Protectionism in Merger Control: Is the Process of Merger Control Adequate to Consider Wider Public Interest Issues? Is it Now Time for CFIEU?

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Timothy Cowen, Oct 15, 2014

Whether a broader public interest test should apply to merger control has recently been discussed by Alex Chisholm, CEO of the U.K. Competition and Markets Authority, after being raised at Prime Minister’s questions during Pfizer’s attempt to acquire Astra Zeneca. Similar issues also arose this year in France regarding General Electric’s bid for Alstom. They are not isolated incidents and follow cases in many other jurisdictions that have come up over the years. They remind us that merger control by competition authorities is not the only source of control over mergers, and that public policy issues on mergers, and grounds other than competition grounds, do not go away.

At the outset it is important to note that EU merger control is currently designed to investigate and assess competition issues. The legal tests against which the mergers are judged are based on competition law concepts such as whether the proposed merger would strengthen dominance in a relevant market or significantly impede effective competition. The people who administer the system, and those who work for merging parties, complainants, and others affected by mergers, have developed considerable expertise in the law and economics used to assess and determine whether a merger meets these tests. As a one-stop shop, the Commission only has exclusive jurisdiction to decide on competition grounds. Non-economic…

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