Unilateral Effects: The Enforcement Gap under the Old EC Merger Regulation

The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional "dominance'' test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of "unilateral'' or "non-coordinated'' effects. The old Merger Regulation therefore suffered from a potential "enforcement gap'' that was closed only by the legislative change to the "significant impediment of effective competition'' test. National jurisdictions still using variants of the dominance test may want to consider this aspect in their legislative reform plans.