Structure and Enforcement of the SIEC Test: Analyzing the CK Telecoms Judgment of the Court of Justice

Abstract

The Court of Justice in its judgment of 13 July 2023 in CK Telecoms has dealt with important questions about the construal and the enforcement of the SIEC test. The decision had been awaited eagerly, since it was the first case in which the Luxembourg courts decided on the direct application of the SIEC criterion outside the scope of the notion of market dominance since the entering into force of the new EU Merger Control Regulation (EUMR) in 2004. Core issues are the burden of proof and the standard of proof, the definition of certain theories of harm, as well as the dealings with efficiencies. The following article analyzes the judgment and draws general conclusions on doctrines behind the SIEC test.

Keywords: merger control; SIEC test; unilateral effects

JEL Classification: K21; L40; L41