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The Standard of Proof in Phase I Merger Proceedings: The Lesson from the Microsoft/Skype Appeal

Kalintiri, A. (2014). The Standard of Proof in Phase I Merger Proceedings: The Lesson from the Microsoft/Skype Appeal. ECLR: European Competition Law Review, 35(6), pp. 279-281.

Abstract

How "certain" must the Commission be that a notified concentration will or will not impede effective competition on the market, if allowed to proceed, before it lawfully adopts a decision prohibiting or authorising it respectively? This question largely synopsises the heart of the heated discussions that the famous trilogy of merger annulments in Schneider Electric, Airtours and Tetra Laval incited. Amidst a general feeling that the evidence expectations of the European Courts had sharply increased, attempts were made to positively identify the standard of proof governing merger analysis.1 The issue is not one to take lightly. In view of the prognostic nature of merger control, what standard of proof the Commission has to satisfy determines not only the practical perception of the "significant impediment to effective competition" test as established in the EU Merger Regulation, but also the legitimacy of its decision-making. In this context, this article discusses the significance of the latest judicial insight into the problem of the standard of proof governing Phase I merger decisions as provided by the General Court in Cisco ’s appeal against the Commission’s authorisation of the Microsoft/Skype concentration.

Publication Type: Article
Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in ECLR following peer review. The definitive published version Kalintiri, A. (2014). The Standard of Proof in Phase I Merger Proceedings: The Lesson from the Microsoft/Skype Appeal. ECLR: European Competition Law Review, 35(6), pp. 279-281 is available online on Westlaw UK or from Thomson Reuters DocDel service .
Subjects: K Law > KZ Law of Nations
Departments: The City Law School > Academic Programmes
The City Law School > Institute for the Study of European Laws
URI: http://openaccess.city.ac.uk/id/eprint/20456
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