Document Type

Article

Disciplines

International Law

Abstract

Merger control in the European Union (EU) is the historical product of intense, and from the perspective of some Member States, not entirely successful political bargaining. When the EU Merger Regulation was adopted on December 21, 1989,' few of the Member States which already had their own established merger policies2 were fully satisfied with the outcome. Still, soon after this date suggestions were made that the German Federal Cartel Office should adjust its merger control policy to that of the EC Commission and that the German legislature should harmonize German competition law in general, and merger control law in particular, to the competition law of the EU - demands which continue to be raised to date? Similar demands were and are raised by groups in other Member States, and some of them have already aligned national competition laws with the competition law of the EU.4 The process of such alignment is not limited to EU Member States. It can also be observed in European Free Trade Agreement (EFTA) States' and some former socialist countries of central and eastern Europe.6 Although this process is already clearly under way in many European States both inside and outside the EU,7 it raises numerous questions beyond the field of merger control.

First, there is the question as to why such harmonization is desirable or even necessary. Does it concern only substantive law or also procedures and institutions? Does harmonization mean that national laws should move closer to existing EU law, or does it imply the possibility or even necessity that EU law also changes to integrate elements of national laws where such laws are more effective? Is harmonization of national laws and EU law an ultimate aim, or only an interim objective before there is a uniform EU competition law applicable throughout the EU, the European Economic Area (EEA), or even wider areas, including associated States, especially those which have concluded Europe Agreements with the EU? If there is a need to balance harmonization and State sovereignty by taking into account the principle of subsidiarity, what does this mean in view of the fact that elements of national sovereignty have already been delegated to the EU and that harmonization, if it is not to be a one way street, may require restitution of some such delegated elements of sovereignty to Member States?

Important as they may be, these questions go beyond those relevant in the context of EU and national merger control. The following observations will therefore not only deal with EU merger control, but also with another important issue related to the question of harmonization and the role of sovereign Member States; that is, how and to what extent Member States should be involved in EU law enforcement. Confining the discussion to merger control would isolate a subject, in my view, inseparably linked to the others. For this reason, this paper will discuss, first, some of the more general issues addressed above, necessarily not in an exhaustive way, before commenting on EU and national merger control and on the role of Member States in EU law enforcement.

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