Vinje, Thomas; Paemen, Dieter --- "Transatlantic Issues in the European Merger Review of Oracle/PeopleSoft: Harmonious Dissonance" [2006] ELECD 519; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 2

Section Title: Transatlantic Issues in the European Merger Review of Oracle/PeopleSoft: Harmonious Dissonance

Author(s): Vinje, Thomas; Paemen, Dieter

Number of pages: 25

Extract:

2 Transatlantic issues in the European
merger review of Oracle/PeopleSoft:
harmonious dissonance
Thomas Vinje and Dieter Paemen1


Introduction
On 1 May 2004, a new Regulation2 replacing the previous regulation on
merger control3 came into force, one of the primary features of which was
the introduction of new wording against which concentrations would be
appraised. Previously, the EC Merger Regulation (ECMR) required that
mergers be reviewed with regard to whether they created or strengthened a
dominant position as a result of which effective competition would be sig-
nificantly impeded in the common market or a substantial part of it.4
Under the new ECMR, transactions are to be blocked if they would `sig-
nificantly impede effective competition, in the common market or in a sub-
stantial part of it, in particular as a result of the creation or strengthening
of a dominant position' (known for short as the `SIEC test').
Views differ on the extent to which Regulation 139/2004 introduced new
law. Considerable debate has surrounded the adoption of the SIEC test in
relation to whether the new wording presented a confirmation of existing
practice supported by the existing law or the introduction of a new stan-
dard.5 Less dissent exists with regards to the intention behind the change in
wording of the substantive test: to recognize explicitly the power of the
European Commission (`the Commission') to examine mergers that lead to
so-called `unilateral' or `non-coordinated effects' under the traditional
single dominance threshold and thereby address ...