NYSE Euronext and Deutsche Brse have appealed to antitrust authorities in Brussels to reconsider their initial assessment of the exchange operators plan to create the worlds largest bourse, arguing the deal should be assessed in a global, not European, context.
The appeal came at the start of two days of hearings into the deal, which is the only cross-border exchanges deal remaining after a number of tie-ups evaporated due to antitrust and nationalist concerns.
Brussels is weighing up whether the combination, creating a near-monopoly in exchange traded derivatives in Europe, would stifle user choice and concentrate too much market power in the hands of one player.
Deutsche Brse and NYSE Euronext are waging an increasingly urgent campaign to counter European Commission concerns about the deal, in particular signs that the Commission team have limited their assessment to the effects on competition in European markets.
Duncan Niederauer, chief executive of NYSE Euronext, said the Commissions argument was thorough.
However, he added: I think we are trying to point out the incompleteness to some of their arguments and to try to explain that the markets have evolved dramatically in the last five or 10 years and a narrow definition of markets or products or competition is, in our minds, not appropriate.
The operators argued at the hearing that the exchange traded derivatives markets were global and that the combined group would face competition from rivals such as CME Group of the US.
Narrowing their assessment of the deal to Europe would fail to take account of this at a time when Europes markets also face threats from emerging Asian players, the exchange groups argued.
The German and US operators also argued at the hearing that the Commission should include the large over-the-counter (OTC) derivatives markets, and not restrict the scope of the probe to existing exchange traded markets.
Both operators are refusing to discuss publicly the idea of making concessions to win regulatory clearance. The deadline for proposing so-called remedies is the end of next week.
Mr Niederauer said: We will not front-run the regulatory process.
His comments came as his group and Deutsche Brse unveiled a surprise joint share repurchase plan. NYSE Euronext said it would repurchase up to $100m in common stock, while Deutsche Brse said it would buy back about 100m euros. Both groups said the moves had been planned for some time.
The groups said they had agreed to co-ordinate their share buy-backs to preserve the ownership percentages of 40 per cent and 60 per cent to be held by former NYSE Euronext and Deutsche Brse shareholders, respectively, in the combined company following the pending business combination.
The Financial Times Limited 2011