Oct 21st 2017, 21:20

THE LEGAL AND ECONOMIC RAMIFICATIONS AND HAZARDS OF THE URGE TO MERGE:
EXAMINED IN THE EUROPEAN CONTEXT

An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers
and Reviews Editor, “The Barrister”

For corporate lawyers, especially those embroiled in advising on competitive – and/or anti-competitive practices, the familiar term usually used in transatlantic parlance is ‘monopolies and mergers’. As its title indicates, however, this book focuses on the latter, specifically in the European context.

Recently published by Sweet & Maxwell, long-established title has now come out in a new fifth edition, which certainly attests to its reliability and authority. Scholarly, thorough, technical and precise, the two authors Alistair Lindsay and Alison Berridge elucidate and examine in detail the complexities of its broad-based subject matter.

A key consideration throughout is ‘market power’, which can be defined in a number of ways, but whatever the definition, mergers can have profound effects on market power, inevitably either undermining it, or enhancing it.

In the view of the authors, market power manifests itself as something of a duality which may be categorized basically in two ways: original market power and exclusionary market power.

‘Original’ market power is achieved when a company, (alone or with other suppliers) is able either to increase price, or quality, or variety, or possibly innovation relative to the prevailing competitive level, usually for a prolonged period.

‘Exclusionary’ market power does much the same thing, except that one or more of the company’s competitors may be excluded or marginalized, giving the company what anyone would call unfair competitive advantage.

Much of the book is, in the words of the authors, ‘devoted to determining whether a merger will create or enhance original or exclusionary market power’ with a view to explaining ‘the trade-off’ between market power and efficiency.

The objectives here centre on analyzing the treatment of substantive issues under the EU Merger Regulation and the objectives underlying it. The goals of antitrust policy, say the authors, must be made clear if said policy is to be applied coherently -- and the comment is also made that as the law and practice of EU merger control has continued to evolve, this latest edition examines extensively and in detail -- the key cases that have emerged since the previous edition was published.

The book excels as a source of references for further research, as is evident from the massive amount of footnoting alone. Also note that there are four tables that EU lawyers and UK lawyers too (either pre, or post-Brexit) will doubtless find indispensable – and here’s the list: Treaties, Secondary Legislation and Notices… Guidelines… Decisions of the Court of Justice of the EU… and European Commission Merger Decisions.

As you may infer, this book covers a vast area of scholarly enquiry where law and economics are inextricably intertwined. It offers impressive coverage of a formidably wide range of issues pertaining to mergers within the EU and deserves pride of place in every well-stocked law library.

The publication date is cited as at 23rd June 2017.