Failing firm defence in merger control: An overview of EU and national case law

The failing-firm argument is a long-standing defence used in mergers and acquisitions involving competitors where the transaction would give rise to significant concerns. In the current recessionary economy, this defence has enjoyed renewed interest, with some speculating that the doctrine may provide increased opportunities for some companies to acquire struggling rivals. The rationale behind the doctrine is that the collapsing company would have left the market anyway because of its financial difficulties, so any lessening of competition caused by the loss of that specific market player would occur even without the merger. In some circumstances a merger with a competitor may indeed be a way of saving a deteriorating business, and the failing firm defence should certainly be

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  • FTI Consulting (Brussels)

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Anne MacGregor, Failing firm defence in merger control: An overview of EU and national case law, 9 February 2012, e-Competitions Failing firm defence, Art. N° 42408

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