Le contrôle des concentrations d’entreprises : analyse comparée du test de dominance suisse, du test SIEC européen et du test SLC américain, Valentin BOTTERON

Valentin Botteron

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

This book is a reworked version of Dr. Valentin Botteron’s doctoral thesis (Dir. Prof. Blaise Carron), defended at Neuchâtel University (Switzerland) in 2020. The purpose of this project is to compare the Swiss, European and American merger control tests in order to assess whether the Swiss test should be modified and, if so, to propose potential reforms to be implemented by the Swiss legislator. This work was awarded the 2022 Professor Walther Hug Prize for PhD thesis and the 2021 Paul-René Rosset Prize for the best doctoral thesis in law at Neuchâtel University. This work is of undeniable scientific interest, as up to now, not much research has been conducted on the effectiveness of the Swiss test, nor on the European and American tests. Dr. Valentin Botteron’s thesis also presents legislative and political interest, as it falls within the context of the current project to revise Swiss merger control law and provides input for further discussions on this reform.

The book is divided into three parts. In the first part, which is devoted to the foundations of Swiss, European and American merger control law, the author explains basic notions of competition law and discusses the goals of competition law in each legal system (Chapter 1), then details the legal sources of merger control for each of the legal systems under study (Chapter 2).

The second part analyzes the entire substantive merger control test in Swiss law (Chapter 3), European law (Chapter 4) and American law (Chapter 5). For each legal system, every step of the test is discussed—definition of the relevant market, potential anticompetitive effects generated by the merged entity, causality between the merger and anticompetitive effects, factors that could outweigh the anticompetitive effects, as well as remedies that competition authorities may accept in order to clear the merger.

The third part is devoted to a comparative analysis of the three legal systems (Chapter 6). It identifies the differences between the practices of each competition authority at every stage of the test. As a general policy, the Swiss test assumes that a certain market structure can lead to potential anticompetitive practices and that such a structure should therefore be shunned. By contrast, the underlying rationale of both the European SIEC test and the US SLC test is that market structure cannot be decisive in itself for prohibiting a merger. Structure can only be one factor among others indicating a risk of anticompetitive behavior, the main criteria focusing on the economic incentive for firms to engage in such practices. This difference is reflected in the fact that the Swiss test requires the demonstration of a dominant position, whereas the European and American tests require a restrictive effect on competition. The author presents an original statistical comparison of the outcome of each test’s use in each legal system under review.

The author then illustrates the consequences of such differences in concrete cases by applying the EU and US tests to three merger cases handled by the Swiss Authority. This comparison shows that efficiencies generated in the relevant market are not taken into account under Swiss law, while they are in EU and US law.

Then Dr. Valentin Botteron formulates a proposal for reforming Swiss law (Chapter 7) in light of the best practices identified in the other two legal systems. This reform should be driven by the resolution of the two main weaknesses of the Swiss test, namely (i) the structural character of the test, which prevents the consideration of unilateral effects, and (ii) the requirement of a qualified dominant position, which hinders the use of econometric criteria allowing to determine with precision whether it is economically worthwhile for the merged entity to increase its prices, reduce its production or foreclose the market.

In conclusion, the author calls for the incorporation of the SIEC test into Swiss law. This would enable the consideration of unilateral effects and efficiencies as well as the use of econometric tools ensuring the adoption of decisions based on tangible parameters.

Dr. Valentin Botteron’s original analysis, conducted with a rigorous and precise scientific method, thus provides valuable insight, which could inspire the Swiss legislator when reforming merger control law.