Chillin'Competition

The EC has authorized the acquisition of LinkedIn by Microsoft subject to conditions. The press release is available here.  And since I have sneaked out of the office and I’m sitting at the back of the CRA conference (congrats again to Cristina Caffarra and her team for organizing the 2nd most successful free conference in town 😉 ), there is time for a second post today and for a quick comment about this development.

Not having been involved in this case, and since the decision is not yet publicly available, I can’t possibly comment on whether the Commission’s concerns in this particular case were justified or not (we might comment on those once the decision is out).

I do, however, observe a certain evolution in the Commission’s stance, as the concerns addressed by the conditions in this case are strikingly similar (or opposed, depending on how you look t it) to the Commission’s “non-concerns” at the time of the Microsoft/Skype decision. Having been on the losing side in that case (only in the judicial phase; see here for my comments), I can’t help but be surprised at the fact that the Commission defended one theory in its decision and in Luxembourg, was fully endorsed by the General Court and then suddenly makes an apparent 180 degree turn. It would be interesting to see how the decision reasons its concerns, but from a mere reading of the press release it would seem that there is a U turn  concerning the assessment of network effects (see the references to “tipping” in the press release), integration of software, ease of entry and switching and interoperability.

One may only speculate about the reasons for this “new old” stance, which according to some commentators, has to do with other high-profile ongoing cases.

The question therefore is: does this merger decision change anything in the law?  Well, we don’t see how this could be interpreted that way. Like we have noted in other recent cases having to do with unilateral concessions (see here ), the commitments offered by a given party for whatever reason (including financial issues or the desire to speed up a merger authorization), even if made binding, would have no precedent value and certainly cannot prevail over the case law of the EU Courts.

So whether one likes it or not, and unless the Court also decides to fully close the circle endorsing yet another U turn then the Cisco v Commission (Microsoft/Skype) Judgment remains the law of the land.

Again, I certainly am not objective on these issues so I would suggest, as always, that you take everything I say with a pinch of salt and that, when possible, you yourself compare the two decisions  and the Judgment and check whether you see it the same way.