4.1.2. After notification

After a merger has been notified, an average number of 8.4 meetings are held between company representatives and DG Comp officials. Compared to 1993, the number of meetings has considerably increased; Neven et al. then found an average of only 2.5 meetings. At least two interpretations seem to offer themselves: DG Comp staff has become more accessible; this is readily used by merging firms. But it could also be that firms have the impression that it has become more important to plead one’s case personally in order to improve chances for a favourable decision.

European merger policy is often criticised as unpredictable. This critique can also be made with regard to the way the Commission delineates the relevant markets both with regard to product as well as to geographical aspects. In 1997, the Commission published a notice in which it explains how it delineates the relevant market. We wanted to know whether the publication of that notice had been helpful in the sense that it had increased the firm’s capacity to predict the Commission’s decision with regard to the delineation of the relevant market. 56.5% of respondents answered that the Notice had been helpful. This is a majority, albeit not an overwhelming one. We believe that the following conclusions can be drawn from this result:
generally, predictability can be increased by the publication of “notices” in which the Commission explains its own approaches, methods, and procedures. The notices themselves should be as clear and precise as possible in order to elicit even higher approval rates.

Until May 2004, the European Merger Control Regulation did not provide for efficiencies as a possibly offsetting factor. Yet, it could be that in practice they did play a certain role even before the reform of European Merger Policy. And indeed, 62.5% of the respondents indicated that “expected synergies” play a role in their argumentation vis-à-vis the Commission.

Quite a few mergers can only be achieved after the merging parties have promised a number of “remedies” to the Commission. The predictability criterion can also be applied to remedies: If the merging parties correctly anticipate the remedies to be demanded by the Commission, they could decide ex ante that the expected gains of the merger still outweigh the costs – that would include the costs of remedies here. It would thus be helpful if predictability were also present with regard to this specific aspect of merger policy. Four out of five of the firms actively participating in the survey had been involved in mergers comprising remedies. Out of these firms, only about half of them (55.6%) claimed that remedies were predictable. We interpret these number as indicating that the policy regarding remedies should t d be made more transparent and predictable. The process that is used in order to identify remedies should be made as general as possible. It should also be published. This should increase predictability.

At the end of the questionnaire, there was an open question soliciting further suggestions that would be relevant with regard to European merger policy. The following proposals were made: (1) the separation of powers in European merger policy was believed to be insufficient. Many respondents therefore proposed that the separation of powers be implemented with regard to European merger policy. (2) More specifically, it was proposed to introduce the institution of an “independent hearing officer”. (3) The introduction of a stop-the-clock mechanism was suggested. (4) A further speeding up of the decision-making procedure was proposed; this was
particularly suggested with regard to the time span that is necessary before the Court of First Instance publishes its decisions. (5) Another proposal focusing on the same problem was the introduction of a special chamber for competition issues at the Court of First Instance.

In this section, we have seen that on various accounts, the predictability of European merger policy is problematic and would need improvement. In the next section, we turn to present some possible improvements.