Non-binding opinion finds that General Court erred in applying heightened standard of proof to cases involving unilateral effects in oligopolistic markets.
The Case and the Opinion
On October 20, Advocate General Kokott issued her opinion[1] on the European Commission’s appeal to the Court of Justice (“ECJ”) of the General Court’s landmark May 2020 judgment overturning the Commission’s prohibition of the Three/O2 UK mobile telecommunications merger.[2] The opinion advises the ECJ to uphold the Commission’s appeal on all main grounds and refer the case back to the General Court for reconsideration.
The case represents the first opportunity for the ECJ to rule on the concept of “significant impediment to effective competition” (“SIEC”) as it relates to non-coordinated (unilateral) effects in an oligopolistic market – precisely the sort of “gap case” that the EU Merger Regulation’s 2004 change from the dominance test to the SIEC test was intended to capture.
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