example, sensitive personal data or the so-called ‘critical’ infrastructure is involved, without further clarifications. Finally, this mechanism sends the final decision to the highest level, namely the US Presidency. This is how President Donald Trump stopped certain investment projects, such as the takeover of IBM’s laptop section by the Chinese company Lenovo.

From our point of view, it would be desirable for the European Union to centralise the filtering of foreign investments, which could present interesting complementarities with the mechanism for controlling subsidies from third countries. In any case, the strengthening of the European Union’s competitiveness in this area can only be achieved through the adoption by its counterparts of a level playing field, or at the very least comparable rules.

***

There are multiple calls for changes in the implementation of the European Union’s competition rules. The economist Bruno Alomar thus considered in 2017 that ‘the evolution of the European Union over the last twenty years is unquestionably marked by a shift in the cursor, to the benefit of law and to the detriment of politics, in particular with regard to the core of European competences: competition’ 44 . In the context of the important industrial issues we will encounter in the future, it is urgent to also think of competition tools as means of conquest outside of the European Union and to ensure that European companies cease to be good pupils in a world in which industrial and political considerations now override the competition ones.

Notes

  1.  E. Combe, ‘Politique industrielle : oui, mais avec de la concurrence’, L’Opinion, 19 May 2020.
  2.  The author warmly thanks Louis Bouyala, lawyer, for his valuable contribution.
  3.  TFEU, Article 173.
  4.  Fondation Robert Schuman, ‘Politique de concurrence et Politique industrielle : pour une réforme du droit européen’ (report), January 2020.
  5.  F. Ilzkovitz and A. Dierx, ‘60 ans de politique de concurrence européenne, Revue du droit de l’Union européenne, 2018. 
  6.  In particular, it is anticipated that the Notice on the definition of relevant markets for the purposes of merger control will be revised (Commission Staff Working Document Evaluation of the Commission Notice on the definition of relevant market for the purposes of Community competition law of 9 December 1997, SWD(2021) 199 final). In addition, a proposal for a Regulation to regulate digital markets is under consideration (Proposal of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act), COM/2020/842 final).
  7.  A. Perrot and others, ‘Competition policy and the EU’s strategic interests’, Report of the Inspectorate General of Finance,April 2019.
  8.  Robert Schuman Foundation, ‘Politique de concurrence et Politique industrielle : pour une réforme du droit européen’, (report), 2020.
  9.  J.-L. Beffa, G.  Cromme, ‘Compétitivité et croissance en Europe : groupe de travail franco-allemand’, (report of the Franco-German working group), 30 May 2011.
  10.  Information report No. 551, by Mr. Martial Bourquin on behalf of the joint information mission on Alstom, submitted to the French Senate on 6 June 2018, ‘Faire gagner la France dans la compétition industrielle mondiale‘ (free translation: Making France win in global industrial competition); Information report No. 449, by Mr. Martial Bourquin on behalf of the joint information mission on Alstom, submitted to the French Senate on 18 April 2018, ‘Siemens – Alstom : pour un géant du ferroviaire véritablement franco-allemand’ (free translation: Siemens – Alstom: for a truly Franco-German rail giant).
  11.  Verizon Communications Inc. v. Law Offices of Curtis v. Trinko LLP (02-682) 540 U.S. 398 (2004): ‘When there exists a regulatory structure designed to deter and remedy anticompetitive harm, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny.’ 
  12.  Pacific Bell Telephone Co. v. Linklinecommunications Inc. (No. 07-512) 503 F. 3d 876.
  13. French Treasury Department, report No 232, ‘Concurrence et concentration des entreprises aux Etats-Unis’ (free translation: Competition and Concentration of Undertakings in the US), December 2018. 
  14.  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings.
  15.  Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
  16.  Article 2 of Council Regulation (EEC) No 4064/89 of 21 December 1989.
  17.  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (2004/C 31/03).
  18.  Commission guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases, 31 March 2021.
  19.  Article 12 of the Proposal for a Regulation of the European Parliament and of the Council on fair and competitive markets in the digital sector, 15 December 2020.
  20.  Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004.
  21.  Report of the Inspectorate General of Finance ‘Competition policy and the EU’s strategic interests’, Anne Perrot et al, April 2019.
  22. Ibid.
  23.  European Commission decision of 1 September 2016, Hutchinson 3G Italy/Wind/JV, COMP/M.7758.
  24.  Information report on behalf of the Economic Affairs Committee and the European Affairs Committee on the modernisation of European competition policy, Submitted to the French Senate on 8 July 2020.
  25.  State aid support schemes for RDI in the EU’s international competitors in the fields of Science, Research and Innovation, Bird & Bird, November 2015. 
  26.  Fondation Robert Schuman, ‘Politique de concurrence et Politique industrielle : pour une réforme du droit européen’ (free translation : Competition and Industrial Policies : for a reform of European law), 2020. 
  27.  Remarks by Bruno Le Maire, French Minister of the Economy, Finance and Recovery, ‘Alstom-Siemens : Le droit européen de la concurrence doit se renouveler’, Le Monde, 5 August 2019. 
  28.  Remarks by Roselyne Bachelot, French Minister of Culture, 31 August 2021.
  29.  Remarks by Roch-Olivier Maistre, President of the Conseil supérieur de l’audiovisuel. Les Echos, ‘Les pouvoirs publics voient d’un bon œil la fusion TF1-M6’, 8 September 2021.
  30.  Comments by Isabelle de Silva, former President of the French Competition Authority : ‘ TF1-M6, Gafa, lobbies : les dernières confidences de la présidente de l’Autorité de la concurrence’, L’Express, 11 October 2021.
  31. Commission Notice on the definition of the relevant market for the purposes of Community competition law,

    (97/C372/03), 9 December 1997.

  32.  Council of the European Union, ‘A recovery advancing the transition towards a more dynamic, resilient and competitive European industry’, 16 November 2020.
  33.  European Commission Press Release, ‘Commission proposes new Regulation to address distortions caused by foreign subsidies in the Single Market’, 5 May 2021.
  34.  Baker McKenzie study, Chinese FDI in Europe and North America 2018, January 2019. 
  35.  Report of the Fondation pour l’innovation politique, Europe in the face of American and Chinese economics nationalism: foreign anti-competitive practices, November 2019.
  36.  Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the TFEU; Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the TFEU.
  37.  Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 ofthe TFEU to de minimis aid.
  38.  Guidelines on national regional aid (2021/C 153/01), 29 April 2021.
  39.  Article 107(3)(b) of the TFEU.
  40.  Communication from the Commission, Criteria for the analysis of the compatibility with the internal market of State aid to promote the execution of important projects of common European interest (2014/C 188/02).
  41.  Communication from the Commission, Criteria for the analysis of the compatibility with the internal market of State aid to promote the execution of important projects of common European interest (2014/C 188/02).
  42.  Press Release, European Commission, ‘State aid: Commission endorses €2.9 billion public support from 12 Member States for a second pan-European research and innovation project covering the whole battery value chain’, 26 January 2021.
  43.  Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for screening foreign direct investment in the Union.
  44.  ‘La concurrence et l’Europe : droit ou politique’, La Tribune, 18 May 2017 (free translation).
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Jacques-Philippe Gunther, European Union’s competition policy: seeking a balance between perfect competition and the fostering of European industry, Dec 2021,

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