With the adoption of a new substantive test in the revised Merger Regulation, and the publication of the European Commission's Guidelines on the assesment of horizontal mergers, unilateral effects analysis is poised to become an integral part of merger review in the European Union. Notwithstanding the Commission's insistence on a European terminology ("non-coordinated" rather than "unilateral" effects), the EC thus embraces a concept that has gained substantial traction in the United States since its explicit recognition in the 1992 Horizontal Merger Guidelines as one variant of a "substantial lessening of competition" (SLC) under s.7 of the Clayton Act. This is an interesting development given that only a year ago, the Commission was --at least publicly-- still very hesitant to recommend any departure from the traditional dominance test in order to bring the EC merger regime closer to the US SLC test. This article discusses the likely impact of the inclusion of unilateral effects analysis in EC merger control. First, it gives a general introduction to unilateral effects analysis, and illustrates the tentative differences in approach when compared with the traditional dominance test on the basis of a concrete example. Secondly, the article examines merger cases in which the Commission has already undertaken a unilateral-effects type analysis under the guise of the traditional dominance concept. Thirdly, the articles describes the inclusion of unilateral effects analysis into the Merger Regulation and the EC Horizontal Merger Guidelines, and briefly recalls the debate preceding these changes. Fourthly, building on the above considerations, the article discusses the possible impact of the introduction of unilateral effects analysis on the conduct and outcome of EC merger control proceedings.
Antitrust and Trade Regulation
Date of this Version
Sven Volcker, "Mind The Gap: Unilateral Effects Analysis Arrives in EC Merger Control" (July 2004). Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper 26.