LAW & ECONOMICS: MERGERS - COMMUNICATION ON UNILATERAL PRACTICES - EFFICIENCIES - BURDEN OF PROOF

Efficiencies and pro-competitive arguments in mergers and unilateral practices

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This three short papers summarize the main points of the training course Law & Economics held on March18th 2010 on “Efficiency gains and horizontal merger control” by Concurrences. The importance of considering efficiencies cannot be underestimated, as shown in the Guidance on the Commission’s enforcement priorities in applying Article 102. In practice their impactremains nuanced. The Commission has assessed efficiency claims in a number of cases, but the defence has never succeeded. In the past six years the French Autorité de la Concurrence has been rather innovative in its approach. The decisions reviewed show the complexity of the different levels of analysis, which tend to mingle when it comes to the review of the effects of the relevant practices and of the potential efficiencies - the evidentiary burden being on the companies.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. INTRODUCTORY WORDS AnnePERROT Professor of Economics, University Paris I Panthéon-Sorbonne Vice President of the Competition Authority 1. In recent years, efficiency gains have become an important part of the argumentation of company boards as well as in the decisions of competition authorities: be it the guidelines on horizontal agreements, which admit that certain agreements may be motivated by the search for efficiency gains, or the 2004 Merger Regulation, which abandons the test for the creation or strengthening of a dominant position in favour of a more economic test closer to a substantial reduction of competition test, or, more recently, the

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