Working group on EC's Draft Guidelines on Assesment of Non-Horizontal Mergers

The IBA Antitrust Committee Working Group on the EC’s Draft Guidelines on the Assessment of Non-Horizontal Mergers submitted comments to the European Commission, following the Draft Commission Notice on “Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings” published on 13 February 2007. 

Given the critical role that guidelines assume in structuring and thus shaping the future assessment of merger cases, the Working Group noted that it is of the utmost importance that the Commission’s final Non-Horizontal Merger Guidelines provide clear and predictable guidance, strike the right balance in approaching non-horizontal mergers and send out the correct messages to the business and legal community about the generally benign nature of such mergers, the limited likelihood of anti-competitive concerns arising from such mergers and, by consequence, the limited likelihood of regulatory intervention with regard to such mergers.

In the view of the Working Group, non-horizontal mergers have specific characteristics which necessitate a different approach to that used to assess non-horizontal mergers: (i) non-horizontal mergers are rarely problematic and frequently entail pro-consumer efficiencies, and (ii) economic analysis of non-horizontal is inherently more difficult than the economic assessment of horizontal mergers and intervention requires evidence meeting a particular high standard.

The Working Group has provided comments on the following areas:

•           General comments on the overall approach of the Guidelines

•           Safe harbours

•           The Treatment of efficiencies

•           Foreclosure analysis in vertical mergers

•           Foreclosure analysis in conglomerate mergers

Download the IBA Submission to the European Commission’s Draft  

Download Guidelines on the Assessment of Non-Horizontal Mergers