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Article 101 and the Merger Regulation: A Single Analytical Framework? (response to C. Esteva Mosso’s Speech Feb. 2016)

Nicholas Levy, The Notion of Restriction of Competition, Bruylant, January 2017

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These brief remarks comment on а paper delivered by Caries Esteva Mosso, the Deputy Director-General for Mergers of the European Commission’s Directorate-General for Competition, at a February 2016 conference organ-ized by the Global Competition Law Center. In that paper, Mr. Esteva Mosso posits that, as a consequence of the EU’s adoption of the significant impediment to competition ("SIEC") test under the Merger Regulation in 2004, together with developments in the analytical framework applied by the Commission under Article 101, "the concepts of `restriction of com-petition’ in Article 101 TFEU and of `SIEG’ in Article 2 of the Merger Regulation are today, arguably, substantially similar." As a result, so he suggests, the Commission’s analyses under Article 101 and the Merger Regulation have narrowed to a point where "a single analytical framework" is applied both to collaborative arrangements falling under Article 101 and to concentrations reportable under the Merger Regulation, thereby resulting in "substantially the same level of intervention."

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