The 16th Anniversary of the SIEC Test Under the EU Merger Regulation – Where Do We Stand?

Journal for Competition Law (Zeitschrift für Wettbewerbsrecht, ZWeR) "The 15th Anniversary of the SIEC Test under the EU Merger Regulation – Where Do We Stand? Part 1" (ZWeR 2020, p. 1–51) and 'Part 2' (ZWeR 2020, p. 153–214)

112 Pages Posted: 17 Jul 2020

Date Written: June 25, 2020

Abstract

On May 1, 2020, the significant impediment to effective competition (“SIEC”) test pursuant to Article 2(2) and (3) of the EU Merger Regulation (Regulation No. 139/2004; “EUMR”) , celebrated its 16th anniversary. The Commission has taken more than 5,000 decisions in merger cases under this new standard in the last decade and a half. Therefore, it seems opportune to pause and take stock. Has the introduction of the SIEC test achieved the desired results? Has it been applied according to the legislator’s plans? Does its application need to change going forward?

After a short recap of the test’s history and genesis (I.) and a reminder of the burden and standard of proof (II.), this article reviews the Commission’s decisional practice (and the limited practice of the EU Courts) systematically, and intends to summarize the various theories of harm covered by the SIEC test’s application in practice (III.). Second, it analyzes the decisional practice and draws conclusions as to whether the test’s application in practice is predictable, persuasive, and in line with the legislator’s intent (IV.). Third and last, after some practical and procedural observations (V.), it concludes with a few proposals for improvement (VI.).

Keywords: merger control, EU, European Commission, SIEC test, horizontal mergers, vertical mergers, conglomerate mergers, innovation, killer acquisition, common ownership, portfolio dominance, efficiencies

JEL Classification: K21

Suggested Citation

Kuhn, Tilman, The 16th Anniversary of the SIEC Test Under the EU Merger Regulation – Where Do We Stand? (June 25, 2020). Journal for Competition Law (Zeitschrift für Wettbewerbsrecht, ZWeR) "The 15th Anniversary of the SIEC Test under the EU Merger Regulation – Where Do We Stand? Part 1" (ZWeR 2020, p. 1–51) and 'Part 2' (ZWeR 2020, p. 153–214), Available at SSRN: https://ssrn.com/abstract=3635289

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