'Merger Cases in the EU Courts'

Publication: Scientific journalJournal articlepeer-review


The number of EU court cases on questions of merger control to date is rather limited. This is due to, among other things, the time required for judicial review, which does not typically relate well to the fast-paced nature of M&A transactions, the fact that few transactions actually ever threaten to create a dominant market position or otherwise lessen competition in the market, and the thorough and focused review by expert European Commission case teams. Indeed, as of today, only a total of 74 merger cases have been brought before the General Court, and only 15 of those cases were appealed to the Court of Justice. In total, 17 cases were successful before the General Court, and six cases before the Court of Justice. In addition, the Court of Justice has considered merger control questions in three stand-alone cases and in two preliminary rulings so far.1 <br/> <br/>Merger decisions are taken on the basis of the EU Merger Regulation (and its predecessors).2 Prior to the introduction of the EU Merger Regulation, the Commission took merger decisions based on, what are today, Articles 101 and 102 TFEU.3 While the EU Commission’s merger review is subject to strict timelines, the judicial review process typically takes several years in each instance, and even a decision on interim measures will take at least 6 months, if not longer. This means that an answer from the EU courts will only become available long after the Commission decision. Most parties do not consider this worth the cost and effort involved in an appeal. Moreover, the EU courts have long respected the Commission’s margin of appreciation when assessing merger cases, making it very difficult to win a challenge. That being said, more recently, it would seem that the EU courts have scrutinised Commission decisions in a lot more detail, providing perhaps some level of encouragement to parties considering an appeal.
Original languageEnglish
Pages (from-to)3 - 21
JournalJournal of European Competition Law and Practice
Issue number1-2
Publication statusPublished - 2020

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