European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Article 9 of Regulation No 139/2004 establishes referral before the authorities of a Member State which derogates to the principle of the Commission's exclusive jurisdiction to examine concentrations with an EU dimension . Within fifteen working days of the date of receipt of the copy of the notification of the transaction to the EU authorities, a Member State may request referral to its own super …

Referral by the Commission to a Member State

Article 9 of Regulation No 139/2004 establishes referral before the authorities of a Member State which derogates to the principle of the Commission's exclusive jurisdiction to examine concentrations with an EU dimension . Within fifteen working days of the date of receipt of the copy of the notification of the transaction to the EU authorities, a Member State may request referral to its own supervisory authorities. Two cases must be distinguished:

- either the concentration threatens to affect significantly competition in a market within that Member State, which presents all the characteristics of a distinct market,

- or the concentration affects competition in a market within that Member State, which presents all the characteristics of a distinct market and which does not constitute a substantial part of the internal market.

In the first case, should the Commission consider that there is a distinct market and that the threat of impact on competition is real, it may either restore competition on the market concerned, or refer the whole or part of the case to the national authorities with a view to the application of their own competition laws. In the second case, if the legal criteria have been met, it is required to make the referral.

Within the meaning of Article 9(7), the “distinct” geographic market shall mean the market in which the conditions of competition are sufficiently homogeneous and which can be distinguished from those existing in the neighboring areas. The definition of distinct market takes account “of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings' market share between the area concerned and neighboring areas or of substantial price differences” .

The Commission takes a decision to refer or not to refer within twenty-five days from notification where it has not initiated proceedings. Where it has initiated proceedings, the time period is sixty-five days if it has not taken the preparatory steps in order to adopt the measures aimed at safeguarding or restoring effective competition. Referral to the competent authorities of the Member State is deemed tacitly adopted where no decision is taken within that time period.

The national competent authorities may take only the measures strictly necessary to safeguard or restore effective competition on the market concerned . Furthermore, referral to the authorities of a Member State does not affect the effectiveness of commitments taken in the other Member States when the EU approval decision was adopted as a result of the national dimension of the markets of products concerned and the minimal amount of parallel imports .

A decision to refer or not to refer, which affects the legal situation of third parties, may be subject to an action for annulment based on Article 263 TFEU .

The more limited the dimension of the relevant market, the more likely the acceptance of referral. This is the case where the market is local or regional, or is characterized by specific circumstances . However, referral may also be granted where the concentration concerns the whole territory of a Member State .

See also Commission Notice No 2005/C 56/02 of 5 March 2005 on Case Referral in respect of concentrations pts 38 et seq.

See Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ, which identifies a distinct market as a result of the specificity of the competitive structure of the Member State concerned having regard to the market share held by the new entity, the significance of entry barriers and the preponderance of the industry in question; Case T-346/02 Cableuropa and others v Commission [2003] ECR II-4251, LawLex200500004275JBJ, according to which the acquisition of television rights for a specific language area and for a national territory makes it possible to identify a distinct national market even though the parties have an international dimension and are active on different national markets.

Case T-443/03 Retecal and others v Commission [2005] ECR II-1803, LawLex200700001463JBJ.

Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ.

Case T-346/02 Cableuropa and others v Commission [2003] ECR II-4251, LawLex200500004275JBJ.

See in particular, Commission Decision M.1464 of 26 March 1999, Total/Petrofina (not available in English), local market for the storage of oil finished products in the South of France; M.3318 of 19 December 2003, ECS/Sibelga (not available in English), requirement to ensure a consistency of treatment for the transaction between a Belgian electricity and gas supplier and Belgian inter-villages having regard to many other transaction having a national or local dimension which involve the same parties.

See Commission Decision M.2621 of 8 January 2002, Seb/Moulinex, LawLex200500005378JBJ, on the partial referral granted to the French authorities for a concentration which allows the new entity to become leader on the French markets of small electrical household appliances for all products of the existing range, conferring upon it an unrivalled portfolio of well-known brands, which strengthens entry barriers and prevents current competitors from exerting competitive pressure.

European Competition Law

317. Referral by the Commission to a Member State

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317. Referral by the Commission to a Member State

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise