The Analysis of Coordinated Effects in EU Merger Control: Where Do We Stand after Sony/BMG and Impala?

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 of how to deal with cases in which neither the existence, nor the absence of anticompetitive effects can be proven to the required standard. Secondly, the ongoing process of increasing the role of third parties in European Merger Control is fuelled. Thirdly, Impala has the potential to herald a comeback of coordinated effects analysis, further precising the conditions for establishing this kind of anticompetitive effect. Additionally, given the characteristics of the music industry, we criticise a lack of in-depth economic analysis of non-price competition issues, such as innovations and product diversity

Israel's Foreign Investment Protection Regime in View of Developments in Its Energy Sector

This paper discusses the foreign investment protection regime and policy of Israel, analyzes the central features of its bilateral investment treaties (BITs), and argues that time has come to use these treaties as a tool to attract foreign investment to the country, in particular in the energy sector. It shows that until now, BITs have been concluded mainly with developing and transition-economy countries and as a means to protect Israeli investors in those countries. This policy has been based on the perception that only developing countries with politically unstable regimes and corrupt or non-independent judiciaries need such treaties, while Israel can rely on its good reputation of being a democratic state, based on the rule of law, with a free-market economy and a well-reputed judiciary to attract FDI. The paper argues that not only is this viewpoint incompatible with current trends in International Investment Law where more and more BITs are concluded between developed countries, it must also be revised on the background of what has occurred in Israel over the last few years in the energy sector. The paper describes the long saga of the regulatory changes in relation to the natural gas sector, ever since huge offshore gas fields were discovered, including the Supreme Court’s rulings on the changes of the tax regime and on the stabilization clause, and analyses its impact on the investment climate. The paper presents original data on this impact and suggests policy recommendations based on the analysis of the situation