Eu merger control and the compatibility test:a review of recent developments

The compatibility test contained in Article 2 of the Merger Control Regulation (MCR) is at the very heart of EU merger control, for it determines whether a concentration with a community dimension is deemed compatible or incompatible with the common market. Incompatibility can lead to prohibition of a concentration, although this is rare. The paper reviews the recent developments to the conditions of the test itself as well as the analytical methods employed to determine compatibility. Concerning the former, the new foreseeable dominance interpretation, put forward by the European Commission and made law by the Court of First Instance (CFI), is explored. This new variant of the dominance condition is important on its own right but it is also of major interest because of the explicit legal requirement placed on the Commission to assess the future likelihood of abusive behaviour by the merging parties in its prospective analysis. This is not the case with the original dominance compatibility condition. The unexpected but important clarification by the CFI of the notion of substantial part of the common market, as contained in the express wording of the compatibility test, is also commented upon. Concerning the determination of compatibility, the Commission's controversial employment in certain conglomerate concentrations of the range effects of competitive harm theory is examined, as is the need to take cognisance of merger specific efficiencies when determining if a merger increases societal welfare. The EU is making progress toward such an efficiencies assessment as part of the compatibility determination. EU merger control – and hence the compatibility test – do not exist in a vacuum. The EU has played a major role in shaping the new multilateral architecture and its goal of increasing international convergence in competition matters. This in turn has led the EU to rethink the nature of the compatibility test. For example, it has sought to evaluate the dominance condition of the compatibility test with the substantial lessening of competition (SLC) approach used by some other regulators, like the US. The paper concludes by looking at a fundamental issue that has arisen from recent CFI judgements and the GE/Honeywell merger: the competence of the Commission, or more accurately the Merger Task Force (MTF), to carry out the compatibility determination. Proposals are outlined so as to ensure that the Commission's prospective analysis in a concentration case meets the requisite legal standard. It is essential for this standard to be met if EU merger control is to remain credible. This revised version was published online in July 2006 with corrections to the Cover Date.     

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.     

Resolving Conflict Across Languages

English is increasingly used as an indispensable interlanguage, the commonthird language of non-native speakers, in international negotiations.In technical or commercial talks, where interlocutors share a stock ofexpert knowledge, semantic problems are relatively easily overcome. Inemotive and complex negotiations to resolve protracted international conflict,however, intriguing problems of interpretation arise. Though interlocutorsspeak in English, they are unlikely to think or work in English.Back home the political debate is conducted in the mother tongue. Thus thesemantic fields, the full range of meanings and connotations, of keyabstract concepts at the heart of the negotiation may not be conveyed intranslation. The ill-fated Syrian-Israeli peace talks are drawn upon to exemplifythe argument.     

The Challenge of Learning

This essay offers one attempt to apply insights from educational psychology to the teaching and learning of negotiation skills. First, we suggest a key reason why becoming an expert is challenging, namely, people's naïve theories about negotiation need to be challenged and largely put to rest. Second, we examine how professional schools typically teach negotiation. Third and finally, we offer suggestions for improving our negotiation pedagogy. To this end, we describe and review our research on analogical learning and how it can be used in classrooms to enhance learning.     

Failure of authoritarian learning: explaining Burma/Myanmar’s electoral system

What explains why some authoritarian governments fail to take all the steps they can to preserve their positions of power during democratic transitions? This article examines this question using the example of the leading pro-military party in Myanmar, which lost badly to the National League for Democracy (NLD) in the transitioning elections of 2015. This article argues that a key to understanding how the military failed to perpetuate its power in the electoral sphere resides in its choice of electoral system. In 2010, the military junta chose an electoral system, first-past-the-post, that was distinctly ill-suited to preserve its power. We explore several hypotheses for why this occurred and ultimately conclude that the military and its allies did not understand electoral systems well enough to act strategically and that they overestimated their support relative to the NLD. This failure of authoritarian learning has important implications for understanding authoritarian politics, democratic transitions, and the challenges faced by authoritarian governments seeking to make such transitions.     

State control of civil society organizations: the case of Turkey

Over the past few decades there has been a great deal of interest in the academic literature on the relationship between civil society organizations (CSOs) and the state, and the impact of state power on CSOs in the Middle East North Africa (MENA) region. Yet, despite this interest, very few detailed empirical explorations of these issues have been conducted to date. Of the detailed empirical work that does exist, none has focused on state–CSO relations in a democratic context in the MENA. This paper contributes to filling this gap by examining these relations and their implications in the Turkish context. More specifically, this paper explores the democratizing role of independent women’s organizations in Turkey and the ways in which the state has sought to exert power over and control these organizations. The methodology consists of a series of 38 in-depth interviews with both registered and unregistered women’s organizations from across the seven administrative regions of Turkey. The findings show that while CSOs do challenge the state in some regards, the state is by far the more powerful actor and very effective at moderating and de-radicalizing civil society. The state does this by controlling the areas in which CSOs can operate and be effective, and through the use of repressive measures. The results show that thease measures have the effect of tempering the demands of CSOs and reducing their capacity to challenge and counterbalance state power.