This presentation by DG Comp was made during a roundtable discussion on Jurisdictional nexus in merger control regimes held at the 123rd meeting of the Working Party No. 3 on Co-operation and Enforcement on 15 June 2014. More papers, presentations and contributions from delegations on the topic can be found out at www.oecd.org/daf/competition/jurisdictional-nexus-in-merger-control-regimes.htm

1. Presentation at June 2016 meeting of the OECD
Working Party No. 3 on Co-operation and
Enforcement
Local nexus and jurisdictional thresholds
in merger control from the EU perspective

2. Jurisdictional thresholds of the EUMR
Article 1(2) EUMR
• Combined aggregate worldwide
("WW") turnover ("TO") of all
undertakings concerned > EUR 5
billion
• The aggregate EU-wide TO of
each of at least two of the
undertakings concerned > EUR
250 million
• Unless each of the undertakings
concerned achieves more than
two-thirds of its aggregate
Union-wide turnover within one
and the same Member State
("2/3 rule").
Article 1(3) EUMR
• Combined aggregate WW TO of all
undertakings concerned > EUR 2.5
billion
• In each of at least 3 Member
States ("MS"), the combined
aggregate TO of all undertakings
concerned > EUR 100 million
• In each of at least 3 of those MS,
the combined aggregate TO of
each of at least two of the
undertakings concerned > EUR 25
million
• The aggregate EU-wide TO of each
of at least two of the undertakings
concerned > EUR 100 million
• Unless 2/3 rule fulfilled.

3. Extra EEA Joint Ventures (JVs) (1/2)
Parent 1
Parent 2
JV

4. Extra EEA Joint Ventures (JVs) (2/2)
─ Current solution: simplified procedure under Article
5(a) of the Commission Simplified Notice
Reduced pre-notification contacts
Short Form CO with reduced information requirements
compared to the standard Form CO
No market investigation
Decision without detailed reasoning
─ Proposal of the 2014 White Paper Towards more
effective EU merger control:
Exclude the creation of joint ventures that will operate outside
the European Economic Area (EEA) and have no impact on
European markets from the scope of the EUMR

5. Local nexus and the principle of
subsidiarity in the EU context
─ Specific features of EU as supranational organisation
─ Principles of subsidiarity and proportionality:
EUMR shall apply to significant structural changes, the impact
of which go beyond the national borders of any one
Member State
"One-stop shop" system for such transactions
EU merger control shall not go beyond what is necessary
to prevent distortions of competition in the internal market
─ How is this achieved?
2/3 rule
Referral system

6. 2/3 rule
─ If turnover thresholds set in Article 1 (2), (3) EUMR are met, a
concentration has Union dimension, unless
each of the undertakings concerned achieves more than
two-thirds of its aggregate Union-wide turnover within
one and the same Member State.
─ Recent example:
proposed acquisition of EE by BT affecting UK telecoms markets, which
the UK Competition and Markets Authority reviewed in 2015
─ Statistics (2009 Report on the functioning of the EUMR from the
Commission to the Council):
126 cases fell under the 2/3 rule over the reference period 2001 –
2008
Corresponds to 0.5% of total number of cases reviewed by National
Competition Authorities

7. Referral system
From Member States to
the EU
• Pre-notification at the
request of the parties
(Article 4(5) EUMR)
• Post-notification at the
request of Member States
(Article 22 EUMR)
From the EU to Member
States
• Pre-notification at the
request of the parties
(Article 4(4) EUMR)
• Post-notification at the
request of Member States
(Article 9 EUMR)

8. Statistics on referrals

9. Thank you!