EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

In case there is an EU dimension, i.e., EU conditions (including much higher thresholds for notifications) are filled, national authority loses competence here and (with certain exceptions – EU Commission can forward the case to the national authority), such a case is then being resolved by EU Commission. In practice there is therefore no case which would subsequently be resolved by both the Czech Antimonopoly Act and the respective EU Regulation (Neruda, 2008, p. 210). Before the merger is approved, the merged competitors may conclude any sort of agreement, but cannot exercise the newly acquired control (i.e., mostly influence decision making of the competitor). 4. A test of potential consequences of a specific merger This chapter is one of the core parts, aiming to provide a greater insight into the actions and deliberations being taken by the competition authority before the decision in the matter is duly issued by such authority. This is in practice being assessed mainly by the “substantive test”, trying to modulate potential impact of the assessed merger of competitors on the existing level of competition on the market in the future (Neruda 2008, pp. 385-393). The test is tightly linked with the abuse of a dominant position, because it was created as a mixture (Bishop, Walker, 2010, pp. 309-312) between test of dominance and SLC test (substantial lessening of competition). The result of the test cannot be a concentration that substantially breaches effective competition on the shared market or a substantial part, especially due to the commencement or strengthening of dominant position (under Czech law incorporated into the Section 17(3) of the Czech Antimonopoly Act) – such a consequence should then result in the merger being denied by the respective competition authority. In fact, the test should be performed in a much “wider” sense, assessing: (i) the current level of competition on the market and its evolution; (iv) their economic and financial power; (v) legal and other obstacles of entry; (vi) possibility to choose suppliers / clients of the merging competitors, (vii) supply and demand on the respective markets; (viii) needs and interests of consumers; and (ix) research and development, being beneficial for the end consumer (and are not obstructing effective competition). (ii) structure of all markets being affected by the merger; (iii) shares of all merging competitors on these markets;

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