LAW & ECONOMICS: MERGER GUIDELINES - ANALYSIS - NON-HORIZONTAL ISSUES

The non-horizontal merger guidelines in practice

On the 28th of November 2007, the Commission adopted the Non-Horizontal Merger Guidelines. This article illustrates how these guidelines are applied in practice by reviewing the economic analysis undertaken in Google/DoubleClick and TomTom/TeleAtlas, two recent mergers that raised non-horizontal issues. Both cases were subject to an in-depth (Phase 2) investigation and were eventually cleared without conditions. The theories of harm covered both conglomerate issues as well as concerns regarding input foreclosure. These two cases illustrate how the guidelines provide a useful framework for conducting sound economic analysis, both qualitative and quantitative.

1. In November 2007, the Commission published the “Non-Horizontal Merger Guidelines” (hereafter, NHM guidelines) as an addition to the existing guidance on the implementation of the merger regulation, in particular, the “Notice on Market Definition” and the “Notice on Horizontal Mergers”. The objective of the NHM guidelines is to provide guidance regarding the analysis of vertical and conglomerate mergers under EC merger control. The guidelines clarify the inherent differences between the competitive effects arising from mergers between rivals (horizontal mergers) and mergers between firms operating in different, albeit closely related markets (either vertical or conglomerate mergers). While non-horizontal mergers offer greater scope for efficiencies, they can also lead to anticompetitive

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Penelope Papandropoulos, Raphaël De Coninck, The non-horizontal merger guidelines in practice, September 2008, Concurrences Review N° 3-2008, Art. N° 19914, www.concurrences.com

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