Antitrust Chronicle® – Mergers as Monopolization

Dear Readers,

It has long bubbled under the surface, but there is an inherent tension between the archetypal monopolization/abuse of dominance provisions of global antitrust rules, and the subsequent introduction of merger control legislation.

This is perhaps no more evident than in the parallel sets of rules that hold sway in the two formative antitrust jurisdictions in the world: the U.S. and the EU. Merger control rules, in the form of the U.S. Clayton Act, and the EU Merger Regulation (“EUMR”), respectively, were introduced on the coattails of judicial and regulatory decisions seeking to impose antitrust rules to mergers and acquisitions. Those moves sought to control acquisitive behavior by potentially dominant or “monopolistic” firms, by subjecting such conduct to review under the existing antitrust rules, particularly Section 2 of the U.S. Sherman Act of 1890, and (what is now) Article 102 of  the Treaty on the Functioning of the European Union (“TFEU”). 

The authorities and courts were clearly seeking to fill (what they saw as) a lacuna in the law. But filling this lacuna would prove to be far from a straightforward exercise. The key differences between “antitrust” and “merger control” rules are due not only to the context in which they were enacted, but also to the mechanisms used for their enforcement. What are now known as the “antitrust” rules are enforced ex post, whereas the subsequently-introduced “Merger Control”