CASE COMMENTS: MERGERS - EUROPEAN UNION - HORIZONTAL EFFECTS - NON-COLLUSIVE OLIGOPOLY GAP - CLOSE COMPETITORS

Non-collusive oligopoly gap: The General Court of the European Union annuls the decision of the European Commission’s prohibition of a four-to-three merger in the UK telecoms sector, in the first judgment to directly deal with the legal test for “gap cases” (CK Telecoms UK)

In May 2020, the General Court rendered its long-awaited judgment on the appeal against the Commission’s decision to prohibit Hutchison’s acquisition of O2, a deal that would have combined two of the UK’s four mobile network operators. The judgment is a resounding victory for the applicant, Hutchison, and contains a wealth of interesting holdings. The General Court subjected the Commission decision to a very stringent judicial review and imposed a high standard of proof on the Commission when challenging mergers in oligopolistic markets where the merged entity will not have a dominant position. At the time of the Commission’s prohibition decision, in 2016, and still today, the UK mobile market was an oligopoly with essentially four players. The acquisition would have combined the number

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Simon Vande Walle, Non-collusive oligopoly gap: The General Court of the European Union annuls the decision of the European Commission’s prohibition of a four-to-three merger in the UK telecoms sector, in the first judgment to directly deal with the legal test for “gap cases” (CK Telecoms UK), 28 May 2020, Concurrences N° 3-2020, Art. N° 96050, pp. 122-125

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