The 15th anniversary of the SIEC test under the EU Merger Regulation – where do we stand? (Part 2)

Abstract

On May 1, 2019, the significant impediment to effective competition (“SIEC”) test pursuant to Article 2(2) and (3) of the EU Merger Regulation (Regulation No. 139/2004; “EUMR”), celebrated its 15th anniversary. The Commission has taken more than 5,000 decisions in merger cases under this new standard in the last decade and a half. Therefore, it seems opportune to pause and take stock. Has the introduction of the SIEC test achieved the desired results? Has it been applied according to the legislator’s plans? Does its application need to change going forward?

After a short recap of the test’s history and genesis (I.) and a reminder of the burden and standard of proof (II.), this article reviews the Commission’s decisional practice (and the limited practice of the EU Courts) systematically, and intends to summarize the various theories of harm covered by the SIEC test’s application in practice (III.). Second, it analyzes the decisional practice and draws conclusions as to whether the test’s application in practice is predictable, persuasive, and in line with the legislator’s intent (IV.). Third and last, after some practical and procedural observations (V.), it concludes with a few proposals for improvement (VI.).

Given the scope of the ground covered, this article is split into two separate parts over two separate volumes of this journal, with Part 1 in the journal’s previous volume having covered sections I. and II., as well as part III. with respect to horizontal mergers and a brief summary in this respect.

This Part 2 of the article continues in this volume in section III. with non-horizontal mergers, and finishes with sections IV. through VI.