NEW PAPER | Judicial review in EU merger control: towards deference on issues of law?
I have just uploaded on ssrn (see here) a new paper on judicial review in EU merger control. I am delighted that the paper is forthcoming in European Law Open, a new, fully open access journal run by a group of leading EU law scholars.
In light of recent case law, the paper addresses an eternal debate in EU merger control: whether, and if so how, one can disentangle issues of law (which are subject to full review in the EU legal order) from complex economic assessments (controlled for manifest errors).
The question (which has both a constitutional and a competition law dimension) is whether the two standards of review can co-exist or whether, in practice, one will inevitably exercise its gravitational pull over the other.
It seems to me that this debate is particulaly relevant at a time of technological and economic change. It has been suggested that, in this new reality, the administrative authority would benefit from greater leeway to experiment and take risks to tackle unprecedented substantive issues. The paper discusses the impact that such rebalancing of powers could have on the merger control regime.
I look forward to your comments on it (as usual, nothing to disclose).
Chillin'Competition 
I have to say that I struggle to understand why you think that “particularly close” and “particularly important” set up a “hard substantive boundary” while the test of “significant” does not. I would think that the main/only difference between the GC judgment and the ECJ judgment is that the GC gave merging companies the benefit of the doubt in various ways.
martinned
31 March 2025 at 12:22 pm
It would be wonderful to find the time and place to discuss these points, which I address extensively in the paper. Thanks so much for sharing your thoughts.
Pablo Ibanez Colomo
31 March 2025 at 3:48 pm
Thank you for this insightful article on judicial review in EU merger control. I found the emphasis on the evolving deference to legal interpretation within the European courts particularly thought-provoking, especially given its implications for future merger assessments. Building on your discussion, it’s worth mentioning that the trend towards judicial deference could have significant ramifications on how mergers are evaluated, particularly in industries undergoing rapid technological change, such as tech and pharmaceuticals. For instance, more lenient judicial reviews might expedite the approval process for mergers that could enhance innovation but face scrutiny over potential anti-competitive effects. This raises the question of whether such a balance can truly be struck, or if it risks favoring large entities at the expense of smaller competitors. Furthermore, it’s interesting to note that as the EU continues to adapt its regulations in response to global competition, the judicial review process may need to embrace more flexible standards that accommodate the complexities of modern markets. Given these considerations, how do you think changes in judicial review might impact the competitive dynamics within the EU, particularly in sectors characterized by rapid innovation?
Michael --Mandamus lawsuit Lawyer
23 April 2025 at 6:59 pm