Rebalancing EC Merger Control: The ECJ’s Judgment in Case C-413/06 P (Bertelsmann and Sony)

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Simon Hirsbrunner, Christian Köckritz, Jul 28, 2008

On July 10, 2008, the European Court of Justice overturned the European Court of First Instance’s Impala judgment, which had previously quashed the European Commission’s clearance decision of the Sony/BMG merger. Even though the ECJ judgment contains no groundbreaking novelties, it brings some important clarifications with regard to a number of procedural and substantive issues of EC merger control law. The judgment is of particular interest because the ECJ commented for the first time on the CFI’s Airtours criteria for the establishment of collective dominance. With regard to procedural issues, the ECJ largely restores the pre-Impala situation and reduces the uncertainty and imbalance caused by the CFI’s judgment as to the importance of the statement of objections (“SO”), the conduct of merger control proceedings before and after the adoption of a SO, and the standard of proof and of adequate reasoning that the Commission has to respect when drafting merger control decisions. This article briefly examines the findings of the ECJ in its Bertelsmann and Sony judgment.