EU merger control in 2013: A look at last year’s highlights

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The past year in EU merger control has seen the beginning of some important trends and changes. The European Commission (the Commission) issued 279 merger decisions in 2013, with two prohibitions and 11 decisions resulting in the acceptance of remedies. The failing firm defence has seen a return to prominence, with the Commission accepting a failing firm argument when it cleared two transactions that resulted in a monopoly in certain markets. In the cases where the Commission accepted remedies, at the most concentrated end of the scale, the Commission approved with substantial divestments some transactions which would have resulted in a 2-to-1 merger in certain markets.

The efficiency defence also made an appearance in several cases. While it gained some traction with the Commission, it ultimately failed to win the day, raising the question of whether arguments that merger efficiencies outweigh the anticompetitive effects of a deal will ever play a key role in gaining Commission approval.

On the policy front, the Commission has consulted on and implemented as of 1 January 2014 significant changes to the simplified procedure designed to alleviate the burden on business with regard to filings of non-complex transactions, although additional new requirements in all filings may offset some of the benefit. The treatment of transactions involving the acquisition of a minority shareholding is also subject to change after the Commission launched a consultation on proposals to extend its jurisdiction to review pure minority acquisitions which do not result in a change in control of the target company.

Originally published in Competition Law Insight on 21 January 2014.

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