Illegality of Conduct in EU Merger Control: Should We Trust the 'Summary Analysis'?

Abstract

The paper addresses the problems related to the assessment of ex post illegality of conduct during the ex ante merger assessment under the EU merger control regime. Largely overlooked by legal scholarship and marginalized in the enforcement practice due to its narrow scope of application, illegality assessment and its application under the substantive compatibility test raises important issues related to the relationship between merger control and antitrust enforcement, determination of the Commission’s margin of discretion in assessing complex economic matters, role of illegality assessment under the “more economic approach” and its consistency with the principles of predictability and legal certainty. The paper follows the evolution of legal standards for the illegality assessment developed in merger review jurisprudence and subsequently applied in the Commission’s enforcement practice. The discussion evolves around the concept of deterrence, its measurement and feasibility of administering the illegality test as an integral part of the substantive merger assessment.

Keywords: EU competition law, EU merger control, standard of proof, margin of discretion, judicial review