The European Commission is challenging the judgment handed down by the General Court of the European Union in May 2020 that annulled its decision to prevent Hutchison 3G UK from acquiring Telefónica UK in the mobile sector (Case T-399/16) (see EUROPE 12495/30).
According to the General Court, the European Commission disregarded the standard of proof applicable to the control of concentrations giving rise to non-coordinated effects on an oligopolistic market.
In her opinion on the appeal made against this judgment (Case C-376/20 P), Advocate General Juliane Kokott of the Court of Justice of the EU proposes to set aside the judgment of the General Court and to refer the case back to this same court.
This is the first case in which the Court [of Justice] has had to rule on the concept of “significant impediment to effective competition” where the merged entity lacks a dominant position. It also needs to provide clarification on the standard of proof, which the European Commission is required to meet for the purposes of implementing this concept, and the scope of the review of legality that the EU courts are called upon to carry out.
The advocate general is of the opinion that the relevant test governing the standard of proof required on the part of the European Commission in its (prospective) economic analysis is the ‘balance of probabilities’ or ‘plausibility’ test. This last criterion consists of examining how, in light of the various conceivable chains of cause and effect, the merger in question could give rise to a significant impediment to effective competition. In this case, the scope of judicial review is essentially limited to looking for manifest errors of assessment.
Moreover, irrespective of the type of concentration concerned, there is no justification, according to Mrs Kokott, for requiring a higher standard of proof in the case of concentrations giving rise to ‘conglomerate’ (group of companies belonging to different industry sectors) or ‘collective’ (several legally independent companies acting as a collective entity in the relevant market) type dominant positions.
See the Opinion of the Advocate General: https://aeur.eu/f/3q6 (Original version in French by Mathieu Bion)