We are happy to invite you to attend our second Positive Workshop, which will take place on February 8 2024, at 11:00 at our office in Brussels.

february 8, 2023

Rue Guimard, 9
1040 Brussels

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10:30 – 11:00  |  Welcome and Coffee
11:00 – 12:30  |  Positive Workshop
12:30 – 13:30  |  Lunch

The 2004 Merger Regulation and accompanying Horizontal Merger Guidelines aimed to embrace a more economic or more effects-based approach to merger control. The reform introduced the SIEC test, a paradigm shift from its predecessor, which focused on the creation or strengthening of a dominant position. The new test focused on the impediment of effective competition and aimed to reduce both over- and under-enforcement.

Despite a professed emphasis on evaluating the impact of mergers on customer choice, Positive Competition’s review of post-reform merger cases reveals a persistent struggle of the Commission, as well as of national competition agencies, to fully realise the intended departure from a structuralist approach.

While competition agencies in Europe took advantage of the new test to bring innovative theories of harm in gap cases, they still regularly put a strong emphasis on dominance, often based on simplistic market share analysis (and even on metrics that are not market shares in properly defined relevant markets), without a thorough assessment of the likelihood of significant impediment to effective competition and of the effects on customer choice.

This problem is exacerbated by infrequent appeals and frequent commitments (including in phase I), which foster the agencies’ “self-quotation trap” – a circular referencing to their own decisional practice, unsupported by recent case law.
This workshop focuses on the example of horizontal mergers with local competition, which is a unique example where customers have heterogeneous preferences that can be directly measured. We suggest a new way of looking at things, putting customer choice truly at the centre — a method in line with the Commission’s communications and the reasoning of the Courts.

Positive Competition has recently applied this innovative methodology in a Phase II investigation before the Commission. The workshop discusses the need to develop similar methods and directly assess customer preferences when consumer preferences are heterogeneous. The presentation demonstrates our way of working to bring fresh methodologies to the table whenever there is a need for pioneering solutions.