Common ownership under the EUMR – Sailing a bit too close to the wind

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The European Commission (“Commission”) concluded in Dow/DuPont (2017) and Bayer/Monsanto (2018) that common ownership must be taken as an element of context in the appreciation of any significant impediment of effective competition under the EU Merger Regulation. It is submitted in this article, however, that the Commission’s position on common ownership in its decisional practice is premature, and raises question marks as to whether the Commission met the requisite legal standard for the use of economic evidence in merger control. Furthermore, in terms of practical upshot, the Commission’s stance in Dow/DuPont and Bayer/Monsanto may (i) render unproblematic cases unnecessarily burdensome and protracted going forward, and (ii) have, and indeed may already have had, an unacceptable chilling effect on pro-competitive transactions. It is therefore imperative in the eyes of the authors that the new Commission soon provide a clear, credible and robust stance on the matter of common ownership.