Wednesday, December 24, 2008
Posted by D. Daniel Sokol
Mory Fodé Fofana, Competition Bureau of Canada has posted The Merger Specificity of Efficiencies in Merger Review: A Succinct International Comparison.
ABSTRACT: Mergers and acquisitions can lead to anti-competitive structural change in the market place. Despite this detrimental effect, mergers and acquisitions have also the potential to generate significant efficiencies through a better resource allocation and other forms of synergy that either merging party could not have achieved without the proposed transaction. Consequently, many antitrust agencies take into account the balancing effects of efficiency gains compared to anti-competitive effects that may result from mergers and acquisitions. In order to appropriately consider efficiency claims in the merger evaluation, competition authorities generally establish certain criteria. Among the criteria considered, there are merger-specificity and the productive or allocative nature of claimed (anticipated) efficiencies.
The merger-specificity test is often subject to confusing interpretation for two seasons: (i) there seems to be no clear indication of whether a claimed efficiency must be specific to the proposed merger or to any other merger; (ii) and, there is no clear indication of whether the claimed efficiencies should be industry (market)-wide or at the level of the newly merged entity. The purpose of this brief comparison is to provide a succinct outlook at how some OECD antitrust agencies approach the issue of merger-specificity of efficiency gains in merger analysis.