EU Competition Law by Ariel Ezrachi

Author:Ariel Ezrachi
Language: eng
Format: epub
Publisher: Hart Publishing Ltd
Published: 2018-02-17T16:00:00+00:00

Comment

The Court of Justice overruled the General Court judgment (disregarding the recommendations made by AG Kokott to uphold that judgment). It held that the Airtours criteria cannot be mechanically applied. Note in this respect the General Court’s limited analysis of collective dominance in Case T-193/02 Laurent Piau v Commission. (page 336 above)

The Court of Justice clarified that the Statement of Objections serves as a preparatory document from which the Commission can deviate. The Commission is not required to explain the difference between its final decision and its provisional assessment as stipulated in the Statement of Objections.

Interestingly, the Court of Justice held in para 48 that there is no general presumption that a notified concentration is compatible with, or incompatible with, the internal market. This statement is interesting as it clarifies that there is no presumption in favour of clearance under the European Merger Regulation. The same burden and standard of proof apply to both ‘clearance’ and ‘prohibition’ decisions.

Following the General Court judgment and annulment of the Commission’s decision, the parties re-notified the joint venture to the Commission. In its new assessment of the transaction the Commission was able to take into account current market conditions and to evaluate the actual impact of the transaction on the market following its original clearance decision in year 2004. This meant that the Commission was not limited to a prospective analysis and could examine the present effects of the transaction. In October 2007, at the end of an in-depth investigation, the Commission cleared the transaction without conditions.

Imperial Chemical Industries (ICI) v Commission (Dyestuffs)

Case 48/69

Court of Justice, [1972] ECR 619, [1972] CMLR 557

Conscious Parallelism

Parallel Behaviour

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