Policy Formulation, Implementation and Feedback in EU Merger Control



12

meeting the established turnover thresholds at the European level. In so doing, the
Merger Task Force of the European Commission was granted substantial discretion in
leading the merger review process and also deciding which future actors were to be
consulted when the MCR was put into practice. It should be noted that during the formal
legislation process the European Parliament was consulted by both the Commission and
Council in accordance with EU law, however there was minimal Parliamentary debate or
feedback. According to one high-level official involved in the process, “once the Council
agreed on the final MCR draft, that was it. The Parliament was not even a minute
concern because in those days the Commission owned the EP even though the MCR
became law after the SEA”(Interview 2001a). This point is clarified somewhat by
Gardner (1991, 36) who points out that “the Parliament has been reluctant to use its
negative powers (veto power under the co-operation procedure), fearing that this would
hinder the accomplishment of the basic goal it shares with the Commission - speedy
completion of the 1992 process.”

The MCR negotiations on the various issues above provide a clear picture of the
policy actors involved. The two main actors were the Commission and business which
took the lead by working together in an insulated policy environment. The third actor, the
Council, acted more as a gatekeeper and eventually approved an acceptable draft that was
largely formulated by the main two actors. Of particular importance is that on the
substantive issues of the MCR the Commission and capital operated in an insular fashion,
were guided by their own self-supporting goals when negotiating, exchanged
information to the exclusion of others, attained consensus, and ultimately achieved a
similar outcome from which both would benefit - evidence that the policy community
approach is the most useful in understanding this particular case. What is even more
striking is that even in the instances that the macro community did not achieve its way
(thresholds and joint ventures) it managed to reverse those ‘loses’ several years later
during the 1997 MCR Review,18 which reflects that not only did the Commission and
capital work together in the negotiation phase, but did so also in the implementation
phase as considered in more detail below.

It is also significant to note that the tightness of the community during the MCR
formulation is illustrated not only by the virtual exclusion of policy advice from EU



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