Efficiencies are a component of the overall appraisal of a merger under EU merger control. They may be balanced against the anti-competitive effects and convince the Commission that a merger would not harm consumers. While efficiencies are expected to play a central role in the renewed merger control framework of the EU, key questions remain unresolved. The article first zooms in on the challenge of balancing between different types of efficiencies and between different consumers. Particular attention is paid to the notion of consumer groups and its implications for more accurate and inclusive enforcement. Next, the article discusses the balance of evidentiary burdens and clarifies some misconceptions regarding the distinction between the standard of proof and the quality of the evidence. By reviewing the draft text of the new Merger Guidelines in light of existing case-law, the article identifies critical inconsistencies and proposes a more coherent approach for the balancing of efficiencies.
World Competition