Policy Formulation, Implementation and Feedback in EU Merger Control



16

As conceptualised in Figure 1, in geometric terms the relationship between the
two communities can be likened to larger and smaller co-centric circles fitting within the
same plane, where the macro-community is the larger and the micro-community the
smaller. Although this case sees the ‘micro’ community consisting of members of the
MTF leading the
Nestlé/Perrier merger investigation and specific members from Nestlé
and Perrier, one may hypothesize that other ‘micro’ communities, consisting of members
of the MTF analysing a specific merger as well as members of relevant merging firms for
each case, exist within the evolution of this issue area. Quite clearly, the key members of
the macro-community help define, or cement, which actors participate in the micro-one:
those in the latter are specific actors within the former. In fact, there may even be some
overlap between the actors within the two communities as well: leaders of DG
Competition, for example, were prime movers within the ‘macro-community’ that
formulated the MCR, while also key in the functioning of the MTF. Yet, as will be
discussed later when we analyse the actions of the MTF which used the
Nestlé/Perrier
case as a means to increase its jurisdictional power and set policy where it was not
previously defined by the MCR, it does not necessarily follow that decisions taken within
the ‘micro’ community are bound within the scope of outcomes emanating from the
‘macro’ community. This points to the idea that there is
feedback from the
implementation phase, ultimately affecting the nature of the originally formulated policy
over time.

Turning to negotiating dynamics within the ‘micro-community’ during the
Nestlé/Perrier merger, near the end of the Phase II investigation the MTF actually
considered blocking the deal. However, a last second concession by Nestlé at the end of
Phase II was sufficient enough to gain approval with the support of Competition
Commissioner Brittan: the MTF offered Nestlé a deal where the latter was forced to
dispose of eight of its lesser brands to a single approved buyer who could not sell them to
BSN or back to Nestlé within a ten-year period. These eight brands represented
approximately 20% of the market and, if Nestlé agreed, the sale of Volvic to BSN would
be indefinitely held. Besides the creation of a new third entity, the estimated post remedy
market shares were not particularly different from the bid involving the Volvic sale. As



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