Sunday, August 26, 2007
The Analysis of Coordinated Effects in EU Merger Control: Where Do We Stand after Sony/BMG and Impala?
Posted by D. Daniel Sokol
With the implications of Whole Foods/Wild Oats still sinking in, I thought it might be interesting to think about merger analysis in the EU. Gisela Aigner, Oliver Budzinski and Arndt Christiansen, all of the University of Marburg have authored an analysis of the state of play of EU merger law specific to coordinated effects titled The Analysis of Coordinated Effects in EU Merger Control: Where Do We Stand after Sony/BMG and Impala?
ABSTRACT: The recent Impala Judgment by the CFI on the Sony/BMG Decision by the Commission represents the most important ruling on collective dominance since Airtours. We review both the Decision and the Judgment and derive implications for the institutional and substantive development of EU Merger Control. Firstly, Impala introduces an ambitious symmetric standard of proof for prohibition and clearance decisions by the Commission. While alleviating fears of an increasing number of false positives in the aftermath of Airtours, this entails the problem how to deal with cases in which neither the existence, nor the absence of anticompetitive effects can be proven to the required standard. Secondly, Impala represents to some extent a comeback of coordinated effects analysis, further précising the conditions for establishing this kind of anticompetitive effects. Thirdly, the ongoing process of increasing the role of third parties in European Merger Control is fuelled. Additionally, and given the characteristics and the development of the music industry, we criticise a lacking in-depth economic analysis of a potential decrease innovation efficiency as well as an increase in foreclosure effects following the merger.