14.2 Jurisdiction 449Regulation in 1989.^9 After being substantially amended, the Regulation was recast
in 2004.^10
EC Merger Regulation. The EC Merger Regulation applies to the control of
concentrations^11 between undertakings and is based on the “one-stop shop” princi-
ple.
The Commission has adopted a set of guidelines to explain its current prac-
tice.^12 It is to be noted that there can be differences between the US approach and
the European approach, although the gap is getting narrower.^13 For example, in
2001, the Commission blocked the merger of General Electric and Honeywell,
which US regulators had waved through.^14
Community dimension. A two-fold test defines the operations to which the EC
Merger Regulation applies. The first test is that the operation must be a “concen-
tration”.^15 The second comprises turnover thresholds designed to identify those
operations which have an impact upon the Community and can be deemed to be of
“Community dimension”.^16 Turnover is used as a proxy for the economic re-
sources being combined in a concentration, and is allocated geographically in or-
der to reflect the geographic distribution of those resources.^17
14.2 Jurisdiction
The parallel application of EC merger control law and the competition laws of one
or more Member States would make mergers and takeovers complicated. The
Regulation provides for division of labour between the Commission and the
Member States.
One-stop shop. The provisions of the EC Merger Regulation create a “one-stop
shop” system in compliance with the principle of subsidiarity. (a) The Regulation
applies to significant structural changes, the impact of which on the market goes
beyond the national borders of any one Member State. As a general rule, such
concentrations should be reviewed exclusively at Community level. (b) Concen-
trations not covered by the Regulation should come within the jurisdiction of the
Member States.
(^9) Regulation 4064/89 on the control of concentrations between undertakings.
(^10) For the legal basis of the Regulation, see recital 7 of Regulation 139/2004 (EC Merger
Regulation).
(^11) Article 3(1) of Regulation 139/2004 (EC Merger Regulation).
(^12) Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No
139/2004 on the control of concentrations between undertakings, OJ C 095, 16.04.2008
pp 1–48.
(^13) See, for example, Mergers and dominant firms, The Economist, May 2008.
(^14) Commission Decision 2004/134/EC in Case No COMP/M.2220 – General Elec-
tric/Honeywell, OJ 2004 L 48 p 1.
(^15) Article 3 of Regulation 139/2004 (EC Merger Regulation).
(^16) Article 1 of Regulation 139/2004 (EC Merger Regulation).
(^17) See Commission Consolidated Jurisdictional Notice, paragraph 124.