The Resurrection of The Application of Article 102 to Mergers and Acquisitions

Article 102 of the Treaty on the Functioning of the European Union prohibits the abuse of a dominant position. The European Commission has generally used this power to sanction dominant companies who have foreclosed rivals and exploited their customers. However, a 1973 European Court judgment, Continental Can, held that acquisitions can also infringe Article 102 where they sufficiently strengthen a dominant position. This article provides a brief history of the application of Article 102 to mergers and acquisitions, and addresses an ongoing preliminary ruling request to the European Court of Justice that considers the relevance of the principle following the introduction of the EU Merger Regulation.

By Richard Pepper & Roque Botas Armero^[1]

Article 102 of the Treaty on the Functioning of the European Union^[2] prohibits the abuse of a dominant position. The European Commission has generally used this power to sanction dominant companies who have foreclosed rivals and exploited their customers. However, a 1973 European Court judgment, Continental Can, held that acquisitions can also infringe Article 102 where they sufficiently strengthen a dominant position.

This article provides a brief history of the application of Article 102 to mergers and acquisitions, and addresses an ongoing preliminary ruling request to the European Court of Justice that considers the relevance of the principle following the introduction of the EU Merger Regulation.

I. EARLY CAS