Efficiency Defence in the Merger Control Regimes of EC and Republic of Serbia: A Comparative Perspective
Legal Life: Journal for Legal Theory and Practice of the Jurists Association of Serbia, Vol. 14, No. VI, pp. 241-256, 2007
12 Pages Posted: 10 Jan 2009
Date Written: 2007
Following the adoption of the new EC merger regulation and subsequently issued administrative guidelines on the assessment of horizontal and non-horizontal (still in the draft form) concentrations, efficiency became a subject of the heated debate among legal practitioners and academia. Commission's inability to sustain its competitive harm theories before the Community courts and annulment of its merger decisions raise the doubts regarding successful incorporation of the efficiency defence in the EC merger control. Present paper offers a critical perspective on the problems related to the methodology and legal standards applicable to the efficiency defence. It discusses various proposals, which could facilitate the assessment of efficiency claims. Author uses the example of the Serbian merger control framework to emphasize potential opportunities and challenges for the national competition authority in accepting efficiency defence as a part of merger assessment process. The paper calls for further research in the area of the methodology of economic analysis and legal standards with the aim to increase legal certainty and predictability of the merger assessment.
Keywords: efficiency defence, merger control, Serbia
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