LAW AND ECONOMY: MERGER CONTROL - PROCEDURES - FIRST PHASE - SECOND PHASE - CLEARANCE DECISIONS - INVESTIGATIONS - STANDARD OF PROOFS - INFORMATIONS

Standards of proofs in sequential merger control procedures

We model merger control procedures as a process of sequential acquisition of information in which mergers can be cleared after a first phase of investigation. We find that the enforceability of clearance decisions at the end of the first phase is unattractive to the extent that it prevents the authorities to use their expectations as to whether evidence gathered in the first phase will be confirmed in the second phase. This deprives the first phase of its potential as an effective screening mechanism. We also find that when clearance decisions in the first phase are enforceable, a different (higher) standard in the first phase is only desirable when Phase I decisions are captured by merging parties (as opposed to complainants).

I. Introduction 1. Merger control in many jurisdictions proceeds in two stages. In the first stage, following a notification, the authority acquires initial information relevant to the competitive assessment of the merger. On the basis of this information, the authority decides whether to clear the merger or to delay the decision to a second stage in which additional information is acquired. Intuitively, the first stage in a two-stage review serves the role of screening out unproblematic mergers. In the European Union, this sequential process is organized in the “Phase I” and “Phase II” of the Commission’s merger review procedure. [1] Similarly, the merger reviews in the United States by the Federal Trade Commission and the Department of Justice proceed in two stages. Following a merger

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.

 

PDF Version

Authors

  • Compass Lexecon (Brussels)
  • Compass Lexecon (Brussels)
  • The Graduate Institute for International and Development Studies (Geneva)

Quotation

Gregor Langus, Damien Neven, Vilen Lipatov, Standards of proofs in sequential merger control procedures, September 2018, Concurrences Review N° 3-2018, Art. N° 87560, www.concurrences.com

Visites 249

All reviews