Bertelsmann and Sony Judgment: Welcome Clarity for EC Merger Review from the EU’s Highest Court

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James Aitken, Rachel Brandenburger, Thomas Janssens, Jul 28, 2008

On July 10, 2008, the European Court of Justice gave judgment setting aside a ruling of the European Court of First Instance in an appeal brought by Impala, a third-party complainant, against the clearance of the SonyBMG joint venture by the European Commission in August 2004. The CFI’s judgment was the first (and so far, the only) time the CFI had overturned an unconditional merger clearance decision under the EC Merger Regulation. As the ECJ Advocate General noted, the appeal presented the EU’s highest court with an opportunity to develop its case law in the field of merger control, in particular with regard to the extent of investigation and reasoning required of the Commission when it approves a merger transaction. Merger cases are only rarely considered by the ECJ and this judgment, which was delivered by a Grand Chamber of 13 judges, has emphasized a number of important procedural safeguards for parties to mergers, which had been called into question by the CFI’s earlier ruling.

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The main issues the ECJ considered were: (a) the standard of proof applicable to European Commission merger clearance decisions; (b) the nature and role of the SO in merger investigations; (c) the extent of the Commission’s duty to give reasons in merger decisions; (d) the intensity of the review to which the Commission’s merger decisions are subject; and (e) the legal test applicable to coordinated effects. This article reviews each of these issues in turn and considers the importance of the ECJ’s ruling. Subscribers can download the entire article available in the column on the left.