Do We Need an Efficiency Defence?
Edited by Fabienne IIzkovitz and Roderick Meiklejohn
For 15 years, the EU’s merger control system, unlike most others in the world, oﬀered only minimal possibilities for taking eﬃciency gains into account as a mitigating factor that might oﬀset the anti-competitive eﬀects of a merger. This changed in January 2004, when the EU Council of Ministers adopted a new merger regulation that for the ﬁrst time explicitly recognizes the possibility of an eﬃciency defence. Shortly afterwards, the European Commission published its ﬁrst guidelines for the assessment of horizontal mergers, explaining how it intends to apply the new regulation. In Part VII of the guidelines, the Commission outlines how eﬃciencies will be incorporated into merger appraisals. What are the pros and cons of the eﬃciency defence? How do other merger control systems deal with eﬃciencies? What impact will the change in policy have on merging companies and the economy as a whole? How can the investigation process be organized to accommodate the analysis of eﬃciency gains? What are the main theoretical and practical problems which arise when anti-competitive eﬀects have to be weighed against eﬃciency gains and how can they be resolved? This book aims to answer these questions or at least to indicate fruitful lines of further enquiry. Although the old merger regulation included ‘the development of technical and economic progress’ among the criteria to be considered in the appraisal of mergers, it also stipulated that such progress could be taken into account only if it was...