Do Merger Efficiencies Receive “Superior” Treatment in Canada? Some Legal, Policy and Practical Observations Arising from the Canadian Superior Propane Case

Abstract

In the last few years, the role of efficiencies in merger review has become a topic of great interest within the antitrust community, particularly in light of the recent U.S. Heinz/Beechnut babyfood decision, the European Union GE/Honeywell decision and the Canadian Superior Propane decision (perhaps the most comprehensive review of efficiencies in the context of the creation of an otherwise “anti-competitive” merger). Using the Canadian Superior Propane case as a springboard, the authors examine many of the legal, policy and evidentiary issues that may arise when the parties to a merger seek to argue the pro-competitive and efficiency-enhancing elements of their transaction before a competition authority. In particular, the authors present a comparative review and analysis of the role of merger efficiencies in each of Canada, the United States and the European Union, including the types of efficiencies that may or may not be considered by competition authorities in merger review, the different methods that may be adopted in balancing efficiencies against the anti-competitive effects of a merger, and some of the practical and evidentiary issues faced by merging parties when claiming efficiencies.