450 14 Excursion: Merger Control
Jurisdiction of the Commission. The Commission has exclusive competence to
apply the EC Merger Regulation, subject to review by the ECJ.^18 All mergers hav-
ing a Community dimension will therefore be examined by the Commission.
In some cases, one or more Member States may request the Commission to ex-
amine a concentration that does not have a Community dimension. They have
such a right where the concentration affects trade between Member States and
threatens to significantly affect competition within the territory of the Member
State or States making the request.^19
Jurisdiction of national competition authorities. The jurisdiction of Member
States’ competent authorities is determined by three main rules.
First, Member States’ competent authorities are permitted to apply their na-
tional legislation on competition to concentrations that do not have a Community
dimension. If the concentration is not regarded as one with a Community dimen-
sion, it may qualify for examination under a number of national merger control
systems. Multiple notification of the same transaction increases legal uncertainty,
effort and cost for undertakings and may lead to conflicting assessments.^20
Second, Member States’ competent authorities are not permitted to apply their
national legislation on competition to concentrations with a Community dimen-
sion. There are some exceptions. Under certain circumstances, the Commission
may decide to refer a notified concentration to the competent authorities of a
Member State.^21 Furthermore, Member States may have a right to protect legiti-
mate interests other than those pursued by the Regulation, provided that such
measures are compatible with the general principles and other provisions of
Community law.^22
Third, the Member States are not permitted to apply the EC Merger Regulation.
Community dimension. The jurisdiction of national competition authorities or
the Commission depends to a large extent on whether the concentration has Com-
munity dimension or not. If the annual turnover of the combined businesses ex-
ceeds specified thresholds in terms of global and European sales, the proposed
merger must be notified to the European Commission. Below these thresholds, na-
tional competition authorities may review the merger.
Two sets of thresholds are set out in Article 1 to establish whether the operation
has a Community dimension.
First, Article 1(2) establishes three different criteria: the worldwide turnover
threshold is intended to measure the overall dimension of the undertakings con-
cerned; the Community turnover threshold seek to determine whether the concen-
tration involves a minimum level of activities in the Community; and the two-
(^18) Recital 17 of Regulation 139/2004 (EC Merger Regulation).
(^19) Article 22(1) of Regulation 139/2004 (EC Merger Regulation).
(^20) Recital 12 of Regulation 139/2004 (EC Merger Regulation).
(^21) Article 9 of Regulation 139/2004 (EC Merger Regulation).
(^22) Article 296 of the EC Treaty. See recital 19 of Regulation 139/2004 (EC Merger Regu-
lation).