EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. Consumer welfare seems to be at the heart of the EU merger control teleology. As the official EC documents state, “the Commission (…) adopts a consumer welfare standard, clearing mergers only if they are not likely to negatively affect consumers” (European Commission [online], 2006, para. 3.28). The actual welfare standards used in the application of the merger control legislation are strongly biased in favour of consumers (European Commission [online], 2006, para. 3.16). Such an approach contrasts with the total welfare, which includes not only consumer surplus, but also “producer surplus – basically the producers’ profits” (Albæk1, 2013, p. 71). It is believed that consumer welfare maximises total welfare, as it leads to more appropriate and balanced competition law enforcement (Neven and Röller, 2000). Despite the key role of consumer welfare in the merger control teleology, surprisingly only 13 of the Commission decisions from the merger control sector included a reference to this value (Figure 2). No cases before the Court or the CJEU were found on the basis of this keyword. Figure 2: Consumer welfare in the concentration control decisions of the Commission

Source: own study (2022) In the decisions, the Commission analysed whether the transaction at issue would lead to a dominant position of a merging undertaking and therefore raise a concern of a reduction in consumer welfare. In Case No. M.2876 – Newscorp / Telepiu , one of the merging parties adduced that “the Commission [was] clearly correct that such a transaction may create or strengthen a dominant position held by a third party and, accordingly, may harm consumer welfare” (para. 269). However, in Case No. M.6992 – Hutchison

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