Monti cracks down on merger ‘horse-trading’

Date: 22/02/01

By Peter Chapman

COMPETITION Commissioner Mario Monti is cracking down on companies that wait until the last minute to take the action required for approval of their mergers.

Under the anti-trust chief's proposed new approach, firms involved in 'horse-trading' with the EU's merger watchdogs would have to make concessions - such as selling off key assets - during the first three weeks of a month-long investigation.

The move follows complaints that companies often only start to alter mergers, joint ventures or acquisitions when they are up against the deadline.

The idea is to give competition officials the time to consult with member state authorities and in some cases to 'market test' the concessions with rival firms, consumers, suppliers or experts to find out whether they are acceptable.

Under current EU rules, the Commission can open a deeper four-month-long investigation into mergers in cases where it has been unable to thrash out a solution during the first round, known as 'phase one'.

But industry groups say the Commission should not allow the new regime to prompt a raft of in-depth probes that cost both companies and regulators time and money even if the deal in question is subsequently cleared.

"We hope that the Commission will still show sufficient flexibility to avoid an assessment that could be avoided," said Erik Berggren of EU employers' lobby UNICE.

According to the new guidelines, which draw heavily on the Commission's growing body of merger case law, the best way for companies to allay competition concerns is to sell off key assets that restore the status quo in the market.

"Generally we are very happy with this guidance from the Commission," said Berggren.

In the past ten years, the Commission has imposed conditions on 46 mergers after a second-phase review. Some 71 mergers were cleared following undertakings by the two sides during the first phase of the procedure.

However the vast majority of mergers - 1,412 in the decade up to last September - were cleared without any conditions being attached.

The Commission last year unveiled a new 'fast-track' process for handling mergers, which was broadly welcomed by industry. The system was designed to enable competition officials to concentrate on more complex deals.