Le contrôle des concentrations

Laurence Idot

Revue internationale de droit économique, 2002, vol. t. XVI, issue 2, 175-205

Abstract: Globalisation is not only characterized by an increasing number of international mergers and acquisitions, but also by a proliferation of national systems of competition law and of control of industrial concentration. The multitude of national systems of control, however similar in their principles, results in a diversity of laws both as regards substance and enforcement. Therefore, rather than compensating for the absence of international rules of competition law, the many national laws increase transaction costs, are haunted by inherent limitations, and risk to produce international conflicts. The report, first, explains the jurisdictional limitations of national control over international mergers, the difficulties to properly determine the relevant international markets, and the risk of a national bias in assessing cross-border mergers. It then goes on to present both the high transaction costs resulting from the necessity to comply with a large number of procedurally different systems of control, and the obstacles which divergences of substantive law and competition policy may raise. An examination of the rather rudimentary system of multilateral agreements on international enforcement and of the increasing number of bi-lateral governmental agreements on cooperation in the field of antitrust law shows that, even though these agreements have become ever more sophisticated in moving from simple information to negative and even to positive comity, they will not by themselves solve the problems. Bilateral cooperation is procedurally imperfect, it minimizes, but does not exclude conflicts, and it works reasonably well only between politically and economically equal partners. Prospects for international harmo~nisation, let alone for centralisation of merger control remain dim as there is neither a consensus on the institutional framework nor on the rules of substantive law. Therefore, the report concludes by a discussion of more modest approaches such as harmonisation of procedures and settlement regimes for conflicts of jurisdiction.

Date: 2002
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