EU Merger Control between Law and Discretion: When Is An Impediment to Effective Competition Significant?

33 Pages Posted: 8 Jul 2021 Last revised: 9 Aug 2021

See all articles by Pablo Ibáñez Colomo

Pablo Ibáñez Colomo

London School of Economics - Law Department

Date Written: June 26, 2021

Abstract

This paper considers the interpretation of the substantive test laid down in Article 2 of Regulation 139/2004. It focuses on horizontal mergers in the so-called ‘gap’ cases, which would not result in the creation or the strengthening of a (single or collective) dominant position. In its practice and soft law instruments, the Commission has construed Article 2 in such a way that virtually any transaction involving actual or potential competitors could lead to a finding of a significant impediment to effective competition. Under this approach, the substantive test would be fulfilled, in principle, in every horizontal merger. In CK Telecoms, the General Court crafted an alternative framework that is capable of meaningfully constraining administrative action and ensures that judicial review in EU merger control remains effective.

Keywords: EU merger control, judicial review, discretion, separation of powers, CK Telecoms, SIEC test, telecommunications

JEL Classification: K21, L14, L24, L41, L42

Suggested Citation

Ibáñez Colomo, Pablo, EU Merger Control between Law and Discretion: When Is An Impediment to Effective Competition Significant? (June 26, 2021). Available at SSRN: https://ssrn.com/abstract=3874304 or http://dx.doi.org/10.2139/ssrn.3874304

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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