The Evaluation of Concentrations Under the Merger Control Regulation: The Nature of the Beast

Part I of this Article examines whether, in evaluating a concentration, the Commission of the European Communities is permitted to take into account factors, such as industrial or social policy, that are not, strictly speaking, related to competition law. Part II explores whether “dominant position” has the same meaning under the Regulation No. 4064/89 as under Article 86 of the Treaty Establishing the European Economic Community and, in particular, whether the Regulation also applies to concentrations that create, or further narrow, interdependent oligopolies. Part III examines whether the Commission is required to prohibit or modify every concentration that creates or strengthens a dominant position, or whether it is required to do so only when a further evaluation indicates that the concentration will result in effective competition being substantially impeded in all or a substantial part of the common market. The Article concludes with some reflections on market definitions, customer dependence and vertical concentrations

Article 82: The Last Frontier – Fighting Fire With Fire?

Since the entry into force of the European Union (“EU”) merger regulation in September 1990, there has been progress toward the acceptance of the need for rigorous economic analysis as the basis for the application of Community competition law. Although the path toward sound economic analysis has been uneven and recognition of the principle has sometimes exceeded its correct application, the increased willingness to acknowledge economic analysis as the basis for rational enforcement action should not be underestimated. The most noticeable and obvious success has been in the field of merger control. But even a statute as venerable as Article 81, whose early interpretation can be traced to a tradition of political economy (ordoliberalism) unrelated to economic analysis, has been subjected to far-reaching reinterpretation, most notably by the European Courts. The result has been a relaxation of the strict application of the formalistic approach to Article 81(1) according to which any restriction on the individual freedom of action of an economic operator must be equated with a restriction on competition