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Restrictions by object: duck and elephant hunting with the Court of Justice

Inductive reasoning is sometimes explained by using either the ‘duck test’ (“if it looks like a duck, swims like a duck and quacks like a duck, then it probably is a duck”) or the ‘elephant test’ (“it is difficult to describe, but you know it when you see it”).

In EU competition law, it sometimes feels that identifying a restriction of competition ‘by object’ is much the same. Using experience and intuition, we (and particularly competition authorities) believe we can tell when an agreement does restrict competition without actually assessing its effects on competition. This does, of course, lead to a risk of a perceived degree of arbitrary decision-making, other than i [...]

United Kingdom: Merger Control Interim Enforcement Orders

Two unusual features of the United Kingdom’s merger control regime are that notification is voluntary and there is no ‘suspension’ obligation. This means that mergers can be – and routinely are – completed without notification to and/or approval by the Competition and Markets Authority (“CMA”).

In this article, I examine the CMA’s use of its new powers to impose interim measures in the case of completed mergers. Through these powers, the CMA can prevent or limit the integration of the merged businesses pending completion of the CMA’s merger review. Self-evidently, this can have significant commercial consequences for the merging parties, in particular the acquiring party.

Bac [...]

Mama Mia, Here We Go Again

Just over a year ago, I wrote (rather extensively) on the European Commission’s public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposed to (i) expand its powers to review non-controlling minority interests and (ii) streamline the case referral system between the European Commission and NCAs (see here).

Our regular readers will note that Mark Jones alerted them to the European Commission’s second public consultation on this subject (see here). As Mark noted, the deadline for this consultation closes on 3 October 2014.

The purpose of this post is not to repeat Mark’s (or indeed my prior 2013 post). Rather I thought that it may be useful to p [...]

The Intel Judgment and the Administrability of the Effects-based Approach


9th GCLC Evening Policy Talk

Monday, September 29, 2014 from 18:45 PM to 20:30 PM

The Intel Judgment and the Administrability of the Effects-based Approach

Professor Massimo MOTTA, Chief Economist DG COMP

18:45 – 19:00: Registration
19:00 – 19:45: Talk
19:45 – 20:00: Question time
20:00 – 20:30: Cocktail

Location: The Hotel
38 Boulevard de Waterloo
1000 Brussels

For attending this event, please register HERE.

The event will take place under Chatham House rule.

Case for discussion:

T-286/09, Intel/Commission, Judgment of 12 June 2014.

United Kingdom Merger Control: Recent Developments in the Failing Firm Defence

On 15 August 2014, the Competition and Markets Authority (“CMA”) approved Alliance Medical Group’s completed acquisition of IBA Molecular’s radioactive medical tracer business. Although IBA’s business was loss-making, would have exited the market and there was no other credible buyer for it, the CMA refused to apply the ‘failing firm’ (or ‘exiting firm’) defence, as it was not inevitable that, in the event of IBA’s exit, all or most of its existing customer contracts would have passed to Alliance.  The CMA did, however, find that the merger did not substantially lessen competition, as there would remain two strong competitors, so ensuring continued customer choice.

Given [...]

Substantial reform of EU merger control on the cards

On 9 July 2014, the European Commission published a White Paper setting out proposals to amend the EU merger control system. The proposed reform of the system is the most significant in the last 10 years and could have an impact on many corporate transactions.

The proposals

The proposals deal with the following:

  • the expansion of the Commission’s powers to review the acquisition of non-controlling minority shareholdings;
  • the streamlining of the case referral system between the Commission and the EU Member States; and
  • measures aimed at simplifying merger procedures, including amending the EU Merger Regulation so that extra-EEA joint ventures do not require notification, and the introduction o [...]
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