EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The purpose is simple – merger control is a “prior” ( ex ante ) tool, allowing the achievement of a certain amount of control over the market in advance, i.e., before the market is actually distorted by too strong of players created by an “uncontrolled” merger. To reach this goal, the authority assesses (aims to assess) hypothetic consequences of the merger in the future. Therefore, the goal here is obvious, to assess if such merger can result in a threat to competition or not. In case the answer is yes, then to either forbid such merger at all or to impose various obligations on merging competitors – both effectively helping in keeping the market more balanced (ideally in the end bringing benefits not just to other competitors but also to the consumers – as they could also profit from healthy competition on the relevant market – typically by being able to get cheaper or more quality goods (Faull, Nikpay, 2007, pp. 467–468). The authority is supposed to evaluate and compare the individual economic benefits of the intended transaction, the probability of their effects, longevity or short-term, identify their beneficiaries and, last but not least, compare the claimed benefits with the likely negative impacts (Bejček, 2010, p. 509). The aim of this text is not to provide any sort of insight into the competition law in general, so (with some exceptions, please see below) it would not discuss basic definitions used in describing competition law topics (such as “ competitor/ undertaking” (Kindl, 2006, p. 339) or “ relevant market ”), nor provide a complex overview of the respective legal sources (such as Czech and EU laws). Also, the general assessment is mostly from the Czech (and rarely EU) law viewpoint, as for example US antitrust laws are still very different despite many recent changes towards greater unification. The basic hypothesis of this paper is the fact, that assessment of mergers by the respective authorities are more based on “economics” which can be actually measured, assessed, and compared rather than “law”, being often quite vague and depending on interpretation concerning important definitions. 2. Merger First of all, it has to be mentioned, that in general, mergers are a standard corporate law practice, not necessarily automatically inducing any illicit behaviour, and as such, not all of them are subject to any sort of antimonopoly review. The definition of merger under Czech law is being a significant and very important part of this text. The main types of activities (being defined as mergers), described by the Czech Act No. 143/2001 Sb., Antitrust Act, as amended, are as follows: a) Merger of two or more previously independent competitors in the market (in the form of an absorption or amalgamation (UOHS, 2010); b) Acquisition of another competitor’s business or part of it (asset deal);

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