A Re-awakening of the Failing Firm Defense in the EU in the Aftermath of COVID-19?

By Dr. Assimakis Komninos, Jan Jeram & Iakovos Sarmas (White & Case LLP)1

 

Introduction – The Broader Challenges of Merger Control

The ongoing COVID-19 global crisis and the expected downturn in the global economy will certainly affect competition law enforcement. While we do not expect any fundamental revisiting of the dogma underpinning competition law, there will be some challenges of both a procedural and substantive nature.

Most of these challenges in the short and medium term will be felt in the area of merger control, due to the very nature of merger control itself. Unlike antitrust enforcement, which is focused on dealing with past conduct, so that a substantial amount of time naturally passes between the conduct at issue and the investigation and the possible decision, in mergers the time horizon is shorter and the analysis is forward-looking. In addition, while competition authorities enjoy discretion as to which antitrust cases to bring and when, the system of merger control is broadly based on the timing and initiative of private parties. Competition authorities must deal with notifications and review the mergers submitted to them, or else the lapse of the statutory deadlines will mean that the mergers are cleared.

For these reasons, the current crisis has so far mostly raised concerns on the merger control front (if we leave State aid control aside). After the initial shock of the first days of the lockdown, it seems that the European Commission…

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