欧美并购控制法实体标准比较研究

实体标准是整个并购控制体系的核心 ,也是反垄断法的重要内容之一。欧盟最新并购控制立法确立的“严重妨碍有效竞争”实体标准与美国奉行的“实质性减少竞争”标准一样都反映着并购控制的本质。欧美采取大同小异的并购实体标准有利于推动国际跨国并购审查结果的一致性 ,促进并购活动的发展。我国应确立“严重妨害正当竞争”实体标准并配套颁布并购评估指南 ,注重并购审查的经济分析     

欧盟法对企业合并的规制

企业合并是当今各国优化产业结构和企业组织结构的重要手段,也是企业迅速扩张、提高规模经济效益和国际竞争力的有效手段.然而,经济力量的集中和由此导致的市场结构的改变,容易产生或加强市场支配力量,从而起到排除或限制竞争的作用.为了防止企业通过并购实现或加强市场支配地位,维护市场上的竞争秩序,对一定规模以上的企业并购交易进行反垄断审查,已成为市场经济国家设计和实施反垄断法的通行做法.目前,已有七十多个国家建立了企业并购控制机制.其中十分引人注目的是,欧盟于上世纪90年代初建立了企业合并控制机制,并于2004年进行了改革.到目前为止,欧盟竞争总司作出的并购审查决定已达两千多件,在此过程中积累了丰富的经验.拟对欧盟企业合并控制制度的建立、理论、程序及实体规则进行研究,并就中国企业合并控制制度的现状及发展提出自己的看法.     

EC Merger Control: From Separate Jurisdictional Zones to a Cooperation Based Architecture?

The EC Merger Control Regulation(MCR) established an architecture ofconcentration control based on separate,non-overlapping jurisdictional spheres forMember states and the European Commission, withthe Commission alone having jurisdiction overconcentrations with a competition concern thatpotentially have a Community interest. Therationale is that this will help guarantee thelevel playing field for business and safeguardthe Single Market. This, of course, is verymuch dependant on the architecture working inpractice. The Community Dimension (CD) testsare at the centre of the architecture ofseparate jurisdictional zones, determiningwhich concentrations have a CD and hence aCommunity interest. The paper reveals that thecurrent form-based CD tests are flawed,undermining the effective operation of thearchitecture. It explores three competingproposals put forward to remedy the above flaw:an enhanced role for Article 22 MCR, a singlefine-tuned threshold test and, thirdly, theCommission's multiple notification approach.The paper contends that these proposals aloneare not sufficient to make the architectureeffective. It argues that what is required isan improved CD test applied in conjunction witha harmonised Articles 2 and 9 MCR approach. Inline with the Commission's desire to considerthe long term shape of EC merger control, thepaper concludes by looking at a radicalalternative to the efforts to fine-tune thearchitecture of separate jurisdictionalspheres. By way of stimulating debate, itconsiders an EC merger control based on anetwork of cooperation involving Member states'regulators and the Commission, and with allapplying EC merger law.     

EU Merger Remedies and Competition Concerns: An Empirical Assessment

The purpose of merger remedies is to relieve the potential competitive detriments as to preserve the efficiencies. The European Community (EC) Merger Remedies Notice requires remedies able to remove the identified competition concerns entirely and proportionately. The scope of each merger remedy package is confined by the competition concern in question. This study analyses, from an empirical point of view, the relationship between competition concerns and merger remedies. It reviews all remedies accepted in Phase II EU merger investigation and categorises them into seven sets according to their nature. Results of the empirical assessment present the frequencies of each remedy type accepted for resolving various competitions concerns and reveal that merger remedy design does vary for different competition concerns. Horizontal effects require divestiture remedies more. Other structural remedies, especially access commitment and supply commitment, have a good chance to be accepted in resolving vertical and conglomerate effects.     

论欧盟并购控制法的权力分配机制

欧盟作为世界上最为成功的区域性国际组织,在处理欧盟与成员国关系方面取得了创造性的成就.在并购控制领域,欧盟通过一系列法律制度,确立了明确、透明、灵活的权力分配机制.阐述欧盟并购控制的权力分配原则及分配标准,进而介绍并购控制的移送管辖制度,最后对新并购条例管辖权分配机制运行状况进行评价.     

Horizontal mergers and efficiencies; theory and anti trust practice

Horizontal mergers can be challenged by anti trust authorities under both the US and EU Horizontal Merger Guidelines. More horizontal mergers are unconditionally approved in the US than in the EU. EU merger policy toughened after 1998 but became more in line with US practices after 2004. Differences in merger policies between the US and the EU can be explained by a greater scope of the efficiency argument in the US. The paper argues that firms only want to merge in oligopoly, if they expect to realize substantial merger specific efficiency gains, which counterbalances the price increasing effect of merger.      

Non-governmental Organisation Participation in the EU Law-making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council

Abstract:  This article explores the avenues used by non-governmental organisations working in the sector of EU social policy to influence the law-making process at the EU. The Commission's current transparency initiative has focused attention on the rules (or lack of) governing access to the Commission as the initiator of legislation. This article examines more broadly, on the basis of interviews, both the formal and informal means of accessing not only the Commission, but also the European Parliament (in particular through intergroups) as well as the Council. By using specific examples of legislation it illustrates the routes by which 'social' non-governmental organisations currently interact with these institutions, offering examples of how their work may impact on the output of the Commission, Council and Parliament. The article avoids an overly legalistic analysis with an original glimpse at the 'hidden' workings of the EU law-making process which has hitherto received little attention among legal academics and practitioners.     

MARKET ANALYSIS IN THE PRESENCE OF INDIRECT CONSTRAINTS AND CAPTIVE SALES

In antitrust cases as well as for regulated industries, thequestion of how to treat indirect constraint and captive salescorrectly has become of major importance in Europe. The (im-)propertreatment of indirect constraints has lead the CFI to overturnthe Commission's decision in the proposed merger of Schneiderand Legrand. Moreover, with regards to the definition of wholesalebroadband access markets, there is an ongoing controversy betweenthe Commission and some National Regulatory Authorities, centeringon the question of whether to incorporate indirect constraintsalready at the stage of market definition. To inform this debate,we present in this article some of the insights from a detailedformal analysis into markets with indirect constraints and captivesales. We show how indirect constraints are appropriately takeninto account through the elasticity of derived demand and commentalso on the informativeness of concentration measures on boththe wholesale and retail market. We further derive insightsinto when indirect constraints may be more or less importantcompared with direct constraints. Finally, we also discuss themore practical difficulties that are encountered when analyzing(or estimating) market structures where forward integrated firmsalso sell to other, competing retail firms.     

MERGERS, STANDARD OF PROOF AND EXPERT ECONOMIC EVIDENCE

There is an increasing use of complex econometric modellingin EC merger control proceedings. The question is whether econometricsare subject to a standard of evidence similar to that applicableto facts and theories that the Commission traditionally usesand articulates in its merger decisions or whether there shouldbe some margin of discretion left to the Commission in the treatmentand handling of econometric evidence. In the former case, ECcourts would exert an intensive review of the Commission's useand articulation of econometric evidence. In the latter case,EC courts would adopt a rather deferential approach. While theissue has not yet been dealt with before EC courts, this articlesubmits that the Commission should use econometrics with cautionand, hence, should meet a relatively high evidentiary thresholdbefore admitting the results of econometric models into evidence.Several guiding principles of evidence are suggested, whichare not intended to negate the Commission's margin of discretion,but would, nevertheless, ensure that econometrics be subjectto a fairly high standard of proof.     

The UN Commission of Inquiry on Lebanon: A Legal Appraisal

In the wake of the Second Lebanon conflict, the UN Human RightsCouncil established an independent body of experts to investigatealleged violations of international humanitarian law (IHL) perpetratedby Israeli forces. The Commission's report suffers from oneserious and conspicuous flaw — the Commission was notcharged with simultaneously considering Hezbollah's violationsof the same body of law. In some instances, this one-sided focuswas not only politically unbalanced, but substantively inadequatesince a full understanding of Hezbollah's command structure,strategic objectives and military operations was essential indetermining whether targets destroyed by Israel were legitimatemilitary objectives and whether consequences for civilians weredisproportionate to the military advantage gained. Be that asit may, the Commission's final report testified to the excessive,indiscriminate and disproportionate use of force by Israeliforces and an overall lack of respect for the cardinal principlesregulating the conduct of armed conflict. The Commission's findingsare particularly disquieting, given the independent nature ofthe investigation and, ultimately, the compatibility of muchof the Commission's legal reasoning with orthodox interpretationsof IHL. The legal issues raised by the Inquiry are thereforeof ongoing importance, most notably for the Israeli-appointedWinograd Committee.     

Forest for the Trees: Economics of Joint Dominance

Recent court rulings, e.g., in the Gencor and Airtours cases, and the new EC Merger Regulation hint that the legal concept of joint dominance in oligopolistic markets should be interpreted as the economic concept of collusion. This is sensible and based on accepted economic theory. I discuss how competitive assessment in case law has taken some economics lessons seriously but ignored others. Economists and antitrust practitioners seem to speak past each other on these issues. This paper attempts to bridge the gap, and to clarify the concepts of joint dominance and coordination of market behavior. I discuss some recent advances in economic theory and empirical economic evidence related to joint dominance in order to draw policy conclusions.JEL Classification: L40, K21This article is a part of the joint research program of BRIE, the Berkeley Roundtable on the International Economy at the University of California at Berkeley, and ETLA, the Research Institute of the Finnish Economy (). Financial support from Nokia and the National Technology Agency (Tekes) is gratefully acknowledged. The article has benefited from comments by Ilkka Aalto-Setälä, Petri Kuoppamäki, Pekka Ylä-Anttila, and two anonymous referees. All opinions expressed and errors made are those of the author.     

个人信息作为企业资产——企业并购中的个人信息保护与经营者权益平衡

企业并购是厘定个人信息权利与经营者权益边界的重要场景之一。在单纯的股权收购、企业的合并、分立与形式变更等情形下,原则上不产生个人信息保护的问题。在资产收购的情形下,则涉及个人数据的转让,但此时应考虑收购双方及目标公司债权人的合理利益。在美国法与欧盟法上,对于资产收购均存在数据传输无需用户同意的例外处理机制。这些机制的核心是数据主体与企业之间的利益衡量,一方面从数据主体的利益出发,考虑在资产收购后数据原本的使用目的是否能够实现;另一方面则从企业的利益出发,考虑其对于数据交易是否具有合理利益。在并购双方对于用户数据转让存在合理利益的基础上,应允许企业在并购中转移个人数据,但应给予用户事先或事后作出相反选择的权利。     

New Directions in EC Competition Policy: The Case of Merger Control

Abstract:  This article examines two new directions of EC competition law, by taking the example of Merger Control. The first is factual, since the Commission has accepted an increased role for economic analysis under the new Regulation. The second examines the role that EC competition law could play in the achievement of the Lisbon Strategy objectives. At present, both directions interact with one another, as the importance and the aims of competition rules depend to a large extent on the economic theory when applying legal rules. Traditionally, the EU has rejected the creation of an industrial policy that is considered to be inefficient. But the intensification of international competition has to induce the EU to open up the debate in relation to the meaning to be attributed to a 'European industrial strategy'. To accomplish a 'dynamic and competitive' European economy, current policies, mainly competition policy, should consider taking into account international competitiveness by resolving the question of the economic theoretical context used to review mergers.     

企业合并行为的竞争法分析

对企业合并进行控制是竞争法的基本内容,而其中最核心的问题,是评价企业合并行为所依据的实体标准。基本内容包括对合并行为的反竞争影响,及其产生的积极效果。由于企业合并主要是通过改变市场结构而影响竞争,因而在对其进行分析时,一般首先分析合并行为对所在市场集中度产生的影响,这主要通过赫芬达尔指数来反映,对于发生在指数较低的市场上,或发生在集中度较高的市场上,但并未导致指数大幅度提高的企业合并行为,认定其不会产生严重的反竞争效果,可以批准。其他的合并行为则要由竞争主管机关进一步分析,主要考察该行为的反竞争效果,包括单边效果与协调效果;然后再考察存在哪些抵消因素。经过比较后,如果积极效果大于消极效果,则予以批准。     

Other people's money: a reply to the Joint Commission

In a response to Professor Liang's earlier article expressing concern regarding the Joint Commission's Sentinel Event Policy ("SEP"), the General Counsel of the Joint Commission disagreed with the criticisms of the SEP. In this Comment, Professor Liang replies to the Commission's position, indicates that resources devoted to legal issues created by the SEP are not available for patient safety, and that the goal of patient safety may be better served by focusing on near misses rather than sentinel events. Finally, he concludes that the Joint Commission and its critics have the same ultimate goal, and that a cooperative approach which includes federal legislation to protect safety information is essential.     

Dominance in the Tetra Pak Case: An Empirical Approach

The 1991 decision of the European Commission on the Tetra Pak case was based on information which seemed to prove the firm's anti-competitive behavior. The Tetra Pak case is investigated here focusing on the meaning of multimarket dominance, using empirical techniques. We find that a more rigorous analysis of the data available would not confirm the Commission's assertions. That is, it cannot be concluded with certainty that the Commission was right to relate Tetra Pak's dominance in the aseptic sector to its market power in the non-aseptic sector. Our results suggest a general framework for the analysis of abusive transfer of market power across vertically or/and horizontally related markets.     

The GE/Honeywell merger controversy and the path to analytical convergence in international merger assessment: A critical commentary

Globalisation, with its concomitant rise in international merger activity, allied to the proliferation of merger control regimes vetting such activity, increases the likelihood of two or more competition authorities reaching divergent decisions in the same case. This article reveals that this situation arose in the proposed merger between two US-based companies, General Electric (GE) and Honeywell, with the EU prohibiting the merger, and the US Department of Justice approving it. Further, it discusses the analytical and interpretational differences which led to those divergent outcomes. The analytical debate centres on the appropriateness of the two theoretical approaches used to assess proposed mergers, with the EU using the range effects of competitive harm approach and the US giving greater weight to an economic efficiencies merger defence. The fallout from the GE/Honeywell case has given added impetus to progress analytical convergence in relation to the vetting of international mergers. This has found expression at the multilateral level, which links to EU initiatives. The article predicts that the EU is highly likely to incorporate an economic efficiencies defence into its merger control law, bringing it into line with other key players. Of course, analytical convergence cannot guarantee that interpretational differences will not arise, as was evident in aspects of the GE/Honeywell case. This revised version was published online in August 2006 with corrections to the Cover Date.     

Multiproduct activity and competition policy: The Tetra Pak case

We suggest the Tetra Pak case as a real-world example to study the implications of multiproduct activity for European Competition Policy. Tetra Pak, a monopolist in aseptic carton packaging of liquid food, competes with Elopak in the nonaseptic sector. The EC Commission used the effect of Tetra Pak's dominance in the aseptic sector on its rival's performance as an evidence of the former's anticompetitive behavior. With linear demand and cost functions and interdependent demands, the Commission's position can be supported. However, a more general model suggests that the Commission's conclusions cannot be supported as the unique outcome of the analysis of the information available.     

Rural health care support mechanism. Final rule; petition for reconsideration

In this document, the Commission grants American Telemedicine Association's (ATA) Petition for Reconsideration in part and extends for three years the Commission's prior determination to grandfather those health care providers who were eligible under the Commission's definition of "rural" prior to the Second Report and Order.     

Federal Trade Commission's authority to regulate marketing to children: deceptive vs. unfair rulemaking

Food and beverage marketing directed at children is of increasing concern to the public health and legal communities. The new administration at the Federal Trade Commission and abundant science on the topic make it a particularly opportune time for the government to reconsider regulating marketing directed at youth. This Article analyzes the Commission's authority to regulate food and beverage marketing directed at children under its jurisdiction over unfair and deceptive acts and practices to determine which avenue is most viable. The author finds that the Federal Trade Commission has the authority to regulate deceptive marketing practices directed at vulnerable populations. Although the Commission can issue individual orders, its remedial power to initiate rules would better address the pervasiveness of modern marketing practices. The Commission does not currently have the power to regulate unfair marketing to children; however, even if Congress reinstated this authority, the Commission's authority over deceptive marketing may be preferable to regulate these practices. Deceptive communications are not protected by the First Amendment and the deceptive standard matches the science associated with marketing to children. The Federal Trade Commission has the authority to initiate rulemaking in the realm of food and beverage marketing to children as deceptive communications in interstate commerce, in violation of the Federal Trade Commission Act. However, to effectuate this process, Congress would need to grant the Commission the authority to do so under the Administrative Procedures Act.