ABSTRACT
This book aims to address the economic phenomenon of mergers that might result in non-coordinated effects in oligopolistic markets. Such cases are sometimes referred to as “non-collusive oligopolies”,1 and the fear that they might not be covered by the substantive test in the original EC Merger Regulation, Regulation 4064/89 (“ECMR”),2 led to their sometimes being called “gap” cases. The book will examine the argument that the original regulation did not capture gap cases and will consider the extent to which the revised substantive test in Regulation 139/20043 deals with the problem of non-collusive oligopolies. The book will also attempt to identify actual examples of mergers that gave rise to a problem of non-coordinated effects in oligopolistic markets, both in the EU and in other jurisdictions, and will analyse the way in which these cases were dealt with in practice. In some of these cases, there was no explicit articulation of the phenomenon of non-collusive oligopoly; however, at least in the EU, there are now a few examples of mergers where this problem has been specifically identified. The book will also consider various methodological tools available to assist competition authorities and the professional advisers of merging firms to identify whether a particular merger might give rise to anticompetitive effects (for example non-collusive oligopolies) and will also consider the type of market structure in which a merger is likely to lead to non-coordinated effects in oligopolistic markets. The book will conclude that the dominance test was inadequate in capturing non-collusive oligopolies and that the reform of the substantive test was justified and necessary. Although the Council of Ministers, after the European Commission’s (“Commission”) proposal, adopted a new substantive test, which rectifies the gap in the applicability of the dominance test, many member states continue to use the dominance test and thus are likely to experience cases that will lead to anticompetitive effects but will not be caught due to the inapplicability of the dominance test to noncollusive oligopolies.
