Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - COMPETITION POLICY AND MERGER CONTROL IN THE SINGLE EUROPEAN MARKET BY RT. HON. SIR LEON BRITTAN, Q.C., VICE-PRESIDENT OF THE EUROPEAN COMMISSION
COMPETITION POLICY AND MERGER CONTROL IN THE SINGLE EUROPEAN MARKET by Rt. Hon. Sir Leon Brittan, Q.C., Vice-President of the European Commission. Grotius Publications Ltd., P.O. Box 115, Cambridge CB3 9BP (1991, xi and 56 pp., plus 1 p. Index). Paperback £15.
Sir Leon’s Brittan’s Competititon Policy and Merger Control in the Single European Market contains the published version of the Hersch Lauterpacht Memorial Lectures he delivered at Cambridge University in February, 1990. Two themes pervade the text: the importance of promoting effective competition within the EEC, and the need for co-operation between the EEC and the international community (particularly the United States) in competition law policy-making and enforcement.
Part I, entitled “Jurisdictional Issues in EEC Competition Law”, considers the jurisdictional basis for applying EEC competition law (Arts. 85 and 86 of the EEC Treaty) in cases involving non-EEC parties. This chapter commences with a discussion of the limits which the territorial principle of international law imposes on the ambit of EEC competition law. The European Court of Justice’s leading decisions on the basis for establishing EEC competition law jurisdiction are also reviewed. This overview of general principles leads to an analysis of certain issues which arose in the Wood Pulp Case [1988] ECR 5193. The essential question is to determine the doctrinal grounds for applying EEC competition law against parties which operate wholly outside the EEC, but whose actions impinge upon competition within the EEC. The chapter discusses two leading theories on this issue: the “implementation principle” and the “effects doctrine”. Most importantly, possible explanations are offered on the theoretical and practical differences between the “implementation principle” formulated by the Court of Justice in Wood Pulp and the broader “effects doctrine”, which was so ardently advocated by the European Commission. This is an excellent critique and preliminary discussion of a crucial topic to practitioners and commentators alike.
Part II, “The Development of Merger Control in EEC Competition Law”, addresses selected aspects of the Council’s so-called “Merger Regulation 4064/89”, which came into force in September, 1990. This chapter traces developments which led to the Regulation’s adoption and highlights the procedural inadequacies which prevented Arts. 85 and 86 of the EEC Treaty from effectively regulating competition aspects of mergers and acquisitions. The Merger Regulation’s objectives and principal substantive provisions are summarized. Although these topics are afforded only a cursory discussion, this is adequate for the selective approach adopted. An important quality of this chapter lies in the excellent and forthright commentaries on the approach the Commission is likely to adopt in interpreting and applying the Merger Regulation. The areas in which the Commission will advocate amendments to the Merger Regulation are clearly outlined. These discussions contain useful guidance for all readers working in the field. Other valuable perspectives are supplied by the author’s anticipation of areas of merger control, which will be of greatest importance in the future.
This short publication is highly commendable. It will be of particular interest to a wide audience, especially academics and legal and financial practitioners involved in EEC competition law and related fields. For readers lacking a detailed knowledge of the relevant law, sufficient background information is provided (despite the brevity of only 56 pages) to ensure an understanding of the substantive matters discussed therein. The book’s principal strengths are threefold: first, the author is perceptive and discerning in his selection of the issues upon which he focuses—and the views expressed on these topics are scholarly and forthright, and often contribute new perspectives. Secondly, the author’s willingness to share his knowledge and vast experience by predicting likely future trends, problem areas and the Commission’s approach in administering EEC competition law offers a particularly valuable
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