The merger-specificity of efficiencies: ensuring consistency of assessment between regulatory concerns, efficiency claims and remedial commitments

Abstract

Companies pursue mergers and acquisitions as a way to unlock benefits not available to them on a standalone basis. Competition regulators assess such deal rationales both for the purpose of understanding whether a transaction may have detrimental effects on competition and whether any associated benefits may outweigh such concerns. This article analyses the economic rationales that the European Commission has relied on for the assessment of whether efficiency claims are merger-specific and explains how its reasoning also is important for the assessment of any effects the transaction may have on competition. Despite the strict evidentiary standard for merger efficiency claims raising significant obstacles to the success of such claims, demonstrating the merger-specificity of claimed merger efficiencies can therefore nonetheless be valuable as a way to ensure the analytical rigour that may demonstrate that there is no competition issue for any efficiency claim to resolve in the first place or that any such issues can be addressed through appropriate remedies.