EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3G UK / Telefonica Ireland , one of the merging undertakings argued that “the Commission should base its assessment on total welfare rather than on consumer welfare” (para. 637). The analysis of consumer welfare by the EC was not price-centric, as it included other, nonprice values. For example, in Case No. M.6497 – Hutchison 3G Austria / Orange Austria , the Commission took into consideration that a merger “may also imply pursuit by the merged entity of fewer improvements in functionality of the services available than would have applied in the absence of the merger, resulting in consumer welfare losses by mechanisms other than price” (para. 316). As a rule, the Commission analyses the effects of a merger on both “ competition and consumer welfare ” (for example, Case No. M.6570 – UPS / TNT Express , para. 721). However, the EC stated in Case No. M.5253 – Sanofi-Aventis / Zentiva that even in some cases in which the strategy of a merging undertaking may raise concerns of the EC, “whilst there may be a negative effect on competitors, any effect on consumer welfare is ambiguous” (para. 507). In Case M. 7930 – ABP Group / Fane Valley Group / Slaney Foods , the EC emphasised that “ increased buyer power can be beneficial to consumers if the reduction in input prices is passed on to consumers ” (para. 326). Such an attitude of the Commission may confirm the hypothesis that competitors, market structure et cetera are not as important as consumer welfare protection. Only in one, most recent case (from 2020) – Case No. M.9409 – Aurubis / Metallo Group Holding , did the Commission emphasise the value of competition itself. It referred to the EUMR and the Communication from the Commission —Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, 2011, (the “Guidelines”), which do not preclude the EC from intervening in buyer power cases where direct harm to consumers cannot be demonstrated. The Commission indicated that “the legal test of the Merger Regulation is whether the merger can significantly impede ‘competition’, which includes the protection of the competitive process, even if it cannot be demonstrated that such reduction of competition affects consumer welfare” (para. 376). It shows that in most cases the consumer welfare protection was treated as an ultimate aim of the Commission’s analysis. Only in one of 13 decisions referring to the consumer welfare standard did the Commission invoke the value of competition itself. 3.2.2 Freedom to compete, freedom of competition, economic freedom Although “the genesis of the idea of protecting competition was imbedded in the idea of protecting freedom” (Gerber, 1998, p. 17), freedom to compete, freedom of competition and economic freedom are much less emphasised in the European

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