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European Merger Control

Do We Need an Efficiency Defence?

Edited by Fabienne IIzkovitz and Roderick Meiklejohn

This book examines the background to a change in the legal framework which occurred in May 2004 with the entry into force of a new Merger Regulation that for the first time explicitly recognises the possibility of an efficiency defence. European Merger Control assesses the likely impact of this new regulation, and discusses the pros and cons of the efficiency defence, how other merger control systems deal with efficiencies, how the investigation process can be organised to accommodate the analysis of efficiency gains and the main theoretical and practical problems which arise when anti-competitive effects have to be weighed against efficiency gains.
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Chapter 1: M & A Activity and Merger Control since 1991

Roderick Meiklejohn


1. M&A activity and merger control since 1991 Roderick Meiklejohn The purpose of this chapter is to provide some background for the discussion which follows about the efficiency effects of mergers. We outline the recent history of merger activity in the former fifteen-member EU (EU15) and in the New Member States.1 The New Member States are discussed separately, since most of them have only recently made the transition to market economies and their pattern of M&A activity is therefore quite idiosyncratic. Since this book is concerned in particular with the regulatory treatment of mergers, section 3 brings together some information on the number of mergers subject to merger control procedures in various jurisdictions, especially the EU, the sectors concerned and the outcome of the procedures. In the last section we compare the statistical data on the merger wave of the 1990s in the EU and the USA. The aim of this comparison is to see whether the wave behaviour of merger activity yields any general lessons about the motivation of mergers, in particular the role played by prospective efficiency gains. 1. M&A ACTIVITY IN THE EU152 Overview of the Period 1991–2004 The merger wave of the 1980s reached its peak in the EU in 1991. In the following six years, the number of M&A fluctuated quite widely but remained below the 1991 level, although the total value of transactions began to increase steeply in 1995 (see Table 1.1). In the main, the...

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