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Macau Periodical Index (澳門期刊論文索引)
- Author
- Svetlicinii, Alexandr
- Title
- The acquisitions of the chinese state-owned enterprises under the EU merger control regime：Time to revisit the concepts of 'control' and 'single economic entity'？
- Journal Name
- Universidade de Macau : Boletim da Faculdade de Direito = 法律學院學報
- Pub. Info
- 2017, No. 42, pp. 259-273
- Abstract
- The acquisitions notified by thye Chinese state-owned enterprises (SOEs) under EU merger control regime have raised a number of questions as to the suitability of the current merger control rules and standards applied by the EU Commission for the ex ante assessment of the likely impact of such transactons on competition in the EU Internal Market. The present paper provides an overview of the EU Commission's practice to date with special focus on the concepts of "single economic entity", "decisive influence" and "control" that have been applied by the EU Commission in the cases involving Chinese SOEs. With the rapidly unfolding China's "One Belt, One Road" initiative and the ongoing reform of the state-owned enterprises (SOEs), the number of overseas acquisitions by the Chinese SOEs in various industrial and services sectors is constantly on the rise. Besides the national security review, which is a subject on its own,these acquisitions have raised a number of questions in terms of assessment of market concentrations' potencial impact on competition and challenged the traditional assessment tools employed by the merger control regimes.The proposed presentation examines the evolving experience of Chinese SOE's acquisitions in the European Union (EU), which were subject to ex ante assessment under both EU and national merger control regimes. The analysis of the merger assessment practice of the EU Commission culminating in the recent conditional approval of the ChemChina/Syngenta merger indicates that the traditional assessment tools such as ''single economic entity '' and ''control'' applied to the acquisitions by Chinese SOE's may be no longer adequate to capture the extent of their potencial effect on competition. The review of the merger cases including the application of the ''worst case scenario'' when determining the relationship between the state and its SOE's cannot serve as a long-term solution and does not provide sufficient legal certainty to the mergingparties as well as to the competition authorities in Europe and beyond, which are faced with the growing number of acquisitions and growing market shares of the SOEs in various industries. The presentation explores possible ways of modifying the interpretation of the above mentioned legal concepts in order to reflect the economic and legal realities of the commercial conduct of the SOEs on the global markets. It is argued that the lack of adequate competition law assessment tools may lead to further expressions of economic nationalism and the adoption of more arbitrary legal assessment tools thus decreasing predictability and legal certainty to all parties concerned. Paragraph Headings: 1. EU merger control and state-owned undertakings 2. Chinese SOEs' acquisitions under the Eu merger regulation 3. Conclusion