Monday, August 24, 2020

The More Economic Judicature: How the General Court has Recalibrated the Merger Gauge

The More Economic Judicature: How the General Court has Recalibrated the Merger Gauge

Competition Policy International, Forthcoming

Tilman Kuhn

White & Case

Stefan Thomas

University of Tuebingen - Faculty of Law

Abstract

In its judgment of May 28, 2020, CK Telecoms UK Investments Ltd v. Commission, the EU General Court (GC) has made several fundamental observations on the construal of the SIEC-test with regard to horizontal mergers. The GC embraces a more economic approach, while tightening the standard of proof, and demanding stricter and more coherent principles for the concepts of closeness of competition, and of important competitive force. With respect to the analysis of upward pricing pressures (UPP), the judgment calls for a differentiated analysis of efficiencies within the framework of the theory of harm, rather than considering efficiencies solely as a defense. In our article, we conclude that the judgment should be endorsed for identifying weak spots in the current enforcement architecture, and for providing convincing approaches for a recalibration of the SIEC test.

https://lawprofessors.typepad.com/antitrustprof_blog/2020/08/the-more-economic-judicature-how-the-general-court-has-recalibrated-the-merger-gauge.html

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