Efficiency Defence in the Merger Control Regimes of EC and Republic of Serbia: A Comparative Perspective

Abstract

Following the adoption of the new EC Merger Regulation and the Commission’s guidelines on the assessment of horizontal and non-horizontal concentrations, the issue of efficiencies and their role in the merger control were subject of heated debates among academics and practitioners in this field. Failures of the Commission to defend its theories of competitive harm before the Community courts, which resulted in the annulment of the several prohibition decisions, raised doubts regarding successful incorporation of the efficiency defence in the EC merger control. Present work provides a critical analysis of the methodology and legal standards related to the application of the efficiency defence in assessing proposed concentrations and their effect on the competition. It suggests several possible mechanisms that would facilitate application of the efficiency defence, which is also applicable to the merger control in Serbia, where national competition authority is in the process of developing its methodology of merger assessment. Author advocates further development of economic methodology and legal standards in order to increase legal certainty and predictability of the merger control