The European Commission is likely to have to admit defeat over attempts to gain greater regulatory control over takeovers, according to Allen & Overy partner Michael Reynolds, co-chair of the International Bar Associations' anti-trust committee.
Instead, he said, it is likely to allow companies to opt into EC control if takeovers affect at least three member states.
At a seminar in Berlin chaired by Reynolds, John Bridgeman, director general of fair trading, launched an attack on the EC's proposal to lower the thresholds at which it investigates cross-border mergers. He said: “It would, in practice, have a lot of unpleasant side effects,” and called for the threshold to be maintained at present levels.
Bridgeman's German equivalent, Dieter Wolf, of the Bundeskartellamt, also publicly opposed the move at the seminar in Berlin.
Currently, the EC's Merger Taskforce looks at any take-over involving companies with a joint worldwide turnover of over Ecu5bn and a turnover in the EU of Ecu250m. Any companies falling under this threshold must file notices in each of the member states which the merger might affect.
But businesses resent having to put mergers on hold while they meet different criteria in different countries, and the EC is proposing to lower the threshold to Ecu3bn and Ecu150m.
The proposal will be welcomed by European businesses, said Stephen Kinsella, Herbert Smith competition partner. He added that filing in individual countries was a lengthy and complicated process. The Merger Taskforce, by contrast, has strict deadlines of one month within which it gives clearance for takeovers.
He said: “We sometimes ask clients doing mergers if they are sure they can't buy anything else, just to bring them above the threshold.”
Velia Leone, Berwin Leighton competition partner, said that member state regulators were swimming against the tide. “It's a pan-European world now. If member states are serious about wanting to help European business they should be more flexible and less parochial about the rules.”
But Nigel Parr, head of Ashurst Morris Crisp's competition unit, said UK merger rules, which were triggered by market share rather than turn-over, were better. “The best soluction is to make filing with the EC optional,” he said.
Michael Reynolds said that even though there was overwhelming support for lowering the threshold from businesses, the move was unlikely to happen because member states opposed it.
“Merger control is about power,” he said. “Obviously governments don't want to give that up, particularly when 70 per cent of the mergers the EC looks at are national cases.”