ZWeR 2020, 1

RWS Verlag Kommunikationsforum GmbH & Co. KG, Köln RWS Verlag Kommunikationsforum GmbH & Co. KG, Köln 2199-1723 Zeitschrift für Wettbewerbsrecht ZWeR 2020 AufsätzeTilman Kuhn*

The 15th anniversary of the SIEC test under the EU Merger Regulation – where do we stand? (Part 1)

On May 1, 2019, 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”)1, celebrated its 15th anniversary. The Commission has taken more than 5,000 decisions in merger2 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.).

Given the scope of the ground covered, this article is split into two separate parts over two separate volumes of this journal, with Part 1 in this volume covering sections I. and II., as well as part III. with regard to horizontal mergers and a brief summary in this respect. Part 2 of the article will then continue section III. with non-horizontal mergers, and finish with sections IV. through VI.

I. Brief History of the SIEC test
II. The pertinent burden and standard of proof
III. Theories of harm captured under the SIEC test in the Commision’s practice
- 1. The “classics” – horizontal mergers in oligopolistic markets, unilateral effects
  - 1.1 The creation or strengthening of a single dominant position
  - 1.2 SIEC without the creation or strengthening of a single dominant position
    
    1.2.1 Merger with a close competitor
    
    1.2.1.1 Basic principles
    
    1.2.1.2 Closeness of competition assessment under the dominance standard
    
    1.2.1.3 Use under the SIEC test in cases where market shares would have indicated that dominance was likely
    
    1.2.1.4 Use in cases where dominance was unlikely
    
    1.2.1.5 Closeness of competition in small segment but remedy requires removal of entire overlap
    
    1.2.1.6 Use in homogeneous product markets
    
    1.2.1.7 Summary
    
    1.2.2 Removal of an important competitive force
    
    1.2.2.1 Basic principles
    
    1.2.2.2 Application in practice under the SIEC standard
- 2. Horizontal mergers – coordinated effects
  - 2.1 The Airtours Standard
    
    2.1.1 Transparency
    
    2.1.2 Sanctioning mechanism/retaliatory measures
    
    2.1.3 Sustainable coordinated behavior
  - 2.2 Criteria according to the Horizontal Mergers Guidelines
  - 2.3 Case-law
- 3. Particularly creative theories of harm – horizontal mergers
  - 3.1 The assessment of a merger’s impact on innovation competition
    
    3.1.1 The evolution of the Commission’s innovation competition assessment: product-to-pipeline and pipeline-to-pipeline competition with increasing relevant timeframes
    
    3.1.2 The revolution of the Commission’s innovation competition assessment: “industry level” innovation theory of harm
  - 3.2 Killer and “zombie” acquisitions
  - 3.3 Portfolio dominance
  - 3.4 Issues (allegedly) arising from common minority ownership in an industry
    
    3.4.1 The basic antitrust concern
    
    3.4.2 The views expressed by economic and legal scholars
    
    3.4.3 Criticism by other scholars
    
    3.4.4 Case-law
- 4. Summary on horizontal mergers and outlook

*: *)
Dr. iur., LL.M. (Amsterdam), Rechtsanwalt, Düsseldorf.
The views expressed in this article are the author’s personal views.
1: 1)
Council Regulation 139/2004 of January 20, 2004, on the control of concentrations between undertakings, 2004 O.J. L24/1.
2: 2)
For simplicity, this article uses the term “merger” to cover all types of concentrations pursuant to Article 3 EUMR.