Avrupa Birliği'nde şirket birleşmelerinin kontrolü (4064/89 (EEC) sayılı konsey tüzüğü çerçevesinde)
Başlık çevirisi mevcut değil.
- Tez No: 53041
- Danışmanlar: PROF.DR. HÜSEYİN HATEMİ
- Tez Türü: Yüksek Lisans
- Konular: Ekonomi, Hukuk, Economics, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1996
- Dil: Türkçe
- Üniversite: İstanbul Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 140
Özet
Özet yok.
Özet (Çeviri)
69 SUMMARY On December 21 1989, the Council of Ministers adopted the Commission proposal concerning the control of mergers and acquisitions. This regulation will be the cornerstone of competition policy in this area and will make a substantial contribution to the successful completion of the single European market. The need for such a regulation was first recognised in 1973 following the 'Continental Can' ruling. However, at that time the Council did not give serious consideration to a new regulation. Two years ago the Commission successfully relaunched the proposal. Progress towards the completion of the single market provided a new impetus for a regulation on merger control and this was supported by the new political environment. The logic of the single market has led member states to agree unanimously on a system of merger control at the Community level for European-wide mergers. The control of mergers is necessary on both economic and political grounds. The process of restructuring European industry has given rise to a wave of mergers. Whilst many of these do not raise any difficulties, we need to ensure that they do not result in any lasting damage to the process of competition- a process that lies at the heart of the common market. Furthermore, it has become increasingly apparent that national legislation is inadequate for the control of mergers of a Community dimension, largely because national legislation is confined to the territory of individual member states. Community law is essential for controlling and examining large mergers. The new regulation also provides a system of control for those member states which have no special provisionsin this field.70 The principles of the regulation are as follows : i) The principle of the regulation is to establish a clear-cut division between large mergers of a European dimension, where the Commission will have responsibility, and smaller mergers where national auhorities will apply national control. ii) The new regulation will apply to Community-wide mergers which are defined by the following three criteria: -A threshold of combined worldwide turnover for the companies concerned of at least 5 billion ECU. A turnover of this scale reflects the financial and economic power of the participants. For banks and insurance companies the threshold is based on one-tenth of total assets. -A threshold of Community-wide turnover of at least 250 million ECU for at least two of the firms concerned. Thus only those companies with a certain Community-wide presence would be governed by the regulation. -A trans-nationality criterion. If each of the parties concerned derive two-thirds of their Community business in one and the same member state, the merger will not be subject to Community control. This criterion is designed to exclude from Community control predominantly national mergers. Such mergers will only be subject to national merger control. iii) The current thresholds have been set for an initial phase at a rather high level. However, the new regulation represents an important first step in Community merger control and is likely to produce around 50 cases a year. A revision of the thresholds is provided for at the latest four years after adoption and it is the Commission's declared intention that these thresholds will be revised downwards, with the global threshold falling to 2 billion ECU and a corresponding fall in the Community threshold.71 (iv)AU concentrations within the scope of the regulation will be evaluated by well defined criteria. The fundamental concept is 'a dominant position'. The creation or strengthening of such a position will be declared incompatible with the common market where it significantly impedes effective competition, whether in the common market as a whole or in a substantial part of it. However, where a merger does not impede effective competition it will be declared compatible with the common market. The appraisal process will take into account various aspects of competition. These will include the structure of the markets concerned, actual and potential competition (both from inside and outside the Community), the market position of the parties concerned, freedom of choice for third parties, barriers to entry, the interests of consumers, and technical and economic progress. This is a comprehensive list for evaluating the competitive impact of a merger. v) For the purposes of the regulation, a concentration is defined as the taking of control. It includes partial mergers and merger-like joint ventures, but it excludes coordination of market behaviour of firms which remain independent of each other. vi) The merger control machinery comprises the following elements: -The principle of obligatory prior notification by companies. This is linked to an automatic suspension of the concentration for a limited period of 3 weeks, which may then be extended by a stop order by the Commission. The validity of transactions in securities on stock exchanges is not affected. -The Commission will operate under strict time limits: *The Commission has one month after notification in which to decide whether to initiate proceedings, so in those cases where the Commission sees no objection (likely to be in the majority) the parties will- receive green light in one month;72 *Four months after initiating proceedings, the Commission will issue its final decision on the merger. During this period the parties will be free to propose changes to their merger in order to seek to avoid a negative decision. * The Commission's powers of investigation and financial sanctions provided for in the regulation are analogous to those applying to cartel cases. Additionally, divestiture orders are possible where unlawful mergers have been put into effect. (vii) All decisions on Community-wide mergers falling within the scope of the regulation will be made by the Commission. Member States have undertaken not to apply their national competition laws to such cases. In this way there should be no parallel proceedings. - There are two possible exceptions lo the priciplc of exclusivity. These are as follows *There is the possibility of referral to the national authorities of member states where a problem of market dominance arises in a 'distinct market' within its territory and the application of the Regulation does not provide a satisfactory solution. * In instances where there are 'other legitimate interests' than those protected by this regulation, particularly matters of public security, plurality of the media and prudential rules and exceptionally, other legitimate interests which may be recognised by the Commission after an assessment of their compatibility with Community law. Some legitimate interests may be protected by relevant provisions in national law. In such cases, a member state may prevent a merger or make it subject to additional conditions and requirements. However, a member state cannot authorise on these grounds a merger found to be unlawful by the Commission.73 viii) The regulation will come into force nine months after its adoption, i.e. on September 21 1990. There will be no retroactive consideration of mergers carried out before that date. This time gap will provide firms with the opportunity to become familiar with the new law and for the Commission to prepare its rules of familar with the new law and for the Commission to prepare its rules of implementation. The latter include detailed provisions for notifications and hearings, and guidelines on joint ventures. The nine month period will also allow the Commission the time to reorganise its services and to adapt its working methods.
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