The Commission’s Non-Contractual Liability in the Field of Merger Control “Don’t Use a Hammer When You Need a Screwdriver”

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Nicolas Petit, Miguel Rato, Jun 30, 2007

Introduction

It has become conventional wisdom to view the rulings handed down by the Court of First Instance (CFI) in Airtours, Schneider, Tetra Laval and Impala as unprecedented setbacks for the European Commission (the Commission) that would usher in a new era of administrative accountability in the field of merger control. However, several commentators still consider  and lament  that the Commission enjoys a de facto power of “life or death” over notified mergers, and that judgments striking down its decisions are unlikely to change much in practice. Parties to a blocked merger generally abandon their projects following the Commission’s decision, irrespective of the outcome of the actions they may subsequently bring before the European Community (EC) Courts (e.g. the Airtours/First Choice or Schneider/Legrand mergers). Third parties  -competitors or consumers – to an illegally approved merger have little prospect of inducing the Commission to unscramble a consummated transaction (e.g. the Sony/BMG merger).

This unsatisfactory state of affairs has led practitioners to explore other legal avenues to hold the Commission accountable for its mistakes. One such possible means of redress is to resort to Article 288 EC which provides that the EC shall “make good any damage caused by its institutions.” Where an EC institution such as the Commission is found liable …

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