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LEGAL PRACTICE: MERGER CONTROL - EUROPEAN UNION - COMMON OWNERSHIP - EFFECTIVE COMPETITION

Common ownership under the EUMR – Sailing a bit too close to the wind

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The European Commission (“Commission”) concluded in Dow/DuPont (2017) and Bayer/Monsanto (2018) that common ownership must be taken as an element of context in the appreciation of any significant impediment of effective competition under the EU Merger Regulation. It is submitted in this article, however, that the Commission’s position on common ownership in its decisional practice is premature, and raises question marks as to whether the Commission met the requisite legal standard for the use of economic evidence in merger control. Furthermore, in terms of practical upshot, the Commission’s stance in Dow/DuPont and Bayer/Monsanto may (i) render unproblematic cases unnecessarily burdensome and protracted going forward, and (ii) have, and indeed may already have had, an unacceptable chilling effect on pro-competitive transactions. It is therefore imperative in the eyes of the authors that the new Commission soon provide a clear, credible and robust stance on the matter of common ownership.

I. Introduction 1. Common ownership and its competitive impact have garnered an immense amount of attention in recent times. While wave after wave of opinion and economic literature continues to emerge from business and academic circles, consensus on the effects of common ownership remains elusive. The U.S. authorities have already shown themselves reluctant to take enforcement action on the matter given a lack of compelling evidence warranting such action. The European Commission (“Commission”), on the other hand, is still “looking carefully” into common ownership. [1] This is despite the Commission having concluded in Dow/DuPont (2017) and Bayer/Monsanto (2018) that it must be taken as an element of context in the appreciation of any significant impediment of effective competition

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Authors

  • McDermott Will & Emery (Paris)
  • McDermott Will & Emery (Brussels)

Quotation

Jacques Buhart, David Henry, Common ownership under the EUMR – Sailing a bit too close to the wind, 10 January 2020, Concurrences Review N° 1-2020, Art. N° 92534, www.concurrences.com

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