SETTING THE SCENE FOR THE FFD
Mark Powell (White & Case)
The current (arguable) market perception is that of a market in crisis. An assessment that has been corroborated by the European Parliament, which stated that “in the EU, the crisis [has been] longlasting and economic growth stalled” (European Parliament, Study on the contribution of Competition Policy to Growth and the EU 2020 Strategy). Due to these market realities, the factintensive merger analysis that is advocated for in the Horizontal Merger Guidelines (Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, OJ C 31, 5.2.2004) needed to consider the shifting market tectonics. Taking into account the declining markets, there is a likelihood of “an increased number of merger reviews involving financially troubled firms” (OECD, The Policy Roundtable : Failing Firm Defence) and by extension Failing Firm Defences (FFD) being pleaded. This, however, has not taken place, with surprisingly few requests being triggered.