The Commission published the text of its most recent prohibition decision in Deutsche Boerse / NYSE Euronext. The Decision is lengthy and the Commission appears to have formulated a response to most arguments proffered by the parties.

However, a review of the Decision brings to the fore a number of ways in which the Commission could improve the quality of the evidence which it uses to support its decisions. Many of the issues discussed below have been debated in the past, including before the EU Courts. And while the Courts generally show a certain level of deference to the type of evidence which the Commission uses, that should not prevent the Commission from continuously trying to imp [...]

“In appropriate cases, DG Competition may discuss in advance with the addressees or other affected parties the scope and the format of the Data Request. DG Competition may also explain the analysis that it intends to perform with the requested data in order to improve the efficiency of the data collecting process and to ensure the data is of adequate quality. This is particularly the case in the later stages of an investigation as early requests could be of a more general nature and aimed primarily at better understanding the functioning of the market in question.”

The language above is quoted from paragraph 55 of the Commission’s Best Practices on submission of economic evidence, th [...]

On 13 September, the Commission published its decision of 31 March 2011 in China National Bluestar/Elkem. After DSM/Sinochem/JV (decision of 10 May but published in June), this was the second published decision which dealt in some detail with the question how to treat Chinese State-owned Enterprises or SOEs under the EUMR. The question has both procedural and substantive implications.

Procedurally, the question is whether the revenues of other SOEs should be taken into account when calculating the revenues of the SOE involved in the transaction. From a substantive perspective, the Commission may need to analyze competitive effects of a combination of a company with an SOE, taking into acc [...]

The European Commission’s Phase II decision of 17 November 2010 concerning Syngenta’s acquisition of Monsanto’s sunflower seeds business raises a number of questions.

First, it took the European authorities long to decide who should review the case. The transaction was signed in August 2009 – it did not have an EU dimension and was notifiable only in Spain and Hungary. The Spanish Comisión Nacional de la Competencia or CNC received the notification on 19 August 2009. Only on 1 October did the Commission receive the CNC’s request for a referral of the case to the Commission, more than two weeks after the 15 working days post-notification deadline. The CNC argued that it had suspended the [...]

The new U.S. Horizontal Merger Guidelines, issued in August 2010, introduce the so-called GUPPI test, the Gross Upward Pricing Pressure Index.

According to the U.S. Guidelines, “[a]dverse unilateral price effects can arise when the merger gives the merged entity an incentive to raise the price of a product previously sold by one merging firm and thereby divert sales to products previously sold by the other merging firm, boosting the profits on the latter products. Taking as given other prices and product offerings, that boost to profits is equal to the value to the merged firm of the sales diverted to those products. The value of sales diverted to a product is equal to the number of unit [...]

More than six years after the case was launched, the General Court rendered its judgment in Case T-279/04, Editions Odile Jacob Sas v. Commission, relating to the appeal against a 2004 decision of the European Commission approving the acquisition by French publisher Lagardère of its rival Vivendi Universal Publishing (“VUP”).

The saga begins in 2002, when Vivendi Universal, VUP’s parent, decides to sell VUP as quickly as possible. Lagardère is one of the main potential buyers, but given that a Lagardère/VUP combination is virtually certain to raise significant competition issues, the timing of the Commission’s review under the EC Merger Regulation does not fit Vivendi Universal’s agend [...]