After the significant and much publicised appeals heard by the EC courts in 2002 and early 2003, 2004 has been a quieter year for judicial review of merger cases. Nevertheless, 2004 has seen judgments and opinions that further develop EC merger control law, albeit largely on procedural points. On the substantive side, Advocate General Tizzano delivered his opinion1 in the appeal against the judgment of the Court of First Instance (‘CFI’) in the Tetra Laval case, where he focused on the standard of proof required in Commission merger decisions and the scope of permissible judicial review of those decisions. The eagerly awaited judgments of the European Court of Justice (‘ECJ’) in the Tetra Laval case3 and also of the CFI in GE’s challenge to the GE/Honeywell prohibition4 and in WorldCom/MCI5 will provide further guidance on the scope of judicial review, as well as on the substantive appraisal of mergers. In the meantime, the Commission has pressed forward with its overhaul of the EC merger review system. Whilst these reforms were initiated with the publication of the Green Paper prior to the defeats sustained by the Commission at the CFI, the need for reform became clear as a result of the dramatic events of 2002. With the reforms it has now put in place, the Commission is hoping to address some of the criticisms voiced in recent years.


Antitrust and Trade Regulation

Date of this Version

September 2004