Antitrust Code by Concurrences

In this new episode, William E. Kovacic (GWU Law School), in discussion with François-Charles Laprévote (Cleary Gottlieb) and Antoine Chapsal (Analysis Group), closed the Global Merger Control Conference that occurred in Paris on the 26th of June 2026. If you would like to read more about this conference, see speakers' photos and/or videos, check this page.

KEY TAKEAWAYS

The Evolving Role of Competition Authorities in Industrial Policy and Innovation

- Competition authorities are well placed to advise governments on industrial policy, drawing on their expertise in market dynamics, competition and industry evolution.

- Their role should primarily be to inform public policy decisions rather than incorporating broader political objectives directly into merger enforcement.

- Expanding competition law to pursue multiple policy goals increases political influence over enforcement and may undermine the independence of competition authorities.

- Broad enforcement discretion should be accompanied by greater transparency, clear reasoning and robust disclosure to preserve accountability and legal certainty.

- The influence of merger guidelines ultimately depends on consistent implementation, persuasive economic analysis and the development of case law.

- Assessing innovation and dynamic competition requires multidisciplinary expertise extending beyond law and economics to include technical and sector-specific knowledge.

- Competition authorities need stronger analytical capabilities, better data and greater resources to address increasingly complex regulatory responsibilities.

- Effective competition enforcement in innovation-driven markets depends not only on sound legal frameworks but also on sustained institutional investment and technical expertise.

DOCUMENTATION

Paul Gilbert, Ricardo Zimbron, Anders Jay, Nicholas Levy, The UK Competition Authority clears the merger between 2 major telecommunications companies subject to behavioural commitments (Vodafone / Three), 5 December 2024, e-Competitions December 2024, Art. N° 122350.

UK Competition Authority, The UK Competition Authority clears a merger in the telecommunications market subject to legally binding commitments to roll out a combined 5G network (Vodafone / Three), 5 December 2024, e-Competitions December 2024, Art. N° 122329.

Veronica Roberts, Kristien Geeurickx, Christon Shenolikar, The UK Competition Authority launches a consultation on the revised merger remedies guidance, 16 October 2025, e-Competitions October 2025, Art. N° 129345.

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In this new episode, Guillaume Loriot (DG COMP) and William E. Kovacic (GWU Law School), in discussion with Séverine Schrameck and Frédéric de Bure (Cleary Gottlieb), opened the Global Merger Control Conference that occurred in Paris on the 26th of June 2026.

If you would like to read more about this conference, see speakers' photos and/or videos, check this page.

KEY TAKEAWAYS

Guillaume LORIOTDeputy Director General for Mergers, DG COMP, Brussels

Pre-Notification Efficiency Engagement: A New Commission Mindset

- Parties are encouraged to raise efficiency arguments from pre-notification; the Commission can then signal what it will scrutinize most closely.

- Understanding the deal rationale has always been standard practice, but is now pushed more actively in complex or borderline cases.

- Consistency is key: what parties tell shareholders must align with what they present to the Commission.

- Two recent cases illustrate the approach: an aircraft maintenance JV (pooling synergies across global repair sites) and a case in Portugal, where efficiency arguments were engaged with at an early stage.

- In both cases, no competition concerns ultimately arose, but early engagement proved useful regardless, particularly for testing whether the claimed benefits resonated with customers.

- Analysis at this stage is necessarily lighter than in Phase 2, but provides a first market-grounded read on whether the claimed benefits are credible.

- Early engagement is not one-sided: it also disciplines parties to come with a coherent and consistent story, aligned across shareholders, boards, and the Commission.

- The goal is not to facilitate clearance: it is to rigorously assess arguments from the outset, requiring substantiated and internally consistent submissions.

- This shift in mindset reflects a broader reset: the Commission is willing to engage, but expects parties to come prepared with concrete, verifiable elements from the outset.

William E. KOVACIC

Professor, GWU Law School, Washington D.C.

Ex Post Review: Building Institutional Memory in Merger Control

- After-the-fact reviews of agency decision-making are underused and should become standard practice.

- The goal is not to prepare elaborate quantitative studies, but to conduct structured reviews of the reasoning and assumptions that drove decisions.

- Access to internal files reveals where judgment calls were made and what lessons can be drawn for future cases.

- This creates pressure to write honest, substantiated memos at the time rather than retreating into vague generalities.

- Transparency at the time of the decision is what makes ex post review meaningful; you can only learn from what was properly documented.

- The United Launch Alliance clearance illustrates the value: a 2-to-1 deal cleared under DoD pressure, but documented transparently.

- That documentation later proved instructive when assessing what the SpaceX alternative ultimately delivered.

- The SpaceX example shows that documenting risks and alternatives at clearance stage can shape smarter policy choices down the line.

- Ex post review builds institutional memory, particularly valuable as agencies face a growing range of considerations.

- Agencies should ask not just whether a decision was legally sound, but whether the assumptions behind it held up over time.

- The 50th anniversary of Hart-Scott-Rodino this September 30th is a timely moment to ask whether premerger notification still delivers the right information at the right time.

 

DOCUMENTATION

Sally Evans, Lori Parcel Taubman, Merger Remedies: A Comparison of Recent Developments in the UK, EU and US, 6 March 2026, e-Competitions Merger Remedies, Art. N° 131555.

Alejandro Guerrero, Ombline Ancelin, Riccardo Pennisi, Ekram Belhadj, Martin Gramsch, Pablo Moro Valbuena, Laura Cortés López, The EU Commission adopts guidelines clarifying the application of the Foreign Subsidies Regulation across mergers, investigations and public procurement, 9 January 2026, e-Competitions January 2026, Art. N° 131082.

Théo Mayer, European industrial policy and merger control: The hypothesis of a right of appeal for the Council of the European Union to address the new challenges of globalization, 1 December 2025, Concurrences N° 12-2025 , Art. N° 130220.

Christian Bergqvist, David Bosco, Stephen Dnes, Bowman Heiden, Constance Helfat, Frédéric Jenny, Peter Klein, Nicolas Petit, Luc Soete, David Teece, Designing EU merger policy for competitiveness and growth, 3 November 2025, Concurrences N° 11-2025, Art. N° 129509.

Étienne Chantrel, Alexis Walckiers, Can we afford to keep ignoring out-of-market efficiencies in the merger control guidelines after the Draghi report? Insights from sustainability agreements, 3 November 2025, Concurrences N° 11-2025, Art. N° 128941.

Sergio Baches Opi, Gun jumping in mergers: An overview of EU and national case law, 31 October 2025, e-Competitions Gun jumping, Art. N° 128786.

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In this new episode, Charles Beller (U.S. Department of Justice) and Ricardo Zimbron (Cleary Gottlieb Steen & Hamilton) closed the International Merger Conference that occurred in London on the 4th of June 2026.

If you would like to read more about this conference, see speakers' photos and/or videos, check this page.

KEY TAKEAWAYS

Merger Control Policy Shifts and the Role of Efficiencies in the US Framework

- Merger enforcement in the US is driven primarily by competitive effects analysis rather than formal efficiency offsets.

- Efficiencies are still considered, but they do not operate as a standalone legal defence against anticompetitive harm.

- The 2023 Merger Guidelines aim to align enforcement practice more closely with established case law and judicial precedent.

- Courts ultimately decide cases, meaning agencies must prove harm before a neutral fact-finder rather than rely solely on guidelines.

- Efficiencies may still matter as part of rebutting a prima facie case, but they rarely determine outcomes alone.

- The US system prioritizes litigation strategy and evidentiary burden over guideline-driven decision-making.

- Enforcement remains focused on dynamic competitive effects, including entrenchment and barriers to entry in evolving markets.

- Recent policy shifts reflect continuity in analytical tools, but differences in how they are applied depending on the Administration.

DOCUMENTATION 

US Department of Justice Antitrust Division, The US DoJ requires a cement company and its subsidiary to divest 3 ready-mix concrete plants to proceed with a $712M acquisition, subject to divestiture to a local building materials operator (Taiheiyo Cement / CalPortland / Vulcan Materials), 21 May 2026, e-Competitions May 2026 - IV, Art. N° 134996

US Federal Trade Commission, The US FTC conditionally clears an $848M acquisition between the 2 largest micromarket kiosk providers, requiring divestiture of a competing business and imposing non-discrimination interoperability obligations (365 Retail Markets / Cantaloupe), 1 May 2026, e-Competitions May 2026, Art. N° 134587

US Federal Trade Commission, The US FTC reaches a preliminary settlement with a Texan services provider to restore competition following a decade-long roll-up acquisition scheme (US Anesthesia Partners), 23 April 2026, e-Competitions April 2026, Art. N° 134382

US Federal Trade Commission, The US FTC opens a public consultation on a request to set aside a 2018 merger consent order in the solid rocket motor sector citing market changes and defence priorities (Northrop Grumman / Orbital ATK), 2 April 2026, e-Competitions April 2026, Art. N° 133970

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In this new episode, Annemiek Wilpshaar (DG COMP), Joel Bamford (UK CMA) and Jackie Holland (Cleary Gottlieb) opened the International Merger Conference that occurred in London on the 4th of June 2026.

If you would like to read more about this conference, see speakers' photos and/or videos, check this page.

KEY TAKEAWAYS

Joel BAMFORDExecutive Director, Mergers, UK Competition and Markets Authority, London

CMA Merger Guidance Update – Efficiency, Innovation, and Convergence with EU Approach

- The update is part of a broader 18-month programme focused on clarity, predictability, and pace, covering process, remedies, and now efficiencies.

- The core legal test is unchanged: efficiencies must be merger-specific, timely, likely, and sufficient to offset anti-competitive effects, supported by verifiable evidence.

- The guidance provides more detail on how efficiencies are assessed in practice, with more examples and earlier engagement encouraged from pre-notification onwards.

- Dynamic efficiencies fit within the existing framework, but with explicit recognition that benefits may materialise later, calibrated to innovation cycles.

- Merger specificity is assessed against what is commercially rational, not merely theoretically possible.

- Firms feared that raising efficiencies would cause harm or risk an efficiency offence; the guidance normalises early engagement and confirms that such offence cases are rare.

- Entrenchment, portfolio effects, and ecosystem theories are familiar concepts reframed, with outcomes driven by case-specific evidence.

- The CMA reviewed Booking/eTraveler on similar theories to the EC but reached a different outcome, showing that a shared framework does not guarantee identical results.

- The CMA uses Relevant Customer Benefits to consider wider sustainability and resilience outcomes, but stresses that firm, market, and supply chain resilience are distinct concepts.

- The UK’s public interest intervention test provides a separate route for non-competition considerations, applied in banking and during the COVID pandemic.

- The CMA maintains close working relationships with the EC, DOJ, FTC, and other global agencies, with regular bilateral engagement well beyond major conferences.

Annemiek WILPSHAAR Head of Unit, Markets and cases II, Mergers, DG COMP, Brussels
EU Merger Guidelines – Modernisation, Efficiency, and New Theories of Harm

- The update reflects 20+ years of case practice and responds to the Draghi/Letta reports on Europe’s competitiveness and productivity gap.

- The core objective is to help European companies scale up and compete in global markets, not just to update enforcement rules.

- New guidelines shift from a static, category-based approach to a more dynamic, forward-looking framework centred on market power and rival reactions.

- For the first time, the Commission explicitly signals that "big is not bad" and that mergers can generate pro-competitive benefits.

- A new "theory of benefits" concept requires parties to substantiate efficiency claims with concrete economic mechanisms rather than general statements.

- Direct efficiencies (immediate cost savings, quality gains) are distinguished from dynamic efficiencies (longer-term innovation benefits), with more flexibility on timing and quantification for the latter.

- Entrenchment concerns apply only to dominant firms in markets with network effects or customer inertia, where the acquired asset is closely related to the dominant firm’s product and important to effectively compete and unique.

- Portfolio effects now cover brand loyalty, customer overlap, and cross-product negotiation behaviour (Mars/Kellanova).

- Access to commercially sensitive data is confirmed as a standalone theory of harm (UMG/Downtown).

- Early engagement is strongly encouraged, particularly on innovation-related claims, as the underlying evidence typically sits with the merging parties.

- International coordination with agencies such as the ICN and OECD is routine, especially on global markets, remedies, and purchaser alignment.

DOCUMENTATION

Peter Alexiadis, Konstantinos Lampropoulos, EU competition policy through an industrial policy lens: Adapting to the post-Draghi world, 1 January 2026, Concurrences N° 1-2026, Art. N° 130944

Olivier Guersent, More competitiveness with less competition… seriously?, 1 June 2026, Concurrences N° 6-2026, Art. N° 135190
Peter Alexiadis, Konstantinos Lampropoulos, EU competition policy through an industrial policy lens: Adapting to the post-Draghi world, 1 January 2026, Concurrences N° 1-2026, Art. N° 130944

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In this new episode, Bernardus Smulders (Court of Justice of the European Union) and Jérôme Philippe (Freshfields) opened the Private Enforcement in the EU Conference that occurred in Paris on the 2nd of April 2026.

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Key takeaways of Bernardus Smulders (Court of Justice of the European Union) speech "Recent CJEU Case Law on Private Enforcement: Structure, Limits and Emerging Trends":

- The Court’s case law structures private enforcement around four key areas: third-party funding, limitation periods, jurisdiction and applicable law, and access to evidence.

- On third-party litigators, the Court holds that national rules cannot block claim assignments where no effective alternative exists and individual actions are excessively difficult.

- On limitation periods, the Court requires that time limits do not start before the infringement has ended and before the victim can reasonably know the key elements of the claim.

- In Nissan, the Court clarifies that the limitation period starts only once the national authority’s decision becomes final, since only then does it bind national courts.- On jurisdiction, the Court adapts traditional rules to collective and digital cases by allowing courts to rely on the affected market as a whole.

- In multi-defendant cases, jurisdiction can be centralized if claims are closely connected in order to avoid inconsistent judgments.

- On access to evidence, the Court introduces a flexible plausibility test that requires a credible claim while preventing abusive disclosure requests.

- Overall, the case law shows a consistent reliance on the principle of effectiveness and a growing role of the Court in clarifying gaps in EU legislation.