More Economics in Assessment of Coordinated Effects: Impala Litigation and Unworkable Legal Standards

Abstract

Recent developments in the competition law jurisprudence in the EU indicate continuous movement towards a more economics-based assessment of the effects on competition in eventually all areas of competition law enforcement. Facing new challenges of increased complexity of the economic theories and economic evidence Commission and Community Courts attempted to develop workable legal standards in order to assure the efficiency and predictability of the competition law enforcement. However, the quest for clearly formulated legal standards wasn’t always productive. Present paper addresses these issues on the example of the assessment of coordinated effects (tacit collusion/collective dominance) under the EC Merger Regulation. Author takes the position that in this particular area of competition law enforcement, search for a general, and catch-all legal standards has in fact delayed the incorporation of the economic assessment in the respective legal procedures. While the impact of the recent Impala litigation remains uncertain, the author argues that it represents an important milestone in the development of economically sound legal standards in this field.