A critical analysis of LN 294/2002 : Regulations on Control of Concentrations 2002 : the jurisdictional and substantive issues

Abstract

The Regulations on Control of Concentrations filled up the gap in the Competition Act with respect to merger control. This thesis provides an in-depth analysis of the jurisdictional and substantive issues underlying the regulations, highlighting both the strengths and inadequacies of this new piece of legislation. The procedural aspects have not been examined here. Material on the Regulations per se is scarce. Continuous reference is made to the EU competition law and US antitrust law, since the Regulations drew heavily on these sources. Chapter 1 reviews the goals of antitrust, attempts to identify the multifarious influences and objectives which have shaped antitrust law and policy. Three types of mergers, and the anticompetitive effects to which they may give rise are also discussed. Chapter 2 defines the scope of the Regulations, examining the transactions qualifying as 'concentrations' and the appropriateness of turnover as jurisdictional criteria. Chapter 3 compares and contrasts the two predominant substantive tests used m merger analysis. The focus is on the factors composing the two tests and the extent to which de facto convergence has been reached. Chapter 4 examines the so-called efficiency defence. It distinguishes between the competing standards of consumer welfare, total welfare and total surplus, and analyses the extent to which the different standards impact on the standard of proof imposed on the merging parties and the types of cognisable efficiencies. Chapter 5 concerns the failing firm defence. The discussion revolves on the status of the failing firm defence, the different rationales behind the defence and the conditions for its application. In conclusion, the Maltese regulations are placed in the framework of the EC merger regime. The division of competition between the local competition authorities and the European Commission is discussed.