A Contextual analysis of the 2004 revisions to the substantive test for competitive harm in the EU Merger Regulation

AuthorMark Milne
Pages1-12
1
Dundee Student Law Review, Vol III, No 3
A Contextual analysis of the 2004 revisions to
the substantive test for competitive harm in the
EU Merger Regulation.
Mark Milne
INTRODUCTION AND AIMS
Council Regulation (EEC) 4064/89 of 21 December 1989 on the Control of
Concentrations between Undertakings [1989] OJ L395/11 (1989 MR)
prohibited a concentration that "creates or strengthens a dominant position as
a result of which effective competition would be significantly impeded in the
common market".2 The existing regulation was replaced by Council
Regulation (EC) 139/2004 on the control of concentrations between
undertakings (the EC Merger Regulation) [2004] OJ L24/1,3 which prohibits a
concentration that "would significantly impede effective competition, in the
common market ... in particular as a result of the creation or strengthening of
a dominant position".4 By changing the word order in this way, the current
regulation removes the emphasis from discovering of "dominance" and places
1 EC Merger Regulation 4064/89.
2 ibid art 2(3).
3 EC Merger Regulation 139/2004.
4 ibid art 2(3).

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