458 14 Excursion: Merger Control
be used to establish against themselves or against others the existence of such in-
fringements.^74
The Commission may also impose periodic penalty payments not exceeding
5% of the average daily aggregate turnover for failure to supply complete and cor-
rect information or to submit to an inspection.^75
The ECJ may review decisions whereby the Commission has fixed a fine or pe-
riodic penalty payments.^76
When the Commission gets it wrong. In principle, the Community can be liable
where the Commission has committed “a breach of a rule of law intended to con-
fer rights on individuals that was sufficiently serious to give rise to liability on the
Community’s part”. In the case of MyTravel, there was no liability although the
Court lifted the prohibition of a takeover.^77
14.4 National Merger Control
National merger control can be applied to concentrations that do not have Com-
munity dimension. The quantitative thresholds laid down by the EC Merger Regu-
lation are complemented by the “two-thirds” rule.^78 It prevents the attribution of a
Community dimension to large concentrations where two-thirds of the parties’ re-
spective turnovers are made in one and the same Member State. Such concentra-
tions fall within the competence of the relevant national competence authority and
not the European Commission. National merger control falls outside the scope of
this book.
(^74) Recital 41 of Regulation 139/2004 (EC Merger Regulation).
(^75) Article 15(1) of Regulation 139/2004 (EC Merger Regulation).
(^76) Article 16 of Regulation 139/2004 (EC Merger Regulation).
(^77) T-212/03 MyTravel v Commission, paragraph 132.
(^78) Article 1(3) of Regulation 139/2004 (EC Merger Regulation).